Delhi High Court
K.Sarojini vs Union Of India And Ors on 28 January, 2014
Author: Manmohan
#60-61
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
60.
+ W.P.(C) 7159/2012
K.SAROJINI ..... Petitioner
Through Mr. Mohit Mathur with Mr. D.K.
Mathur, Advocates
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Neeraj Chaudhari, CGSC with Mr.
Raujyot Singh, Advocate for UOI.
Mr. Yeeshu Jain with Ms. Jyoti Tyagi,
Advocates for R-3/Asst. Collector.
AND
61.
+ W.P.(C) 7160/2012 & CM APPL. 18485/2012
T.P.KARUNKARAN ..... Petitioner
Through Mr. Mohit Mathur with Mr. D.K.
Mathur, Advocates
versus
UNION OF INDIA AND ORS ..... Respondents
Through Mr. Sumeet Pushkarna, CGSC with
Mr. Gaurav Sharma, Advocate for
UOI.
% Date of Decision : 28th January, 2014
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
W.P.(C) Nos. 7159/2012 & 7160/2012 Page 1 of 4
JUDGMENT
MANMOHAN, J: (Oral)
1. Present writ petitions have been filed seeking quashing of the orders
dated 20th November, 2003 passed by Special Director, Directorate of
Enforcement under The Foreign Exchange Regulation Act, 1973 imposing
penalty of Rs. 50 lacs on each of the petitioners.
2. Mr. Mohit Mathur, learned counsel for petitioners submits that despite
respondent no. 2 being aware of the latest address of petitioners, the show
cause notices had been sent to the petitioners at their old address.
Consequently, he submits that the impugned orders are in violation of
principles of natural justice.
3. Mr. Sumeet Pushkarna, learned standing counsel appearing for
respondents states that the present writ petitions are not maintainable as
petitioners have an alternative effective remedy under Section 19 of Foreign
Exchange Management Act, 1999 as per the order dated 20th November, 2003.
He further submits that present petitions are barred by laches inasmuch as the
impugned orders passed in the year 2003 have been challenged by way of writ
petitions filed in the year 2012.
4. In rejoinder, Mr. Mohit Mathur states that petitioners filed the writ
petitions as soon as they came to know about the impugned orders from the
order of recoveries passed by respondent no. 3. He emphasises that there is no
delay in filing the present writ petitions.
5. Having perused the paper book, this Court finds that though respondent
no. 2 was aware as far back as 17th July, 2000 about the new address of
petitioners (as is apparent from the summons issued to the petitioners by
respondent no. 2 itself), yet on 20th August, 2002, it issued show cause notices
to the petitioners at their old address. It is pertinent to mention that at the old
address, the petitioners were not served and the service report states that they
are no longer residing there. Consequently, this Court is of the opinion that in
the present cases, there has been violation of principles of natural justice and
the petitioners had no opportunity to defend themselves.
6. This Court also finds that there is no merit in the argument that present
writ petitions are barred by delay and laches. There is no evidence to
controvert the petitioners' submission that they came to know about the
impugned orders only when they were served with the recovery notices issued
by respondent no. 3 in the year 2012.
7. As far as plea of alternative effective remedy is concerned, this Court is
of the opinion that alternative remedy is only a rule of prudence and not a
statutory prohibition. It is settled law that when there is violation of principles
of natural justice, a writ petition is certainly maintainable. In Whirlpool
Corpn. Vs. Registrar of Trade Marks, (1998) 8 SCC 1 the Supreme Court has
held as under:-
"15. Under Article 226 of the Constitution, the High Court,
having regard to the facts of the case, has a discretion to entertain
or not to entertain a writ petition. But the High Court has imposed
upon itself certain restrictions one of which is that if an effective
and efficacious remedy is available, the High Court would not
normally exercise its jurisdiction. But the alternative remedy has
been consistently held by this Court not to operate as a bar in at
least three contingencies, namely, where the writ petition has been
filed for the enforcement of any of the Fundamental Rights or
where there has been a violation of the principle of natural justice
or where the order or proceedings are wholly without jurisdiction
or the vires of an Act is challenged. There is a plethora of case-
law on this point but to cut down this circle of forensic whirlpool,
we would rely on some old decisions of the evolutionary era of the
constitutional law as they still hold the field.
xxxx xxxx xxxx xxxx
20. Much water has since flown under the bridge, but there has
been no corrosive effect on these decisions which, though old,
continue to hold the field with the result that law as to the
jurisdiction of the High Court in entertaining a writ petition under
Article 226 of the Constitution, in spite of the alternative statutory
remedies, is not affected, specially in a case where the authority
against whom the writ is filed is shown to have had no jurisdiction
or had purported to usurp jurisdiction without any legal
foundation."
8. In view of the aforesaid, this Court is of the opinion that present writ
petitions are maintainable. Accordingly, the impugned orders passed against
petitioners are set aside and the matters are remanded back to respondent no. 2.
The consequential impugned orders of recovery dated 11 th October, 2012
issued by respondent no. 3 against petitioners are also quashed.
9. Both the petitioners are directed to appear before respondent no. 2 on
17th February, 2014 at 2.30 p.m. Respondent no. 2 is directed to dispose of the
matters as expeditiously as possible, preferably within twelve weeks. It is
clarified that in the present proceedings, this Court has not expressed any
opinion on the demand raised by respondent no. 2 against M/s. Bint Exports
India Private Limited.
10. With the aforesaid directions, present writ petitions and application stand
disposed of.
MANMOHAN, J
JANUARY 28, 2014
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