Kerala High Court
K.A. Rauf vs The Deputy Director on 23 August, 2025
WA NO. 2168 OF 2024
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2025:KER:64045
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
SATURDAY, THE 23RD DAY OF AUGUST 2025 / 1ST BHADRA, 1947
WA NO. 2168 OF 2024
AGAINST THE JUDGMENT DATED 02.11.2024 IN WP(C) NO.20328 OF 2024 OF HIGH
COURT OF KERALA
APPELLANT/S:
K.A. RAUF, AGED 67 YEARS, 'SHELTER', NO. 30, JAYANTHI NAGAR COLONY,
CALICUT BEACH PO, CALICUT, PIN - 673032
BY ADVS. SMT.K.KRISHNA, SHRI.ACHYUTH MENON
SHRI.PADMANATHAN K.V., SRI.R.SREEJITH
RESPONDENT/S:
1 THE DEPUTY DIRECTOR
ADJUDICATING AUTHORITY, DIRECTORATE OF ENFORCEMENT, GOVERNMENT
OF INDIA, MINISTRY OF FINANCE, COCHIN ZONAL OFFICE, KANOOS CASTLE,
A.K. SESHADRI ROAD (MULLASSERY CANAL ROAD WEST), KOCHI, PIN - 682011
2 THE ASSISTANT DIRECTOR
DIRECTORATE OF ENFORCEMENT, GOVERNMENT OF INDIA, MINISTRY OF
FINANCE, COCHIN ZONAL OFFICE, KANOOS CASTLE, A.K. SESHADRI ROAD,
KOCHI, PIN - 682011
BY JAISHANKAR V NAIR
THIS WRIT APPEAL HAVING RESERVED ON 21.08.2025, THE COURT ON 23.08.2025
DELIVERED THE FOLLOWING:
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JUDGMENT
Sushrut Arvind Dharmadhikari, J.
Heard on the question of admission.
2. The present intra-Court Appeal under Section 5 of the
Kerala High Court Act 1958 assails the judgment dated 02.11.2024
passed in W.P.(C) No.20328/2024, whereby the writ petition filed by the
appellant/petitioner has been dismissed.
3. In the writ petition, the appellant had challenged Ext.P2
complaint filed under Section 16(3) of the Foreign Exchange
Management Act 1999 (for short, 'FEMA') and Ext.P2 notice requiring
the appellant to show-cause as to why adjudication proceedings should
not be initiated against him. The challenge was primarily based on the
delay in initiating the proceedings and filing the complaint.
4. The learned Counsel for the appellant submitted that the
learned Single Judge failed to consider that the provisions of FEMA
would not apply to the appellant and initiation of the same is without
any justification, arbitrary and illegal.
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4.1 Further, it is submitted that the first and second
respondents have no jurisdiction to initiate proceedings under Section
13(1) read with Section 10(6) with respect to export transactions
carried out during the year 2014. The learned Single Judge, instead of
holding that the entire proceedings are hopelessly barred by limitation,
came to the conclusion that delay itself cannot be a ground to quash
the proceedings.
4.2 The learned Single Judge also failed to consider the fact
that the existence of an alternate remedy is not a bar when an error of
law is apparent on the face of the record, and, therefore, a writ petition
under Article 226 of the Constitution of India could be maintainable.
The learned Single Judge also misinterpreted the dictum of the
Supreme Court in the case of Union of India v. Citi Bank [2022 LiveLaw
(SC) 704], which squarely covers the issue in this case. The Supreme
Court, on a similar issue, has held that any proceedings ought to have
been initiated within the particular period provided under the Statute.
Therefore, the judgment deserves to be set aside.
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5. Per contra, learned Counsel appearing for the respondents
opposed the prayer and submitted that the learned Single Judge has
rightly dismissed the Writ Petition. The short question which arose for
consideration is whether this Court would be justified in quashing the
complaint and the show-cause notice on the sole ground that the
proceedings were initiated belatedly, particularly when the Statute
itself provides for an alternate remedy. The reason to approach this
Court is to bring the case within limitation. Thus, this Writ Appeal
deserves to be dismissed.
6. Heard Ms Krishna K, learned Counsel for the appellant, Mr
Jaishankar V Nair, learned Counsel for the respondents, and perused
the records.
7. It is to be borne in mind that in the absence of
extraordinary circumstances, the writ courts should not interfere with
the self-working mechanism under a Statute like the FEMA, as has been
held by the Supreme Court in Central Council for Research in Ayurvedic
Sciences v. Bikartan Das [AIR 2023 SC 4011], where the Supreme Court
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has held that the first cardinal principle of law that governs the
exercise of extraordinary jurisdiction under Article 226 of the
Constitution of India, more particularly, in issuing a writ of certiorari,
is that the High Court should not exercise the powers of the Tribunal,
unless the proceedings are so patently absurd and illegal. Admittedly,
FEMA do not provide any time limit for initiating the proceedings. The
learned Single Judge was right in distinguishing the judgment in the
case of Citi Bank (supra). Hence, we are of the considered opinion that
no different view can be taken from that of the learned Single Judge.
The Writ Appeal, being bereft of merit and substance, is hereby
dismissed. No order as to costs.
Sd/-
SUSHRUT ARVIND DHARMADHIKARI
JUDGE
Sd/-
SYAM KUMAR V.M.
JUDGE
jjj
