REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3221 OF 2010

(Arising out of SLP (Civil) No.28877 of 2008)

Raj Kumar Shivhare

..Appellant(s)

Versus

Assistant Director, Directorate of

Enforcement & Another

..Respondent(s)

J U D G M E N T

GANGULY, J.

1. Leave granted.

2. This appeal arises out of the Division Bench

judgment of the High Court of Delhi in WP No.

6527/2008 filed by the appellant-Rajkumar Shivhare.

3. A Writ Petition was filed challenging the order

dated 17.7.2008 of the Appellate Tribunal for

Foreign Exchange, Janpath, New Delhi, (hereinafter

‘the Tribunal’), on various grounds with which this

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Court is not concerned. By that order, the

Tribunal refused to dispense with the pre-deposit

of penalty by the appellant and the concluding

portion of that order is:

“…Therefore,

the

application

for

dispensation of pre-deposit of penalty is

dismissed and rejected but the appellant

is permitted to deposit full amount of

penalty within thirty days from the date

of receipt of the order failing which the

appeal will be dismissed on this ground

alone. The appeal is fixed for hearing on

4^th September, 2008”.

4. The facts of the case in brief are as follows:

The appellant, along with another person, were

issued a notice dated 12.1.2005 under Section 3(c) of

the Foreign Exchange Management Act, 1999 (FEMA) for

receiving unauthorized payments worth Rs.5 crores

under instructions from persons living outside India

in connection with his illegal cricket betting

operation. He was also asked to explain why the amount

of Rs.1 lac, confiscated during search from his

residence, should not be credited to the account of

the Central Government under Section 13(2) of FEMA,

1999.

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5. As the charges were proved against him, a penalty

of Rs.2 crores was imposed on him and the

confiscated money was disposed of according to

Section 13(2) vide order dated 29.02.2008.

6. On appeal to the Appellate Tribunal under Section

19(2) of the Act, the Tribunal passed the order

dated 17.7.2008, the concluding portion whereof is

quoted above.

7. Then, a writ petition came to be filed challenging

the order dated 17.7.2008.

8. The High Court, without going into the merits of

the petition, accepted the preliminary objection

raised by the respondent that the High Court of

Delhi did not have territorial jurisdiction to

decide the matter. High Court of Delhi rejected

the writ petition on that ground and gave liberty

to approach the appropriate High court.

9. While dismissing the writ petition, on the ground

that it lacked territorial jurisdiction, the High

Court relied on the decision of this Court rendered

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in Ambica Industries vs. Commissioner of Central

Excise, (2007) (6) SCC 769, on the interpretation

of Section 35 of FEMA.

10.The High Court in its judgment gave the following

reasoning:

”The position is analogous to that of

the Union Government. The statement

that the Union Government is located

throughout every part of Indian

Territory and hence can be sued in any

Court of the country, brooks no cavil.

This does not, however, inexorably lead

to the consequence that a litigant can

pick and choose between any Court as

per his caprice and convenience...”

11. It held that in exercising its powers under Article

226, a High Court must consider that the person,

Authority or Government is located within its

territories or a significant part of the cause of

action has arisen within its territories. It

referred to Ambica Industries (supra) again where

this Court held that

“…..the aggrieved person is treated to

be the dominus litis, as a result

whereof, he elects to file the appeal

before one or the other High Court, the

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decision of the High Court shall be

binding only on t