'Come Back To India For Challenging Vires Of Fugitive Economic Offenders Act': Bombay High Court To Vijay Mallya

The Bombay High Court on Tuesday asked former liquor baron Vijay Mallya to file an affidavit stating when he proposes to return to India, making it clear that his challenge to the constitutional validity of the Fugitive Economic Offenders Act, 2018 (FEO Act) will not be entertained unless he submits to the jurisdiction of the court.

A Division Bench of Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad was hearing two petitions filed by Mallya—one assailing the vires of the FEO Act, and the other challenging the January 5, 2019 order of the Special Court declaring him a Fugitive Economic Offender (FEO).

The Bench made it unequivocally clear that both petitions cannot be prosecuted simultaneously.

“Let us be very clear, both these petitions will not run together. You will have to withdraw either one. Also, you will have to make a statement as to when will you return to India only then we will hear the petition challenging the vires of the FEO Act,” it said.

The Court indicated that while it may consider hearing a challenge to an order passed under the statute even in Mallya's absence, the same latitude cannot be extended to a constitutional challenge.

“We can permit you to challenge any order passed against you under the Act, in your absence. But we cannot let you challenge the vires, without submitting to the jurisdiction of this court,” it added.

Senior Advocate Amit Desai, appearing for Mallya, objected to the insistence on filing such an affidavit, contending that the statute itself permits proceedings even when the individual is not present in India.

However, the Bench remained firm on the distinction between a statutory challenge and a constitutional one.

During the hearing, Desai also informed the Court that Mallya was attempting to engage with the government to bring the litigation to a close, claiming that the Enforcement Directorate (ED) had attached assets worth approximately ₹14,000 crore, far exceeding the alleged liability of about ₹6,000 crore.

“All our assets have been attached by the ED and forwarded to the banks. We have no control over these assets now. In fact, a statement was made by the Finance Minister in Parliament on this issue. We are looking for a solution,” he submitted.

The Chief Justice responded pointedly: “Come back to India, we are here to provide you with a solution. You should submit to the jurisdiction of this court.”

Appearing for the Union of India, Solicitor General Tushar Mehta, along with Additional Solicitors General SV Raju and Anil Singh, informed the Bench that separate extradition proceedings against Mallya are underway and at an advanced stage.

After hearing all sides, the Bench adjourned the matter to February 12, leaving it open to Mallya to decide which petition he wishes to pursue and whether he will file an affidavit indicating his return to India.