MUMBAI: Bombay high court on Tuesday heard a petition filed by Vijay Mallya, founder of the defunct Kingfisher Airlines, challenging the validity of the Fugitive Economic Offenders (FEO) Act, 2018. Adjourning the matter to Feb 11, it directed Mallya to make a statement or file an affidavit by then about when he intends to return to India.The order was based on an understanding in law that a plea challenging the validity of the FEO Act, 2018, should not be heard in the absence of the petitioner having submitted to the jurisdiction of the court, Chief Justice Shree Chandrashekhar and Justice Gautam Ankhad said.Bombay high court, after hearing senior counsel Amit Desai for Mallya and solicitor general Tushar Mehta for ED, directed him to say when he would return to India. The ED sought the dismissal of Mallya’s challenge, saying an offender cannot be permitted to question the FEO by refusing to submit to judicial process in India.The HC also asked Mallya to decide which of his petitions he wishes to pursue: an appeal he filed in 2019 against a trial court order or the petition in the HC, also filed in 2019, to challenge the validity of certain provisions of the FEO Act. Both cannot exist, it said.Mehta, along with additional solicitor generals S V Raju and Anil Singh, opposed Desai’s plea to hear Mallya’s petition. Desai said even under the special FEO Act, Mallya has a statutory right to be represented in India when he is abroad, as he has challenged the constitutional validity of certain provisions of the Act. “Mallya is allowed by the law to litigate in India, even when he is abroad,’’ Desai contended. The CJ said, “The vires (constitutional validity) of the Act he cannot challenge, this is our opinion (unless present).’’ Desai argued, “All rights, including constitutional rights, are available even if not in court.’’Section 14 of the Act is meant to ensure that FEOs do not abuse the process by simply filing petitions through lawyers, the ED said. Desai cited an order of the Supreme Court, and Mehta shot back saying it was not meant to be precedent-setting.Mehta, who joined the hearing virtually from Delhi, remarked that Mallya was partying in the UK. “There are many fugitives, and they are celebrating their birthdays. While nobody can legally object to celebrations, they are mocking our nation. This is unacceptable,” he said.Mehta also said there was an extradition proceeding at an advanced stage, and Mallya cannot use the pendency of his petition in Mumbai to thwart proceedings there.The ED, through advocate Prashant Mishra, submitted its reply to Mallya’s petition and said the facts were “glaring’’ and a huge economic harm to the nation was caused by Mallya with an outstanding of nearly Rs 15,000 crore. Desai said the liability is alleged to be Rs 6,200 crore “but now shown as Rs 15,000 crore. We have a lot to argue in the matter’’.Mallya’s petition claimed there was a violation of his fundamental right to property as the seizure of his assets was unfounded.The ED said he had several opportunities to appear before the trial court and pointed to a provision of the FEO Act to argue it provides for confiscation of property when offences involve over Rs 100 crore and have a bearing on the national economy.
