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Panoli Intermediate (India) Pvt. Ltd. Versus Union of India And 2

2015 (7) TMI 303 - GUJARAT HIGH COURT

Condonation of delay - delay in filing an appeal before Commissioner (Appeals) - Whether the period of limitation provided of 60 days, for filing an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal - Jurisdiction of High Court - Held that:- No legislation including section 35 of the Act can whittle down or dilute or nullify the power of the c .....

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oment may become incapable of correction at the later stage and refusal to intervene would result travesty of justice. But the jurisdiction of writ of certiorari should not be converted into the court of appeal or indulge into reappreciation of the evidence or evaluation of the evidence or correction of the errors were two views are possible.

It is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over .....

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Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. - limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. - petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. - Appeal disposed of. - Special Civil Applica .....

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an appeal under Section 35 of the Central Excise Act, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoni .....

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r passed by the Commissioner of Central Excise (Appeals), which arose from the order passed by the adjudicating authority being Order in Original. In the said appeal there was delay of 118 days in preferring appeal and therefore, the Tribunal dismissed the appeal on the ground of delay since as per the Tribunal, there was no power to condone the delay beyond 30 days. Under the circumstances, the said petition. When the appeal came up for hearing before the Division Bench of this Court, the Divis .....

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013 passed in SCA No.6069/11 and contended that as per the view taken in the said decision, the delay can be condoned beyond the period of 90 days provided there is a good case on merits and the learned counsel for the petitioner also relied upon other decisions of this Court including the decision in the case of D.R. Industries Ltd. vs. Union of India reported at 2008 (229) ELT 24 (Guj). The Division Bench hearing SCA No.18542/14 found that the matter is required to be referred to the Larger Be .....

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ously. 4. We have heard Mr.Paresh Dave with Mr.Dhaval Shah, learned counsel appearing for the petitioners in both the matters and Mr.Darshan Parikh appearing in SCA No.13530/14 for the respondents. 5. Mr.Dave, learned counsel appearing for the petitioners, at the outset submitted that the reference could be said as incompetent since there were no divergent views of the two Division Benches of this Court. He submitted that the Division Bench of this Court, which referred the matter to the Larger .....

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which referred the matter to the larger bench and in his submission even if the referral Bench was of the view that the matter deserves to be referred to the Larger Bench, it was required for the referral bench to record the reasons for disagreement and thereafter only the matter could be referred to the Larger Bench. He submitted that in the order dated 06.01.2015 passed by the referral bench of this Court in SCA No.18542/14, there are no reasons recorded for disagreement nor any reasons are r .....

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he view and the reference may not be termed as incompetent. 7. In order to appreciate the contention, we may record that the referral order of the Division Bench dated 06.01.2015 in SCA No.18542/14 reads as under: "1. A short question arises for consideration in this appeal is as to whether the delay in filing the appeal under Section 35 of the Central Excise Act, 1944 would be condoned beyond a period of 90 days. The law provides that appeal can be filed before the Commissioner (Appeals) w .....

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any powers for condonation of delay to the Commissioner (Appeals) beyond a period of 90 days. Therefore, the appeal, without delay, could be presented within a period of 90 days and not beyond it. 2. Mr.Dhaval Shah, learned counsel for the petitioner has placed reliance on the decision of the Division Bench of this Court in the case of Amitara Industries Limited v. Union of India, decided on 30.01.2013 passed in Special Civil Application No.6069 of 2011, wherein the view taken by the Division Be .....

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il Application No.14936 of 2012 with Special Civil Application No.14937 of 2012 to Special Civil Application No.14938 of 2012, decided on 14.03.2013, and in the case of Nelly Garments Private Limited v. Union of India and others, decided on 18.12.2014 in Special Civil Application No.14778 of 2014. 3. Apart from the aforesaid decisions, there is another decision in the case of D.R. Industries Limited v. Union of India reported in 2008 (229) E.L.T. 24 (Guj.), wherein the same was considered in par .....

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, 1944, could be extended only upto 30 days as provided by the proviso or the delay beyond the period of 90 days could also be condoned in filing an appeal? (2.) Where a statutory remedy or appeal is provided under Section 35 of the Central Excise Act, 1944 and the delay cannot be condoned under Section 35 beyond the period of 90 days, then whether Writ Petition under Article 226 of the Constitution of India would lie for the purpose of condoning the delay in filing the appeal? (3.) When if the .....

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entire case to the Larger Bench of this Court. 6. Let the record be placed before Hon'ble The Acting Chief Justice on Administrative side for constitution of a Larger Bench." 8. It is true that as per the above referred order, no specific reasons are recorded by the Division Bench for disagreement with the view taken by the other Division Bench of this Court in the case of D.R. Industries Ltd. (supra) as well as Amitara Industries Ltd. (supra) and the views taken in the other matters r .....

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ondone the delay to the Commissioner beyond the period of 30 days. But it was confronted that the other decisions of this Court in the case of Amitara Industries Ltd. (supra) and D.R. Industries Ltd. (supra) and other decisions which have been referred to in the referral order, hence the referral Bench formulated the opinion that the matter is required to be referred to the Larger Bench. Therefore, taking the base of the statutory provision, it can be said that dissent to that extent was express .....

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he reference incompetent. 9. At this stage, we may make useful reference to the observations made by another Larger bench of this Court (Coram : Jayant Patel (one of us), Akil Kureshi & R.M. Chhaya, J.J.) in the case of Jayendrasinh Bhupatsinh Diama vs. State of Gujarat through Additional Secretary (Inquiry) reported at 2012(2) GLR page 1096 wherein also, the preliminary contention was raised that the reference to the Larger Bench by the learned Single Judge was uncalled for. This Court in t .....

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learned Single Judge could not have referred the matter to the Larger Bench. He submitted that, therefore, the present reference was not called for. The learned Counsel, in support of his submission, relied upon the observations of the Apex Court in the case of Pradip Chandra Parija & Ors. v. Pramod chandra Patnaik & Ors.reported in (2002) 1 SCC, 1. 5. We may record that the learned Single Judge, before opining to refer the issue to the Larger Bench in the order dated 11.8.2011 passed b .....

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on 242 of the Panchayat Act for challenging resolution of no confidence. It is also required to be noted that the observations made in other earlier judgments were not cited before the Court. The Apex Court has in case of State of U.P. and another Versus Synthetics and Chemicals Ltd reported in (1991) 4 SCC 139 observed as under: "In Jaisri V. Rajdewan Dubey this Court while pointing out the procedure to be followed when conflicting decisions are placed before a bench extracted a passage fr .....

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n technical sense that has come to be attached to that phrase, when the particular point of law involved in the decision is not perceived by the court or present to it mind (Salmond on Jurisprudence 12th Edn p.153) In Lancaster Motor Company (London)Ltd V. Bremith Ltd the Court did not feel bound by earlier decision as it was rendered 'without any argument, without reference to the crucial words of the rule and without any citation of authority' It was approved by this Court in Municipal .....

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of judicial discipline. But that which escapes in the judgment without any occasion is not ratio decidendi. In B. Shama Rao v. Union territory of Pandicherry (AIR 1967 SC 1480) it was observed that 'it is trite to say that a decision is binding not because of its conclusions but in regard to its ratio and the principles laid down therein.' Any declaration or conclusion arrived without application of mind cannot be deemed to be declaration of law or authority of a general nature binding .....

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in the decisions of a court. Speaking for the Constitution Bench (Union of India v. Raghubir Singh ((1998) 2 SCC 754) learned Chief Justice said : The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of law, besides providing assurance to the individual as to the consequence of transaction forming part of his daily affairs. And, therefore the need for a clear and consistent enunciation of legal princip .....

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et of litigants and the opposite way between another. In our system of judicial review which is part of our constitutional scheme, we hold it to be the duty of judges of superior courts and tribunals to make the laws more predictable. The question of law directly arising in the case should not be dealt with apologetic approaches. The law must be made more effective as a guide to behaviour. It must be determined with reasons which carry convictions within the courts, profession and public. Otherw .....

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ion powers and purvey of the district appellate committee working under Section 242 and State authority working under Section 249 and 259 of the Panchayat Act in respect of resolution passed by Panchayats against it's Sarpanch, Upsarpanch, President and VicePresidents under Sections 56, 70 and 84 of the Panchayat Act. There are observations and directions both by learned Single Judges and Division Benches in respect of Sections 242, 249 and 259, hence the matter is in fact requires to be ref .....

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r the matter to Larger Bench or it has to be referred only to the Division Bench, the full bench of this Court has in case of Ram Fertilizers Pvt. Ltd and another v. State of Gujarat and another reported in 2001 (1) G.L.H. 698 held as under : "4.1 It will be seen from the provisions of of Rule 5 of the Gujarat High Court Rules 1993 that a Single Judge may refer any matter before him or question arising in such matter to a Division Bench of two or more Judges or a Larger Bench. The rule does .....

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ould have been considered by a learned Single Judge, can always be referred for a decision to a Larger Bench." 6. The aforesaid as such clearly go to show that after considering the provisions of Rule 5, the learned Single Judge found that important questions have arisen in the present matter and, therefore, he has opined to refer the matter to the Larger Bench. But we find that the matter does not end there for considering the contention of respondent No.5 on the aspects of maintainability .....

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Acting Chief Justice on administrative side has taken decision for placement of the matter before the Larger Bench, whether the learned Single Judge could refer the matter to the Division Bench or Larger Bench would lose its significance, since ultimately the Hon'ble Chief Justice or the Hon'ble Acting Chief Justice, is the Master of Roster and the power on administrative side cannot be controlled by the contention raised on behalf of the respondent No.5 as canvassed. 7. Apart from the .....

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s raised, which has been dealt with by the Larger Bench at paragraph at 5 as under: "At the out set, we consider it appropriate to record that as on the question raised before the learned Single Judge the earlier Single Bench decision of this Court in Narmadaben V. Parmar (supra) was relied on, in which reliance was placed on Division Bench decision of this Court in Chimanbhai R. Patel (supra) which was binding precedent on her, an order of reference to a Bench larger than of Two Judges was .....

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before the Larger Bench, the Bench who heard the reference found that two Judges' Bench could not have referred the matter to the Constitutional Bench and, therefore, did not examine the aspect about the importance of the questions to be decided by them. Therefore, they referred the matter back holding that the matter could not have been referred to the Constitutional Bench by two Judges of the Apex Court and consequently directed the placement of the matter before three Judges of the Apex C .....

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aced before us, we proceed to decide the same on merits. Under these circumstances, the preliminary contention raised by respondent No.5 fails." (Emphasis supplied) 10. Before we further proceed to examine the question referred to Larger Bench, we find it proper to consider and examine the statutory provisions and also the relevant case law on the point. 11. Section 35 of the Act reads as under: "35. Appeals to [Commissioner (Appeals)].- (1) Any person aggrieved by any decision or orde .....

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d of sixty days, allow it to be presented within a further period of thirty days.] [(1A) The Commissioner (Appeals) may, if sufficient cause is shown, at any stage of hearing of an appeal, grant time, from time to time, to the parties or any of them and adjourn the hearing of the appeal for reasons to be recorded in writing: Provided that no such adjournment shall be granted more than three times to a party during hearing of the appeal.] (2) Every appeal under this section shall be in the prescr .....

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stries Ltd. (supra), the Division Bench of this Court had an occasion to examine the scope and ambit of section 35 of the Act and it was observed at paragraphs 16 to 18, as under: "16. Similarly, whether a person is aggrieved by an order of the Commissioner of Central Excise as the original authority or by an order of the Commissioner (Appeals) as the appellate authority, the period of limitation for approaching the Appellate Tribunal is the same, whether the aggrieved party is an assessee .....

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the learned counsel for the petitioners as regards the burden of justifying differentiation or discrimination. 18. We, therefore, do not find any merit in any of the contentions raised on behalf of the petitioners for challenging the constitutional validity of the proviso to subsection (1) of Section 35 of the Central Excise Act, 1944 in so far as the Parliament has provided for the limitation period of 60 days for filing an appeal before the Commissioner (Appeals) and in so far as the power to .....

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s the contention that there may be extraordinary cases where assessees may not be in a position to challenge the order of the adjudicating authority before the Commissioner (Appeals) within a period of 90 days from the date of communication of the order, we are of the view that in such extraordinary cases where an assessee can show extra ordinary circumstances explaining the delay and also gross injustice done by the adjudicating authority, the assessee may invoke the writ jurisdiction of this C .....

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e of D.R. Industries Ltd. (supra) did not find any substance in the challenge to the constitutional validity of the provisions of section 35 of the Act and further expressed the view that the power to condone delay by the Commissioner (Appeals) is for a period of 30 days after the expiry of the limitation period of 60 days, but while further considering the extraordinary cases where gross injustice has been done by the adjudicating authority but the assessee could not prefer appeal within the ou .....

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ith extremely good ground on merit to sustain, we are of the opinion that non interference at this stage would cause gross injustice to the petitioner. Therefore, we need to step in by invoking extraordinary jurisdiction." 16. In the said case, the Division Bench of this Court had relied upon the earlier decision of this Court in the case of D.R. Industries Ltd. (supra). Therefore, as such, there is considerable force in the contention of the learned counsel appearing for the petitioner tha .....

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oss injustice on account of statutory provision of maximum limit of 90 days in preferring appeal and therefore, found it proper to exercise the power under Article 226 of the Constitution. 17. Similarly, in the other decision of this Court in the case of Lathia Industrial Supplies Co. Ltd. vs. Commissioner of Appeals and Anr. in SCA No.16182/12, decided on 20.03.2013, the Division Bench of this Court made the observation at para 5, as under: "5. ..... the Court finds that non consideration .....

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to exercise the power under Article 226 of the Constitution. 19. In the case of Nelly Garments Pvt.Ltd. vs. Union of India in SCA No.14778/14 decided on 18.12.2014, the entire proceedings before the adjudicating authority had gone ex parte and it was further found at paragraph 6 that - "6....., the High Court is not devoid of its jurisdiction under Article 226 of the Constitution of India in rare exceptional cases to examine the validity and legality of the order of the adjudicating authori .....

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time limit as per section 35 of the Act and the delay beyond the period of 30 days cannot be condoned by the appellate authority. Hence, the outer limit of preferring appeal including the period for condonation of delay could be said as 90 days. (2) In exceptional cases, where it is a case of "gross injustice", the aggrieved person can invoke the writ jurisdiction under Article 226 of the Constitution and if the Court is satisfied that it is an exceptional case of gross injustice, the .....

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including outer limit as provided under section 35 of the Act is over and he further submitted that the constitutional power of this Court under Article 226 can neither be controlled by any statutory provision nor can be prescribed in definite language. He submitted that the power under Article 226 of the Constitution of this Court can be exercised by this court in exceptional cases as held by the Division Bench of this Court in the case of D.R. Industries Ltd. (supra), if this Court finds that .....

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contended that the view taken in the case of D.R. Industries Ltd. (supra) cannot be said as fully correct because the Apex Court in the other decisions have declined to exercise the power even in writ jurisdiction on the ground that limitation period including the outer limit for condonation of delay was over. He further submitted that it has become a regular practice on the part of the assessee to prefer writ petition under Article 226 of the Constitution in practically all cases where the lim .....

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iry of the period of limitation including for condonation of delay. He therefore submitted that the Larger Bench of this Court may examine the question and may answer in favour of the Revenue. 23. In order to appreciate the contentions raised by the respective sides, it would be appropriate to first consider the scope and ambit of the power under Article 226 of the Constitution. As such, the question is no more res integra when the jurisdiction of the High Court to entertain the petition for wri .....

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C 675 wherein the question came up for consideration before the Apex Court as to whether the amendment made in the Code of Civil Procedure under section 115 would in any manner affect the jurisdiction under Articles 226 and 227 of the Constitution. The Apex Court in the said decision, after considering various decisions, concluded at para 38 as under: "38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and s .....

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iorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction â€" by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violatio .....

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itted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii .....

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cised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appea .....

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s. 8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in reappreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts .....

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ter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court wo .....

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ld be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge." 24. The aforesaid decision was considered by the Apex Court in the case .....

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te Bar Association, T.N. vs. Union of India reported at (2005) 6 SCC 344, the question arose before the Apex Court was as to whether amendment made under section 115 of the Code of Civil Procedure would take away the constitutional jurisdiction of the High Court or not. It was held by the Apex Court after considering the earlier decision of the Apex Court in the case of Surya Dev Rai (supra) that curtailment of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Proc .....

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o the writ jurisdiction under Article 226 of the Constitution or not, and the Larger Bench of the Apex Court in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. in Civil Appeal No.2548/09 vide its decision dated 26.02.2015, overruled the decision of the Apex Court in the case of Surya Dev Rai (supra), but only the to the extent that the judicial orders of the Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution and it was held that the jurisdi .....

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no legislation including section 35 of the Act can whittle down or dilute or nullify the power of the constitutional court under Article 226 of the Constitution but the parameter for exercise of the writ of certiorari would be in a case where the Tribunal or the authority has acted without jurisdiction or in excess of jurisdiction or acted in flagrant disregard of the law or the rules of procedure or have acted in violation to the principles of natural justice and thereby, resulting into failur .....

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writ of certiorari may annul or set aside the act or set aside the proceeding, but cannot substitute its own decision in place thereof. The High Court while exercising the power has to apply self restraint. It was well summed up by the Apex Court in the case of Surya Dev Rai (supra) that the power is there but the exercise is discretionary which will be solely governed by the dictate of the judicial conscience, enriched by judicial experience and practical wisdom of the Judge. 28. The aforesaid .....

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which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. 29. In the decision of the Apex Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported at 2008 221 ELT 163 (SC), which has been relied upon by the learned counsel .....

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unsel Mr.Parikh that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction under Article 226 in a case where the period of 30 days is over cannot be countenanced for the simple reason that whether the High Court should exercise the power to condone the delay after expiry of the period of 30 days while exercising the power under Article 226 of the Constitution is .....

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s contention. 30. In none of the decisions upon which the reliance has been placed by Mr.Parikh, the question was examined as to whether the statutory provision under section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution or not and therefore, we do not find that the said decisions are of any help to Mr.Parikh. At the same time, there is considerable force in the contention of Mr.Parikh that even while exercising the power under Article 226 of the .....

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