TMI Blog2018 (9) TMI 1155X X X X Extracts X X X X X X X X Extracts X X X X ..... inal authority is bound to approach the Appellate Authority. The institutional functions and exhausting the appeal remedies by the aggrieved persons, are to be enforced in all circumstances and writ proceedings can be entertained only on exceptional circumstances. Rule is to prefer an appeal and entertaining a writ is only an exception. This being the legal principles to be followed, this Court cannot entertain the writ petitions in a routine manner by waiving the remedy of appeal provided under the statute. Thus, When an effective alternative remedy is available, a writ petition cannot be maintained - reliance placed in the case of CITY AND INDUSTRIAL DEVELOPMENT CORPORATION VERSUS DOSU AARDESHIR BHIWANDIWALA & ORS [2008 (11) TMI 662 - SUPREME COURT]. The writ petitioner is at liberty to approach the appropriate Appellate authorities and thereafter, before the Appellate Tribunal constituted under Section 129(A) of the Customs Act,1972 for the purpose of redressing his grievances in the manner known to law - petition disposed off. - W.P.No.18828 of 2016 And W.M.P.No.16435 of 2016 - - - Dated:- 11-9-2018 - Mr. S. M. Subramaniam J. For the Petitioner : M/s.Hari Radh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of the Act under Section 129(A). This being the statutory provisions, the present writ petition cannot be entertained as the writ petitioner has not exhausted the statutory remedies provided under the Customs Act. 7.This Court is of an opinion that the Appellate Tribunal constituted under the said Act is empowered to adjudicate all the legal grounds raised by the writ petitioner in the present writ petition and also the factual disputes. Such being the powers of the Appellate Tribunal, the writ petitioner has to approach the Tribunal for an appropriate adjudication to resolve the issues and redress his grievances. 8.Usurping the powers of such Appellate Tribunals created under the Act cannot be done in a routine manner by the Constitutional Courts. Institutional respects are to be maintained in respect of taking decisions by the competent authorities. The institutions created under the statutes must be allowed to exercise their powers and functions in the manner known to law. Intermittent Interventions frequently by the Courts will create unnecessary complications and will pave way for conflicts and the decisions in such issues. Thus, it is always preferable that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here can be no difficulty in discerning that the following can be regarded as the basic elements of the constitutional structure. (These cannot be catalogued but can only be illustrated): (1) The supremacy of the Constitution. (2) Republican and Democratic form of government and sovereignty of the country. (3) Secular and federal character of the Constitution. (4) Demarcation of power between the Legislature, the executive and the judiciary. (5) The dignity of the individual secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. (6) The unity and the integrity of the Nation. 2. Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala and Anr. [ MANU/SC/0445/1973 : (1973) 4 SCC 225]. That separation of powers between the legislature, the executive and the judiciary is the basic structure of the Constitution is expressly stated by Sikri, C.J. 3. P. Kannadasan and Ors. v. State of T.N. and Ors. [MANU/SC/0650/1996 : (1996) 5 SCC 670 ] the Supreme Court noted that the Constitution of India recognised the doctrine of separation of powers between the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sis of breach of the separation of powers since such breach is negation of equality Under Article 14 of the Constitution. (iv) The superior judiciary (High Courts and Supreme Court) is empowered by the Constitution to declare a law made by the legislature (Parliament and State legislatures) void if it is found to have transgressed the constitutional limitations or if it infringed the rights enshrined in Part III of the Constitution. (v) The doctrine of separation of powers applies to the final judgments of the courts. Legislature cannot declare any decision of a court of law to be void or of no effect. It can, however, pass an amending Act to remedy the defects pointed out by a court of law or on coming to know of it aligned. In other words, a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. (vi) If the legislature has the power over the subject-matter and competence to make a validating law, it can at any time make such a validating law and make it retrospective. The validity of a validating law, therefore, depends upon whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. 2 . KanaiyalalLalchand Sachdev and Ors. vs. State of Maharashtra and Ors . (07.02.2011 - SC) : MANU/SC/0103/2011 It is well settled that ordinarily relief Under Articles 226/227 of the Constitution of India is not available if an efficacious alternative remedy is available to any aggrieved person. (See Sadhana Lodh v. National Insurance Co. Ltd.; Surya Dev Rai v. Ram Chander Rai and SBI v. Allied Chemical Laboratories.) 3. Commissioner of Income Tax and Ors. v. ChhabilDass Agarwal , MANU/SC/0802/2013 : 2014 (1) SCC 603, as follows: Para 15. while it can be said that this Court has recognised some exceptions to the Rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution (42nd Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction of discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 6 . K.S. Rashid and Sons v. Income Tax Investigation Commission and Ors., AIR (1954) SC 207; Sangram Singh v. Election Tribunal, Kotah and Ors., AIR (1955) SC 425; Union of India v. T.R. Varma, AIR (1957) SC 882; State of U.P. and Ors. v. Mohammad Nooh, AIR (1958) SC 86 and M/s K.S. Venkataraman and Co. (P) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
