TMI Blog2018 (10) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 18-9-2018 - Mr. S.M. Subramaniam J. For the Petitioner : Mr.S.Arivazhagan For the Respondents : ORDER The demand notice issued by the Department of Revenue, Office of the Commissioner of Customs (Export) dated 25.04.2011, is under challenge in this writ petition. 2. The learned counsel for the petitioner states that the writ petitioner has fulfilled the conditions and the obligations stipulated in the bond and submitted an application to that effect, before the competent authorities. However, the said application has not been considered. 3. However, those details regarding the fulfillment of the conditions are not placed before this Court, by the writ petitioner. 4. The learned counsel appearing on behalf of the respondents opposed the contention by stating that the writ petitioner has also not furnished the details in respect of the fulfillment of the obligations, performed by him, in this regard. 5. However, the fact remains that the writ petitioner executed a bond agreeing certain terms and conditions. As per the bond executed by the writ petitioner, on demand he has to pay the duty levied in his case for fulfillment of the export oblig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efficacious alternative remedy under the statute also to be considered. If the writ petitions are entertained in a routine manner, by not allowing the competent Appellate authority to exercise their powers under the provisions of the statute, then this Court is of an opinion that the power of judicial review has not exercised in a proper manner. Thus, it is necessary for this Court to elaborate the legal principle settled in respect of the separation of powers under the Constitution of India. 1. Madras Bar Association vs. Union of India (UOI)(25.09.2014-SC): MANU/SC/0875/2014 If the historical background, the preamble, the entire scheme of the Constitution, relevant provisions thereof including Article 368 are kept in mind there 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the constitutions of the countries which contain express provision for separation of powers. (ii) Independence of courts from the executive and legislature is fundamental to the rule of law and one of the basic tenets of Indian Constitution. Separation of judicial power is a significant constitutional principle under the Constitution of India. (iii) Separation of powers between three organs-legislature, executive and judiciary-- is also nothing but a consequence of principles of equality enshrined in Article 14 of the Constitution of India. Accordingly, breach of separation of judicial power may amount to negation of equality Under Article 14. Stated thus, a legislation can be invalidated on the basis 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy provided under the statute. 22.When an effective alternative remedy is available, a writ petition cannot be maintained. 1. In City and Industrial Development Corporation v. DosuAardeshirBhiwandiwala and Ors. MANU/SC/8250/2008 : (2009) 1 SCC 168, this Court had observed that: The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the Petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court agreed to the arguments and held the same also noted that the writ petition ought not to have been entertained and the interim order granted for the mere asking without assigning special reasons, and that too without even granting opportunity to the Appellant to contest the maintainability of the writ petition and failure to notice the subsequent developments in the interregnum. 5. State of Himachal Pradesh v. Gujarat Ambuja Cement Ltd. reported at AIR 2005 SC 3856, the Supreme Court explained the rule of 'alternate remedy' in the following terms Considering the plea regarding alternative remedy as raised by the appellant-State. Except for a period when Article 226 was amended by the Constitution (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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