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2018 (10) TMI 1739

..... Return for the financial year 2009-10 on wards with the respondent - Section 248 of the Companies (Removal of names) Rules, 2016 - HELD THAT:- Perusal of the files, produced does not disclose any specific order passed under Section 248 of the Companies Act, 2015, whereas we find only the publication under Sub Section 5 of Section 248 of the Companies, Act, 2015 - From the facts and materials, it could be seen that the petitioner has not filed any appeal, against striking off or against publication of the Gazette notification, but the petitioner company has filed an application under Section 252(3) of the Companies Act, 2013. True that there is an alternative remedy under the NCLT Act, 2013, to prefer an appeal to the Tribunal. But when the error is apparent on the face of record, we are of the view that exercise of power under 227 of the Constitution of India is not ousted. Order has been made on the submission of the petitioner that company has been strike off - Tribunal cannot be found fault with, in placing on record the submission. But the fact remains that, an application under Section 252(3) of the Companies Act, 2013, can be entertained only in a case, where there is an orde .....

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..... s leading to the revision petition are that, A G D Private Limited, is a private company incorporated on 24-04-1959 under the Companies Act, 1956 having its registered office at 810, Hollow Block, Trichy Road, Ramanathapuram, Coimbatore - 641045, Tamil Nadu, India. They are carrying on the business of agriculturalists for growing all kinds of trees and plants and production of various agricultural commodities. 3. The Petitioner/Company has 3 Directors on the Board of the Company. Petitioner/Company had proposed to enter into an agreement, for sale of a part of its agricultural land, to a third party. Upon proceeding to execute the agreement of sale, with the third party, for a part of the agricultural land, owned by the Petitioner/Company, it was brought to their notice that the name of the company had been struck off from the Register of Companies. On further scrutiny, it was found that the name of the Petitioner/Company was struck off from the Register of Companies on account of the failure of the Petitioner/Company, to file the statutory returns since 2010, by a suo motu action of the respondent, after issuing a Notice of Striking off and dissolution in Form STK-7, under Section .....

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..... glish and Tamil dailies and the names of those companies have been shared with regulatory authorities like Income Tax, Central Excise and Service Tax authorities seeking objection, from all concerned and from general public. 4. After verifying the replies received and the filing position, 3889 companies have been finally struck off and their names have been published in the Official Gazette. 5. The subject company is one among such companies identified by this office for action under section 248 of the Act. After due notice and after completing the due procedure the company was finally struck off under section 248(5) of the Act on 15.07.2017 along with other companies and its name has been published in Gazette of India dated 15.07.2017. 6. In the instant case, the company had defalted in filing its statutory returns since 2010. Hence as per the directions of Ministry notice under section 248(1) in STK-5 were issued to company and its directors on 03.03.2017 of the Companies Act, 2013. No reply has been received from the company and its directors. Hence the company was struck off under section 248(5). 7. Regarding averments made in of the petition, its is submitted that notice under .....

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..... for revival of the Company. The Applicant can explore the possibilities of winding up the Company. Accordingly, the Application stands rejected." 8. Aggrieved by the same, instant civil revision petition has been filed, on the following grounds:- "1. The Tribunal failed to appreciate that the petitioner company has been in existence for more than 57 years and has been carrying on business or operations for a period of two immediately preceding financial years. Consequently, the requirements of section 248 of the Companies Act, 2013 for striking of the petitioner company have not been satisfied. 2. The Tribunal failed to appreciate that, due to the absence o f grounds under section 248 of the Companies Act, the respondent had fairly stated in its counter filed before the Tribunal that it had no objection in restoring the name of the petitioner company to the register of companies. 3. The Tribunal erroneously held that there was no plausible reason for revival of the petitioner company. The Tribunal ignored documentary evidence placed before it that the petitioner company never ceased to carry on its business or operations and the question o f revival o f the company there .....

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..... tion of India. 2. Material on record discloses that in exercise of powers under Section 248 (1) of the Companies Act, 2015, notice, dated 28/2/2017, has been issued, in Form STK - 1, under the Companies Act. There was no reply from the revision petitioner. Hence, Form STK - 7, notice has been issued, for striking off notice/resolution. For brevity, striking off notice, dated 28/6/2017, is reproduced hereunder:- FORM NO.STK - 7 NOTICE OF STRIKING OFF AND DISSOLUTION (Pursuant to sub-section (5) of Section 248 of the Companies Act 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016) - GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS OFFICE OF THE REGISTRAR OF COMPANIES TAMIL NADU, COIMBATORE 683, Coimbatore Stock Exchange Building, II Floor Trichy Road, Singanallur Coimbatore 641 005. Notice No.STK-7/ROCCBE/2017/1 Dated: 28/6/2017 Reference: In the matter of Companies Act, 2013 and the below mentioned 286 Companies in Annexure A. This is with respect to this Office's STK -1 Notices issued from 23/2/2017 and notice in Form STK - 5 issued on 14/3/2017 and 7/4/2017. Notice is hereby published that pursuant to sub-Section (5) o .....

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..... ication in the Official Gazette of the notice under sub- Section (5) of Section 248 may, if satisfied that the company was, at the time of its name being struck off, carrying on business or in operation or otherwise it is just that the name of the company be restored to the register of companies, order of the name of the company to be restored to the register of companies, and the Tribunal may, by the order, give such other directions and make such provisions as deemed just for placing the company and all other persons in the same position as nearly as may be as if the name of the company had not been struck off from the register of companies. 6. Clause 252 of the Notes on Clauses reads thus:- This clause corresponds to sub-section (6) of Section 560 of the Companies Act, 1956 and seeks to provide that any person, aggrieved by an order of the Registrar notifying a company as dissolved under clause 248 can file an appeal to the Tribunal within three years for restoration of the name of the company in the register of companies. If Tribunal is of the opinion that removal of name is not justified or in the absence of any ground, may order for restoration of the name. The company shall .....

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..... ereunder:- At the expiry of the time mentioned in the notice, the Registrar may, unless cause to the contrary is shown by the company, strike off its name from the register of companies, and shall publish notice thereof in the Official Gazette, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. 11. Notes on Section 248 is extracted below:- This Clause corresponds to section 560 of the Companies Act, 1956 and seeks to provide the circumstances under which the Registrar shall send a notice to the company and all the directors of the company of his intention to remove the name of the company from the register of companies. The clause further provides that a company may by a special resolution or with the consent of seventy-five per cent members in terms of paid up share capital may also file an application to the Registrar for removing the name of the company from the register of companies. Where company is regulated under special law, approval of the regulatory body constituted, shall also be obtained and enclosed with application. The clause further seeks to provide that at the expiry of the time mentioned in the notice, the Registrar m .....

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..... mbatore, to file a specific affidavit as to whether any order under sub- Section 5 is passed before causing publication of the notice. Registrar of Companies, Coimbatore is directed to produce the file. 16. Call on 7/8/2018. 11. Registrar of Companies, Tamil Nadu, Coimbatore, has filed an additional counter affidavit, dated 18.09.2018, wherein after extracting Section 248 of the Companies (Removal of names) Rules, 2016 and the procedure followed by the Registrar of Companies for striking off, Registrar of Companies, Tamil Nadu, Coimbatore, has stated hereunder:- "d) Intimation of Regulatory Authorities:- The Registrar of Companies shall simultaneously intimate the concerned regulatory authorities regulating the company viz., Income Tax authorities, Central excise and Service Tax authorities having jurisdiction over the Company about the proposed action of Removal or Striking off of names of such companies seek objections if any to be furnished within a period of 30 days from the date of issue of the letter of intimation and if no objections are received within 30 days from the date of issue of the letter of intimation from the respective authorities, it shall be presumed that .....

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..... anies and called upon the company to submit a representation within 30 days from the receipt of this notice. Letter dated 28.02.2017, is extracted hereunder:- Form No.STK 1 Notice by Registrar for removal of name of the company from the register of companies [Pursuant to sub-section (1) of section 248 of the Companies Act, 2013 and rule 3 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016] - GOVERNMENT OF INDIA MINISTRY OF CORPORATE AFFAIRS OFFICE OF THE REGISTRAR OF COMPANIES TAMIL NADU, COIMBATORE 683, Coimbatore Stock Exchange Building, II Floor Trichy Road, Singanallur Coimbatore 641 005. Letter No.ROC/CBE/STK1/2017/44/2079 to 2082/17-dated:28.02.2017 Reference: In the matter of M/s A G D PRIVATE LIMITED (U01117TZ1959PTC000300) - In the matter of Companies Act, 2013 (1) Pursuant to sub-sections (1) and (2) of Section 248 of the Companies Act, 2013, notice is hereby given that as per available record:- the company has failed to commence its business within one year of its incorporation; or - the company is not carrying on any business or operation for a period of two immediately preceding financial years and has not made any application w .....

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..... g off under Section 248(1) of the Companies Act, 2013 - Seeking of objections - reg. I am forwarding herewith a list containing names of 329 companies along with their registered office address, which are proposed to be considered for action of removal/striking off the names of such companies from the register of companies. This office has been notice in Form STK-1 to the above companies and their directors as per address as available on record seeking representation, if any, against the proposed action of striking off, within 30 days from the date of the said notice. Notices in STK-5 containing the names of the companies are also being placed in the MCA website and published in Official Gazette and newspapers, seeking objections, if any, from the public. It is requested that the list may be shared with concerned offices having jurisdiction over the companies and objections, if any may be furnished to this office. If no objections are received within 30 days, it shall be presumed that regulatory authority has no objection to the proposed action of striking off or removal of names of these companies from the Register of companies. Encl: As above. Yours faithfully (JOSEKUTTY V.E.) RE .....

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..... o the proposed removal/striking off of name of the companies from the register of the companies may send his/her objection to the office address mentioned here above within thirty days from the date of publication of this notice. Registrar of Companies Tamil Nadu, Coimbatore (iv) Similar publication has been made in a Vernacular Newspaper, Tamilnadu, dated 11.05.2017, same is extracted hereunder:- 16. Notice of Striking off and Dissolution (Pursuant to sub-section (5) of Section 248 of the Companies Act 2013 and Rule 9 of the Companies (Removal of Names of Companies from the Register of Companies) Rules, 2016), Government of India, Ministry of Corporate Affairs, Office of the Registrar of Companies Tamil Nadu, Coimbatore, has been published in the Gazette of India in English on 28.06.2017. Tabular column namely S.No.40.-U01117TZ1959PTC000300-A G D PRIVATE LIMITED. Similar Gazette notification has been issued in Hindi on 30.06.2017. 17. When the Gazette Notifications published on 28.06.2017 in English and 30.06.2017 in Hindi, state that the petitioner company has been struck off on 28.06.2017, under Section 248 of the Companies Act, 2013. File note strangely states only on 4.07.2017 .....

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..... on 07.04.2017 & published in official Gazette on 08.04.2017. The company has strike off from 28.06.2017 and published STK-7 on Official Gezette on 15.07.2017 and published on web site 09.07.2017." THE GAZETTE OF INDIA, APRIL 8, 2017 (CHAITRA 18, 1939) 44. U01117TZ1959PTC000300 - A G D PRIVATE LIMITED" 19. Now, from the files, it is clear that the petitioner company has been found fit for striking off only on 04.07.2017, whereas publication under Section 248(5) has been effected, as if, the company had already been strike off on 28.06.2017 itself. No order under sub section (6) of section 248 of the Companies Act 2013, has been passed by the Registrar of Companies, Tamilnadu, Coimbatore, striking off the petitioner company from the Register of Companies, in which event, what is the effect of the petitioner company, proceeding under Section 252(3) of the Companies Act, 2013, and the orders passed thereon? 20. Perusal of the files, produced does not disclose any specific order passed under Section 248 of the Companies Act, 2015, whereas we find only the publication under Sub Section 5 of Section 248 of the Companies, Act, 2015. 21. From the facts and materials, it could .....

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..... clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces." 23. We deem it fit to consider the scope and power of the superintendence of the High Court, under Article 227 of the Constitution of India, (i) In Jodhey v. State reported in AIR 1952 All. 788, after hearing the history of Article 227 of the Constitution of India, the Allahabad High Court hold thus, "9. A comparison of the above provision of law with analogous provisions of law prior to the Constitution of India brings into prominence some important features of the new state of law established by the constitution. The most important feature of Article 227, Constitution of India, is that it has omitted any restriction on the power of the High Court to interfere in judicial matters, which was imposed by Sub-section (2) of Section 224, Government of India Act, 1935. In this way, it has enlarged the power of the High Court and .....

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..... stitution of India is "Power of superintendence over all Courts by the High Courts". This may be contrasted with the marginal note of Section 224, Government of India Act, 1935, which was "Administrative functions of the High Court" and the marginal note of Section 107, Government of India Act, 1915, which was "Powers of High Court with respect to subordinate Courts". Similarly, the marginal note of Section 15, High Courts Act, 1861, was "High Courts to superintend and to frame rules of practice for subordinate Courts", The alteration in this marginal note also emphasises the fact that the powers of the High Court under the Constitution extend not merely to administrative functions but embraces all functions, whether administrative or judicial. It also indicates that this power under the Constitution extends to all Courts and is not confined to "subordinate Courts" as indicated by the marginal note of Section 107, Government of India Act, 1915. A comparison of the draft Constitution with the enacted Constitution shows that the marginal notes were inserted under the authority of and with the knowledge of the Constituent Assembly. Und .....

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..... etters or restrictions placed on this power of superintendence in this Clause and the purpose of this Article seems to be to make the High Court the custodian of all justice within the territorial limits of its jurisdiction and to arm it with a weapon that could be wielded for the purpose of seeing that justice is meted out fairly and properly by the bodies mentioned therein. To fulfil this function it seems to me that the power of superintendence of the High Court over judicial matters is as necessary as over administrative matters. As a matter of fact judicial function of a Court is not less important than its administrative function. In fact it is more necessary to rectify lapses in judicial matters than defects in administrative matters. A judicial error might affect the rights, liberty and freedom of the subject whereas an administrative error might not do so. To my mind superintendence over judicial functions is a necessary complement of superintendence over administrative functions and it is sometimes very difficult to say where the one ends and the ether begins. If the High Court is to perform this function efficiently and effectively, it must act on both sides, otherwise t .....

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..... igh Courts themselves. It seems to me that these powers cannot be exercised unless there has been an unwarranted assumption of jurisdiction not possessed by Courts or a gross abuse of jurisdiction possessed by them or an unjutifiable refusal to exercise a jurisdiction vested in them by law. Apart from matters relating to jurisdiction, the High Court may be moved to act under it when there has been a flagrant abuse of the elementary principles of justice or a manifest error of law patent on the face of the record or an outrageous miscarriage of justice which calls for remedy. Under this power, the High Court will not be justified in converting itself into a Court of appeal and subverting findings of fact by a minute scrutiny of evidence or interfering with the discretionary orders of Court. Further, this power should not be exercised, if there is some other remedy open to a party. Above all, it should be remembered that this is a power possessed by the Court and is to be exercised at its discretion and cannot be claimed as a matter of right by any party." ii) In Trimbak v. Ram Chandra reported in AIR 1977 SC 1222, the Hon'ble Supreme Court held as follows: "It is a wel .....

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..... of King's Bench. "The most useful instruments which the Court found ready to hand were the prerogative writs. But not unnaturally the control exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of justices of the peace and commissioners for examination in the King's Bench and for quashing if any legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of control" (page 592). 9. The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other villages Vs. Zamindar of Parlakimedi and Anr. - AIR 1943 PC 164. "The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, i .....

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..... ural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision." 11. In the initial years the Supreme Court was not inclined to depart from the traditional role of certiorari jurisdiction and consistent with the historical background felt itself bound by such procedural technicalities as were well-known to the English judges. In later years the Supreme Court has relaxed the procedural and technical rigours, yet the broad and fundamental principles governing the exercise of jurisdiction have not been given a go-by. 12. In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which has jurisdict .....

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..... roceedings or the court itself may not have been legally constituted or suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in violation of the principles of natural justice where no particular procedure is prescribed. An error in the decision or determination itself may also be amenable to a writ of certiorari subject to the following factors being available if the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not amenable to a writ of certiorari. 15. Any authority or body of persons constituted by law or having legal authority to adjudicate upon questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate to High Court can be subjected to certiorari. 16. While dealing with the question whether the orders and the proceedings of subordinate Court are amenabl .....

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..... as to make his orders amenable to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the Court has laid down as law by way its own holding that a writ of certiorari by High Court cannot be directed to Court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar Mirajkar's case (supra) is from third edition of Halsbury Laws of England (Simond's Edition, 1955). The law has undergone a change in England itself and this changed legal position has been noted in a Constitution Bench decision of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. - (2002) 4 SCC 388. Justice SSM Quadri speaking for the Constitution Bench has quoted the following passage from Halsbury's Laws of England, 4th Edn.(Reissue) Vol.1 (1) : "103. Historically, prohibition was a writ whereby the royal courts of common law prohibited other courts from entertaining matters falling within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record of an inferior court in the King's Bench for review or to remove indictments and to public officers and bodies, to order the performance of a .....

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..... certiorari the High Court may quash the proceedings of the tribunal, authority or court but may not substitute its own findings or directions in lieu of one given in the proceedings forming the subject-matter of certiorari. 21. Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice. 22. Article 227 of the Constitution confers on every High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction excepting any court or tribunal constituted by or under any law relating to the armed forces. Without prejudice to the generality of such power the High Court has been conferred with certa .....

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..... 07 of the Government of India Act, 1915 excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors. The power may be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the jurisdiction though available is being exercised in a manner which tantamounts to overstepping the limits of jurisdiction. 25. Upon a review of decided cases and a survey of the occasions wherein the High Courts have exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction under Article 227 in the given facts and circumstances in a variety of cases, it seems that the distinction between the two jurisdictions stands almost .....

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..... rcise of appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings and avoiding delay and procrastination which is occasioned by subjecting every order at every stage of proceedings to judicial review by way of appeal or revision. So long as an error is capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction though available to be exercised only at the conclusion of the proceedings, it would be sound exercise of discretion on the part of the High Court to refuse to exercise power of superintendence during the pendency of the proceedings. However, there may be cases where but for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court or tribunal would be incapable of being remedied once the proceedings have concluded. 27. In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors., (1979) 3 SCC 118, the scope of jurisdiction under Article 227 of the Constitution came up for the consideration of this Court in the context of Sections 435 and 439 of the Criminal Procedure Code which prohibits a second revision to the High Court against decision in first revi .....

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..... constitutional amendment, not to speak of a parliamentary legislation. A recent Division Bench decision by Delhi High Court (Dalveer Bhandari and H.R. Malhotra, JJ) in Criminal Writ Petition NO.s.758, 917 and 1295 of 2002 - Govind Vs. State (Govt. of NCT of Delhi) decided on April 7, 2003 (reported as [2003] 6 ILD 468 makes an indepth survey of decided cases including almost all the leading decisions by this Court and holds - "The power of the High Court under Article 226 cannot be whittled down, nullified, curtailed, abrogated, diluted or taken either by judicial pronouncement or by the legislative enactment or even by the amendment of the Constitution. The power of judicial review is an inherent part of the basic structure and it cannot be abrogated without affecting the basic structure of the Constitution." The essence of constitutional and legal principles, relevant to the issue at hand, has been correctly summed up by the Division Bench of the High Court and we record our approval of the same. 30. It is interesting to recall two landmark decisions delivered by High Courts and adorning the judicial archives. In Balkrishna Hari Phansalkar Vs. Emperor, AIR 1933 Bombay 1 .....

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..... proceedings" as understood in Indian practice, provides a ground for the exercise of the power of superintendence. The line between the two classes of case must be, however, kept clear and straight. In general words, the High Court's power of superintendence is a power to keep subordinate Courts within the bounds of their authority, to see that they do what their duty requires and that they do it in a legal manner. 32. The principles deducible, well-settled as they are, have been well summed up and stated by a two-judges Bench of this Court recently in State, through Special Cell, New Delhi Vs. Navjot Sandhu @ Afshan Guru and Ors., JT 2003 (4) SC 605, para 28. This Court held : (i) the jurisdiction under Article 227 cannot be limited or fettered by any Act of the state Legislature; (ii) the supervisory jurisdiction is wide and can be used to meet the ends of justice, also to interfere even with interlocutory order; (iii) the power must be exercised sparingly, only to move subordinate courts and Tribunals within the bounds of their authority to see that they obey the law. The power is not available to be exercised to correct mere errors (whether on the facts or laws) and a .....

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..... e injunction to a private individual who is not under statutory duty to perform public duty or vacating an order of injunction, the main relief is for issue of a writ of mandamus to a private individual and such a writ petition under Art.226 of the Constitution would not be maintainable." 36. It seems that the High Court in its decision impugned herein formed an impression from the abovequoted passage that a prayer for issuance of injunction having been refused by trial court as well as the appellate court, both being subordinate to High Court and the dispute being between two private parties, issuance of injunction by High Court amounts to issuance of a mandamus against a private party which is not permissible in law. 37. The above quoted sentence from Ganga Saran's case cannot be read torn out of the context. All that the Full Bench has said is that while exercising certiorari jurisdiction over a decision of the court below refusing to issue an order of injunction, the High Court would not, while issuing a writ of certiorari, also issue a mandamus against a private party. Article 227 of the Constitution has not been referred to by the Full Bench. Earlier in this judgment .....

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..... which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted 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) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only i .....

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..... in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise selfrestraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would 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. iv) In Following Surya Devi's case, cited supra, in Jeya v. Sundaram Iyyar reported in 2005 (4) MLJ 278, this Court held that, "when it is shown that the trial Court has failed to exercise .....

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..... ts of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice." 24. It is clear that whether it is 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 (ii) a grave injustice or gross failure of justice has occasioned thereby. It is also clear that the High Court in exercise of certiorari or supervisory jurisdiction will not convert 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. 25. As observed in Surya Dev Rai vs. Ram Chander Rai (supra), the exercise of jurisdiction under article 226 or 227 of the Constitution cannot be tied down in a straight jacket formula or rigid rules. To put it clear though th .....

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..... eties, Madras & others v. P.S.Rajagopal Naidu, Govindarajulu and others, AIR 1970 SC 992, the Apex Court has held that the High Courts should not act as a Court of appeal and reappraise and re-examine the relevant facts and circumstances which led to the making of order. 15. In Muni Lal and others v. Prescribed Authority and others, AIR 1978 SC 29, it has been held that the High Court cannot re-appreciate the evidence and come to its own conclusion different from that of the prescribed Authority. 16. In Ganpat Ladha v. Sashikant Vishnu Shinde, AIR 1978 SC 955, the Apex Court has held that the High Courts cannot justify the exercise of its discretionary powers under Article 227of the Constitution as to the finding of fact; unless such finding of fact is clearly perverse and patently unreasonable. 17. In Chandavarkar Sita Ratna Rao v. Ashalata S.Guram, (1986) 4 SCC 447, the Apex Court at page 460, para (4) has held thus:- "It is true that in exercise of jurisdiction under Article 227 of the Constitution the High Court could go into the question of facts or look into the evidence if justice so requires it, if there is any misdirection in law or a view of fact taken in the tee .....

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..... e subordinate courts and tribunals resulting in grave injustice to any party" 19. In State v. Navjot Sandhu, (2003) 6 SCC 641, the Apex Court, at page 656, para (28) has held as under:- "Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeking that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence , under Article 227, must be exercised sparingly and only to keep subordinate court and tribunals w .....

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..... Unless, the errors questioned are apparently error, perverse and the findings are not supported by any materials, the exercise of power under Article 227 of the Constitution to interfere with in such orders may not be available. ix) In Ramesh Chandra Sankla v. Vikram Cement reported in AIR 2009 SC 712, at paragraph 81, held as follows: "81. The power of superintendence under Article 227 of the Constitution conferred on every High Court over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction is very wide and discretionary in nature. It can be exercised ex debito justitiae, i.e. to meet the ends of justice. It is equitable in nature. While exercising supervisory jurisdiction, a High Court not only acts as a court of law but also as a court of equity. It is, therefore, power and also the duty of the Court to ensure that power of superintendence must advance the ends of justice and uproot injustice'." 24. Prayer is to set aside the order made in C.P.No.178 of 2017, dated 09.01.2018. True that there is an alternative remedy under the NCLT Act, 2013, to prefer an appeal to the Tribunal. But when the error is apparent on the fa .....

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..... efrom cannot be of greater validity and in that sense, the question of directing the parties to prefer an appeal against that order, which is a nullity, is if no consequence. In the event when the order is void, non-est, relegating a person to avail alternative remedy would result in palpable injustice. In that sense, in the decision reported in the case of Municipal Council v. Kamal Kumar (AIR 1965 SC 1321), the Apex Court has held that the High Court could retain the discretion to interfere in proper cases, even in the case when the impugned order is ultra vires." 27. In Shalini Shyam Shetty and another vs. Rajendra Shankar Patil, reported in (2010) 8 SCC 329, the Hon'ble Supreme Court explained the difference between the scope and exercise of power under Article 226 or 227 of the Constitution of India. 28. Apparently, when there is no order under Sub Section (6) of Section 248 of the Companies Act, 2013, the question is whether the steps taken by the petitioner under Section 252(3), for the reliefs prayed for, have any legs to stand? In such circumstances, whether this Court can strike off the proceedings initiated by the petitioner? or on the facts and circumstances, e .....

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..... asked for provided that it is not inconsistent with that specific claim which the case raised by the pleadings. The court must have regard for all the relief and look at the substance of the matter and not its forms. It is equally settled law that grant of declaring relief is always one of discretion and the court is not bound to grant the relief merely because it is lawful to do so. Based on the facts and circumstances the court may on sound and reasonable judicial principles grant such declaration as the facts and circumstances may so warrant. Exercise of discretion is not arbitrary. If the relief asked for is as of right. something is included in his cause of action and if he establishes his cause of action, the court perhaps has been left with no discretion to refuse the same, But when it is not as of right, then it is one of the exercise of discretion by the court. In that event the court may in given circumstances grant which includes 'may refuse' the relief. It is one of exercising judicious discretion by the court. Same consideration would apply to the causes under the Act and the Tribunal has such discretion. The Tribunal, while keeping justice, equity and good co .....

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..... usted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said to be acting unreasonably. 29. In the case on hand, on the premise that there is an order, striking off the company from the register of companies, the petitioner has filed an application under Section 252(3) of the Companies Act, 2013, and orders have been passed in C.P.No.178 of 2017, dated 09.01.2018, which is impugned in this revision petition. But this Court on perusal of files, has found that there is no order under Section 246(6) of the Act, at all. By inadvertence the petitioner company, was of the view that, there was an order under Section 248(6), of the Companies Act, 2013, and proceeded further whether this Court is denuded of the power under Article 227 of the Constitution of India, to ignore the fundamental error committed by the Registrar of Companies, and direct the petitioner to avail the alternate remedy under Section 252(3) of the Companies Act, 2013, which admittedly, .....

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