TMI Blog2018 (10) TMI 1739X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 order by which the company is strike off. Legislation if any enacted, providing for an alternative remedy, cannot take away the Constitutional Powers of the High Courts, under Article 226 or 227 of the Constitution of India. High court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India, may not entertain a writ petition, on the ground of availability of an alternative remedy, but the rule cannot have universal application. It is well settled that despite existence of an alternative remedy, still, High Court in exercise of its jurisdiction, entertain a writ petition and pass suitable orders, if it is found that the authority had not acted in accordance with law. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ister 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 248 of the Companies Act, 2013 dated 28.06.2017. 4. The Petitioner/Company has employed the services of a part time accountant, for filing of the necessary statutory returns, under the Companies Act, 1956/2013 from the financial year 2009-10 and onwards. However, the said accountant has violated the trust of the directors and had not filed any of the said statutory returns inspite of payments being made to him for his services. The directors were not aware that the said returns, were not filed with the Registrar of Companies. The Audited Financial Statements, from the financial year 2009-10 upto the financial year 2016-17 were duly adopted by the shareholders at the Annual General Meetings held in the respective years. The Petitioner/Company has agricultural land to the tune of 44.05 acres, which is used for agricultural activ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory 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 section 248(1) was issued to the company and its directors in Form STK-1 by speed post on 03.03.2017. 8. However, it is respectfully submitted that Registrar of Companies has no objection in restoring the name of the company back to the Register of Companies subject to the following: i) As per NCLT (Amendment) Rules 2017, Rule 87A has been inserted into the NCLT Rules 2016. As per Rule 87A(4), where the Tribunal makes an order restoring the name of the company in the register, the order shall direct that: a) The appellant or applicant shall deliver a certified copy to the Registrar of Companies within thirty days from the date of the order; b) On such delivery, the Registrar of Companies do, in his official name and seal, publish the order in the Official Gazette; c) The appellant or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal 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 therefore dis not arise. 4. The Tribunal failed to appreciate that the nonfiling of the audited financial statements and the annual returns from 2009-10 were neither willful nor wanton but is beyond the control of the petitioner company. 5. The Tribunal erred in holding that the intention of the petitioner to sell some of its agricultural lands will lead to exploring the possibilities of winding up petitioner company. 9. Contradicting the grounds raised in the civil revision petition, the respondent has filed a counter affidavit, wherein it is stated as follows:- (i) With reference to the averments of the petitioner at para III IV of the petition, it is submitted that the petitioner company has not filed its statutory returns with this respondent for the financial year 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... U, 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) of Section 248 of the Companies Act, 2013 the said names have this day of 28th June 2017 been struck off the Register of Companies and the said Companies are dissolved. 3. Section 252 (1) provides for an appeal to the Tribunal, which reads thus:- Appeal to Tribunal (Corresponds to S 560 of the 1956 Act). Any person aggrieved by an order of the Registrar, notifying a company as dissolved under Section 248, may file an appeal to the Tribunal within a period of three years from the date of the order of the Registrar and if the Tribunal is of the opinion that the removal of the name of the company from the register of companies is not justified in view of the absence of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 file the copy of order with Registrar and the Registrar shall restore the name and issue a fresh Certificate of Incorporation. The clause further provides that where the name of the Company is struck off from the register of companies, the name of the company may be restored, if the Tribunal, on an application by the company, any member or creditor, is satisfied that the company was carrying on business or was in operation or otherwise and it is just to restore the name of company to the register of companies before the expiry of twenty years. 7. Thus, when Section 252 of the Companies Act, 2015, provides for an appeal, as against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 may strike of the name of the Company from the register of companies, and on the publication in the Official Gazette of this notice, the company shall stand dissolved. However, the Registrar, before passing an order shall satisfy himself that sufficient provision has been made for the realisation of all amount due to the company and for the payment or discharge of its liabilities and obligations by the company within a reasonable time. The liability of every director, manager or other officer exercising any power of management and every member of company dissolved shall continue and may be enforced as if company had no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities:- 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 they have no objection to the proposed action of striking off or removal of Name. e) Strike off name and publish Notice of dissolution of the Company: Thereafter as per Rule 9 of Companies (Removal of Names) Rules, 2016, the Registrar shall cause a Notice under sub section (5) of Section 248 for striking off the name of the Company from the Register of Companies and its dissolution to be published in official gazette in Form STK-7 and the same shall also be placed on the official website of the Ministry of Corporate Affairs. The Registrar has followed the above mentioned procedures fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... MPANIES 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 within such period for obtaining the stats of a dormant company under section 455. - the company has filed an application under sub-section (2) of section 248 for removing the name from the register of companies on the grounds mentioned in sub-section (1) of section 248. (2) Therefore, on the basis of aforesaid grounds(s), I intend to remove the name of company from the register of companies and request you to send your representation along with copies of the relevant do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fice 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.) REGISTRAR OF COMPANIES TAMILNADU, COIMBATORE OFFICE OF THE REGISTRAR OF COMPANIES, TAMILNADU, COIMBATORE List of companies, to which notices in STK-1 under section 248(1) of the Companies Act 2013 were issued till 3.3.2017 SL.NO CIC Company N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, proposes to remove/strike off the names of the above mentioned companies from the register of companies and dissolve them unless a cause is shown to the contrary, within thirty days from the date of this notice. 2. Any person objecting to 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. File note on 14.12.2017 of the Deputy Registrar of the Companies, Tamilnadu, Coimbatore, reads thus:- CIN of the company: U01117TZ1959PTC000300 Registered Office: A G D PRIVATE LIMTIED 810, HOLLOW BLOCK, TRICHY ROAD, RAMANATHAPURAM, COIMBATORE, Coimbatore, Tamil Nadu ,641045, India. Name of the comp... Date of incorporati... 24.04.1959 Nature of company : Non-govt Type of Company : Private company Company category: Company limited by shares Main Business: Whether listed or ... Yes --No Maximum no. of m...0 Number of active charge... 0 Authorized capital: 100,000.00 Amount of active charges... Mail ID: cadevaraj@gamil.com Company status: Strike off Suspended at Sto... Annual return filing details: Date of filing of Annual Return Financial year end Date Dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 252(3) of the Companies Act, 2013 is reproduced:- (3) If a company, or any member or creditor or workman thereof feels aggrieved by the company having its name struck off from the register of companies, the Tribunal on an application made by the company, member, creditor or workman before the expiry of twenty years from the publication 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 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. Said application in C.P.No.178 of 2017 has been rejected on 09.01.2018, against which the instant civil revision petition is filed. 22. Article 227 of the Constitution of India, which deals with the supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Government of India Act 1935 but also in the Government of India Act, 1915, as well as in the High Court Act, 1861, are also omitted from Article 227 of the Constitution of India. The effect of this omission to my mind is to make it clear beyond doubt that all Courts functioning within the territory in relation to which the High Court exercises its jurisdiction were subject to supervisory jurisdiction of High Court. Thus even special Courts set up under Acts of legislature for specific purposes would also be subject to its jurisdiction. It seems to me that in this regard Article 227 has vested the High Court with a greater power than that given to it even under the Government of India Act, 1915, or the High Court Act, 1861. It is also relevent in this connection to note that the Constitution of India has given this supervisory power to the High Court not only over all Courts but also over all tribunals throughout the territories in relation to which it exercises its jurisdiction. The word 'tribunals' did not find a place either in the Government of India Act of 1935 or in the Government of India Act 1915 or in the High Court Act, 1861. The purpose of the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose circumstances have been held to be admissible by a Full Bench decision of the Allahabad-High Court in Ram Saran v. Bhagwat Prasad, A.I.R. 1929 ALL. 53 (F.B.) by a Full Bench decision of the late Chief Court of Avadh in Emperor v. Mumtaz Husain, A. I. E. 1935 Oudh 337 (F.B.) and by a Full Bench decision of the Bombay; High Court in Emperor v. Ismail Sayad Saheb Mujawar, A. I. E. 1933 Bom. 417 (P.B.). In a recent decision of the Bombay High Court reported in the State of Bombay v. Heman Santlal, A.I.R. 1952 Bom. 16, it was held by Chagla C.J. that the marginal notes of the Constitution may be referred to for the purpose of understanding the drift of the Articles. In Suresh Chandra v. Bank of Calcutta Ltd., 54 Cal. W.N 832 at p. 836 the marginal notes of an Indian Act were compared with the corresponding marginal notes of the English Act to elucidate the meaning of the section. The contrary view expressed in the Commr. of Income-Tax Excess Profit Tax v. Parasram Jethanand, A.I.R, 1950 Mad. 631 and Sutlej Cotton Mills Ltd v Commr, of Income-Tax, West Bengal, A.I.R. 1950 Cal. 551 should not therefore, be accepted without qualification. The opinion which I, however, have formed is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence in the administrative field. The use of words without prejudice to the generality of the foregoing provision is not without significance. It seems to imply that the power of superintendence over administrative functions given to the High Court does not in any way derogate from the general power of superintendence given by Clause (1). 12. Clause (a) of Article 227 again enumerates certain specific matters which would fall on the administrative side of the work of a Court. 13. Clause (4) shows that the only Courts exempted from the superintendence of the High Court are Courts or tribunals constituted by or under any law relating to the Armed Force's. A mention of the solitary exemption also emphasises the clear field of superintendence which is left within the jurisdiction of the High Court after exempting the prohibited area covered by the Military Courts or tribunals mentioned therein. 14. A reading of the entire Article 227 of the Constitution of India in the light of the antecedent law on the subject leads one to the irresistible conclusion that the purpose of the constitution makers was to make the High Court responsible for the entire administration of justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f justice and fair play or where the order passed results in manifest injustice, that a court can jusitifiably intervene under Article 227 of the Constitution. iii) The Hon'ble Apex Court in Surya Dev Rai v. Ram Chander Rai and Others reported in (2003) 6 SCC 675 held, a revision could be maintained under certain circumstances, invoking Article 227 of the Constitution of India, and therefore, it is not possible to hold that no revision is maintainable under any provisions of law. In this view, when it is shown that the trial court has failed to exercise its jurisdiction, properly applying the provisions of law, or when it is so that the trial court has wrongly exercised its jurisdiction, offending the statute, then, invoking the supervisory jurisdiction of this Court, can be interfered by this Court. The Hon'ble Supreme Court, at paragraph Nos.6 to 39, held as follows: 6. According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case. 7. H.W.R. Wade C.F. Forsyth define certiorari in these words :- Certiorari is used to bring ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not narrowly limited to inferior Courts in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and operates, within certain limits, in British India. 10. Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice for our purpose to quote from the 7-Judge Bench decision of this Court, the Hon'ble Supreme Court in Hari Vishnu Kamath Vs. Ahmad Ishaque and Ors. (1955) 1 SCR 1104. The four propositions laid down therein were summarized by the Constitution Bench in The Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. (1961) 3 SCR 855 as under:- the High Court was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Vs. Commissioner of Hills Division and Appeals, Assam Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set out by the Constitution Bench : The Common law writ, now called the order of certiorari, which has also been adopted by our Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the law which it was meant to administer. Mere formal or technical errors, even though of law, will not be sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate authority under a statute in question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earned judge of Bombay High Court sitting on the Original Side passed an oral order restraining the Press from publishing certain court proceedings. This order was sought to be impugned by filing a writ petition under Article 226 of the Constitution before a Division Bench of the High Court which dismissed the writ petition on the ground that the impugned order was a judicial order of the High Court and hence not amenable to a writ under Article 226. The petitioner then moved this Court under Article 32of the Constitution for enforcement of his fundamental rights under Article 19(1)(a) and (g) of the Constitution. During the course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury Laws Of England (Vol.11 pages 129, 130) from the foot- note : ( .in the case of judgments of inferior courts of civil jurisdiction) it has been suggested that certiorari might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. L. 885, at p.887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities. 18. Naresh Shridhar Mirajkar's case was cited before the Constitution Bench in Rupa Ashok Hurra's case and considered. It has been clearly held : (i) that it is a wellsettled principle that the technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by superior court to an inferior court which certifies its records for examination; and (iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court issue a writ to a different Bench of the High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not constituted as inferior courts in our constitutional scheme. 19. Thus, there is no manner of doubt that the orders and proceedings of a ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt is paving the path of justice and removing any obstacles therein. The power under Article 227 is wider than the one conferred on the High Court by Article 226 in the sense that the power of superintendence is not subject to those technicalities of procedure or traditional fetters which are to be found in certiorari jurisdiction. Else the parameters invoking the exercise of power are almost similar. 23. The history of supervisory jurisdiction exercised by the High Court, and how the jurisdiction has culminated into its present shape under Article 227 of the Constitution, was traced in Waryam Singh Anr. Vs. Amarnath Anr. (1954) SCR 565. The jurisdiction can be traced back to Section 15 of High Courts Act 1861 which gave a power of judicial superintendence to the High Court apart from and independently of the provisions of other laws conferring revisionsal jurisdiction on the High Court. Section 107 of the Government of India Act 1915 and then Section 224 of the Government of India Act 1935, were similarly worded and reproduced the predecessor provision. However, subsection (2) was added in Section 224which confined the jurisdiction of the High Court to such judgments of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having been certified and sent up by the inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the impugned proceedings, judgment or order but it may also make such directions as the facts and circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as to the manner in which it would now proceed further or afresh as commended to or guided by the High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of the impugned decision, as the inferior court or tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a pra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e conferred by Article 227 is to be exercised sparingly and only in appropriate cases in order to keep the subordinate Courts within the bounds of their authority and not for correcting mere errors; (iii) that the power of judicial interference under Article 227 of the Constitution is not greater than the power under Article 226 of the Constitution; (iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to correct an error of fact which only a superior Court can do in exercise of its statutory power as the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a Court of Appeal. 28. Later, a two-judge Bench of this Court in Baby Vs. Travancore Devaswom Board Ors., (1998) 8 SCC 310, clarified that in spite of the revisional jurisdiction being not available to the High Court, it still had powers under Article 227 of the Constitution of India to quash the orders passed by the Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and material documents, the consideration of which could have led to an opposite conclusion. This power of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ergency Powers Ordinance, 1932. Chief Justice Beaumont held that even if power of revision is taken away, the power of superintendence over the courts constituted by the ordinance was still available. The Governor-General cannot control the powers conferred on the High Court by an Act of Imperial Parliament. However, speaking of the care and caution to be observed while exercising the power of superintendence though possessed by the High Court, the learned Chief Justice held that the power of superintendence is not the same thing as the hearing of an appeal. An illegal conviction may be set aside under power of superintendence but - we must exercise our discretion on judicial grounds, and only interfere if considerations of justice require us to do so. 31. In Manmatha Nath Biswas Vs. Emperor, (1932-33) 37 C.W.N. 201, a conviction based on no legal reason and unsustainable in law came up for the scrutiny of the High Court under the power of superintendence in spite of right of appeal having been allowed to lapse. Speaking of the nature of power of superintendence, the Division Bench, speaking through Chief Justice Rankin, held that the power of superintendence vesting in the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be a bar on a challenge being made under Article 227 of the Constitution for which an opportunity was prayed to be allowed. The Court observed If any remedy is available to a party, no liberty is necessary to be granted for availing the same. 34. We are of the opinion that the curtailment of revisional jurisdiction of the High Court does not take away and could not have taken away - the constitutional jurisdiction of the High Court to issue a writ of certiorari to a civil court nor the power of superintendence conferred on the High Court under Article 227 of the Constitution is taken away or whittled down. The power exists, untrammelled by the amendment in Section 115 of the CPC, and is available to be exercised subject to rules of self discipline and practice which are well settled. 35. We have carefully perused the Full Bench decision of the Allahabad High Court in Ganga Saran's case relied on by the learned counsel for respondent and referred to in the impugned order of the High Court. We do not think that the decision of the Full Bench has been correctly read. Rather, vide para 11, the Full Bench has itself held that where the order of the Civil Court suf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Anr., (1965) 3 SCR 536, which have held in no uncertain terms, as the law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine questions affecting the rights of subjects and obliged to act judicially. We are therefore of the opinion that the writ of certiorari is directed against the act, order of proceedings of the subordinate Court, it can issue even if the lis is between two private parties. 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 state the same as hereunder:- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation 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 in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that, 28. Therefore, the consistent judicial pronouncement by the Supreme Court as well as this Court makes it very clear that in case where the lower Court passes an order which cannot be accepted by any prudent sense, it is always open to the High Court under Article 227 of the Constitution of India to correct the same by exercising the right of superintendence. vi) In B.K.Muniraju v. State of Karnataka and others reported in (2008) 4 SCC 451, the Hon'ble Supreme Court at paragraphs 22 to 25, held as follows: 22. It is settled law that a writ of Certiorari can only be issued in exercise of extraordinary jurisdiction which is different from appellate jurisdiction. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals or authorities in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave mis-carriage of justice. In regard to a finding of fact recorded by an inferior tribunal or authority, a writ of Certiorari can be issued only if in recording such a finding, the tribunal/authority has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y usurped the jurisdiction exercisable by any other court and there is no impediment to interfere with the same, if the courts, subordinate to the High Court are allowed to transgress their powers by touching the subjects, which are not ear marked for them, the justice will not be rendered to the needy persons. Under supervisory jurisdiction, the High Court has got every power to correct the orders and decisions of the courts below, which are passed without jurisdiction, particularly when they are not specifically conferred with power to try a particular subject. viii) In M/s.World Wide Brands Inv. v. Smt.Dayavanthi Jhamnadas Hinduja and another reported in 2009-1-L.W.658, a Hon'ble Division Bench of the Madras High Court, at paragraph Nos.11 to 22, considered a catena of judgments and held as follows: 11. In Waryam Sing v. Amarnath, AIR 1954 SC 215, the Apex Court has held that the power of superintendence conferred by Article 227 of the Constitution is to be exercised more sparingly and only in appropriate case in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 12. The above said law is again reiterated b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits of jurisdiction under Article 227 of the Constitution. On the first point, therefore, the High Court was in error. 18. In Ouseph Mathai and others v. M.Abdul Khadir, (2002) 1 SCC 319, the Apex Court in para (4) has held thus:- It is not denied that the powers conferred upon the High Court under Articles 226 and 227 of the Constitution are extraordinary and discretionary powers as distinguished from ordinary statutory powers. No doubt, Article 227 confers a right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cised as the cloak of an appeal in disguise . 20. In Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675, the Apex Court has held that exercise of power under Article 226 is available only to correct the error committed by the Court or the authority and the error should be selfevidence. The Apex Court had also cautioned that such an error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. 21. In Ranjeet Singh v. Ravi Prakash, (2004) 3 Supreme Court Cases 682 the Apex Court has held that unless, the High Court finds patent error in the order of the tribunal or appellate board, it would not be proper to interfere in such order in exercise of jurisdiction under Article 227 of the Constitution. 22. The Superintendence power of the High Court under Article 227 of the Constitution of India, over all Courts and tribunals is basically to keep the subordinate courts/tribunals/appellate authorities constituted under statutes within their bounds and not for correcting mere errors. The exercise of power is limited to want of jurisdiction, er ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a case, where there is an order by which the company is strike off. Legislation if any enacted, providing for an alternative remedy, cannot take away the Constitutional Powers of the High Courts, under Article 226 or 227 of the Constitution of India. High court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India, may not entertain a writ petition, on the ground of availability of an alternative remedy, but the rule cannot have universal application. It is well settled that despite existence of an alternative remedy, still, High Court in exercise of its jurisdiction, entertain a writ petition and pass suitable orders, if it is found that the authority had not acted in accordance with law. 25. Reference can be made to the decisions in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998) 1 SCC 1, Sanjana M.Wig (Ms.) v. Hindustan Petroleum Corporation Ltd., (2005) 8 SCC 242, State of H.P. and Others v. Gujarath Ambuja Cement Ltd., and Another (2005) 6 SCC 499. 26. A Hon'ble Division Bench of this Court, in P.Vinmani v. General Manager, State Bank of India, SAM Branch, Anna Salai, Chennai, reported in AIR 2011 Madras 220 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... First about the jurisdiction and propriety vis a vis circumstances which come into being Subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding. Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief for the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decrotal remedy. Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice--subject, of course, to the absence of other disentitling (actors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld the relief, in exercising its discretionary power and equally would avoid injustice. Likewise when the right to remedy under the Act itself arises on the presence or absence of certain basic facts, at the time of granting relief, may either grant the relief or refuse to grant the same. It would be one of just and equitable exercise of the discretion in moulding the ancillary relief. It is not as of right. In Associated Provincial Picture Houses Ltd. case' under Sunday Entertainments Act, 1932, the licensing authority while granting permission to exhibit cinematographs, imposed certain conditions, prohibiting the children under age of 15 years to be admitted in the theatre. It was challenged as being arbitrary. Dealing with the discretionary power of the licensing authority, the Court of Appeal held that the law recognised certain principles on which discretion must be exercised but within the four comers of those principles. The discretion is not absolute one. The exercise of such a discretion must be a real exercise of the discretion. If in any statute conferring the jurisdiction, there are to be found, expressly or by implication, matters to which the authorities exercisin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
