TaxTMI 
TaxTMI 
2007 (7) TMI 228
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....ernative remedy under the provision of Central Excise Act, 1944 (Section 35B), the petitioner can maintain this writ petition since the impugned order has been passed in violation of the mandatory provision of Section 11A(2A)(a) of the Act and in view of the decision of, the Hon'ble Supreme Court in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 Supreme Court Cases 1. For the said purpose, he has placed reliance on paragraphs 14 and 15. Paragraphs 14 and 15 of the said decision are quoted hereunder :- "14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for "any other purpose". 15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Cour....
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.... arguments, it would be a sufficient ground to set aside the same. He has referred to paragraphs 2 and 4 of the decision which are quoted hereunder :- "2. The inordinate, unexplained and negligent delay in pronouncing the judgment is alleged to have actually negatived the right of appeal conferred upon the convicts under the provisions of the Code of Criminal Procedure. It is submitted that such a delay is not only against the provisions of law but in fact infringes the right of personal liberty guaranteed by Article 21 of the Constitution of India. Any procedure or course of action which does not ensure a reasonable quick adjudication has been termed to be unjust. Such a course is stated to be contrary to the maxim actus cariae neminem gravabit, that an act of the court shall prejudice none. 4. It has been held time and again that justice should not only be done but should also appear to have been done. Similarly, whereas justice delayed is justice denied, justice withheld is even worse than that. This Court in Madhay Hayawadanrao Hoskot v. State of Maharashtra observed that the procedure contemplated under Article 21 of the Constitution means "fair and reasonable procedure"....
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...., the said section cannot be read to mean that the order passed after one year would become without jurisdiction. The submission of learned counsel for the petitioner that after conclusion of hearing the judgment was delivered after more than one year is disputed by the respondents to be factually incorrect and for the said purpose he has placed reliance on paragraph 5 of the short counter affidavit. The said paragraph is quoted hereunder :- "That the petitioner has also stated in paragraph 8 of the writ petition that the hearing was concluded on 26-12-2005 which is also factually incorrect. A bare perusal of the following events would show that the witnesses were cross-examined and even written submissions were submitted upto 11-10-2006. S. No. Date of hearing. Purpose of Hearing Name of Party/person appeared and work done 1. 12-1-2006 Personal hearing Anju Agency (7) Rajni Singh (13) Patel brothers (8). All three represented throug Sri Anurag Misra Advocate and got adjourned. 2. 6-2-2006 Do Sri Anurag Misra advocate for above three parties. Asked for providing certain documents which were given to him 18-2-2006. On 24-2-20....
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....ittedly, the Company filed an appeal through its Director, Smt. Anita Singh on 16th April, 2007 under Section 35B of the Act. Though the present writ petition has been filed by the Company through Sri M.S. Patel, Managing Director but it is not the case of the petitioner that the factum of filing of appeal on 16th April, 2007 by the Company through its Director Smt. Anita Singh was not within his knowledge. On 17th April, 2007, this matter came up before the Court and was adjourned for 25th April, 2007 permitting parties to exchange affidavits. On 25th April, 2007 a short counter affidavit was filed on behalf of the Union of India and matter was adjourned since learned counsel for the petitioner was on sanctioned leave. Thereafter, this case came up before the Court on 8th May, 2007 when learned counsel for the respondent again raised preliminary objection regarding maintainability of writ petition on the ground of availability of statutory alternative remedy and the learned counsel for the petitioner pressed that the writ petition be entertained without relegating him to avail statutory remedy but it was not informed to the Court that the Company has already availed statutory alte....
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....ppeal being statutory, it was his right to file the same but so far as the writ petition is concerned, it is discretionary equitable jurisdiction of this Court. Under Article 226 of the Constitution when a citizen or a person approaches the High Court with the grievance that he has been wronged, the court will take step to protect his right by providing relief irrespective that whether wrong has been done by the State or an Authority which state under Article 12 of the Constitution provided the wrong has affected any legal or fundamental rights of such person. The right that is infringed may be under Part III of the Constitution or any other right which a law validly under may confer upon him. Except of the cases which are beyond territorial jurisdiction, there is no otherwise limitation prescribed under the Constitution of India for the High Court to exercise its jurisdiction under Article 226. Since the power conferred upon the High Court under Article 226 is very wide, by the judicial intervention, certain guide lines and self imposed limitations have been put subject to which the High Court would exercise jurisdiction. It is needless to say that such guidelines are not mandator....
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....ion under Article 226 of the Constitution of India for redressal of the grievance by the petitioner………." 13. The decisions of the Hon'ble Supreme Court of India and this Court, noted above, lead to an irresistible conclusion that the High Court must not allow its extraordinary jurisdiction under Article 226 of the Constitution of India, to be invoked if the petitioner has got an alternative remedy and such remedy is not pleaded and proved to be inadequate or inefficacious, or if it is not established from the material on record that there exist exceptional or extraordinary circumstances to deviate from the well settled normal rule of relegating the petitioner to alternative remedy and permit him to by-pass the alternative remedy. The hurdle of alternative remedy cannot be allowed to be skipped over lightly on a casual and bald statement in the petition that "there is no other equally efficacious or adequate alter native remedy then to invoke the extraordinary jurisdiction of the High Court under Article 226 of the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India". The petitioner must furnish materiel acts and particulars to sustai....
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....view this conduct of the petitioner is nothing but shows that he is guilty of approaching the court and pursuing discretionary remedy with unclean hands and not by showing a bona fide conduct. 19. At this stage, we also propose to consider the argument of learned counsel for the petitioner that since the impugned order is wholly without jurisdiction therefore, it should be treated to be an exception and he should not be relegated to pursue alternative remedy. In order to fortify his submission learned counsel for the petitioner has placed reliance on Section 11A(2A)(a) of the Act which provides that after issue of notice, the authority shall pass order within one year. However the said requirement prefixed by the words "where it is possible to do so" meaning thereby the period prescribed under Section 11A(2A)(a) of the Act by itself is not sacrosanct but can go beyond that where the circumstance so warrants. There is no pleading in the writ petition at all that Commissioner Central Excise did not pass the final order within one year though there does not exist any reason to take a longer time. In the absence of such pleading the submission of learned counsel for the petiti....
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....ith clean hands. He, who comes to the court with false claims cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner." 22. A Division Bench of this Court in Special Appeal No. 1092 of 2006 Pramod Kumar Shukla v. State of UP. and others decided on 26-9-2006 has held :- "It is well settled legal position that a person invoking writ jurisdiction of this Court must come with clean hands and disclose all the necessary facts which are pertinent for the purpose of deciding the issue involved." 23. In Ram Saran v. IG of Police, CRPF and others, (2006) 2 SCC 541 the Apex Court observed "A person who seeks equity must come with clean hands. He, who comes to the court with false claims, cannot plead equity nor would the court be justified to exercise equity jurisdiction in his favour. A person who seeks equity must act in a fair and equitable manner." 24. In Ram Preeti Yadav v. UP. Board of High School and Intermediate Education and others, 2003 (Suppl.) 3 SCR 352, it was reiterated that fraud, misrepresentation and concealment of material fact vitiate all acts. In State ....