DELHI H.C. while deciding the writ petition no. 11435 of 2009 on 4.9.2009 in re: BRAHMAPUTRA INFRASTRUCTURE LTD. vs DELHI DEV. AUTHORITY observed as follows: -

QUOTE: This cannot be disputed that as to when a discretionary juridiction is to be exercised or refused to be exercised by the High Court, it is to be determined having regard to the facts and circumstances of the case. The Hig Court can entertain a writ petition if its is shown that there is something more which goes to the root of the jurrisdicionor something which would show that it would be a case of palpable injustice to the writ petitioner to forcehim to adopt the remedies provided unde the civil law. Admittedly in the present case the petitioner has not contended that, any provision of law is ULTRA VIRES and has not sought quashing of the same nor i can be infered that the denial of the alleged ppayment to petitioner of service taxand the interest thereon is in violation of any written agreement or is in violation of any principles of natural justice. In ABL INTERNATIONAL LTD vs EXPORT CREDIT GUARANTEE CORPN. OF INDIA LTD. [2004-3-SCC-553] it was held that the High Court having regard to the facts of he case, has a discretion to entertain or not to entertain the writ petition and it is the Court that has imposed upon itself certain restrictions in the exercis of this powr. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com   and click on the citation taxind_2010_hc_del_wp_11435]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS isretionary jurisdiction, palpable injustice, root of the jurisdiction, ultra vires

IN THE HIGH COURT OF DELHI, while deciding on 28.8.09 the W.P.(C) Nos.1854 and 1895-1898/1992 in re: J&K CIGARETTES LTD vs CCEX the conclusions were summarised as follows:-

QUOTE: Thus, we summarize our conclusions as under:-

(i) We are of the opinion that the provisions of Section 9D(2) of the Act are not unconstitutional or ultra vires
(ii) while invoking Section 9D of the Act, the concerned authority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established.
(iii) such an opinion has to be supported with reasons
(iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1854]

HIGH COURT ORDERS

VENKATRAMAN RAGGHUPATHY, Web admin.

SUPREME COURT JUDGEMENTS challenge the invocation of provisions, opportunity to make submissions, ultra vires, unconstitutional

IN THE HIGH COURT OF DELHI, while deciding on 28.8.09 the W.P.(C) Nos.1854 and 1895-1898/1992 in re: J&K CIGARETTES LTD vs CCEX the conclusions were summarised as follows:-

QUOTE: Thus, we summarize our conclusions as under:-

(i) We are of the opinion that the provisions of Section 9D(2) of the Act are not unconstitutional or ULTRA VIRES.
(ii) while invoking Section 9D of the Act, the concerned authority is to form an opinion on the basis of material on record that a particular ground, as stipulated in the said Section, exists and is established.
(iii) such an opinion has to be supported with reasons
(iv) before arriving at this opinion, the authority would give opportunity to the affected party to make submissions on the available material on the basis of which the authority intends to arrive at the said opinion; and
(v) it is always open to the affected party to challenge the invocation of provisions of Section 9D of the Act in a particular case by filing statutory appeal, which provides for judicial review.

UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and click on the citation taxind_2009_hc_del_wpc_1854]

HIGH COURT ORDERS

SUPREME COURT JUDGEMENTS challenge the invocation of provisions, opportunity to make submissions, ultra vires, unconstitutional

IN THE HIGH COURT OF DELHI, while deciding on 16/04/09 the C.M. No.3227/2009 (Stay) in W.P. ( C ) No.5901/2008 in re: B.S. INDUSTRIES vs U.O.I the Court observed as follows:-

QUOTE : Learned Counsel for the petitioner relied upon certain decisions such as J.C.C.I & E, Madras vs AMINCHAND MITHA etc., 1999-110-ELT-273 (S.C.) = AIR 1966 sc 478 and JAYANTILAL KUBERDAS KATAKIA and others vs U.O.I ILR 1973 DELHI 433 to contend that the amendment to the Foreign Trade Policy is ultra vires the Foreign Trade (Development and Regulation) Act, 1992. However, this issue can only be deided at the time of final hearing of the writ petition. Merely on the basis of contentions advanced at the interim stage, relief prayed for by the Petitioner cannot be granted particularly since it effect the export policy of the Government and the resource sought to be exported is scarce. The application is dismissed. UNQUOTE

[for full text of the judgement please visit http://www.taxesinindia.com and clikc on the citation taxind_2009_hc_del_cm_3227]

HIGH COURT JUDGEMENT

VENKATRAMAN RAGGHUPATHY, Web admin.

HIGH COURT JUDGEMENTS FT Policy, FT [DEV. & REG.] ACT, ultra vires