TaxTMI 
TaxTMI 
1962 (4) TMI 90
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....n ? These two questions are inter-connected and substantially relate to one matter: is the validity of an order made with jurisdiction under an Act which is Intra vires and good law in all respects, or of a notification properly issued thereunder, liable to be questioned in a petition under Art. 32 of the Constitution on the sole ground that the provisions of the Act, or the terms of the notification issued thereunder, have been misconstrued ? It is necessary, perhaps, to start with the very Article, namely, Art. 32, with reference to which the question has to be answered. "32. (1) The right to move the. Supreme Court by appropriate proceedings for 'the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or write, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, whichever may be appropriate, for the enforcement of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction al....
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....d by this Part" which, occurs in cls. (1) and (2) of the Article. It has not been disputed before us that this Court is not trammelled by technical considerations relating to the issue of writs habeas corpus. mandamus, Prohibition, quo warranto and certiorari' This Court said in T. C. Basappa v. T. Nagappa (( 1955 (1) SCR 230, 256.).")'. "In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these write in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari, in all appropriate case and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law." Therefore, apart altogether from all technical considerations, the broad question before us is-in what circumstances does the question of enforcement of the rights conferred by Part III of the Constitution arise under Art. 32 of the Constitution, remembering ....
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....cts a fundamental right, there is again a transgression of constitutional limits. The argument is that there is no distinction in principle between these classes of misconstruction of a statute, and the real test, it is submitted, should be the individuality of the error, namely, whether the error impings on a fundamental right. If it does, then the person aggrieved has a right to approach this Court by means of a petition under Art. 32 of the Constitution. On the contrary, the contention of the respondents which is urged as a preliminary objection to the maintainability of the petition in that on the facts stated in the present petition no question of the enforcement of any fundamental right arises and the petition is not maintainable. It is stated that the validity of the Act not being challenged in any manner, every part of it is good law; therefore, the provision in the Act authorising the Sales-tax Officer as a quasi-judicial tribunal to assess the tax is a valid provision and a decision made by the said tribunal strictly acting in exercise of the quasi-judicial power given to it must necessarily be a fully valid and legal act. It is pointed out that there is no question he....
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....lity of the writ petition. I now proceed to a consideration of the main arguments advanced before us. On some of the aspects of the problem which has been debated before us there has been very little disagreement. I may first delimit the filed where there has been agreement between the parties and then go on to the controversial area of disagreement. It has not been disputed before us that where the statute or a provision thereof is ultra vires, any action taken, under such ultra vires provision by a quasi-judicial authority which violates or threatens to violate a fundamental right does give rise to a question of enforcement of that right and a petition under Art. 32 of the Constitution will lie. There are several decisions of this Court which have laid this down. It is unnecessary to cite them all and a reference need only be made to one of the earliest decisions on this aspect of the case, namely, Himmatlal Harilal Mehta v. The State of Madhya Pradesh (1954 SCR 1122.). A similar but not exactly the same position arose in the Bengal Immunity Company Limited v. The State of Bihar (1955 (2) SCR 603, 619, 620). The facts of the case were that the appellant company filed a petition u....
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....wers of the legislature which enacted it and as such void and prays for appropriate relief under article 226". It will be seen that the question which arose in that case was with reference to a provision in the taxing statute which was ultra vires and the decision was that any action taken under such a. provision was without the authority of law and was, therefore, an unconstitutional interference with the right to carry on business under Art. 19 (1) (f)In circumstances somewhat similar in nature there have been other decision of this Court which the violation of a fundamental right was taken to have been established when the assessing authority sought to tax a transaction the taxation of which came within a constitutional prohibition. Such cases were treated as on a, par with those cases where the provision itself was ultra vires. The decision in Bidi Supply Co. v. The Union of India ([1956] 2 S.C.R. 67) arose out of a somewhat different set of facts. There the Central Board of Revenue transferred by means of a general order certain cases of the petitioner under s. 5 (7-A) of the Indian Income-tax Officer, District III, Calcutta, to the Income-tax Officer, Special Circle, Ra....
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.... under Art. 32 for an order quashing the assessment. A preliminary objection to the maintainability of the petition was taken on behalf of the respondent State on the ground that under the Act the petitioner could file an appeal against the order of assessment and that proceedings under Art. 32 were, therefore, incompetent. In overruling this contention Shah, J.,referred to the decisions of this Court in Himmatlal Harilal Mehta's case ([1954] S.C.R. 1122) Bengal Immunity's Company's case ([1955] 2 S.C.R.603, 619, 620) and The State of Bombay v. United Motors (India) Ltd.( [1953] S.C.R. 1969) and observed: "In these cases, in appeals from orders passed by the High Courts in petitions under Art. 226, this Court held that an attempt to levy tax under a statute which was ultra vires infringed the fundamental right of the citizens and recourse to the High Court for protection of the fundamental right was not prohibited because of the provisions contained in Art. 265. In the case before us, the vires of the Central Sales Tax Act, 1956, are not challenged ; but in Kailash Nath v. The State of Uttar Pradesh (A.I.R. 1957 S.C. 7....
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....on of the principles of natural justice. What is the position then? There are some decisions, particularly with regard to customs authorities, where it has been held that an order of a quasi-judicial authority given in violation of the principles of natural justice is really an order without jurisdiction and if the order threatens or violates a fundamental right, an application under Art. 32 may lie. (See Sinha Govindji v. The Deputy Controller of Imports & Exports, Madras (1962) 1 S.C.R. 540). These decisions stand in a class by themselves and really proceed on the footing that the order passed was procedurally ultra vires and therefore without jurisdiction. So far I have dealt with three main classes of cases as to which there is very little disagreement: (1) where action is taken under an ultra vires statute; (2) where the statute is intra vires, but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires. In all these cases the question of enforcement of a fundamental right may arise and if it does arise, an application under Art. 32 will undoubtedly lie. As to these three classes of cases there has been very little disagreement betw....
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....tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a, fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess." (Halsbury's Laws of England, 3rd Edn. Vol. II page 59). The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of l....
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....ct of passing the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957, was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales Tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957, to 30th June, 1958, the petitioner was liable neither to payment of excise duty nor to payment of Sales Tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to 'apply only to those goods on which an additional Central excise duty had been levied and paid". If the observations 'quoted above mean that the High Court rejected the petition also on merits, apart from the other ground given, then the principle laid down in Daryao v. The State of U. P. ((1961) 2 S.C.A. 591) will apply and the petition under Art. 32 will not be maintainable on the ground of res judicata. It is,' however, not necessary to pursue the question of res judicata any further, because I am resting my decision on the more fundamental ground that an er....
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....the. infringement of a fundamental right, for she has no such right". 2. Gulabdas & CO. v. Assistant Collector, of Customs (A.LR. [1957] S.C. 733, 736): In this case certain imported goods had been assessed to customs tariff. The assessee continued in a petition under Art. 32 that the duty should have been charged under a different item of that tariff and that its fundamental right was violated by reason of the assessment order charging it to duty under a wrong item in the tariff. This Court held that there was no violation of fundamental right and observed : "If the provisions of law under which impugned orders have been passed are with jurisdiction, whether they be right or wrong on fact,' there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal". 3. Bhatnagar & Co. Ltd. v. The Union of India([1957] S.C.R. 701, 702). In this case the Government had held that the petitioner had been trafficking in licences and in that view confiscated the goods imported under a licence. A petition had been filed under Art. 32 challenging this action. It was held : "If the petitione....
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.... orders which are made in the undoubted exercise of jurisdiction by a quasi-judicial authority. Certain other decisions were also cited before us, namely, Thakur Amar Singhji v. State of Rajas. than (1955) 2 S.C.R. 303); M/s. Mohanlal Hargovind Dass v. The State of Madhya Pradesh (1955) 2 S. C. R. 509); Y. Mahaboob Sheriff v. Mysore State Transport Authority (1960) 2 S.C.R. 14), J. V. Gokal & Co. (Private) Ltd., v. The Assistant Collector of Salestax (Inspection) (1960) 2 S.C.R. 852); and Universal Imports Agency v. Chief Controller of Imports and Exports (1960) 1 S.C.R. 305). These decisions fall under the category in which an executive authority acts without authority of law, or a quasi-judicial authority acts in transgression of a constitutional prohibition and without jurisdiction. I do not think that these decisions support the contention of the petitioner. In my opinion, the correct answer to the two questions which have been referred to this larger Bench must be in the negative. An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed ....
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....ction on the notification in question. KAPUR, J. In this petition under Art. 32 of the Constitution which is directed against the order passed by the Sales Tax Officer, Allahabad, dated December 20, 1958, the prayer is for a writ of certiorari or other order in the nature of certiorari quashing the said order, a writ of mandamus against the respondents to forbear from realizing the sales tax imposed on the basis of the said order and such other writ or direction as the petitioner may be entitled to. The petitioner is a partner in the firm M/s. Mohanlal Hargovind Das which carried on the business of manufacture and sale of handmade biris, their head office being in Jubbalpore in the State of Madhya Pradesh. They also carry on business in U. P. and in that State their principal place' of business is at Allahabad. Under s. 4 (1) of the U. P. Sales Tax Act (Act XV of 1948) hereinafter called the 'Act', the State Government is authorised by a notification to exempt unconditionally under cl. (a) and conditionally under cl. (b) any specified goods. On December 14, 1957, the U.P. Government issued a notification under s. 4 (1) (b) of the Act exempting cigars, cigarettes, biris and....
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....took an appeal under s. 9 of the Act to the Judge (Appeals ) Sales Tax, Allahabad, being Appeal No. 441 of 1959, but it was dismissed on May 1, 1959. The petitioner's firm filed a petition under Art. 226 of the Constitution in the High Court of Allahabad challenging the validity of the order of assessment and demand by the Sales Tax Officer. This was Civil Miscellaneous Writ No. 225 of 1959 which was dismissed on January 27, 1959 on the ground that there was another remedy open to the petitioner under the Act. The High Court also observed:"We have come to the conclusion that the Sales Tax Officer has not committed any apparent or obvious error in the interpretation of the notification of 14th December 1957". Against the order of the High Court an appeal was brought to this Court on a certificate under Art. 133(1)(a). During the pendency of the appeal this petition under Art. 32 was filed and rule was issued on May 20, 1959. Subsequently the appeal which had been numbered C-A. 572/60 was dismissed by a Divisional Bench of this Court for non-prosecution. An application has been filed in this Court for restoration of the appeal and for condonation of delay. That matter will be deal....
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....urts and (3) the wider question whether Art. 32 is applicable in the case of infringement of tights by private parties. The controversy in the present case in this ; the petitioner contends that an erroneous order, in this case, of assessment resulting from a misconstruction of a notification issued under a statute by a quasi-judicial authority like the Sales Tax Officer even if the statute is intra tires is an infringement of the fundamental right to carry on trade under Art. 19(1) (g) on the ground that the essence of the right under that Article is to carry on trade unfettered and that such a right can be infringed as much by an executive act of an administrative tribunal as by a quasi-judicial decision given by such a tribunal. The petitioner mainly relies on the decision of this Court in Kailash Nath v.State of U.P. (supra). The submission of the respondent, which was urged as a preliminary objection to the maintainability of this petition, was that the impugned decision of the Sales tax Officer does not violate any fundamental right. The respondent argued that if the constitutionality of the Act is not challenged then all its provisions must necessarily be constitutional a....
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....on to decide the question which was before them' and they did, decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case ; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity". "This principle has been accepted by this Court in cases to which reference will be made later in this judgment. Although these cases were dealing with the decisions of Courts they ,are equally applicable to decisions of quasijudicial. tribunals because in both cases where the authority has jurisdiction to decide a matter it must have jurisdiction to decide that rightly or wrongly and if the decision is wrong the aggrieved party can have recourse to the procedure prescribed by the Act for correcting the erroneous decision. Now Art. 32 is a remedial provision and is itself a fundamental right which entitles a citizen to approach this court by an original petition in any case where his fundamental right has been or nay be infringed. The relevant part of the Article provides:- Art. 32 (1) "The right to move the Supreme Court by appropriate proceedings for ....
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.... and such 'evidence as is led. Against the order of assessment an appeal is provided by s. 9 of the Act and against such an appellate order a revision can be taken under s. 10.of the Act under s. 11 a reference to the High Court on a question of law is provided and if the revising authority refuses to make a reference then the High Court can be moved to direct the revising authority to state a case and then an appeal would lie under Art. 136 of the Constitution of India and it may be added that a petition under Art. 226 would lie to the High Court in appropriate cases against which an appeal will lie to this Court under Art. 136. It may here be added that the procedure prescribed by the Act shows that the Sales tax Officer has to determine the turnover after giving the taxpayer a reasonable opportunity of being heard and such an assessment is, a quasi-judicial act Province of Bombay v. Kusaldas S. Advani ([1950] 1 S.C.R. 621, 725). If a Sales tax Officer acts as a quasi-judicial authority then the decision, whether right or wrong, is a perfectly valid act which has the authority of an intra vires statute behind it. Such a decision, in my opinion, does not infringe any fundamental r....
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....d by the impugned order it having been properly and correctly made by the authorities competent to make it. The petitoner there contained that the goods imported, which were called 'Lyra' brand Crayons were not crayons at all and therefore imposition of a higher duty by holding them to be crayons was an infringement of fundamental right under Art. 19(1) (f ) & (g). This contention was repelled. Delivering the judgment of the Court, S.K. Das, J., observed at p. 736 :- "What, after all, is the grievance of the petitioners? They do not challenge any of the provisions of the India Traiff Act, 1934 (XXXII of 1934) or any of the provisions of the Sea Customs Act, 1878 (VIII of 1878). It is for the Customs authorities to determine under the provisions of the said Acts what duty is payable in respect of certain imported articles. The Customs authorities came to a decision, right or wrong. and the petitioners pursued their remedy by way of an appeal to the Central Board of Revenue. The Central Board of Revenue dismissed the appeal. Unless the provisions relating to the imposition of duty are challenged as unconstitutional, or the orders....
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....R. 177, 188. 856) where the decision of a Transport Authority in granting a motor carriage permit was challenged as . a contravention of Art. 14. The Court held that the Regional Transport Authority acts in a quasijudicial capacity in the matter of granting permits, and if it comes to an erroneous decision the decision is not challengeable under Art. 32 of the Constitution because the decision right or wrong could not infringe Art. 14. Sarkar J., said at P. 188:- "The decision of respondent No. 1 (Regional Transport Authority) may have been right or wrong but we are unable to see that the decision offends Art. 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasijudicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art. 14". Lastly reliance was placed on an unreported judgement of this Court in Aniyoth Kunhamina Umma v. The Ministry of Rehabilitation, Government of India, New Delhi ([1962] 1 S.C.R. 505) The petitioner' in that case was a representative-in-inter....
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....P.(supra) and tried to buttress that decision by certain cases decided before and subsequent to it. He submitted that a misconstruction of a provision of law even by a quasijudicial tribunal is equally an infringement of fundamental rights under Art. 19(1)(f) & (g) because as a consequence of such misconstruction the tax is an illegal imposition. In Kailash Nath's case it was contended before the Sales tax Authorities that cloths, on which Excise duty had already been paid and which was then processed, hand-printed and exported, no sales tax was leviable as it was exempt under the notification under s. 4 of the U. P. Sales Tax Act. The Sales tax Authorities however held the exemption to be applicable only to cloth which had not been processed and hand-printed and was in the original condition. A petition under Art. 32 was filed against that order and it was contended that the rights of the assessee under Art. 19(1)(g) were infringed by the order misinterpreting the notification. The Court said:- "If a tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this court....
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.... law being valid the order will be protected as being under the authority of a valid law and therefore it will not be violative of Art. 19(1)(g) and Art. 32 is not available to challenge that order. In the latter case, the provisions of law being void the protection of law does not operate and the order is an unauthorised interference with the rights of a citizen under Art. 19(1)(g). It can therefore be challenged under Art. 32. This distinction does not seem to have been kept in view in Kailash Nath's case (A.I.R. 1957 S.C. 790) That case in further open to the criticism that it is based of decisions which were not cases of erroneous interpretations of notifications under intra vires statute but were cases where an unconstitutional provision of law wag sought to be used to support a tax. For the reasons I have given Kailash Nath's case(1) cannot be accepted as well founded". In yet another case where the remedy under Art. 32 was sought to challenge the decision of Sales tax Officer is Ramavtar Budhaiprasad etc,. Assistant Sales tax Officer, Akola ([1962] 1 S.C.R. 219). There a Sales tax Officer on a construction of a Schedule of the Sales tax Act had held that betel leaves were....
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....ining the Sales tax Officer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that sales sought to be assessed were made in the course of inter-State trade, that the provisions of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) which authorised the imposition of tax on such sales were repugnant to Art. 286 (2) and void, and that, therefore, the proceedings taken by the Sales tax Officer should be quashed. The application was dismissed by the High Court on the ground that if the Sales tax Officer made an assessment whiCh was erroneous, the assessee could challenge it by way of appeal or revision under ss. 24 and 25 of the Act and that as the matter was within the jurisdiction of the Sales tax Officer, no writ of prohibition or certiorari could be issued. There was an appeal against this order 'to this Court and therein a preliminary objection was taken that a writ under Art. 226 was not the appropriate remedy open to an assessee for challenging the legality of the proceedings before a Sales tax Officer. In rejecting this contention, this Court observed: "It is, however, clear from....
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....to enact the law and that Parliament was held competent to enact. Socondly the constitutionality of the provision was questioned on the ground that it violated the doctrine of equality. before the law under Art. 14 of the Constitution and that ground was also repelled and it was held that the legislature had selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetuate fraud on taxation. The third. ground of attack wag based on Art. 19(1)(f) & (g) of the constitution. Relying upon the case of Mohd. Yasin v. Town Area Committee, (1952) S.C.R. 572) which was a case of license fees and Himmatlal Harilal Mehta's case ((1954) S.C.R 1122) in which there was no determination by any tribunal but there was a threat of an illegal imposition, the court held that not only must a law be valid in the sense of there being legislative competence, it must also not infrings the fundamental rights declared by the Constitution. This again was not a case of a determination of a question by a taxing authority acting quasijudicially but the constitutionality and vires of the statute were challenged. The second category of cases is were the Taxing A....
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....ale could not be taxed twice. It having been collected once the threat to recover' it again was Prima facie an infringement of the fundamental right of the petitioner. Sarkar J., who gave the minority judgment observed:- "In Kailash Nath v. The State of U. P., A.I.R. 1947 S. C. 790, this Court held that an illegal levy of sales tax on a trader under an Act the legality of which was not challenged violates his fundamental rights under Art. 19(1)(g) and a petition under Art. 32 with respect to such violation lies. The earlier case of Ramjilal v. Income tax Officer, Mohindergarh [1951] S.C.R. 127 does not appear to have been considered. 'It is contended that the decision in Kailash Nath's case requires reconsideration. We do not think however that the present is a fit case to go into the question whether the two cases not reconcilable and to decide the preliminary question raised.The point was taken as a late stage of proceedings after much costs had been incurred. The question arising on this petition is further of general importance a decision of which is desirable in the interest of all concerned. As there is at least ....
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....Executive action is without authority of law. One such case is Bombay Dyeing Manufacturing Co. Ltd. v. The State of Bombay (1958) S.C.R. 1122) which was not a petition under Art. 32 but an appeal against can order under Art. 226. In that case under the Bombay Labour Welfare Fund Act, which authorised the constituting of a fund for financing labour welfare, notices were served upon the' appellant company to remit the fines and unpaid accumulations in its custody to the Welfare Commissioner. The appellant company questioned in a petition under Art 226 the validity' of that Act as a contravention of Art. 31(2). The High Court held that Act intra vires and dismissed the petition. On appeal against that judgment this Court held that the unpaid accumulations of wages and fines were the property of the Company and any direction for the payment of those sums was a contravention of Art. 31(2) and therefore invalid.It was also held that assuming that the money was not property within the meaning of Art. 31(2 )and Art. 19(1) (f) applied that Article would also be of no help to the Welfare Commissioner because it could not be supported under Art. 19 (5) of the Constitution. Moreover this was n....
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....lied upon by the petitioner was M/s. Mohanalal Hargovind Das, Jabalpur v. The State of Madhya Pradesh ([1955] 2 S. C. R. 509). The petitioners there were called upon to file their returns of the total purchase, of tobacco made by them out of Madhya Pradesh with a view to assess and levy purchase tax. The return was filed under protest and the Sales, tax Authorities' as it was required under the law, called upon the petitioners to deposit the purchase tax. No quasi-judicial determination was made, no decision was given after hearing the taxpayer, but deposit was asked to be made as that was a requirement of the statute. In a petition under Art. 32 of the Constitution for a writ of mandamus restraining the State of Madhya Pradesh from enforcing Madhya Pradesh Act 'against the petitioners it was contended that the transactions were in the course of inter-State trade. The nature of the transaction was that finished tobacco which was supplied to the petitioners by the suppliers moved from the State of Bombay to the State of Madhya Pradesh and the transactions which were sought to be taxed were therefore in the course of inter-State trade and were not liable to tax by the State. That was....
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....Vehicles Act the period of renewal like in the case of original (1)permit had to be not less than three and not more than five years. It was held that it had to be for that period as provided in sub-s. (1) (a) of s. 58 read with sub-s. 2 of that section. This, it was submitted, was an authority for the proposition that where a provision is misconstrued by an authority having jurisdiction to construe a section a petition under Art. 32 is competents. In the first 'place the question as to whether Art. 32 was applicable was not raised and was therefore not decided. Secondly what was held was that if the authority renewed a permit the renewal had to be for a particular period as specified, in s. 58 and could not be for a lesser period. The question was therefore of jurisdiction. In Universal Imports Agency v. The Chief Controller of Imports and Exports ([1961] 1 S. C. R. 305) the petitioners, in Pondicherry, entered before its merger with India, into firm contracts with foreign sellers and the goods agreed to be imported were shipped before Or after the merger. The goods were confiscated by the Controller of Customs on the ground that they were imported without a licence but as an o....
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....effect confiscatory but this is not a matter which is necessary in the present case to go into as the question whether Art. 19 (1) applies to taxing laws or not was not debated by the parties before us. On the main contention as to the applicability of Art. 32 these were the submissions of the learned Attorney-General. A review of these cases shows that (1) the law which is ultra vires either because of the legislative incompetence or its contravention of some constitutional inhibition is a non-existing law and any action taken thereunder, quasijudicial or otherwise, would be a contravention of Art. 19 (1) (f) and (g) and the result will be no different if it is a colourable piece of legislation; (2) where the proceedings are repugnant to the rules of natural justice the right guaranteed under Art. 19 (1) (f) and (g) are infringed; (3) the consequence is the same where assessment is made by an authority which has no jurisdiction to impose the tax and (4) if an administrative tribunal acting quasi-judicially misconstrues a provision which it has jurisdiction to construe and therefore imposes a tax infringement of Art. 19 (1) (g) would result according to Kailash Nath's case (1) but ....
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.... on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even hand-made biris have been subject to Sales tax since long before the date of the issue of the above notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act, No. 58 of 1957 was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957 to June 30, 1958, the petitioner was liable neither to payment of excise duty nor to payment of sales tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to apply only to those goods on which an additional Central excise duty had been levied and paid." It is unnecessary to decide this question in this case. It was next argu....
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....nse exercising judicial power. There is no gain saying that Sales tax Officer is not a court even though he may have many of the trappings of a court including the power to summon witnesses, receive evidence on oath and making judicial determinations. In the strict sense of the term he is not a court exercising judicial power; but the question for decision in the present case is not whether be is a Court or not but whether the determination made by him in regard to the exemption available to the petitioners on the sale of biris was a decision made by a quasi-judicial authority in the exercise of its statutory powers and within its jurisdiction and therefore not an administrative act. The characteristic of an administrative tribunal is that it has no ascertainable standards. It only follows policy and expediency which being subjective considerations are what a tribunal makes them. An administrative tribunal acting as an administrative tribunal and acting as a judicial tribunal may be distinguished thus: "Ordinarily 'administrative' tribunal need not act on legal evidence at all, but only on such considerations as they see fit. A st....
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....n administrative authority or the order passed by him is an executive order; on the contrary when he is determining the amount of tax payable by a dealer, he is acting in a quasi-judicial capacity. Mr. Chari, intervening on behalf of the State of Bihar, submitted that in Art. 12 the judicial branch of the State was not included in the definition of the word "State," and the words ,other bodies" there did not comprise a tribunal having jurisdiction to decide judicially and its decisions could not be challenged by way of a petition under Art. 32 of the Constitution. In view of my decision that a quasijudicial order of the Sales tax Officer is not challengeable by proceedings under Art. 32, I do not think it necessary to decide the wider question whether the definition of the word "State" as given in Art. 12 comprises the judicial department of the State or not. In view of the decision as to the correctness of the decision in Kailash Nath's case (supra) it is not necessary in this case to go into the correctness or otherwise of the order of the Sales tax Officer. The petition under Article 32 therefore fails and is dismissed. There will be no orders as to costs. KAPUR, J.- ....
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....nder the Uttar Pradesh Sales 'fax Act, 1948 (Act XV of 1948), hereinafter called the Act, made a clearly erroneous order imposing tax on exempted goods, namely, bidis, and that it is a clear infringement of the fundamental right of the petitioner to carry on business in bidis. Whenever such a right is infringed, the argument proceeds, by a State action here we are only concerned with State action-it is the duty of this Court to give the appropriate relief and not to refuse to do so on any extraneous considerations. The Additional Solicitor General appearing for the State does not admit this legal position. He says that the Act is a reasonable restriction on the petitioner's right to carry on business in bidis, that thereunder a Sales-Tax Officer has jurisdiction to decide, rightly or wrongly, whether bidis are exempted from sales-tax, and that, therefore, his order made with jurisdiction cannot possibly infringe the fundamental rights of the petitioner. Mr. Chari, who appears for the intervener, while supporting the argument of learned Solicitor General emphasizes the point that the fundamental rights enshrined in Art. 19(1)(g) of the Constitution is only against State action....
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.... in A. K. Gopalan's case (1) the Constitution has not accepted the English doctrine of absolute supremacy of Parliament in matters of legislation. Therefore, every institution, be it the Executive, the Legislature of the Judiciary, can only function in exercise of the powers conferred on it that is, the Constitution is the paramount law. As the Constitution declares the fundamental rights and also prescribes the restrictions that can be imposed thereon, no institution can overstep the limits, directly or indirectly, by encroaching upon the said rights. But a mere declaration of the fundamental rights would not be enough, and it was necessary to evolve a machinery to enforce them. So our Constitution, entrusted the duty of enforcing them to the Supreme Court, the highest judicial authority in the country. This Court has no more important function than to preserve the inviolable fundamental rights of the people ; for, the fathers of the Constitution, in their fullest confidence, have entrusted them to the care of this Court and given to it all the institutional conditions necessary to exercise its jurisdiction in that regard without fear or favour. The task is delicate and sometim....
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...." This Court again elaborated the scope of its power under that Article in Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959) Supp. 2 S C. R. 316, 325. 337, 886). Das, C. J., after reviewing the earlier case law on the subject observed: "Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Art. 226 of the Constitution, as to which we say nothing nowthis Court cannot, on a similar ground, decline to entertain a petition under Art. 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right." In that case it was pressed upon this Court to hold that in exercise of its power under Art. 32 of the Constitution, this Court could not embark upon an enquiry into disputed questions of fact, and various inconveniences were pointed out if it was otherwise. After considering the cases cited in support of that, contention, this Court came to the conclusion that it would fail in its duty as the custodian and prote....
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....Court under Art. 2 26 is dismissed not on the merits but because, of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine, without passing a speaking order then such dismissed cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at al....
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.... Officer imposes a tat on the turnover of the petitioner relating to the said bidis. He files successive statutory appeals to the hierarchy of tribunals but without sucess. The result is that he is asked to pay tax in respect of the business of bidies exempted under the Act. The imposition of the said illegal tax on the turn-. over of bidis is certainly an infringement of his fundmental right. He comes to this Court and prays that his fundamental right may be enforced against the Sales-tax Officer. The Officer says, "It may be true that my order is wrong it may also be that the Supreme Court may hold that my construction of the section as accepted by the highest tribunal is perverse; still, as under the Act I have got the power to decide rightly or wrongly, my order though illegal operates as a reasonable restriction on the petitioner's fundamental right to carry on business." This argument in my view, if accepted, would in effect make the wrong, order of the Sales-tax Officer binding on the Supreme Court, or to state it differently, a fundamental right can be defeated by a wrong order of an executive officer, and this Court would become a helpless spectator abdicating its function....
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....d to further the social and economic progress of our country or to raise taxes, constituted some tribunal for deciding disputes arising thereunder, such as income-tax authorities, Sale-tax authorities, town planning authorities, regional transport authorities, etc. A scrutiny of the provisions of the U. P. Sales-tax Act with which we are now concerned, shows that the authorities constituted thereunder are only such administrative tribunals as mentioned above. The preamble to the Act shows that it was enacted to provide for the levy of tax on the sale of goods in Uttar Pradesh. The Act imposes a tax on the turnover of sales of certain commodities and provides a machinery for the levy, assessment and collection of the said tax. Under the Act the State Government is authorized to appoint certain assessing authorities. It provides for an appeal against the order of the assessing authority and for a revision in some cases and a reference to the High Courts in others. The State Government is also authorized to appoint a hierarchy of authorities or tribunals for deciding the appeals or revisions. The assessing authorities are admittedly the officers of the Sales-tax Department and there i....
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.... res judicata. Malik, C. J., observed: "The income-tax authorities cannot be treated as Courts deciding a disputed point, except for the purposes mentioned in s. 37, and further there is no other party before them and there are no pleadings. As has been said by Lord Herschell in Boulter v. Kent Justices (2)," "There is no truth, no lis, no controversy inter partes, and no decision in favour of one of them and against the other, unless, indeed, the entire public are regarded as the other party". The Income-tax authorities are mainly concerned with finding out the assessable income for the year and not with deciding any question of title. But to arrive at that income they have at times to decide certain general questions which might affect the determination of the assessable income not only in the year in question but also in subsequent years. An assessment is inherently of a passing nature and it cannot provide an estoppel by res judicata in later years by reson of a matter being taken in to account or not being taken into account by the Income-tax Officer in an earlier year of assessments. An instructive discussion on ....
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....fact that the relevant statutes, with a view of safeguard the interest of the people, direct them to dispose of matters coming before them following the principles of natural justice and by adopting the same well known trappings of judicial procedure, does not make them any the less the executive orgnas of the State. It is not possible to apply the principle of res judicata to the orders of such tribunals, for obviously s. II of the Code of Civil Procedure does not apply to such orders, and the general principle of res judicata dehors that provision has never been applied to such orders. It is true that some statutes expressly or by necessary implication oust the jurisdiction of Civil Courts in respect of certain matters but such exclusion cannot affect the extraordinary powers of superior courts conferred under Arts. 226, 227 and 32 of the Constitution. There is a simpler answer to the plea of res judicata. In the present case the Sales-tax authorities decided the case a against the petitioners. The petitioners are seeking the help of this Court under Art.32 of the Constitution to enforce their fundamental rights on the ground that he said order infringes their rights. To put i....
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....r enforcement of a fundamental right the existence whereof depends upon proof of facts and the said party has not exhausted the remedies available to him by going through the hierarchy of tribunal created by a particular Act, this Court, if the party agrees, may allow him to withdraw the petition with liberty to file it at a later stage, or, if the party does not agree, may adjourn it Sine die till after the remedies are exhausted. If, on the other hand the party comes here after exhausting his remedies and after the tribunals have given their findings of fact, this Court may ordinarily accept the findings of fact as is does in appeals under Art. 136 of the Constitution. If the party complains that the order made against him by a tribunal is based upon a wrong construction of the provisions of a statute, this Court may ascertain whether on a correct interpretation of the statute, the petitioner's fundamental right has been violated. There may be many other situations, but I have no doubt that this Court will deal with them as and when they arise. I would, therefore, unhesitatingly reject the argument based on inconvenience. I shall now proceed to deal with the main argument adva....
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....ing jurisdiction; or it may have exclusive jurisdiction to decide even the said facts. In Halsbury's Laws of England, 3rd edn., Vol. III, the scope of the power of mandamus, prohibition and certiorari is stated thus at p. 59 : "The primary function of the three orders is to prevent any excess of jurisdiction (prohibition and certiorari; or to ensure the exercise of jurisdiction (mandamus). The jurisdiction of inferior tribunals may depend upon the fulfilment of some condition precedent (such as notice) or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination whether it exists or not is logically and tempo.rally prior to the determination of the actual question which the inferior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact: when, at the inception of an inquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction of not." ....
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....bidis are taxable; on a correct interpretation, the Act does not confer any power on the Sales-tax Officer to tax such bidis. In such a case on a wrong interpretation of the provisions of the Act, he has exercised jurisdiction in respect of a subject-matter, which, on their correct interpretation, he does not possess. In a sense he acts without jurisdiction in taxing goods which are not taxable under the Act. The criterion of jurisdiction must also fail in a case where an aggrieved party approaches this Court before the Salestax authority makes its order. A Sales-tax authority may issue only a notice threatening to take action under the Act : at that point of time, there is no decision by the tribunal. The person to whom notice is given approaches this Court and complains that the authority under the colour of the Act proposes to infringe his fundamental right; in that case, if this Court is satisfied that his fundamental right is infringed, it has a duty to enforce it. But it is said that when the Sales-tax Act provides a machinery for getting the validity of his claim tested by the tribunals, he must only resort to that machinery. This argument may be relevant to the question ....
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....ide were unable, to suggest any clearcut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the Strength of certain observations of Chagla, C.J., in Batuk K. Vyas v. Surat Municipality (A.I. R. [1953] Bom. 133), that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record, cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case." Whether there is an error of law on the face of the record can be determined only on the facts of each case, and, as this Court pointed out, an error that might be considered as self-evident ....
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....e petitioners. Though there was no decision of the Sales-tax authorities that the transactions were intra State, the notice was on that basis ; but yet that did not prevent this Court from coming to a different conclusion and enforcing the fundamental right, of the petitioners. In Messrs. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sale-tax (1955) 2 S C R 483) the Sales-tax authorities determined the turnover of the petitioners including therein the proceeds of sales held by them to be intrastate transactions. This Court held, considering the nature of the transactions once again, that they were not sales inside the State and were only sales in the course of inter State trade and commerce, and, on that basis, enforced the fundamental right of the petitioners. This Court again enforced the fundamental rights of the petitioners in J. V. Gokul & Co. v. Asstt. Collector of Sale-tax (196O) 2 S.C.R. 852) by reversing the finding of the Sales-tax Officer, who had held that the sales in that case were intrastate and holding that they were made in the course of import. Ignoring the first decision wherein there was no order of the Sales-tax Officer on merits, in the other two decisions....
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....citizen to invoke Art. 32 of the Constitution, but he must resort to the remedies available under the ordinary law or proceed under Art. 226 of the Constitution. But that argument was negatived on the basis of the decisions cited before them. The test of jurisdiction now sought to be applied was not directly raised in that Case. It cannot therefore be said that this Court went wrong by relying upon irrelevant decisions. The discussion shows that this Court held in the manner it did as it came to the conclusion that a fundamental right had been clearly infringed by a wrong interpretation of the notification. Let me now consider the decisions of this Court which are alleged to have departed from the view expressed in that case. In Gulabdas & Co. v. Asstt. Collector of Customs (A1R [1957] S. C. 733, 736), the petitioners were established importers holding quota rights for importing stationery articles and having their places of business in Calcutta. They had a licence for a period of 12 months to import goods known as "Artists' Materials" falling under Serial No. 168(C) of Part IV of the Policy Statement. Item No. 11 of Appendix XX annexed to the Import Trade Control Policy Book wa....
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....relevant authorities. If the said conclusion cannot be challenged before us in the present writ petition, the petitioner would obviously not be entitled to any relief of the kind claimed by him." The finding arrived at by the Customs authorities was that, though the licences were obtained by the petitioner in his name, he had been trafficking in those licences, that the consignments had been ordered by another individual, that the said individual held no licence for import of soda ash and as such the consignments received by the said individual were liable to be confiscated. The finding was purely one of fact, and this Court accepted: it as correct: on that basis, no question of fundamental right would arise. The decision in The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad (1960) 3 S.C.R. 177,183) related to the fundamental right of the petitioner therein to carry on the business of plying motor buses as stage carriages. The State applied for permits for all these routes under Ch. IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 1956, and the petitioner applied for renewal of its permit. The Regional Transport Authority....
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....the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands. the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacaee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19(1)(f) and 31 of the Constitution." Concluding the judgment, it was observed: "We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no such right." It would be seen that the tribunals found, on th....
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....hat the petitioner has a fundamental right and that it has been infringed by the State. That question was approached by this Court from different perspectives, having regard to the facts of each case. When a fundamental right of a petitioner was infringed by an action of an officer purporting to exercise a power under an Act which is ultra vires or unconstitutional, or without jurisdiction, this Court invariably enforced the fundamental right. So too, this Court give relief under Art. 32 of the Constitution whenever a statutory authority infringed a fundamental right of petitioner on a wrong construction of the provisions of a statute whereunder he purported to act. This Court, as a rule of practice, accepted the findings of fact arrived at by tribunals and on that basis held that no fundamental right was infringed. But I do not understand any of these decisions as laying down that the amplitude of the jurisdiction conferred on this Court under Art. 32 of the Constitution and the guaranteed right given to a citizen under the said article should be restricted or limited by some principle or doctrine not contemplated by the Constitution. Mr. Chari, appearing for one of the interve....
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....f India or under the control of the Government of India. A Division Bench of the Madras High Court in University of Madras v. Shanta Bai (AIR 1954 Mad. 67,68) construed the words ",'local or other authorities" under Art. 12 of the Constitution thus: "These words must be construed as ejusdem generis with Government or Legisla. ture and so construed can only mean authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government." Applying this definition to Art. 12, it is manifest that authorities constituted under the Sales-tax Act for assessing the tax would be "other authorities" within the meaning of Art. 12; for the said authorities exercise governmental functions and are the instrumentalities of the Government. But it is contended that if the fathers of our Constitution intended to include in the definition authorities exercising judicial functions, having included the Government and the Parliament, they would not have omitted to mention specifically the judicial institutions therein. This argument may have some relevance if the question is whether a court of law is included with....
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....if the question involved is one of jurisdiction or a construction of a provision, decide the question and enforce the right without waiting till the procedure prescribed by a law is exhausted; but if it finds that questions of fact or mixed questions of fact and law are involved, it may give an opportunity to the party, if he agrees, to renew the application after he has exhausted his remedies under the Act, or, if he does not agree, to adjourn the petition till after the remedies are exhausted. (8) If the fundamental right of the petitioner depends upon the findings of fact arrived at by the administrative tribunals in exercise of the powers conferred on them under the Act, this Court may in its discretion ordinarily accept the findings and dispose of the application on the basis of those findings. The following of this procedure preserves the jurisdiction of this Court as envisaged by the Constitution and safeguards the guaranteed rights of the citizens of this country without at the same time affecting the smooth working of the administrative tribunals created under the Act. If the other view is accepted, this Court will be abdicating its jurisdiction and entrusting it to adm....
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.... tobacco, that is to say any form of tobacco, who their cured or uncured and whether manufactured or Dot includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth." The following facts are not disputed : In regard to the sales of certain commodities with an inter,state market certain difficulties cropped up in the matter of imposition of sales-tax by different States. In order to avoid those difficulties. the Central Government and the States concerned came to an arrangement whereunder the States agreed for the enhancement of the excise duties under the Central Act in respect of certain commodities in substitution for the sales-tax levied upon them, and that the Central Government agreed to collect the enhanced excise duty on the said commodities and distribute the additional income derived amongst the State Governments. To implement that arrangement, Parliament passed Act No. 58 of 1957 called the Additional Duties of Excise (Goods of Special Importance) Act, 1957, on December 24, 1957. The long title of that Act shows that it was enacted to provide for the levy and collection of additional duties....
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....espect of tobacco which went in making hand-made bidis was also a condition attached to the exemption of such bidis from taxation. It is not disputed that additional excise duty on the said tobacco was paid by the appellant. I, therefore, hold, on a plain reading of the expressed terms of the notification, that handmade bidis were exempted from taxation under the Act. There was als. every justification for such exemption. It appears from the record that the merchants doing business in band-made bidis were notable to compete with businessmen manufacturing machine-made bidis. Indeed, before the amending Act, excise duty was imposed on machine-made bidis mainly; though not solely,, for protecting the business in. the former in competition with the latter. In the circumstances it. was. but reasonable to assume that the State Government, by the amending Act did not intend to, impose sales-tax: on handmade bidis, though additional excise, duty was imposed on tobacco out, of which, the said bidis were manufactured.. The entire scheme of protection of one against unfair competition from the other would break if the Central Government could impose additional excise duty on tobacco and th....
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....filed instead a petition under Art. 226 of the Constitution in the High Court of Allahabad, but was again unsuccessful, mainly because the firm had other remedies under the Sales Tax Act which it had not available of. The firm, however, obtained a certificate from the High Court, and filed an appeal in this Court. Ujjambai filed this petition under Art. 32 of the Constitution for the same reliefs. When she obtained a rule in the petition, the firm did not prosecute the appeal and it was dismissed. In this petition, she claims a writ of certiorari against the order of the Sales Tax Officer as also a mandamus to the Department not to levy the tax. As a further precautionary measure, lest it be held that the remedy under Art. 32 is misconceived, the firm has also applied for the revival of the appeal. I shall1 deal with the application later. The question is whether the exemption granted by the notification of December 14, 1957, exempting bidis conditionally upon payment of additional duty of excise applied to the petitioner during the quarter ending June 30, 1958. This question depends upon the words of the notification and the schedule of articles on which additional duty of excise ....
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..... and not by a direct approach to the Supreme Court under Art. 32 of the Constitution. Both sides cite cases in which petitions under Art. 32, were previously filed and disposed of by this Court, either by granting writs or by dismissing the petitions. In some of them, the question was considered, but in some it was not, because no objection was raised. There, however, appears to be some conflict on this point. Kailash Nath v. State of U. P. (supra) where the allegation was that an exemption was wrongly refused on a misconstruction of a notification under s. 4 of the U.P. Sales Tax Act, it was held that the fundamental rights of the taxpayer were. in jeopardy, and the remedy under Art. 32 was,open. Govinda Menon, J., then observed: "If tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this Court for a writ under Article 32 since his right to carry on a trade is violated, or infringed by the imposition and such being the case Article 19(1) (g) comes into play." This proposition was rested upon the case of this Court.in the Bengal Immunity Company (supra) ;....
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..... The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the government of the country and other spheres. The people who vested the three limps of Government with their power and authority, at the same time kept back these rights of citizens and also sometimes of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed 'Fundamental Rights", and the conditions under which these rights can be abridged are also indicated in that Part. Briefly stated, the conditions are that they can be abridged only by a law in the public interest or to achieve a public purpose. These rights are not like the Directive Principles, which indicate the policy and general pattern for State action to enable India to emerge, after its struggle with poverty, disease, inequalities and prejudices, as a welfare State. These Directive Principles are not justiciable, but any breach of fundamental rights gives a cause of action to the aggrieved person. The sum total of this is that the Constitution ....
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....The invasion of fundamental rights may assume many forms. It may proceed directly from laws which conflict-with the guaranteed rights. It may proceed from executive action unsupported by any valid law or laws or in spite of them. Examples of both kinds are to be found in the Reports. In K. T. Moopil Nair's case ([1961] 3 S.C.R. 77), a taxing statute was held to be discriminatory and also unreasonable because of the restrictions it created and was struck down under Arts. 14 and 19 (1) (f). of the constitution. In Tata Iron & Steel Co., Ltd. case ([1961] 1 S.C.R. 379), a threat to recover a tax twice over was said to offend fundamental rights. In both these kases, Art. 32 was invoked successfully. In the first ind of oases the law itself fails, and if the law fails,oso does any action under it. In the second kindu,f oases, the laws are valid but in their application the executive departments make their own actions vulnerable. A Law can give protection to an action only which is within itself, but it cannot avail, if the action it outside. Thus, in Chintaman Rao's case ((1950) S.C.R. 759), a law was struck, down because it arbitrarily and excessively invaded a fundamental right and in....
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....der Art. 226 is dismissed not on the merits but because of the laches of the party applying for the writ of because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition Under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32." Gajendragadkar, J. then went on to consider the matter from the point of view of res judicata, and held that in some cases, that, principle would apply if no appeal against the order of the High Court was field, but not in others. This must be so, because if there is a decision of the High Court negating fundamental rights or their breach, then the decision of the competent Court must be removed by appeal to establish the rights or their breach. From these cases, it follows that what may be said about a direct appeal to this Court without following the intermediate steps may not be said about Art. 32, because resort to other forums for parallel reliefs is strictly not necessary where a party complains of breach of fundamental rights. Of course, when he makes an application und....
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....sp; "Whenever anybody or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs". What was said of Judicial action and of the writ of certiorari applies equally to other writs and actions of administrative agencies, which are executive or Ministerial 'The, powers of the Supreme Court and the.High Courts in our country are no whit less than those of the Kings Bench Division. more ample by enabling these' superior Courts to issue in addition to the Prerogative Writs, directions, orders and writs other than the named writs, and the concluding words of Art. 32 (2) .,whichever (1) [1924] 1 K.B. 171, 205. may be appropriate for the enforcement of any of the rights conferred by this Part (Part III)' Show the wide ambit of the power. As far back as Basappa v. Naggappa ((1955) 1. SCR 250, 256) Mukerjea, J, (as he then was) observed "In view of the express provisions in our Constitution we need, not now look back to the early history or the . procedural technicalities of t....
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.... tribunal constituted by or ordered under any law relating to the Armed Forces. There are other jurisdictions of the Supreme There are other jurisdictions of the Supreme Court also, which may be described as advisory and original, arising in special circumstances with which we are not concerned. The appellant jurisdiction of the Supreme Court sets it at the top of the hierarchy of civil and criminal Courts of civil judicature. Articles 132, 133, 134 and 135 make the Supreme Court the final Court of appeal but only in cases, which are. first carried before the High Court in accordance with the law relating to those cases. Access to the Supreme Court under Arts. 132-135 is not direct but through the High Court. There can be no abridging of that process. But, under Art. 136, the Supreme Court has the jurisdiction to grant special have, though it has declared in several oases that it would exercise its discretion under s, Art. 136 only against a final order, See Chandi Prasad Chokhni v. State of Bihar (Civil Appeal No. 176 of 1959 decided on April 24,1961). Indian Aluminium Co. v. Commissioner of Income tax (1962) 2 S.C.R. 276), and Kanhaiyalal Lohia v. Commissioner of Incometax (1962)....
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....nder Art. 32 must always lie where a breach is complained of, though, I must say again, if the 'matter is brought before this Court under Art. 32, the only question that can be considered is the breach of fundamental rights and none other. The right to move this Court being guaran teed, the petition may lie, but there are other thing to consider before it can be said in what cases this Court will interfere. I shall now consider in what, kind of cases the powers under Art. 32 will be used by this Court. Since this case arises under a taxing statute, I shall confine myself to taxing laws, because other considerations may arise in other. circumstances and the differing facts are sometimes so subtle as to elude one, unless they are before him. The challenge on the ground of a breach of fundamental rights may be against a law or against executive action. I am leaving out of account action by the Courts of civil judicature. and am not pausing to consider Whether the' word "State" as defined in Art. 12 includes the ordinary Courts of civil judicature. That question does not arise here and must be left for decision in a case in which it properly does. Whether or not be word "State" cove....
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....: they are circumscribed further by Part XIII, and they can only be made by an appropriate legislature as indicated in Part XI. These are the provisions dealing with the making of taxing laws. The total effect of these provisions is summed up in Art. 165, which says: "No tax shall be levied or collected except by authority of law," Law is thus a condition precedent to the demand of a tax. A tax cannot be levied by the State, unless a law to that effect exists, and that law must follow and obey all the directions in the Constitution about the making of laws. In other words, the law must be one validly made. Taxation laws may suffer from two defects, and they are: (a) if they are not made within the four corners of the powers conferred by the Constitution on the particular legislature,, or (b) if they are opposed to fundamental rights. A law may fail as ultra vires, though it is not opposed to fundamental rights, because it, is outside the powers of the legislature that enacted it, or because it is a colourable exercise of power, or if the law was not made in accordance with the special procedure for making it. A simple example is imposition of Profession Tax by Parliament, whi....
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.... in Art. 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Art. 14 of the Constitution, it must be struck down as unconstitutional". This arose in a petition under Art. 32 of the Constitution. It appears that taxation laws were unsuccessfully challenged under Art. 32 of the Constitution as a breach of Art. 31(1) in Ramjilal's case (1951) S.C.R.127) and Laxmanappa Hanumantappa v. Union of India (1951) S.C.R. 769). In the former, the reason given was: "Reference has next to be made to article 265 which is in Part XII, Chapter I, dealing with "Finance'. That article provides that no tax shall be levied or collected except by authority of law. There was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collection of taxes amounts to deprivation of property within the meaning of Art. 31 (1), then there was no point in making a separate provision again as has been made in article 265. It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise....
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....under Art. 32. Where they are intra vires otherwise but void being opposed to fundamental rights, they can be challenged under Art. 265 and also Art. 32. This position, however, changes radically when the law is valid but the action under it is challenged. The real difference in such cases arises, because the law is not challenged at all. What is challenged is the interpretation of the law by the taxing authorities, and a breach of fundamental rights is said to arise from the wrong interpretation. In considering this matter, several kinds of cases must, be noticed Where the action of an officer of the State is wholly without jurisdiction (as, for example, when a sales tax officer imposes income-tax or vice versa, though such things are hardly likely to happen), it can have no support from the law he purports to apply. Cases of jurisdiction thus come within Art. 32. Other examples are an attempt to recover a tax twice over, where the first collection is legal (Tata Iron and Steel Company's case (1961) 1 S.C R. 379); or acting beyond the period of limitation (Madanlal Arora v. The Excise and Taxation Officer, Amritsar) (2). In such cases, even if the taxing authority thought on it....
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.... not apparently one of jurisdiction as within Art. 32. It cited as authority the case of Bengal Immunity Company (4), which does not bear out the wide proposition. The case involved an interpretation of notification to find out whether an exemption applied to a particular case or not, and no question of want of jurisdiction, as explained by me, arose there. Kailas Nath's case does not appear to confine the exercise of powers under Art. 32 to cases of errors of jurisdiction. In my opinion-and I say it respectfully-it must be regarded as having stated the proposition a little too widely. Whether taxing statutes which have the protection of Art. 265 can be questioned under Arts. 19(1)(f) and (g) is a subject, which need not be gone into in this case. I do not, therefore, express any opinion upon it. Here, the several statutes and the notification are not challenged as ultra vires. What is claimed is that by a wrong interpretation of the word 'bidis' and tobacco' as used in the notification of December 14, 1957, an exemption is denied to the petitioner, to which she was entitled, and this affects her fundamental rights under Arts. 31(1) and 19(1)(g). This is not an error of jurisdic....
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....nction between at law imposing a tax and other laws. (2) The second matter which I consider it necessary to state at the outset is that notwithstanding the industry of Counsel which has enabled them top lace before us quite a large number of decisions of this Court which have been referred to in the judgments of Kapur and Subba Rao, JJ., in none of them was the point approached with reference to the matters argued before us. Some of these decisions proceed on the basis that in the circumstances stated in question No. 1 a fundamental right had been invaded and on that basis afforded to the petitioner before them the relief sought. Other decisions state that no fundamental right was involved in the grievance put forward by the petitioners before them and relief has been refused on that basis. In none of them was the question discussed on principle as to when alone a fundamental right would be invaded and in particular as to whether a breach by a quasi-judicial authority of the provisions of a law which is otherwise valid, could involve an invasion of a fundamental right. For this reason I propose to discuss the question on principle and without reference to the decisions which wer....
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.... the eighteen Articles, starting from 14 up to 31, comprehend provisions for ensuring guarantees against any State action for protecting the right to life, liberty, and property, to trade and occupation, besides including the right to freedom of thought, belief and worship. The general scheme of Part III may be stated thus: Certain of the freedoms are absolute, i.e., subject to on limitations, e.g., Art. 17, Art. 20(1). In respect of certain others the Articles (vide Art. 19) set out the precise freedom guaranteed as well as its content and the qualifications to which the exercise of that freedom might be subjected by enacted law or action taken under such law. Having thus enumerated these freedoms and laid down the limitations, if any to which they could be subjected Art. 32 vests in the Supreme Court the authority and jurisdiction to ensure that the fundamental rights granted by Part III are not violated, and even the right to move this Court for appropriate relief for infraction of a fundamental right is itself made a fundamental right which ordinary legislation may not affect. The purpose of my drawing attention to these features is two fold: (1) to emphasize the great value wh....
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....nceded on the side of the respondent and, in my opinion, properly: (1) If the levy was imposed or the burden laid on a citizen (as the petition before us is concerned with a legislation imposing a tax I am using phraseology appropriate to such an enactment, but as would be seen, the principle is of wider application and would cover infringement of liberties other than in relation to property and by laws other than in relation to taxation) by a statue beyond the competence of a legislature to enact as not falling within the relevant entry in the legislative list the action by government or governmental officers would involve the violation of the freedom guaranteed by Art. 19 (1)(f)-to acquire, bold and dispose of property or by clause (g) to carry on any trade or business, either the one or the other and in some cases both and could therefore furnish a right to invoke the jurisdiction of this Court Art. 32 notwithstanding that the particular action impugned was by a quasi-judicial authority created under such an enactment. The reason for this concession must obviously be that the authority functioning under such a law could have no legal basis for its existence and therefore his or ....
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....eared for the petitioner, was short and simple. His submission rested on the correctness of the following steps: (1) The Constitution has vested in this Court the power to ensure, when approached by a petition under Art. 32, that fundamental rights were not violated and accordingly there is a constitutional duty cast upon the Court to afford relief when so approached in every case where fundamental rights were violated. (2) The two matters which a petitioner seeking relief under Art. 32 of the Constitution would have to establish would therefore be: (a) the existence in him of the fundamental right which he complains has been infringed, and (b) its violation by State action. If these two conditions are satisfied the petitioner is entitled as of right to the grant of relief and the Court would be under a duty to afford him that relief by passing appropriate orders or directions which would be necessary to ensure the maintenance of his fundamental right. (3) There was no dispute that a fundamental right could be invaded by State action which was legislative in character, or where the complaint was as regards the action of executive and administrative authorities created even....
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....he State of Uttar Pradesh v. Mohammad Nooh ([1958] S.C.R. 595), and A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobharj Wadhwani ([1962] 1 S.C.R. 753) that the existence of an alternative remedy is no legal bar to the exercise of the jurisdiction of the High Court under Art. 226 of the Constitution. If that is so in the case of the jurisdiction under Art. 226 it must a fortiori be so in the case of a guaranteed remedy such as is vested in this Court under Art. 32 of the Constitution. Besides it cannot be predicated that there is a violation of a fundamental right if the party aggrieved has no appeal provided by the statute under which the authority acts, but that if other statutory remedies are provided there would be no violation of a fundamental right, for the question whether a fundamental right is violated or not is dependent on the action complained of having an impact on a guaranteed right, and its existence or nonexistence or the action constituting a breach of a fundamental right cannot be determined by the absence or presence of procedures proscribed by the statute for correcting erroneous orders. The absence of any provision for redress by way of appeal ....
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.... to the point under consideration it was conceded by the learned Additional Solicitor General who appeared for the respondent that legislative action might involve an infraction of fundamental rights and that similarly the action of the executive-authorities might involve such an infraction even when the legislation under which they acted or purported to act was within legislative competence and within the constitutional limitations imposed by Part III. His contention, however, was that a very different state of circumstances arose when the action complained of was by a quasi-judicial authority. His submission may be summarised in the following terms:-Where a statute was within legislative competence and does not by its provisions violate any of the constitutional guarantees in Part III, it follows as a matter of law that every order of a quasijudicial authority vested with power under the Act is also valid and constitutional and that the legality and constitutionality of the statute would cover every act or order of such an authority if the same was within his or its jurisdiction and prevent them from the challenge of unconstitutionality. The same argument was presented in a sligh....
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....g under such an enactment vested with jurisdiction to assess dealers to sales tax proceeds to levy a tax and includes in the computation of the assessable turnover not merely those items which are properly within the legislative competence of the State Legislature to tax under the head 'Taxes on the sale of goods' but also the turnover in respect of transactions which are plainly ,,sales in the course of export or import" and this it does on a patent misconstruction of the statute, could it be said that the fundamental right of the dealer guaranteed by Art. 19 (1) (f) and (g) was not violated by the imposition of the sales tax in such circumstances? The logic behind this argument might be stated thus: If the legislature had in terms authorised the imposition of sales tax on such a transaction it would have been plainly void and illegal and hence ex-concessis the fundamental right in respect of property as well as of business under Art. 19 (1) (f) and (g) would be violated by the levy of the tax and its collection. How is the position improved if without even the legislature saving so in express terms an officer who purports to act under the statute himself interprets the charging p....
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.... two related transaction or taxable events-A & B. The taxingstatute has selected the transaction or taxable event A and has imposed a tax upon it, and it alone. The authority vested with jurisdiction under the Act, however, by a patent misconstruction of the enactment considers that not merely the transaction or taxable event A but also the related transaction or taxable event B is within the charging provision and levies a tax thereon and proceeds to realise it. The problem now under consideration is. could or could it not be said that in such a case the fundamental right of a citizen who has been wrongly assessed to tax in respect of the transaction or taxable event B which ex-concessis was not intended to be taxed under the enactment has been violated. With the greatest respect to those who entertain a contrary view I consider that the question can be answered only in one way and that in favour of holding that the fundamental right of the citizen is prejudicially affected. When once it is conceded that a citizen cannot be deprived of his property or be restricted in respect of the enjoyment of his property save by authority of law, it appears to me to be plain that in the illust....
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....he sense of being within legislative competence of the relevant legislature and is constitutional as not violating any fundamental rights, it does not automatically follow that any action taken by quasi-judicial authorities created under it cannot violate fundamental rights guaranteed by Part III of the Constitution. The legislative competence, the existence of which renders the enactment valid, is confined to action by the authorities created under it, which on its proper construction could be taken. In an authority constituted under such a legal and valid enactment oversteps the constitutional limitations on the legislative power of the State Legislature, the acts of such an authority would be plainly unconstitutional and the consequences arising out of unconstitutional State action would necessarily attach to such action. If an "unconstitutional Act" of the State Legislature would invade fundamental rights the same character and the same consequence must a fortiori follow when that act is not even by the State Legislature but by an authority constituted under an enactment passed by it. (2) Where State action without legislative sanction behind it would violate the rights guarant....
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....ng line between an executive authority whose actions may give rise to the violation of a fundamental right and what is termed a ""quasi-judicial" authority whose actions do not have that effect. To start with, it is obvious that the nature of the act or of the order might be the same, so that if the same act proceeded from one authority it would have a particular effect but would have quite a different effect or would not have that effect if the same act proceeded from a slightly different type, of authority also exercising the power of the State. This Court in Express Newspapers (Private) Ltd. v. The Union of India (1959) S.C.R, 12 , 113,114) quoted with approval the following statement of the law as summarised in Halsbury's Law of England (3rd Ed., Vol. 2 at pp. 53-56): ".................. An administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of a court of law........................ A body may be under a duty, however, to act judicially although there is no form of lis inter partes before it." and in a further passage from the d....
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....e of the transference of a principal to a branch of law or a situation in which it has no place or relevance.The question for consideration in the context of a petition under Art. 32 is whether there is valid legal sanction behind the action of the authority, for apart from such a sanction it must be and it is conceded that there would be a violation of a fundamental right. Besides, if this proposition is right, then it must rest on the principal that the quasijudicial authority is vested with the right to decide. Does it, however, follow that executive action does not in vole a decision or posit a right to decide? If it is clear law, as must be conceded that there is no necessity to have a lis in order to render the body or authority deciding a matter to be treated as a quasi-judicial authority, then it is very difficult to conceive of few actions by the executive which do not Involve an element of discretion. No doubt in the case of an administrative of, executive body the decision is not preceded. by a hearing involved in the maxim Audi Alteram Partem but this, in my opinion of the merely the procedure before the decision is reached and is not the essence of the distinction. Bes....
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....he same time to hold that these numerous statutory authorities which are created to administer the law cannot invade those rights would be to render this assertion and this guarantee of relief mostly empty of meaning. Though if the words of the Constitution were explicit, considerations such as there would be of no avail, yet even if the matter were ambiguous I am clearly of the opinion that the rejection of the broad contention raised on behalf of the respondent is justified as needed to give effect to the intentions of the framers of the Constitution. But as I have pointed out already, on no logical basis could it be held that where an act or order of a quasi-judicial authority lacks legislative backing, it cannot still impinge on a person's fundamental right and where an order suffers from patent error, it is no legislative sanction behind it. It now remains to consider the point urged by Mr. Chari that 'State" action which involves the violation of a fundamental right does not include that resulting from what be termed "the judicial authority of the State". The argument put forward in Support of this proposition was rested in most part, 1 not wholly, on the terms of Art. 12 ....
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....State" should be understood as applying only subject to express provision to the contrary. I feel wholly unable to accept the method suggested of reconciling the presence of Art. 20(1) with the interpretation of Art. 12 as excluding judicial and quasijudicial authorities. No doubt, the definition in Art. 12 starts with the words "unless the context otherwise requires", that expression however could serve to cut down even further the reach of the definition and cannot serve to expand it beyond the executive and legislative fields of State action if the word ,includes" were understood as "means and includes" which is the contention urged by learned Counsel. Again, Art. 12 winds up the list of authorities falling within the definition by referring to "other authorities" within the territory of India which cannot, obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India. There is no characterisation of the nature of the "authority" in this residuary clause and consequently it must include eve....
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....ght be had by persons affected by its activities in any particular field. Similarly, Parliament is vested with a quasijudicial power to punish for contempt which itself is by reason of such power belonging to the Parliament of the United Kingdom and this if anything is an indication that the constitution does not recognise any doctrine of the separation of powers. In other words., the reference to the Government and the Legislature in the definition is a reference to them as institutions known by that name and is not with a view to describe their particular functions in the body politic. (5) That the reference to the Government and the Legislatures is to them as institutions and is not to be understood as a reference to their functions. viz., to bodies performing executive and legislative functions is perhaps forcefully brought out by the inclusion of "Local authorities" in the definition of "State". It is obvious that municipal and local Board authorities going under various descriptions in the, several State would be comprehended within that term. Now municipal councils exercise, as is well known, legislative, executive as well as quasijudicial functions. They frame Rules and ....
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....ct, and (3) where the authority though functioning under statute, contravenes mandatory procedure prescribed in the statute or violates the principles of natural justice and passes an order or makes a direction affecting a person's rights of property etc. Before concluding it is necessary to advert to one matter which was just touched on in the course of the arguments as one which might be reserved for consideration when it actually arose, and this related to the question whether the decision or order of a regular ordinary Court of law as distinguished from a tribunal or quasi-judicial authority constituted or created under particular statutes could be complained of as violating a fundamental right. It is a salutary principle that this Court should not pronounce on points which are not involved in the questions raised before it and that is the reason why I am not dealing with it in any fulness and am certainly not expressing any decided opinion on it. Without doing either however, I consider it proper to make these observations. There is not any substantial identity between a Court of law adjudicating on the rights of parties in the lis before it and designed as the High Courts ....
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....any imposition of any fresh duty on biris so manufactured under Central Act 58 of 1957 whose object was to provide for the levy and collection of "additional duties interalia on tobacco and tobacco products and for the distribution of a part of the net proceeds thereof among the States in place of the sales tax which was to be forborne by the States on those goods. Briefly stated, the, contention urged on behalf of the petitioner was that in the proviso to the notification dated December 14, 1957, the expression have been paid on such goods" applied only to those cases where an additional duty was payable and was framed to deny the benefit of the exemption to parties who being liable to pay such duty failed to pay the same. Where, however, no duty, was payable at all, no question of the levy of duty arose and the proviso was inapplicable. On the other hand, the Sales Tax Officer construed the notification with the aid of the proviso as meaning that the exemption from payment of sales tax was granted only in those cases where an additional duty having become payable the same had been paid i. e. the State was intended to be deprived of the right to levy Sales tax only when it obtaine....
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....n the construction placed by a taxing authority upon a provision of law is wrong the levy of tax is one which is not authorised by law and thus the assesee's right under Art. 19(1)(g) of the Constitution is infringed. What had to be construed by the Sales Tax Officer in the case before us was not a statutory provision but a notification issued by the Government of Uttar Pradesh on December 14, 1957 under s. 4(1) of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act XV of 1948). The aforesaid provision of the Sales Tax Act and the notification have been set out in the judgments of some of my learned brethren and need not be set out over again in this judgment. Upon the construction placed by him on this notification the Sales Tax Officer held the petitioner liable to pay sales tax on the turnover of sales of bidis for the period between April 1, 1958 and June 20, 1958. The petitioner's contention before the Sales Tax Officer was that bidis were exempted from sales tax by the notification in question. The plea was negatived by the Sales Tax Officer. The petitioner having unsuccessfully challenged the assessment before the sales tax authorities moved the High Court of Allahabad under Art....
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....forcement of fundamental rights and does not extend to other rights such as a right to have a wrong order quashed. On the one hand it was contended at one stage, on the authority of the decisions in Ramjilal v. Income-tax Officer, Mohindargarh ([1951] S.C.R. 127) and Laxmanappa Hanumantappa Jamkhandi v. The Union of India ([1955] 1 S.C.R 769) that a fundamental right will not be breached if the requirements of Art. 265 are satisfied, that is to say, the tax is assessed under authority of law. On the other hand it is said, in substance, that an erroneous order of a taxing authority is an unreasonable restriction on a person's right to carry on trade or business and Art. 32 entities that person to. redress from this Court. It has, however, been made clear in sereval decisions of this Court that a law under Art. 265 must not violate a right guaranteed in Part III of the Constitution. [See Mohommad Yasin v. The Town Area Committee, Jalalabad [1952] S.C.R. 572, 578; State of Bombay v. United Motors (India) Ltd. [1953] S.C.R. 1069, Shree Meenakshi Mills Ltd., Madurai v. A. V. Viswanatha Sastri ([1955] 1 S.C.R. 787); Ch. Tika Ramji' v. The State of Uttar Pradesh ([1956] S.C.R. 393) ; Bala....
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.... violative of any other constitutional provision as for example Art. 276(2), Art. 286, Art. 301 etc. The law must also have been enacted after complying with all the requirements of the Constitution and where it is subordinate legislation, those of other relevent laws. If a law imposing a tax is in contravention of any of the rights conferred by Part III of the Constitution the law would be void and a person aggrieved would be entitled to move this Court under Art. 32 on the ground that one of his fundamental rights has been infringed. Similarly, if a law is beyond the competence of the legislature which enacted it or if it contravenes any provision of the Constitution such as Art. 276 or Art. 286 it would be an invalid law as being ultra vires the Constitution and the tax levied thereunder would also be one which is not authorised by law and the assessee can move this Court under Art. 32 on the ground that his right under Art. 19(1)(g) is breached. Similarly, if a tax is levied by an authority not empowered by law to do so, or by a competent authority in violation of the procedure permitted by law or in violation of the principles of natural justice, the levy would be unauthorised....
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.... the machinery for assessing and collecting it The assessment and collection of a tax cannot be arbitrary and, therefore, the State must confer upon the taxing authority the power and impose upon it the duty to act judicially. Absence of such a provision will make the law bad as being violative of Art. 19 (1) (g): K. T. Moopil Nair v. State of Kerala ((1961) 3 S.C.R. 77). The Sales Tax Act in force in Uttar Pradesh is a law of this kind. It not only imposes a tax on the sale of certain commodities but also provides for the assessment of the tax as well as for appeals, revisions etc., from the orders of assessment. It is a law as contemplated by Art. 265 and it is not contended that any of its provisions infringe the petitioner under Art. 19(1) (g). Being an instrumentality of the State, like others charged with administrative duties, a taxing authority is not a court of law, as that expression is understood. All the same it has, in the discharge of its functions, to act judicially. Since, however, it is a tribunal of limited jurisdiction and since also it performs other functions which are administrative in character it is not a purely judicial but only a quasi-judicial tribu....
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....w the procedure prescribed by the Act. If he finds upon a construction of the Act and of the rules and notifications issued thereunder that a certain commodity is liable to pay a tax then so long as the transaction is one upon which the State legislature could impose a tax and the commodity is one on which the State legislature could impose a tax it is difficult to see how the decision arrived at by the Sales Tax Officer can be said to be otherwise than within his jurisdiction even though he may have made an error in coming to a particular conclusion. If he comes to a wrong conclusion would he, in demanding the tax on the basis of such conclusion, be making an unlawful demand ? The conclusion may be obviously or palpably wrong but so long as it is not shown to be dishonest would his decision be void? Of course, if by placing an erroneous construction on the law he holds, say, that a transaction which is bit by Art. 286 of the Constitution isone which can be taken into consideration for the purposes of assessing the tax or if he holds that a commodity upon which the State legislature could not impose a tax is taxable under the Act he would. clearly have acted beyond his jurisdiction....
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.... of an erroneous decision arrived at by a Sales Tax Officer resulting from ' a misconstruction of a notification under the Sales Tax Act, a person is held liable to pay tax upon sales of a commodity which, upon a proper construction, would appear to be exempted from tax by the law like the notification in question? Just as a person cannot complain of a breach of his fundamental right to carry on trade or business because an erroneous decision of a court of law renders him liable to pay a sum of money, so too he cannot complain against an equally erroneous decision of a Sales Tax Officer. But that does not mean that an erroneous decision can never be challenged before this Court. After exhausting the remedies provided by the taxing statute the aggrieved party can challenge it directly under Art. 136 or indirectly by first moving the High Court under Art. 226 or 227 and then coming up in appeal against the decision of the High Court. Though this Court is the guardian of all fundamental rights the Constitution has not taken away the right of the ordinary courts or of quasijudicial tribunals administering a variety of laws to exercise their existing jurisdiction and to determine mat....
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....lt with. It was said that a quasi-judicial tribunal being an instrumentality of the State its action is State action and so it will be under the same disabilities as the State to do a thing which it is incompetent or impermissible for the State to do. 'It is also said that what a State cannot do directly it cannot do indirectly. In so far as the incompetency of the State arises out of a constitutional prohibition or lack of legal authority due to any reason whatsoever, it will attach itself to the action of the quasijudicial tribunal purporting to act as the instrumentality_ of the State. Where, in such a case, any fundamental right of a person is violated by the action of the quasi-judicial tribunal that person is entitled to treat the action as arbitrary or a nullity and come up to this court under. Art. 32 because the, action would be one which is not authorised by law. But while an erroneous action of the State in exercise of its administrative functions can be challenged directly under Art. 32 if it affects a person's fundamental right on the ground that it is not authorised by law the action of the tribunal pursuant to an erroneous order will not be open to challenge for the ....