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TMI Blog1962 (4) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... der Art. 220 of the Constitution. It is necessary to observe here that Art. 32 of the Constitution does not give this Court an appellate jurisdiction such as is given by Arts. 132 to 136. Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred by Part III of the Constitution. Unless a question of the enforcement of a fundamental right arises, Art. 32 does not apply. There can be no question , of the enforcement of a fundamental right if the order challenged is a valid and legal order, in spite of the allegation that it is erroneous. Therefore, come to the conclusion that no question of the enforcement of a fundamental right arises in this case and the writ petition is not maintainable. - Writ Petition (civil) 79 of 1959 - - - Dated:- 10-4-1962 - S.K. Das J. L. Kapur A.K. Sarkar K. Subba Rao M. Hidayatullah N.R. Ayyangar J.R. Mudholkar, JJ. JUDGEMENT S. K DAS, J.- The facts of the case have been stated in the judgment of my learned brother Kapur J., and it is not necessary for me to restate them. I have reached the same conclusion as has been reached by my learned brother. But in view of the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court shall have power to issue directions or orders or writs, including writs in the nature of habeas Corpus, mandamus, prohibition, qao warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. Clause (4) makes it clear that the right guaranteed by the Article shall not be suspended except as otherwise provided for by the Constitution. Article 359 of the Constitution . states that where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended etc. It is clear, therefore, that so long as no order is made by the President to suspend the enforcement of the rights conferred by Part III of the Constitution every person in India, citizen or otherwise, has the guaranteed right to move the Supreme Court for enforcement of the rights conferred on him by Part III of the Constitution and the Supreme Court has the power to issue necessary directions, orders or writs which m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion taken on the misconstrued statute results in the violation of a fundamental right. It has been argued before us that administrative bodies do not cease to come within the definition of the word "State" in Art. 12 of the Constitution when they perform quasi-judicial functions and in view of the true scope of Art. 32, the action of such bodies whenever such action violates or threatens to violate a fundamental right gives rise to the question of enforcement of such right and no distinction can be drawn in respect of the three classes of cases referred to above. As to the case before us the argument is that the taxing authorities misconstrued the terms of the notification which was issued by the State Government on December 14, 1957 under a. 4(1)(b) of the United "provinces Sales Tax Act. U.P. Act, No. XV of 1948 and as a result of the misconstruction, they have assessed the petitioner to sales tax on the sum of Rs. 4,71,541.75 nP. which action, it is submitted, has violated the fundamental right guaranteed to the petitioner under Art. 19(1)(f) and (g) and Art.31 of the Constitution. The misconstruction, it is argued, may lead to a transgression of constitutional limits in differe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to consider these arguments it is necessary to clear the ground by standing that certain larger questions were also mooted before us, but I consider it unnecessary to examine or decide them. Such questions were: (1) whether taxation laws are subject to the limitations imposed by Part III, particularly Art. 19 therein, (2) whether the expression "the State" in Art. 12 includes "courts" also, and (3) whether there can be any question of the enforcement of fundamental rights against decisions of courts or the action of private persons. These larger questions do not fall for decision in the present case and I do not consider it proper to examine or decide them here. I should make it clear that nothing I have stated in the present judgment should be taken as expressing any opinion on these larger questions. It is perhaps necessary to add also that this writ petition could have been disposed of on the very short ground that there was no misconstruction of the notification dated December 14, 1957 and the resultant action of the assessing authority did not affect any fundamental right of the petitioner. That is the view which we have expressed in the connected appeal of M/s. Chhotabhai Je ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by way of appeal or revision under as. 24 and 25 of that 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 the contention, this Court observed: It is, however, clear from article 265 that no tax can be levied or collected except by authority of law which must mean a good and valid law. The contention of the appellant company is that the Act which authorises the assessment, levying and collection of Sales. tax on inter-State trade contravenes and constitutes an infringement of Art. 286 and is, therefore, ultra vires, void and unenforceable. If, however, this contention by well founded, the remedy by way of a writ must, on principle and authority, be available to the party aggrieved". And dealing with the contention that the petitioner should proceed by way of appeal or revision under the Act, this Court observed : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial. function in the discharge of undoubted jurisdiction; on the contrary, the ratio of the decision was that the order passed by the Central Board of Revenue was without jurisdiction. The decision was considered again in Pannalal Binjraj v. Union of India ([1957] S.C. R.233) after further amendments had been made in s. 5 (7-A) of the India Income-tax Act, 1922 and it was pointed out that s. 5 (7-A) as amended was a measure of administrative convenience and constitutionally valid and an order passed thereunder could not be challenged as unconstitutional. There are other decisions which proceeded on a similar basis, namely that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collatteral fact and the resultant action threatens or. violates a fundamental right, the question of enforcement of that right arises and a petition under Art. 32 will lie. (See Tata Iron and Steel Co. Ltd. v. S. R. Sarkar ((1961 (1) SCR 379.); and Madan Lal Arora v. The Excise and Taxation Officer Amritsar (1962 (1) SCR 823). In Tata Iron and Steel Co. Ltd. v. S. R. Sarkar(supra) the question arose under the Central Sales Tax Act, 1956. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment a second time were without jurisdiction. In Madan Lal Arora's case(1962) 1 S.C.R. 823) a notice for assessment was issued after the expiry of the period prescribed therefore by the statute. The assessee thereupon applied to this Court under Art. 32 for quashing the proceedings for assessment on the ground that they were without jurisdiction and it was held that as the taxing authority had no power under the statute to issue the notice in question the proceedings were without jurisdiction and must be quashed. This again was a case in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax and it made no difference that such assumption for jurisdiction was based on a misconstruction of statutory provision. It is necessary perhaps to refer here to another class of cases which have sometimes been characterised as cases of procedural ultra vires. When a statute prescribes a manner or from in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts must, therefore, formulate their own criteria for determining whether the procedural ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The question, whether a tribunal hat; jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable "at the commencement, not at the conclusion, of the enquiry". (Rex v. Bolten([1841] 1 Q.B. 66,74). Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determining any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required, (i. e.) has jurisdiction to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 953] Ch. 51) Society of Medical Officers of Health v. Hope ([1959] 2 W.L.R. 377, 391, 396, 397, 402). In Burn Co. Calcutta v. Their Employees [1956] S.C.R. 781 this Court said that although the rule of res judicata as enacted by s. 11 of the Code of Civil Procedure did not in terms apply to an award made by an industrial tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. In Daryao v. The State of U. P. ([1961] 2 S.C.A. 591) this Court applied the doctrine of res judicata in respect of application under Art. 32 of the Constitution. It is perhaps pertinent to observe here that when the Allahabad High Court was moved by the petitioner under Art. 226 of the Constitution against the order of assessment, passed on an alleged misconstruction of the notification of December 14, 1957, the High Court rejected the petition on two grounds. The first ground given Was that the petitioner had the alternative remedy of getting the error corrected by appeal the second ground given was expressed by the High Court in the following words: "We have, however, heard the learned counsel for the petitioner on merits also, but we are not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t; and if that course is not taken the decision, however wrong, cannot be disturbed". The above view finds support from a number of decisions-of this Court. 1. Aniyoth Kunhamina Umma v. Ministry of Rehabilitation ([1962] 1 S.C.R. 505). In this case it had been held under the Administration of Evacuee Property Act, 1950, that a certain person was an evacuee and that certain plots of land which belonged to him were, therefore, evacuee property and vested. in the Custodian of Evacuee Property.' A transferee of the land from the evacuee then presented a petition under Art. 32 for restoration of the lands to her and complained of an infringement of her fundamental right, under Art. 19 (1) (f) and Art. 31 of the Constitution by the aforesaid order under the Administration of Evacuee Property Act. The petitioner had been a party to the proceedings resulting in the declaration under that Act earlier-mentioned. This Court held that as long as the decision under the Administration of Evacuee Property Act which had become final stood, the petitioner could not complain of any infringement of any fundamental right. This Court dismissed the petition observing : " We are basing o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain notification and this claim had been rejected. Thereupon he bad moved this Court under Art. 32. It was contended that the right to be exempted from the payment of tax was not a fundamental right and therefore, the petition under Art. 32 was not competent. This Court rejected that contention basing itself on Bengal Immunity Company's case (1955) 2 S.C.R. 603, 619, 620) and Bidi Supply Co's case (1956) S.C.R. 267). The two cases on which the' decision was rested had clearly no application to the question decided. I have shown earlier that in both those cases the very statute under which action had been taken was challenged as ultra vires. In Kailash Nath's case (3) the question was not considered from the point of view in which it has been placed before us in the present case and in which it was considered in the four cases referred to above. Therefore, I am unable to agree with the view taken in Kailash Nath'8 case (A I.R. (1957) S.C. 790). In Ramavatar Budhai Prasad v. Assistant Sales Tax Officer (1962) 1 S.C.R. 279) the question raised was whether betel leaves were exempted from sales tax under certain provisions of the C.P. Berar Sales Tax Act. This Court agreed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is a valid and legal order, in spite of the allegation that it is erroneous. I have, therefore, come to the conclusion that no question of the enforcement of a fundamental right arises in this case and the writ petition is not maintainable. It is necessary to refer to one last point. The petitioners firm had also filed an appeal on a certificate of the Allahabad High' Court against the order of that Court dismissing their petition under Art. 226 of the Constitution. The appeal against that order was dismissed by this Court for non-prosecution On February 20, 1961. In respect of that order of dismissal the petitioner's firm has filed an application for restoration on the ground that it had been advised that in view of a rule having been issued under Art. 32 of the Constitution, it was not necessary to prosecute the appeal. The petitioner's firm has prayed for condonation, of delay in filing the application for restoration of appeal. In my opinion no ,sufficient cause has been made out for allowing the application for restoration. The petitioner's firm had deliberately allowed the appeal to be dismissed for non-prosecution and it cannot now be allowed to get the dismissal set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itional central excise duty and therefore no tax was leviable on the sale of biris. The requisite sales tax of Rs. 3.51 nP. on the turnover of Rs. 111 was deposited as required under the law. The petitioner's firm also submitted its return for the periods December 14, 1957, to December 31, 1957, and from January 1, 1958, to March 31, 1958. For the subsequent periods returns were made but those are not in dispute as they fell within the notification of November 25, 1958. The Sales Tax Officer on November 28, 1958, sent a notice to the petitioner's firm for assessment of tax on sale of biris during the assessment period April 1, 1958, to June 30, 1958. On December 10, 1958, the petitioner's firm submitted an application to the Sales Tax Officer stating that no sales tax was exigible under the Act on the sale of biris because of the notification dated December 14, 1957. This place was rejected by the Sales Tax Officer and on December 20, 1958, he assessed the sales of the, petitioner's firm to sales tax amounting to Rs. 4,71,541-75nP. In his order the Sales Tax Officer held:- "The exemption envisaged in this notification applies to dealers in respect of sales of biris provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of the question raised made the following order: "The question thus debated is of considerable importance 'on which there has been no direct pronouncement by this court. It seems desirable that it should be authoritatively settled. We accordingly direct that the papers be placed before the Chief Justice for constituting a larger Bench for deciding the two following questions: 1. Is an order of assessment made by an authority under a taxing statute which is intra vires open to challenge as repugnant to Art. 19(1)(g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder?". 2. Can the validity of such an order be questioned in a petition under Art. 32 of the Constitution?" That is how this matter has come up before this bench. Before examining the rival contentions raised and the controversy between the parties it is necessary to state that (i) in the present case we are not called upon to decide whether cls. (f) and (g) of Art. 19 are applicable. to a taxing statute or to express our preference for the view of this court as expressed in a group of cases beginning with Ramjilal v. Income-tax Officer, Mohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e under Art. 32, it is necessary therefore that (1) the statute is intra vires in all respects; (2) the authority acting under it acts quasijudicially ; (3) it acts within the powers given by the Act and within jurisdiction; and (4) it does not contravene rules of natural, justice. In Mulkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa ([1900] L.R. 27 I.A.216), Lord Hobhouse while dealing with an erroneous order of a court said: "The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied. It did issue' notice to Ramlingappa. He contended that he was, not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution . It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right. If it decided wrong, the wronged party can only take the course prescribed by law for setting matters right ; and if that course is not taken the decision, however wrong, cannot be disturbed." In an earlier case dealing with the revisional powers of the Court, Sir Barnes Peacock in Rajah Amir Hassan Khana v. Sheo Baksh Singh ([1884] L.R. 11 I. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e equally valid and legal. In such a case an erroneous construction, assuming it is erroneous, is in respect of a matter which the statute has given the authority complete jurisdiction to decide. The decision is therefore a valid act irrespective of its being erroneous. An order of assessment passed by a quasijudicial tribunal under a statute which is ultra vires cannot be equated with an assessment order passed by that tribunal under an intra vires statute even though erroneous, The former being without authority of, law, is wholly unauthorised and has no existence in law and therefore the order is an infringement of fundamental rights under Art. 19(1) (f) (g) and can be challenged under Art. 32. The latter is not unconstitutional and has the protection of law being under the authority of a valid law and therefore it does not infringe any fundamental right and cannot be impugned under Art. 32. To say that the doing of a legal act violates a fundamental right would be a contradiction in terms. It may be pointed out that by an erroneous decision of the quasijudicial authority the wronged party is not left without a remedy. In the first place under the Act before an assessment is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an unauthorised tax. Then there are cases like the present one where a quasijudicial tribunal imposes a tax by interpreting a notification under a taxing provision and the objection taken is that the interpretation is erroneous. The cases relied' upon by counsel for the appellant and the respondent fall within one or other of these categories. As I have said above, the submission of the learned Additional Solicitor General is well founded. It has the support of the following decisions of this Court which I shall now deal with. In Gulabdas v. Assistant Collector of Custom (A.I.R. 1957 S.C. 733, 736) it was held that if the order impungned is made under the provisions of a statue which is intra vires and the order is within the jurisdiction of the authority making it then whether it is right or wrong, there is no infraction of the fundamental rights and it has to be challenged in the manner provided in the Statute and not by a petition under Art. 32. In that case the petitioner was aggrieved by the order of the Assistant Collector of Customs who assessed the goods imported under a licence undifferent entry and consequently a higher Excise Duty was imposed. The petitioners feeling agg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported. This order was challenged under Art. 32. It was held that the order of confiscation made as a result of investigation, which the Customs Authorities were competent to make, was not open to challenge in proceedings under Art. 32 of the Constitution on the ground that the conclusions were not properly drawn. It was observed "If the petitioner's grievance is that the view taken by the appropriate authorities in this matter is erroneous that is not a matter which can be legitimately agitated 'before us in a petition under Art. 32. It may perhaps be, as the learned Solicitor General suggested, that the petitioner may halve remedy by suit for damages but that is a matter with which we are not concerned. If the goods have been seized, in accordance 'With law and they have been seized as a result of the findings recorded by the relevant authorities competent to hold enquiry under the sea Customs Act, it is not open to the petitioner to contend that we should ask the authorities to exercise discretion in favour of the petitioner and allow his' licences a further lease of life. Essentially the petitioner's grievance is against the conclusions of fact reached by the relevant authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot 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 property. Is the decision of the appropriate authorities of competent jurisdiction cannot be otherwise got rid of, the petitioner cannot complain of her fundamental right under Arts. 19(1)(f) and 31 of the Constitution". These authorities show (1) that if a statute is intra vires than a competent order under it by an authority acting as a quasi-judicial authority is equally intra vires (2) that the decision whether right or wrong is not violative of any fundamental right and (3) that if the order is erroneous then it can be questioned only under the provisions of that statute because I the order will not amount to an infringement of a .fundamental right as long as the statute is constitutional. In appropriate case it may be challenged under Art. 226 and in both cases an appeal lies to this Court. I may now examine decisions of this Court relied upon by the learned Attorney General in which the operation of taxation laws as violating Art. 19(1)(g) was considered and the procedure by which this Court was approache ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in that judgment were Mohammad Yasin's. Town Area Committee, Jalalabad ([1952] S.C.R. 572); State of Bombay v. United Motors ([1953] S.C.R. 1069,1017); Himmatlal Harilal Mehta v. State of Madhya Pradesh ([1954] S. C. R. 1122) and Bidi Supply Co. v. Union of India ([1956] S.C.R. 257,271, 277). Thus the decision in that case was based on decisions none of which supports the proposition that a misconstrution by a quasi-judicial tribunal of a notification under the provision of a statute which is intra vires is a violation of Art. 19(1)(g). On the other hand they were all cases where the imposition of tax or license fee or executive action was sought to be supported by an ultra vires provision of the law and was therefore void and violative of Art. 19 (1)(g). As this distinction was-not kept in view the remedy byway of petition under Art. 32 was held to be available. The question as now raised was not argued in Kailash Nath's case. The distinction between a competence order of assessment made under a provision of law which is intra vires even if it is erroneous and an order made under a provision of law which is ultra vires in fundamental in the matter of applicability of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax may be assessed and levied a petition under Art. 226 was filed in the High Court which was dismissed and an appeal was brought to this Court and thus it was not a, petition under Art. 32. In that case the sales tax under explanation II to s. 2(g) of the Central Provinces Berar Sales tax Act (Act 2 of 1947) was held ultra vires of the State Legislature because it offended Art. 286(1)(a)and its imposition or threat of imposition was held without authority of law and therefore infringement of the constitutional right guaranteed under Art. 19(1)(g) entitling the petitioner to apply under Art. 226 of the Constitution. This case therefore decided that a tax under an Act which is unconstitutional, ultra vires and void is without authority of law under Art. 265 and is an infringement of Art. 19 (1) (g). This case and Ramjilal's case (2) received approval in The Bengal Immunity Co. case ((1953) 2 S.C.R. 603, 618). In the Bengal Immunity case also the right infringed was by an Act which was ultra vires and the remedy under the Act was held to be inadequate, nugatory or useless. The facts of that case were that the appellant company filed a petition under Art. 226 in the High Court of P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 620). It will be seen that the question which arose in that. case was with reference to a provision in a taxing statute which was ultra vires and the decision was only that 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)(g). In Mohmmad Yasin v. The Town Area Committee,, Jalalabad ((1952)S.C.R. 572) the imposition of the license fee was without authority of law and was therefore held to be challengeable under Art. 32 because such a license fee on a business not only takes away the property of the licensee but also operates as on unreasonable restriction on the right to carry on business. In Balaji v. The Income Tax Officer, Special Investigation, Circle, Akola (1952) 2 S.C.R.983) the Income tax Officer included, after the registration of a firm, the income of the wife and of the minor children who had been admitted to partnership. The assessee attacked the constitutionality of s. 16(3)(a)(i)(ii) of the Income tax Act. The first question there raised was of the legislative competence, of Parliament to enact the law and that Parliament was held competent t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows:"In these cases, in appeal 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 citizen 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. 790 a petition challenging the levy of a tax was entertained by this Court even though the Act under the authority of which the tax was sought to be recovered was not challenged as ultra vires. It is not necessary for purposes of this case to decide whether the principle of Kailash Nath's case is inconsistent with the view expressed by this Court in Ramjilal's case [1951] S. C. R. 127". The learned Judges also held that the statute made it impossible to levy two taxes on the same sale and only one tax being payable it could be collected on behalf of the Government of India by one State only and one sale could not be taxed twice. It having been collected once ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the price of the sales made to the Government of India deducted. The Assistant Collector of Sales tax issued a notice to the petitioner proposing to review the said assessment passed by the Sales tax Officer. Objections were filed but were rejected and it was held by the Assistant Collector that sales tax was payable in respect of the two transactions. Against this order a petition was filed under Art. 32 which was supported by the Union Government. It was contended by the petitioner that the sales in question were not liable to sales tax inasmuch as they took place in the course of import of goods into India. This Court held that the property in the goods passed to the Government of India when the shipping documents were delivered against payment and that the sales of goods by the petitioner to the Government took place when the goods were on the high seas and were therefore exempt from sales tax under Art. 286 (1) (b) of the Constitution. This was also a case of lack of legislative authority and jurisdiction to impose the sales tax Then there are cases where the Executive action is without authority of law. One such case is Bombay Dyeing Manufacturing Co. Ltd. v. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of an administrative tribunal acting in its administrative capacity. Section 5(7A) was subsequently ,amended and in a somewhat similar case Pannalal Binjraj v. Union of India ([1957] S. C. R. 233) it was held that the amended s. 5(7A) was a measure of administrative convenience and was constitutional and an order passed thereunder was equally constitutional. In Thakur Amar Singhji v. State, of Rajasthan([1955] 2 S. C. R. 303. 870) the State of Rajasthan passed orders assuming certain jagirs under Rajasthan Land Reforms and Resumption of Jagirs Act. In the case of one of the jagirs it was held by this Court that the notification, by which the resumption was made, was bad as regards Properties comprised in that petition because the properties were not within the impugned Act, and' being dedicated for religious purposes was exempt under s. 207 of the Act. This again was not a case of any quasi-judicial decision but it was a notification issued by the executive Government in regard to properties not within the Act which was challenged in that case. A case strongly relied upon by the petitioner was M/s. Mohanalal Hargovind Das, Jabalpur v. The State of Madhya Pradesh ([1955] 2 S. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This therefore was a case in which the, taxing authority had no jurisdiction to take proceeding for assessment of tax because of the expiry of three years which had to be counted from the end of the each quarter in respect of which the return had been filed. The question was one of lack of jurisdiction and it made no difference that the Sales tax Officer had misconstrued the provision. Y. Mahaboob Sheriff v. Mysore State Transport Authority ([1960] 2 S. C. R. 146) was a case under the Motor Vehicles Act. The petitioners' 'application for the renewal of the permits were granted by the Regional Transport Authority empowered to' grant renewal for the period of one year. A petition under Arts. 226 .and 227 of the Constitution was filed against the order of renewal after the usual appeals had been taken and proved unsuccessful and the petition was summarily dismissed. Thereafter a petition under Art. 32 of the Constitution was filed in this Court and the question for determination was whether on a proper construction of the provision of s. 58 (1) (a) and (2) of the Motor Vehicles Act the period of renewal like in the case of original (1)permit had to be not less than three and not mor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Land Tax Act (Act 10 of 1957) was held to be violative of Arts. 14 and 19 (1) (f). A taxing statute it was held by a majority of the Court, was not immune from attack on the ground that it infringes the equality clause under Art. 14, and the tax was also held to be violative of Art. 19 (1) (f), because it was silent as to the machinery and procedure to be followed in making the assessment leaving to the executive to evolve the requisite machinery and procedure thus treating the whole thing as purely administrative in character and ignoring that the assessment on a person or property is quasijudicial in character. It was also held' that a lax of Rs. 2 was unreasonable as it was confiscatory in effect. The main ground on which the law was held to be an infringement of Art. 19 (1) (f) was the procedure or the want of procedure for imposing taxes and therefore its being opposed to rules of natural justice. Here again the vice was in the Act and not in any misinterpretation of it. No doubt the amount of the tax imposed was also held to be unreasonable because it was in effect confiscatory but this is not a matter which is necessary in the present case to go into as the question whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estion of judicial determination by quasi-judicial tribunal arose there. Similarly in M/s. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sales tax (1955) 2 S.C.R. 498) the question raised was of the meaning and scope of the proviso to Art. 286 (2) and therefore the question was one of inter-State sales which no statute could authorise to turn into intrastate sale by a judicial decision. It was argued before us that the decision of a tribunal acting quasi-judicially operates as res judicata and further that the judgment of the High Court of Allahabad when it was moved by the petitioner under Art. 226 of the Constitution against the order of assessment passed on the ground of misconstruction of the notification of December 14, 1957 also operates as res judicata as the appeal against that order has been withdrawn. The High Court rejected the petition under Art. 227 firstly on the ground that there was an alternative remedy of getting the error corrected by way of appeal and secondly the High Court said:"We have, however, heard the learned counsel for the petitioner on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of a proper court has; Chaparala Krishna Brahman v. Gurura Govardhaiah (A.I.R. 1954 Mad. 822) where it was held that tile Income tax Officer is not a court within s. 195 of the Criminal Procedure Code was cited in support of the contention that the taxing authority in the present case was not a court. So also Sell Co. of Australia Ltd. v. The Federal Commissioner of Taxation ((1931) A. C. 275, 298), where it was held that a Board of Revenue created by the Income tax Assessment Act to review the decision of Commissioner of Income tax is not a court exercising the judicial powers of the Commonwealth. At page 298 Lord Sankey. L. C., observed: "An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoe tribunal an exercise by a court of judicial power". It was also observed in that case that there are tribunals with many of the trappings of a court, which nevertheless are not courts in the strict sense exercising judicial power. There is no gain saying that Sales tax Officer is not a court even though he may have many ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially". See also Nagendra Nath Bora v. The Commissioner of Hills Division Appeals, Assam (1958) S.C.R. 1240, 1257, 1258). It is unnecessary again to examine in detail the provisions of the Act to determine the character of the Sales tax Officer when he takes assessment proceedings for they have already been referred to. They are all characteristics of judicial or quasi-judicial process and would clothe the Sales tax Officer making assessment orders with judicial or quasi-judicial character. Indeed, because the order of assessment was judicial or quasi-judicial the petitioner filed in the High Court a petition for certiorari and against that order an appeal under Art. 136 as also a petition for certiorari under Art. 32. Taking the nature of the determination by the Sales tax Officer in the instant case it cannot be said that he is purely an 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, inte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment prepared by my learned brother Kapur, J. I am unable to agree. The facts have been fully stated in his judgment and it is therefore not necessary to cover the ground over again. This larger Bench has been constituted to canvass the correctness of the decision in Kailash Nath v. State of Uttar Pradesh (supra) After hearing the elaborate arguments of learned counsel, I am convinced that no case has been made out to take a different view. Learned Attorney General seeks to sustain the correctness of the said decision. He broadly contends that this Court is the constitutional protector of the fundamental rights enshrined in the Constitution, that every person whose fundamental right is infringed has a guaranteed right to approach this Court for its enforcement, and that it is not permissible to whittle down that jurisdiction with the aid of doctrines evolved by courts further purposes. He argues that in the present case an executive authority functioning under 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 fundament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... working out one's way of life. In theory these rights are reserved to the people after the delegation of the other rights by them to the institutions of Government created by the Constitution., which expresses their will : see observations of Patanjali Sastri, J., as he then was, in A.K. Gopalan v. State of Madras(1950) S.C.R. 88). In State of Madras v. Shrimati Champakam Dorairajan (1951) S.C.R.525,531) the same idea was more forcibly restated thus: "The chapter of Fundamental Rights is sacrosanct and not liable to be abridged by any legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights." In the context of fundamental rights, an important principle should be borne in mind, namely, that the English idea of legislative supremacy is foreign to our Constitution. As this Court pointed out 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 Judic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions seeking protection against infringement of such rights, although such applications are made to the Court in the first instance without resort to a High Court having concurrent jurisdiction in the matter. This Court again in Rashid Ahmad v. The Municipal Board, Kairana (1950) S.C.R. 566) pointed out that the powers given to this Court under Art. 32 of the Constitution are much wider and are not confined to issuing prerogative writs only. This Court further elucidated the scope of the jurisdiction in T. C. Basappa v. T. Nagappa ((1955) 1 S.C.R. 250, 256), wherein Mukherjea, J., speaking for the Court defined the scope of the power thus: "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 writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges." 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: "Furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the exigencies created by enactments and that where the occasion so required to make even a declaratory order with consequential relief. In short, this decision recognized the comprehensive jurisdiction of this Court under Art. 32 of the Constitution and gave it full effect without putting any artificial limitations thereon. But in Daryao v. State of U. P. (1962) 1 S.C.R. 574). this Court applied the doctrine of res judicata and held that the petitioners in that case had no fundament right, as their right on merits was denied by the High Court in a petition under Art. 226 of the Constitution and that as no appeal was filed therefrom, it has become final. But the learned Judges carefully circumscribed the limits of the doctrine in its application to a petition under Art. 32. Gajendragadkar,J., speaking for the Court observed: "If the petition filed in the High 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 ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e a further attempt is made on behalf of the State to restrict the scope of the Court's jurisdiction. Uninfluenced by judicial decisions, let us approach the question on principle. An illustration arising on the facts of the present case will highlight the point to be 'decided. A citizen of India is doing business in bidis. He has a fundamental right to carry on that business. The State Legislature enacts the Sales Tax Act imposing a tax on the turnover and on the sales of various goods, but gives certain exemptions. It expressly declares that no tax-shall be levied on the exempted goods. The said law is a reasonable restriction on the petitioner's fundamental right to carry on the business in bidis. Now on a true construction of the relevant provisions of the Act, no tax is leviable on bidis. But on a wrong construction of the relevant provisions of the Act, the Sales-tax 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns would operate as res judicata on the principle enunciated by this Court in Daryao's case ((1962) 1 S.C.R. 574). Can it be said that Sales-tax authorities under the Act are judicial tribunals in the sense they are courts ? In a Welfare State the Governments is called upon to discharge multifarious duties affecting every aspect of human activity. This extension of the governmental activity necessitated the entrusting of many executive authorities with power to decide rights of parties. They are really instrumentalities of the executive designed to function in the discharge of their duties adopting, as far as possible, the principles of judicial procedure. Nonetheless, they are only executive bodies. They may have the trappings of a court, but the officers manning the same have neither the training nor the institutional conditions of a judicial officer. Every Act designed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mission of Taxation (1930) A. C. 275,296,298) observed: "The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power. " The Judicial Committee further observed: "An administrative tribunal may act judicially but still remain an administrative tribunal as distinguished from a Court,strictly so called. Mere externals do not make a direction to an administrative officer by and ad hoc tribunal an exercise by a Court of judicial power." The Allahabad High Court in Messrs Kamlapat Moti Lal v. Commissioner of Income Pax, U. P. (A.I.R.1950 AII.249,251) held that the Incometax authorities are not courts and, therefore, their decisions cannot operate as 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch of St the Government. This Court again in Gullapalli Nageswara Rao v. State of Andhra Pradesh ([1959] Supp. 1 S.C.R. 319, 353-354. 896) St, pointed out the distinction between a quasi-judicial act of an Executive authority and the judicial act of a court thus: "The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive powers." It is, therefore, clear that administrative tribunal cannot be equated with courts. They are designed to discharge functions in the exercise of the executive power of the State, and the mere 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution is not adequate to discharge that duty satisfactory. This again is an attempt to cloud the issue. If the jurisdiction is there and there are difficulties in the way, this Court will have to evolve by convention or otherwise some procedure to avoid the difficulties. A similar argument of inconvenience was raised in Kavalappara Kottarathil Kochuani Moopil Nayar v. State of Madras (1959 (S2) SCR 316, 325, 337) and was negatived by this Court. This Court evolved a procedure to meet some of the difficult situations that might arise in particular cases. That apart, this Court also may evolve or mould further rules of practice to suit different contingencies. If a party comes to this Court for 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 exhausti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of the Supreme Court under Art. 32 of the Constitution. In order a writ of certiorari may lie against a tribunal, the said tribunal must have acted without jurisdiction or in excess of jurisdiction conferred upon it by law or there must be some error of law apparent on the face of the record. There are similar limitations in the case of writs of prohibition and mandamus. In the context of the issue of the said writs, courts were called upon to define what ,jurisdiction" means. 'Jurisdiction may be territorial, pecuniary, or personal. There may be inherent want of jurisdiction or irregular exercise of jurisdiction. A tribunal may have power to decide collateral facts for the purpose of assuming 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... many cases on the border line between inherent want of jurisdiction and exercise of undoubted jurisdiction. The authority may have jurisdiction, to decide certain disputes under an Act. but by a wrong construction of the provisions of the Act it may make an order affecting a particular subjects matter, which, on a correct interpretation, it cannot reach. By a slight modification of the facts arising s in the present case, the point may illustrated thus A provision of the Sales-tax Act says that the sale of bidis is not taxable; the statute prohibits taxation of bidis; but the Sales-tax Officer on a wrong construction of the provision holds that hand-made 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the scope of that power vis-a-vis an error of law has been stated thus: "It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face of the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error case to be mere error, and become an error apparent on the face of the record. Learned counsel on either side 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 tes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is created to finally decide specific matters. In Messrs. Mohanlal Hargovind Das Biri Merchants Jabalpur v. The State of Madhya Pradesh ([1955] 2 S.C.R. 509) when the Sale-tax authorities of Madhya Pradesh on a wrong view of the transactions carried on by the petitioners therein, hold that the said transactions were intrastate transactions and on that basis required them to file a statement of return of total purchase of tobacco made by them, this court, on a correct view of the transactions came to the conclusion that they related to inter-State trade and, on that view, enforced the fundamental right of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rpretation of the provisions of the Sales-tax Act different from that put upon them by the sales-tax authority. There, as in the present case, the question depended upon the interpretation of the terms of a notification issued under s. 3 of the Sales-tax Act exempting certain goods from taxation. It is said that the view of this Court was based upon the judgments of this Court enforcing fundamental rights on the ground that the impugned provisions where under tax was levied were ultra vires. But the objection taken before this Court in that case was that the imposition of an illegal tax would not entitle a 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 interpr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, and it is another to say that the said finding are binding on this Court. I do not think that this Court intended to lay down that the findings of administrative tribunals are binding on this Court, however, erroneous or unjust the said findings may be. This Court again in Bhatnagars and Co. Ltd. v, The Union of India ([1957] S.C.R. 701, 712) accepted the findings of fact recorded by the relevant Customs authorities, and observed: "Essentially the petitioner's grievance is against the conclusions of fact reached by the 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: o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power of the High Court under Arts. 226 and 227 of the Constitution or of this Court under Arts. 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of infringement of that right can arise as a ground for a petition under Art. 32 of the Constitution, unless the decision of 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 ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance, this Court enforced the petitioner's fundamental right. It is not necessary to multiply decisions. On a superficial reading of the aforesaid decisions, though they may appear to be conflicting, there is one golden thread which runs through all of them and, that is, a citizen has a guaranteed procedural right under Art. 32 of the Constitution, and that a duty is cast upon this Court to enforce a fundamental right if it is satisfied that 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 tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a court but is only an executive authority functioning under a statute adopting the norms of judicial procedure. It is a department of the executive Government exercising statutory functions affecting the rights of parties. Under Art. 12, "the State" has been defined to include the Government and the Parliament of India and the Government and the Legislature of each of the States and all local and other authorities within the territory of 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 governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order in fact affects the fundamental right of a citizen. (6) The aggrieved party may approach this Court before a decision is given by the Sales-tax authority or after the decision is given by the original authority or when an appeal is pending before the appellate tribunal or after all the remedies under the Act are exhausted. (7) Whatever may be the stage at which this Court is approached this Court may in its discretion, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods provided that the Additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957 have been paid on such goods and that the dealers thereof furnish proof of the satisfaction of the assessing authority that such duties have been paid. (1)........................... (2)........................... (3) Cigars, cigarettes, biris and 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to hand-made bidis, for under the said condition only tax leviable on the said bidis had to be paid, and, as no excise duty was leviable in respect of hand-made bidis, they were clearly exempted under the said notification. Assuming that the said notification applied only to goods in respect whereof additional excise duty was leviable, the payment of additional duty in respect 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion from sales tax from July .1, 1958. The dispute in this petition is about the quarter ending June 30, 1958, in which the firm claimed the exemption. This claim was rejected on the ground that the firm had not paid any additional excise duty on bidis. An appeal followed, but was unsuccessful, and though a revision lay under' the Sales Tax Act, none was filed. The firm 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an be said to be breached when the authorities act under a valid law even though by placing their interpretation on some provision of law they may err, provided they have the jurisdiction to deal with the matter and follow the principles of natural justice. Any such error, according to the respondents, must be corrected by the ordinary process of appeals or revisions etc. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the Constitution says that a certain thing can be done under authority of law, it intends to convey that no action is justified unless the legality of that action can be supported 'by a law validly made. The above is, in outline, the general pattern of conferral of power upon the Legislature and the Executive by the people. 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 gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstitution, laws can be made without a challenge in Courts not withatanding the Constitution (see for example Art. 329), and other considerations may arise in respect of those laws. In this judgment, therefore, I shall deal with those laws and situations only, which admittedly are affected by the Chapter on Fundamental Rights. 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary, this Court may even get a fact or facts proved by evidence. The view expressed in the last case finds further support from what Gajenjndragadkar, J,. said very recently in Daryao v. The State of U.P. (supra)- "If the petition field in the High Court under 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 direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore it can be completed, the writ of quo warranto to question a, wrongful assumption of office, and lastly, the writ of habeas corpus to secure liberty. Indeed an observed by Lord Atkin (then Atkin, L. J.) in Rex v. Electricity Commissioners "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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry of India. The last power is overriding, because Art. 136 commences with the words "notwithstanding anything in this Chapter". Only one exemption has been made in favour of a Court or 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 (C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only deal with question of breach of fundamental rights in petitions under Art. 32 and in appeals against the order of the High Court under Art. 226, I am of opinion that a petition under 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 incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court under Art. 32. Taxing laws have to conform to provisions in Part XII of the Constitution: 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 speci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... takes away or abridges the equality clause 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 conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Art. 265, and the executive action, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween 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 were placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een 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 which the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 its action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 under valid st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 may have a bearin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 slightly different form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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 provision so as to br ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 illustration above there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 guaranteed under Part III, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive 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 decision in R. v. Mancheste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rincipal 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. Besides, as pointed out by Prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 of the Constitution and the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 every type of authority set up under a statute for the purpose of administer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilarly, 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 bye-laws which are subordinate legislation and would fall within the descripti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory 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 and this Court are to investigate inter alia whether any fundamental rights are i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 obtained some benefit from the additional excise duty which was distributed to it. The question tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 226 of the Constitution. The petition was dismissed. Having failed them the petitioner sou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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) ; Balaji v. Income Tax Officer, Special Investigation Circle, ([1962] 2 S.C.R. 983)]. If it violates an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and the decision under which it was made would be a nullity. In such a case also the assessee can move this Court under Art. 32. All this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 tribunal. The qualification ,quasi', however, would not make its duty to act judicially less imperative. In its role as an assessing authority is if in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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 and his assessment with respect to such a transaction or a commodity would be void. With respect to such assessment the assessee will of course ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 matters falling within their purview. If by reason of the decision of a tribunal a person, for instance, loses his right to occupy a house, or has to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sabilities 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 reason that its action arises out of the exercise of a judicial power and is thus authorised by law, State action though it be. When, Under the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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