JUGGILAL KAMLAPAT …PETITIONER
Vs.
GENERAL FIBRE DEALERS LTD (AND CONNECTED APPEAL) …RESPONDENT

DATE OF JUDGMENT: 12/12/1961

BENCH: WANCHOO, K.N. SHAH, J.C.

CITATION: 1962 AIR 1123 1962 SCR Supl. (2) 101

ACT:

Arbitration-Award set aside-Reference to arbitration not superseded-Second reference to arbitration, if permissible-Arbitration Act. 1940 (10 of 1940), s. 19.

HEADNOTE:

Disputes which arose between the parties with respect to carrying out a contract were referred to the arbitration of the Bengal Chamber of Commerce in accordance with an agreement to refer disputes as and when they arose to the arbitration of the Chamber. The award of the Tribunal of Arbitration was set aside by the High Court. On an application for referring the matter for arbitration de novo another tribunal was constituted which made a fresh award. The questions which arose for decision were whether after the first award was set aside the reference to arbitration was exhausted and the arbitrator had become functus offcio and whether without a fresh arbitration agreement it was not possible to have the same dispute decided again by the arbitrator.

^

HELD, that the arbitrator became functus officio after he gave the award but that did not mean that in no circumstances could there be further arbitration proceedings where an award was set aside or that the same arbitrator could never have anything to do with the award with respect to the same dispute.

Section 19 of the Arbitration Act empowered the Court not to supersede the reference and to leave the arbitration agreement effective even when it set aside the award and thereupon it would depend upon the terms of the arbitration agreement whether the arbitration proceedings could go on with respect to the same dispute or with respect to some other dispute arising under the arbitration agreement.

Barangore Jute Factory v. Hulas Chand Rupchand. (1958) 62 C.W.N. 734, Rallis India Ltd.

v. B. V. Manickam Chetty, A.I.R. 1956 Mad. 369, and Firm Gulab Rai Girdhari Lal v. Firm Bansi Lal Hansraj, A.I.R. 1959 Punj. 102, approved.

Morder v. Paimer, (1870) 6 Ch. App. 22 and Sutherland and Co . v. Hannevig Bros. Ltd. [1921] 1. K. B. 336, referred to.

In the present case the first award was set aside but as the reference had not been superseded and the arbitration 102 agreement subsisted it was open to the Chamber to appoint another tribunal under r. X of the Chamber Rules.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 309 and 525 of 59.

Appeals by special leave from the judgment and orders and decree dated August 27, 1958, November 24, 1958, and March 10, 1958 of the Calcutta High Court, in Award Case No. 103 of 1955 and Appeal from Original order No. 26 of 1956 respectively.

N. C. Chatterjee and B. P. Maheshwari, for the appellant (in C. A. No. 309 of 59).

H.N. Sanyal, Additional Solicitor-General of India, S. K. Gupta and D. N. Mukherjee, for respondent (in C A. No. 309 of 59).

N. C. Chatterjee, M. G. Poddar. and S.N.

Mukerji, for the appellant (in C. A. No. 525 of 59).

H. N. Sanyal, Additional Solicitor General of India A N. Sinha and P.K. Mukherjee, for the respondent (in C. A. No. 525 of 59).

1961. December 12. The Judgment of the Court was delivered by WANCHOO J.-These two appeals by special leave from the judgments of the Calcutta High Court raise a common question of law and will be dealt with together. It will be convenient to set out the facts of appeal 309 and deal with them in connection with the point raised on behalf of the appellant. These facts are that a contract was entered into between the parties for supply of cornsacks on August 29, 1951. The contract contained an arbitration clause in the following terms:

“All matters, questions, disputes, difference and/or claims arising out of and/or concerning and/or in connection with and/or in consequence of or relating to this contract whether or not the obligation of either or both 103 parties under this contract be subsisting at the time of such dispute and whether or not this contract has been terminated or purported to be terminated or completed shall be referred to the arbitration of the Bengal Chamber of Commerce under the rules of its Tribunal of Arbitration for the time being in force and according to such rules the arbitration shall be conducted.” Disputes arose with respect to carrying out of the contract and on October 25, 1951, the respondent referred these disputes to the arbitration of the Bengal Chamber of Commerce (hereinafter referred to as the Chamber). That case was numbered 217 of 1951 in the Chamber’s records. On April 17, 1952, the tribunal of Arbitration made an award disallowing the claim of the respondent. This award was filed in the High Court. On May 25, 1953, the award was set aside on the ground of misconduct on the part of the arbitrators by a learned Single Judge. That order was taken in appeal and on July 8, 1954 L the appeal was dismissed. Later, leave to appeal to this Court was refused and thus the order of the learned Single Judge setting aside the award finally stood.

Soon after the award had been set aside by the learned Single Judge, the respondent addressed a letter to the Chamber on September 7, 1953. It was said in this letter that as the award in case No. 217-G of 1951 had been set aside by the High Court, the respondent begged to refer the matter for arbitration de novo and enclosed its statement of the case. Thereupon another tribunal was constituted under the rules of the Chamber to decide the dispute afresh. The appellant appeared before the tribunal and contended that it had no jurisdiction to make an award on a second references in the same dispute. The tribunal, however, proceeded to decide the reference and made the award on 104 March 15, 1955. This time the award was in favour of the respondent. Thereupon on August 4, 1955, the appellant made an application to the High Court praying that the award be set aside. In the alternative, the appellant prayed that the award be declared null and void and the arbitration agreement between the parties be superseded on the ground that the second reference was incompetent.

The application was opposed by the respondent and its contention was that this was not a second reference, and what the respondent wanted was that the Chamber should in the event that had happened take up the dispute again and make a proper award.

Reliance in support of the plea that such a course was permissible was placed on behalf of the respondent on the decision of the Calcutta High Court in The Barangore Jute Factory Co. Ltd. v.

Messrs. Hulas Chand Rupchand (1).

The learned Single Judge relied on the decision in The Barangore Jute Factory (1) and held that from what that respondent said to the Chamber its letter of September 7, 1953, it was reasonably clear that all that it wanted was that the Chamber should in the event that had happened take up the dispute again and make a proper award.

It could not therefore be held because of some language used in the letter that the respondent was making a fresh reference. Consequently, it was held that the Chamber had jurisdiction to decide the dispute after the earlier award had been set aside and what the respondent had asked for was for the continuance of the original reference, which had not been superseded. The learned Single Judge then went into the question whether there was such misconduct as would justify setting aside the award and held that there were no grounds made out which would justify the setting aside of the award. Consequently, the application for setting aside the award was dismissed. Thereafter the appellant came to this Court for special 105 leave, which was granted; and that is how the matter has come up before us.

The main question that has been argued before us is that the first award was set aside on May 25, 1953, the reference was exhausted and the arbitrator had become functus officio and it was therefore not possible without a fresh arbitration agreement to have the same dispute decided again by the arbitrator, irrespective of whether the letter of September 7, 1953, amounted to a second reference or was a mere request for continuation of the proceedings in the original reference, which had proved abortive as the award originally made had been set aside. Reliance in this connection is placed on what are called certain fundamental principles governing all arbitrations.

It is urged that once an award is wholly set aside, the arbitrator is functus offico and thereafter he cannot function again to decide the same dispute. This is said to be a fundamental principle of all arbitrations, and reliance is placed on a passage in “Russel on Arbitration” (15th Edn., p. 298), where the effect of setting aside an award is stated thus- “If an award is wholly set aside, the arbitrator is functus officio.” Reliance is also placed on Morduse v.

Palmer (1), where it was held- “An arbitrator having signed his award is functus officio and cannot alter the slightest error in it, even though such error has arisen from the mistake of the clerk in copying the draft. The proper course in such a case is to obtain an order to refer the award back to the arbitrator.” Reliance is also placed on Sutherland and Company v. Hannevig Brothers Limited(2). That was a case under the English Arbitration Act of 1889 which provided that an arbitrator could correct in an award any clerical mistake or error from any 106 accidental slip or omission and had thus varied the rule laid down in Mordue’s case(1). It was however held in that case that the correction made by the arbitrator was not justified under the Arbitration Act. These cases in our opinion have not much bearing on the question before us. It is true that generally speaking, an arbitrator is functus officio after he has made the award; but this only means that no power is left in the arbitrator to make any change of substance in the award that he had made (except in certain circumstances which have been provided in the law). What we have to see however are the scheme and the provisions of the Arbitration Act, No. X of 1940 (hereinafter called the Act), which govern the proceedings in arbitration in this case. These provisions are to be found in Chap. II of the Act which deal with “arbitration without intervention of Court.” Sections 3 to 7 deal with various aspects of arbitration agreements with which we are not concerned in the present case. Sections, 8, 11 and 12 deal with the power of a court to appoint or remove arbitrators or umpire. Sections 9 and 10 deal with the right of a party to appoint a new arbitrator or sole arbitrator and also with the appointment of an umpire. Section 13 deals with the power of the arbitrator and s. 14 provides for the signing of the award and giving notice in writing to the parties of the making and signing of the award and filing the same in court. Section 15 gives power to the court to modify the award in the circumstances mentioned therein. Section 16 gives power to the court to remit the award for reconsideration under certain circumstances.

Section 17 provides for delivery of judgment in terms of the award where the court sees no cause to remit the award or to set it aside. Section 18 provides for making interim orders. Section 30 which is in Chap. V sets out the grounds on which an award may be set aside.

107 Finally, we come to s. 19, which is the section on the interpretation of which the decision of this case depends. Section 19 reads as follows:- “Where an award has become void under sub-section(3) of section 16 or has been set aside, the court may by order supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred.” Before we consider what s. 19; provides we might advert to two matters. In the first place, it is not disputed before us that the English Arbitration Act does not contain a provision similar to s. 19; the consequence of this is that the decisions on English Courts may not be of much assistance on this particular aspect of the matter before us. Secondly, there was a parallel provision in para. 15(2) of Sch. II of the Code of Civil Procedure before 1940 as to the order to be passed by the court when setting aside an award, which was in these terms:- “(2) Where an award becomes void or is set aside under clause (1), the court shall make an order superseding the arbitration and in such case shall proceed with the suit.” It will be seen from this provision that when a court set aside an award under Sch. II the reference had to be superseded also, and the court was enjoined to proceed with the suit, the provision being contained in that part of Sch. II which dealt with arbitration in suits. But the provision also applied to cases covered by para.

17 read with para. 19 and also by implication to arbitrations outside court under para 21. But s.

19 of the Act has clearly made a departure from the parallel provision contained in Sch. II, para.

15 (2) and we have therefore to see what is the extent of the departure made by it.

It is clear from s. 19 that there are three matters which have to be borne in mind in arbitration 108 proceedings. There is first the arbitration agreement. Next comes the reference to arbitration and lastly the award. Section 19 provides inter alia that where an award has been set aside, the court may by order supersede the reference and shall thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred. The section therefore leaves it to the discretion of the court when it decides to set aside an award, whether to supersede the reference or not. It may not supersede the reference at all in which case though the award may be set aside the reference will continue. But if it supersedes the reference it has also inconsequence to order that the arbitration agreement on the basis of which the reference was made would cease to have effect with respect to the difference referred. It is only therefore when the court orders supersession of the reference that the consequence follows that the arbitration agreement ceases to have effect with respect to the subject matter of the reference. The intention of the legislature in making this change in the consequences to follow the setting aside of an award is clear in as much as the provision recognises that there may be different kinds of arbitration agreements, some of which might be exhausted by the reference already made and the award following thereon which has been set aside while others may be of a more comprehensive nature and may contemplate continuation of the reference relating to the same dispute or successive references relating to different disputes covered by the arbitration agreement. The legislature has therefore given discretion to the court under s. 19 to decide when it sets aside an award what the consequences of its order setting aside the award will be. If the court finds that the arbitration agreement is of the kind which exhausts itself after the first reference is made or if it finds on account of the reasons 109 which have impelled it to set aside the award that there should be no further reference of the dispute to arbitration, the court has the power to supersede the reference and thereupon order that the arbitration agreement shall cease to have effect with respect to the difference referred. On the other hand if the court finds that the arbitration agreement is of a general nature and contemplates continuation of the reference with respect to the same dispute or successive references with respect to different disputes arising under the terms of the arbitration agreement it may not supersedes the reference with the result that the reference as well as the arbitration agreement on which it is based survives. In such a case there can in our opinion be no doubt that there the reference and the arbitration agreement survive the same dispute may go before the arbitrators again provided there is machinery provided in the arbitration agreement which makes this possible. It will thus be seen that the discretion vested in the court under s.

19 depends upon the nature of the arbitration agreement in particular cases and it is on a consideration of those terms that the court may decide in one case to supersede the reference and order the arbitration agreement to cease to have effect after taking into account the reasons which have impelled it to set aside the award and another not to set aside the reference with the result that the reference and the arbitration agreement subsist; and if the arbitration agreement provides for machinery to have further arbitration on the same dispute or other disputes arising under the arbitration agreement it is permissible to have further arbitration on the same dispute or other disputes. The same discretion is given to the court with respect to arbitration under Chap. III of the Act dealing with “arbitration with intervention of a court where there is no suit pending,” as s. 20(5) provides that after the arbitration agreement has been ordered to be filed, the arbitration shall proceed 110 in accordance with, and shall be governed by, the other provisions of the Act so far as they can be made applicable. Further we find that the same discretion has been given to the court in the matter of arbitration in suits provided under Chap. IV, was s. 25 provides that “the provisions of the others Chapters shall, so far as they can be made applicable, apply to arbitration under this Chapter.” The proviso to s. 25 gives discretion to the court in any of the circumstances mentioned in ss. 8, 10, 11 and 12, instead of filling up the vacancies or making the appointments, to make an order superseding the arbitration and proceed with the suit, and where the court supersedes the arbitration under s. 19 it shall proceed with the suit. The scheme of the Act therefore is whether the arbitration is under Chap. II, Chap. III or Chap. IV, to give discretion to the court to decide whether to supersede the reference or not. Where it decides to supersede the reference it has to order that the arbitration agreement shall cease to have effect with respect to the difference referred;

but where it decides not to supersede the reference and the reference and the arbitration agreement subsist and if there is machinery provided in the arbitration agreement for making a further reference or for continuing the same reference, further arbitration can take place. The contention therefore urged on behalf of the appellant that once the award is set aside the arbitrator becomes functus officio and consequently there can be no further reference with respect to the dispute decided by the award which is set aside, must fail in view of the specific provisions of s. 19 of the Act.

We have already said that generally speaking, the arbitrator becomes functus officio after he has given the award; but that does not in our opinion mean that in no circumstances can there be further arbitration proceedings where an award 111 is set aside or that the same arbitrator can never have anything to do with the award with respect to the same dispute. Section 13 (d), for example, gives power to the arbitrator to correct in an award any clerical mistake or error arising from any accidental slip or omission. Further s. 16 gives power to the court; to remit the award to the arbitrator for reconsideration. Therefore, when it is said that the arbitrator is generally functus officio after he has made the award, it only means that he cannot change that award in any matter of substance himself. But that does not take away the court’s power to remit the award for reconsideration under s. 16 or to refuse to supersede the reference even though the award is set aside leaving it to the parties to take such further action under the arbitration agreement for further arbitration if it is possible so to do under the terms of a particular arbitration agreement. We are therefore of opinion that whatever may be the position in the absence of a provision similar to s. 19 of the Act there can be no doubt that s. 19 gives power to the court not to supersede the reference and so leave the arbitration agreement effective even when it sets aside award and thereupon, it will depend upon the terms of the arbitration agreement whether arbitration proceedings can go on with respect to the same dispute or with respect to some other disputes arising under the arbitration agreement.

This was the view taken in the Barangore Jute Factory case(1). Similar view has been taken in Rallis India Ltd. v. B.V. Manickam Chetti & Co.(2) and in Firm Gulab Rai Girdhari Lal v. Firm, Bansi Lal Hansraj(3). We think that this view is correct.

It is not in dispute that the reference was not superseded in this case when the award was set aside in May 1953. It will therefore depend upon 112 the terms of the arbitration agreement in this case whether it was possible to have further arbitration with respect to the same dispute. We have already set out the term in the contract relating to arbitration and it is clear that term is very wide in its amplitude and contemplates reference of disputes as and when they arise between the parties to the Chamber. Further as the Chamber is constituted the arbitrator in this term of the contract and as the Chamber consists of a large number of members and has its own rules for constituting arbitral tribunals. It is in our opinion quite possible on the terms of such an arbitration agreement to constitute another tribunal to decide the same dispute, where the reference remains pending and has not been set aside under s. 19, provided there is machinery for appointing different persons as arbitrators under the rules of the Chamber. It is however urged that this is a second reference of the same dispute and this at any rate is not contemplated by the term relating to arbitration in the contract. We are not impressed by this argument. Stress in this connection has been laid on the letter of September 7, 1953, in which the respondent said that it begged to refer the matter for arbitration de novo. Those words do not in our opinion show that a second reference was being made of the dispute. The letter begins by saying that the Chamber was aware that the previous award had been set aside. It was in those circumstances that the respondent told the Chamber that it begged to refer the matter for arbitration de novo. In the context this can only mean that the respondent was asking the Chamber to take up the reference again as the reference had not been superseded and arrange to continue the arbitration proceedings further. The only question therefore 113 that will arise is whether under the rules of the Chamber it was possible to constitute another tribunal to consider this dispute again. If that is possible, we fail to see why the arbitration proceedings should not go on further as the reference was not superseded in this case, and the arbitration agreement subsisted.

This brings us to the rules of the Chamber relating to the appointment of arbitral tribunal.

It is urged on behalf of the appellant that there is no provision in these rules for appointment of an arbitral tribunal where an award made by an earlier tribunal is set aside say, for misconduct.

If this contention is a justified it will certainly not be possible to appoint another arbitral tribunal to decide the reference after the award made on it by the earlier tribunal set aside. Reliance however is placed on behalf of the respondent on rr. V, VII and X made by the Chamber for the appointment of arbitral tribunals. It appears that no reliance was placed on r. V in the High Court; reliance however was placed on rr. VII and X in the High Court. The High Court held that r. VII justified the appointment of the tribunal in the present case, though it was of the view that r. X would not justify it. The appellant on the other hand contends that none of the three rules authorises the appointment of a fresh tribunal after an award is set aside and therefore there is no machinery under the terms of the arbitration agreement by which the arbitration can be further carried on, it being not disputed that the earlier tribunal whose award had been set aside on account of misconduct could not be again appointed.

Rule V(1) provides for an application for arbitration. Rule V(2) lays down that “on receipt of such application the Registrar shall constitute a court for the adjudication of the dispute.” It is urged on 114 behalf of the respondents that a fresh tribunal could be constituted under r. V (2) after the award of the earlier tribunal had been set aside, as the Registrar is authorised to constitute a court on receipt of an application by the Chamber under r. V (1). We are of opinion that this contention is not well founded. Rule V(2) applies to the first appointment after the receipt of the application and that appointment was made in this case and the award of the tribunal appointed under r. V (2) was set aside. Rule V (2) does not in our opinion contemplate a second appointment after the award of the court appointed under it on receipt of the application has been set aside. The respondent cannot sustain the appointment of a fresh tribunal under r. V(2).

Rule VII has been pressed into service by the High Court in this connection and it has been held on the basis of the Barangore Jute Factory’s case (1) that r. VII justified the appointment of a fresh tribunal in a case where an award made by the earlier tribunal is set aside. In that case the High Court was conscious that it was stretching the rule in applying it to the situation where an award is set aside. Rule VII says that “if the Court have allowed the time or extended time to expire without making any award, and without having signified to the Registrar that they cannot agree, the Registrar shall constitute in manner aforesaid another Court which shall proceed with the arbitration and shall be at liberty to act upon the record or the proceedings as then existing and on the evidence, if any, then taken in the arbitration or to commence the arbitration de novo.” Rule XXV makes provision that the award shall be made within four months or within such extended time as may be agreed to between the parties to the reference. Rule VII obviously refers to a case where the time or the extended time 115 allowed to the tribunal has been allowed to expire; it cannot refer to a case where the tribunal has made the award within the time fixed but later that award is set aside by court. It would in our opinion be stretching the language of r. VII too far to make it applicable to a case like the present. We cannot therefore agree with the High Court that r. VII justified the appointment of a fresh tribunal in the present case.

This brings us to r. X. The High Court thought that this rule could not apply. Rule X is in these terms:- “If any appointed arbitrator or umpire neglects or refuses to act or dies or become incapable of acting the Registrar shall substitute and appoint a new arbitrator or umpire as the case may be in manner aforesaid and the Court so reconstituted shall proceed with the arbitration with liberty to act on the record of the proceedings as then existing and on the evidence, if any then taken in the arbitration, or to commence the proceedings de novo.” We are of opinion that it was open to the Registrar under this rule to appoint a fresh tribunal because the earlier tribunal had become incapable of acting in view of the fact that its award had been set aside on the ground of misconduct. It has been urged on behalf of the appellant that the words “becomes incapable of acting” apply only to physical inability to act and in particular stress is laid on the collocation of words where these words follow the word “dies”. We are however of opinion that these words cannot take their colour from the word “dies” and are a separate category by themselves and must be interpreted on their own. Now there is no doubt that generally speaking an arbitrator may become incapable of acting because of some physical cause, for example, he may fell ill or may go mad and so 116 on. But we do not think that these words only refer to physical incapacity; in our opinion, they refer to any kind of incapacity, which may supervene after the appointment of the arbitrators, even to an incapacity from before but which was not known to the parties, or in this case to the Chamber before they are appointed. We may in this connection refer to the opinion of Russel (“Russel on Arbitration”, 15th Edn, p.7), where dealing with similar words in s. 10(b) of the English Arbitration Act of 1950, it has been said as follows:- “It would appear that the word ‘incapable’ in section 10(b) must refer to some incapacity arising after the date of the appointment, or not known to the parties at that date.” Clearly therefore, the words “becomes incapable of acting” do not merely refer to physical incapacity but to any kind of incapacity which arises after the appointment or which was there before the appointment but was not known to the parties or to the Chamber in this case. Take, for example, the case of persons appointed by the Chamber to decide a dispute; after the appointment, one arbitratior acquires an interest in the subject-matter of the dispute. Obviously such a person must be held to have become incapable of acting even though there is no question of any physical incapacity on his part. We are therefore of opinion that the words “becomes incapable of acting” in r. X are of wide amplitude and do not refer to cases only of physical incapacity but to any kind of incapacity arising after the appointment or even before the appointment provided it was not known to the parties, or to the Chamber in the present case. We cannot therefore agree with the High Court that r.

X will not apply to the present case.

What has happened in this case is that the previous tribunal made an award. That award has 117 been set aside on account of misconduct. In the circumstances we are of opinion that the previous tribunal has become incapable of acting as arbitrator to decide this dispute because of its misconduct. Further as the reference has not been superseded and the arbitration agreement subsists, it was in our opinion open to the Chamber, on the request of the respondent, to appoint another arbitral tribunal under r. X. Therefore, as there is a machinery by which fresh arbitrators can be appointed according to the terms of the arbitration agreement read with the rules of the Chamber and as the reference has not been superseded, the appointment of a fresh tribunal and the carrying on of the arbitration further were within the terms of the arbitration agreement.

No other point has been urged on behalf of the appellant in this appeal to challenge the correctness of the decision of the High Court.

Therefore, appeal No. 309 must fail.

Turning now to appeal No. 525, it is enough to say that it is similar to appeal No. 309 in all respects except one. The difference is that in this case the appellant objected to the appointment of a fresh tribunal and an application was made under s. 33 of the Act paying for the relief that no arbitration agreement existed after the earlier award had been set aside and therefore there could be no further arbitration. For reasons which we have already given this contention must fail, for it is not in dispute that this appeal also when the earlier award was set aside there was no supersession of the reference and the arbitration agreement is in the same terms as in the other appeal. What happened in this case was that the learned Single Judge allowed the application and revoked the authority of the Chamber to arbitrate. There was then an appeal by the present respondent 118 which was allowed on the basis of the Barangore Jute Factory case (1). Thereupon the present appeal has been brought to this Court by special leave. It has been contended on behalf of the appellant that the order under s. 33 was not appealable in view of the provisions of s. 39 of the Act and therefore the High Court had no jurisdiction in appeal to set aside the order of the learned Single Judge. This point as to jurisdiction was not taken before the appeal court nor has it been taken in the special leave petition to this Court or in the statement of case. It seems that the appeal was entertained in the High Court on the view that an appeal lay under the Letters Patent from an order of a Single Judge. Even if we were to entertain this argument the respondent will be entitled to ask for special leave to appeal against the order of the Single Judge and we will be justified having regard to the course of events and the view expressed in the companion appeal in granting leave after condoning the delay and in passing the same order which has been passed by the High Court in appeal. Technical requirements of procedure may of course be fulfilled by following the course suggested but no useful purpose will be served thereby. For reasons which we have already given the order of the appeal court is right. There is no reason to interfere with it and this appeal will also have to be dismissed.

We therefore dismiss the appeals with costs- one set of hearing costs.

Appeal dismissed.

The post Juggilal Kamlapat Vs. General Fibre Dealers Ltd. (and Connected Appeal) appeared first on B&B Associates LLP.

SMT. UJJAM BAI …PETITIONER
Vs.
STATE OF UTTAR PRADESH …RESPONDENT

DATE OF JUDGMENT: 28/04/1961

BENCH: DAS, S.K. KAPUR, J.L. SARKAR, A.K. SUBBARAO, K. HIDAYATULLAH, M. AYYANGAR, N. RAJAGOPALA MUDHOLKAR, J.R.

CITATION: 1962 AIR 1621 1963 SCR (1) 778

CITATOR INFO :

R 1963 SC 104 (10) F 1963 SC 416 (6) D 1963 SC 548 (12) APL 1963 SC 734 (6,8,9,10,14,15,16,17,21,25,27 D 1963 SC 928 (21) F 1963 SC 996 (6) RF 1965 SC 40 (5,8,9,ETC.,) R 1965 SC1942 (22, 24) RF 1967 SC 1 (54,55,58,68,69,71,78,79,80, 81 RF 1967 SC1643 (22) F 1967 SC1857 (6) MV 1971 SC 530 (387) R 1971 SC 870 (9,11,15, 16) RF 1973 SC1461 (648) F 1974 SC 994 (104) D 1974 SC1105 (12) R 1974 SC1539 (6,10) R 1975 SC1039 (6) RF 1975 SC1208 (16,28) R 1976 SC2037 (11) RF 1979 SC 777 (10,21, 31) RF 1981 SC2198 (21) R 1986 SC 180 (31) RF 1988 SC 469 (6) RF 1988 SC1531 (56) R 1988 SC2267 (34) RF 1990 SC 820 (19) F 1991 SC 764 (B,9,11, 12) RF 1991 SC1070 (3)

ACT:

Fundamental Right, Enforcement of-Assessment by Sales Tax Officer under a valid Act-If open to challenge on the sale ground of misconstruction of Act and Notification- Constitution of India, Arts. 19(1) (g), 32- Uttar Pradesh Sales Tax Act, 1948(U.P. XV of 1948), s.4(1) (b).

HEADNOTE:

The petitioner was a partner in a firm that carried on the business of manufacture and sale of hand-made bidis. On December 14, 1957, the State Government issued a notification under s. 4(1)(b) of the U. P. Sales Tax Act, 1948. Section 4(1) of the U. P. Sales Tax Act, 1948, provides as follows :- “No tax shall be payable on- (a)The sale of water, milk, salt, newspapers and motor spirit as defined in the U. P. State Motor Spirit (Taxation) Act, 1939, and of any other goods which the State Government may by notification in the Official Gazette, exempt.

(b)The sale of any goods by the All India Spinners’ Association of Gandhi Ashram, Meerut, and their branches or such other persons or class of persons as the State Government may from time to time exempt on such conditions and on payment of such fees, if any, not exceeding eight thousand rupees annually as may be specified by notification in the Official Gazette.” The notification dated December 14, 1957, issued under s. 4(1)(b) was as follows:- “In partial modification of notifications No. ST 905/X, dated March 31, 1956 and ST 418/X 902(9) 52, dated January 31, 1957, and in exercise of the powers conferred by clause (b) of sub-section (1) of section 4 of the U.P. Sales Tax Act, 1948(U.P. Act No. XV of 1948), as amended up to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957, by the dealers in respect of the 779 following classes of 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 to 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, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of tobacco plant but does not include any part of a tobacco plant while still attached to the earth.” 1958 By a subsequent notification issued on November 25, hand-made and machine-made bides were unconditional exempted from payment of sales tax from July 1, 1958.

The Sales Tax Officer sent a notice to the firm for the assessment of tax on sale of bidis during the assessment period April 1, 1958, to june 30, 1958. The firm claimed that the notification dated December 14, 1957, had exempted bidis from payment of sales tax and that, therefore, it was not liable to pay sales tax on the sale of bidis. This position was not accepted by the Sales Tax Officer who passed the following order on December 20, 1958,- “The exemption envisaged in this notification applies to dealers in respect of sales of biris provided that the additional Central Excise duties leviable thereon from the closing of business on 13. 12. 1957 have been paid on such goods. The assessees paid no such excise duties. Sales of biris by the assessees are therefore liable to sales tax”.

The firm appealed under s. 9 of the Act to the judge Appeals) Sales Tax, but that was dismissed on May 1, 1959.

The firm had however moved the High Court under Art. 226 of the Constitution before that date. The High Court took he view that the firm had another remedy under the Act and hat the Sales Tax Officer had not committed any apparent error in interpreting the notification of December 14, 1957. An appeal against the order of the High Court on a certificate under Art. 133 (1)(a) was dismissed by this Court for non- prosecution and the firm filed an application for restoration of the appeal and condonation of delay. During the pendency of that appeal the present petition was filed by the petitioner under Art. 32 of the constitution for the enforcement of her fundamental right under Arts. 19(1) (g) and 31 of the constitutions. Before the Constitution Bench 780 which heard the matter a preliminary objection was raised against the maintainability of the petition and the correctness of the decision of this Court in Kailash Nath v.

State of U. P. A, I.R. 1957 S.C. 7 relied upon by the petitioner was challenged. That Ben referred the following questions for decision by a larger Bench,- “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 ?” Held, (per Das, Kapur, Sarkar, Hidayatullah and Mudholkar, jj.) that in the case under consideration the answer to the questions must be in the negative. The case of Kailash Nath was not correctly decided and the decision is not sustainable on the authorities on which it was based.

Kailash Nath v. State of U. P., A. 1. R. 195 7 S. C. 790 disapproved.

Bengal Immunity Co. Ltd. v. State of Bihar, (1955) 2 S. C.

R. 603. and Bidi Supply Co. v. Union of India, (1956) S. C.

R. 267, explained.

Per S. K. Das, J.-The right to move this Court by appropriate proceedings for the enforcement of fundamental rights conferred by Part III of the Constitution is itself a guaranteed fundamental right and this Court is not trammeled by procedural technicalities in making an order or issuing a writ for the enforcement of such rights.

There is no disagreement that in the following the classes of cases a question of the enforcement of a fundamental right may arise and if it does arise, an application under Art. 32 will lie, namely, (1) where action is taken under a statute which is ultra vires the Constitution; (2) where the statute is intra vires but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires as where a quasi-judicial authority under an obligation to act. judicially passes an order in violation of the principle of natural justice.

Where, however, a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance 781 of a provision of law which is intra vires, an error of law or fact committed by that authority cannot be impeached otherwise than on appeal, unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. 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 determine. In such a case, the characteristic attribute of a judicial act or decision is that it binds, whether right or wrong, and no question of the enforcement of a fundamental right can arise on an application under Art. 32.

Therefore, an order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder.

The validity of such an order cannot be questioned on an application under Art. 32. The proper remedy for correcting such an error is to proceed by way of appeal or if the error is an error apparent on the face of the record, then by an application under Art. 226 of the Constitution.

Malkarjun v. Narhari, (1900) 5 L.R. 27 I.A. 216, Aniyoth Eunhamina Umma v. Ministry of Rahabilitation,(1962)1 S.C.R.

505, Gulabdas & Co. v. Assistant Collector of Customs, A.I.R. 1957 S. C. 733, Bhatnagar & Co. Ltd. v. Union of India, [1957] INSC 20; (1957) S. C. R. 701, and Parbhani Transport Co- operaiive Society Ltd. v. Regional Transport Authority, [1960] INSC 36; (1960) 3 S. C. R. 177, referred to. Case law reviewed.

Per Kapur, J.-Since the statute was constitutionally valid every part of it must be so and the determination by the Sales Tax Officer, acting within his jurisdiction under the Act, even though erroneous, was valid and legal.

An order of assessment under a statute that was ultra vires could not be equated with one passed under another that was intra vires, even though erroneous. Unlike the former the latter was a constitutional and legal Act and could not violate a fundamental right and or be impugned under Art. 32 of the Constitution.

If the Sales Tax Officer, acting quasi-judicially, miscons- trued the notification, which it had jurisdiction to construe, and imposed a tax, there could be no infringement of Art. 19 (1) (g) of the Constitution.

782 Case law discussed.

Per Subha Rao, J.-The Constitution is the paramount law. As the Constitution declares the fundamental rights and also prescribes the restrictions that may be imposed thereon, no institution can overstep the limits directly or indirectly by encroaching upon the said rights. This Court has no more important function to perform than to preserve the fundamen- tal rights of the people, and has been given all the institutional conditions necessary to exercise its jurisdiction without fear or favour. It is settled law that Art. 32 confers a wide jurisdiction on this Court to enforce the fundamental rights, that the right to enforce a fundamental right is itself a fundamental right, and that it is the duty of this Court to entertain an application and to decide it on merits whenever a party approaches it, irrespective of whether the question raised involves a question of jurisdiction, Law or fact. Though the Legislature can make a law imposing reasonable restrictions on a fundamental right in the interest of the public, the Constitution does not empower the Legislature to make an order of an executive authority final so as to deprive the Supreme Court of its jurisdiction under Art. 32 of the Constitution.

The principles and procedure evolved by the courts in England in regard to the issue of prerogative writs cannot circumscribe the wide power of the Supreme Court to issue orders and directions for the enforcement of fundamental rights. The issuance of such writs can be regulated by evolving appropriate procedure to meet different situations.

What. ever may be the stage at which this Court is approached this Court may in is 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. If the fundamental right of the petitioner depends upon the findings of fact arrived at by the administrative tribunals in exercise of the powers conferred on them under the Act, this Court may in its discretion ordinarily accept the findings and dispose of the application on the basis of those findings.

The principle of res judicata accepted by this court in Daryao v. State of U. P. cannot be involved in the case of orders of administrative tribunals, That apart, when a 783 petitioner seeks to quash the order of a tribunal, no question of res judicata arises, as that doctrine implies that there should be two proceedings and that in the former proceeding an issue has been decided inter-partes and therefore the same cannot be reagitated in a subsequent proceeding.

Daryao v. State of U. P. (1962) 1 S. C. R. 564. considered.

Whether relief can be given under Art. 32 against the order of a court or not, it is clear that administrative tribunals are only the limbs of the Executive, though they exercise quasi-judicial functions, and therefore are clearly comprehended by the expression “other authorities” in Art.

12 of the Constitution and in appropriate cases writs can be issued against them.

On a plain reading of the impugned notification it is clear that hand-made bidis are exempted from sales tax under the Act and therefore the Sales-tax Authorities have no power to impose sales tax thereon.

The decision of this Court in the case of Kailash Nath v.

State of U. P., was not incorrect or based on irrelevant decisions.

Kailash Nath v. State of U. P., A. I. R. 1957 S. C. 790, followed.

Gulabodas & Co. v. Assistant Collector of Customs, A. 1. R.

1957 S. C. 733, Bhatnagara & Co. Ltd. v. Union of India, [1957] INSC 20; (1957) S. C. R. 701 and Pharbani Transport Co-operative Society v. Begional Transport Authority, (1960) 3 S. C. R.

177, considered.

M/s. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sales Tax, [1955] INSC 41; (1955) 2 S. C. R. 483, J. V. Gokal & Co. v. Asstt.

Collector of Sales Tax[1960] INSC 12; , (1960) 2 S. C. R. 852 and M. L.

Arora v. Excise and Taxation Officer, [1961] INSC 144; (1962) 1 S. C. R., 823, referred to.

Case-law discussed.

Per Hidayatullah, J.-Article 32 contains a guaranteed right to move the Supreme Court for enforcement of fundamental rights and any person whose fundamental rights have been invaded has a guaranteed right to seek relief from the Court without having to seek to enforce his remedies elsewhere first. But the right which he can claim is not a general right of appeal against decisions of courts and tribunals.

The Supreme Court in examining such petitions would examine them 784 from the narrow stand point of a breach of fundamental rights. If a petitioner fails to establish that, he will fail outright.

Taxing laws may suffer from many defects : they may be opposed to the fundamental rights, they may be made by a legislature beyond its own competence, or without observing the formalities laid down by the Constitution. If a taxing law is opposedto fundamental rights it can be challenged under Art. 32. It is not necessary to resort only to Art.265 because Art. 32stands in no need of support from Art.265.

The taxing authorities are instrumentalities of Government.

They are a part of the executive even though in assessing and levying the tax they act as quasi-judicial bodies.

Their actions in demanding the tax in the ultimate analysis are executive actions. If that action is not backed by law or is beyond their jurisdiction an aggrieved person can have recourse to Art. 32 of the Constitution. Where, however, no question of vires of the law or jurisdiction is involved the Supreme Court would ordinarily not interfere in a petition under Art. 32 even though the interpretation be erroneous as the matter can be set right by recourse to, such appeals or revisions as the law permits. This is based upon the well accepted rule that a court having jurisdiction may decide wrongly as well as rightly. If there is an error not involving jurisdiction that error can be corrected by the ordinary means of appeals and revisions including an appeal by special leave to the Supreme Court. But if the law is unconstitutional or the interpretation is about jurisdiction which is erroneous a writ under Art. 32 can be claimed. The Supreme Court will keep its two roles separate, namely, (a) as the Supreme Appellate Tribunal against the decisions of all courts and tribunals and (b) as Court of guaranteed resort for enforcement of fundamental rights. It will not act as the latter when the case is only for exercise of its power as the former. It will, however, interfere if a clear case of breach of fundamental rights is made out even though there may be other remedies open including an approach to the Supreme Court in its appellate jurisdiction.

Per Ayyangar, J.-From the fact that a statute was competently enacted and did not violate fundamental rights, it did not necessarily follow that quasi-judicial authorities created by it could not violate fundamental rights. Legislative competence covered only such action as could on a proper interpretation of the statute be taken under it. If a law did riot create a liability an authority acting under it could not do so by a misinterpretation of it, for Legislative backing for 785 the imposition of such a liability would be plainly lacking.

The answer to the question should, therefore, be that an action of a quasi-judicial authority would violate a fundamental right where by a plain and patent misconstruction of the statue such an authority affected fundamental rights. This would constitute another category besides the three others in respect of which violation of such rights was not in doubt, namely, where the statute itself was invalid or unconstitutional, where the authority exceeded its jurisdiction under the Act and where it contravened mandatory procedure prescribed by the statute or violated the principles of natural justice. The exercise of the judicial power of the State might also equally with the Legislative and Executive part involve the violation of fundamental rights guaranteed by Part III of the Constitution.

Since in the instant case the construction put upon the notification by the Sales Tax Officer was reasonable possible, it was a case of mere error of law and not a patent error or an error apparent on the face of the record which could justify the issue of a writ of certiorari.

Per Mudholkar, J.-The question of enforcement of a fundamental right could arise if a tax was assessed under a law which was (1) void under Art. 13 or, (2) was ultra vires the Constitution or, (3) where it was subordinate legislation, it was ultra vires the law under which it was made or inconsistent with any other law in force.

A Similar question would arise if the tax was assessed by an authority (1) other than the one empowered to do so under the taxing law or (2) in violation of the procedure prescribed by law or, (3) in colourable exercise of the powers conferred by the law.’ Where a tax was assessed bona fide by a competent authority under a valid law and under the procedure laid down by it, no question of infringement of any fundamental right could arise, even though it was based upon an erroneous construction of law unless the tax imposed was beyond the competence of the Legislature or violated any of the fundamental rights or any other provisions of the Constitution.

A mere misconstruction of a provision of law did not render the decision of a ‘quasi-judicial tribunal void as being beyond jurisdiction. It stood till it was corrected in the appropriate manner and if such a decision a person was held liable to pay tax he could not treat it as a nullity and contend that it was not- authorised by law. The position would be 786 the same even though upon a proper construction, the law did not authorise the levy.

ORIGINAL JURISDICTION : Petition No. 79 of 1959.

Petition under Art. 32 of the Constitution of India for enforcement of Fundamental Rights.

WITH
Civil Miscellaneous Petition No. 1349 of 1961.

Application for restoration of Civil Appeal No. 172 of 1960 M/s. Mohan Lal Hargovind Das v. The-Sales Tax Officer, Allahabad.

M.C. Setalvad, Attorney-General of India, C. K. Daphtury, Solicitor-General of India, G. S. Pathak, S. C. Khare, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner.

H. N. Sanyal, Additional Solicitor-General of India, M. V.

Goswami and C. P. Lal, for the respondents, N.A. Palkhivala, B. Parthasarathi, J. B. Dadachanji, O.

C. Mathur, and Ravinder Narain, for Intervener (Tata Engineering and Locomotive Co., Ltd., Bombay) A.S. R. Chari, D. P. Singh and M. K. Ramamurthi, for Intervener (State of Bihar).

H.N. Sanyal, Additional Solicitor-General of India, B. R.

L. Iyengar and T.M. Sen, for Intervener (State of Mysore).

S.N. Andley, Rameshwar Nath and Vohra, for the petitioner (in C. M. P. No. 1349 of 1961).

H. N. Sanyal, Additional Solicitor-General of India, G. C.

Mathur, M. V. Goswami for C. P. Lal, for the respondent (in C. M. P. No. 1349 of 1961) 787 1961. April 28. The above petition coming up for hearing in the first instance before the, Constitution Bench consisting of S. K. Das, J. L. Kapur, M. Hidayatallah, J.C.

Shah and T. L. Venkataram Ayyar, JJ., the matter was referred to the Chief Justice under O. V-A, r. 2 of the.

Supreme Court Rules, 1950, as amended, by a Judgment delivered by VENKATARAMA AIYAR, J.-The petitioner is a partner in a firm called -Messrs. Mohan Lal Hargovind Das, which carries on business in the manufacture and sale of biris in number of States, and is dealer registered under the U.P. Sales Tax Act 15 of 1948 with its head office at Allahabad. In the present petition filed under Art. 32 of the Constitution, the petitioner impugns the validity of a levy of sales tax made by the Sales Tax Officer, Allahabad, by his order dated December 20,1958.

On December 14, 1957, the Government of Uttar Pradesh issued a notification under s. 4(1) (b) of the Act exempting from tax, sales of certain goods including biris, provided that the additional Central Excise duties leviable thereon had been paid. In partial modification of this notification, the Government issued another notification on November 25, 1958, exempting from tax unconditionally sales of biris, both machinemade and handmade, with effect from July 1, 1958, The effect of the two notifications aforesaid taken together is that while for the period, December 14, 1957, to June 30, 1958, the exemption of biris from tax was subject to the proviso contained in the notification dated December 14, 1957, for the period commencing from July 1, 1958, it was unconditional and absolute.

The petitioner’s firm filed its return for the quarter ending June, 1958, disclosing a gross turn- 788 over of Rs. 75,44,633/- and a net turnover of Rs. 111/- representing the sale proceeds of empty packages, and deposited a sum of Rs. 3.51 n.P. as sales tax on the latter.

On November 28, 1958, the sales Tax O.fficer, Allahabad, sent a notice to the petitioners firm for assessment of tax on the sale of biris during the period, April 1, 1958, to June 30, 1958, and on the date of enquiry which was held on December 10, 1958, the petitioner filed a petition stating that by reason of the exemption granted under the notification No. ST-4485/X dated .December 14, 1957, no tax was payable on the sale of biris. By his order dated December 20, 1958, the Sale Tax fficer rejected this contention. He observed:

“The exemption envisaged in this notification applies to dealers in respect of Biris, provided that the additional Central Excise duties leviable thereon from the closing of business on December 13, 1957, have been paid on such goods. The assessee paid no such Excise duties. Sales of Biris by the assessee are, therefore, liable to sales tax.” Against this order, there was an appeal (Appeal No. 441 of 1959) to the Courts of the Judge (Appeals), Sales Tax, Allahabad, who, by his order dated May 1, 1959, dismissed the same on the ground that the exemption from sale tax under the notification related “to such classes of goods only on which the Additional Central Excise Duty was leviable.” Under s. 10 of the Act, a person aggrieved by an order in appeal might take it up on revision before the Revising Authority, and under s. 11, the assessee has a right to require that any question of law arising out of the order of assessment be referred to the opinion of the High Court. The Petitioner did not take any proceedings under the Act against the order in appeal dated May 1, 1959, and that has become final.

789 While Appeal No. 441 of 1959 was pending, the petitioner also filed under Art. 226 of the Constitution a petition in the High Court of Allahabad, ‘for a writ of certiorari to quash the assessment order dated December 20, 1958. That was dismissed on January 27, 1959, by the learned Judges on the ground that, as the assessee could contest the validity of the order in appropriate proceedings under the Act, and as, in fact, an appeal had been filed, there was no ground for exercising the extraordinary jurisdiction under Art.

226. In this view, the learned Judges did not decide the case on the merits, but observed that the “language of the notification might well be read as meaning that the notification ‘is to apply only to those goods on which an additional Central excise duty had been levied and paid.” The petitioner then field an application under Art. 133 of the Constitution for certificate for appeal to this Courts against the above order, and that was granted. But instead of pursuing that remedy, the petitioner has chosen to file the present application under Art. 32 challenging the validity of the order of assessment dated December 20, 1958.

It is alleged in the petition that the imposition and levy of tax aforesaid ,,amounts to the infringement of the fundamental rights of the Petitioner to carry on trade and business guaranteed by Art. 19 (1) (g) of the Constitution,” and that it is further “an illegal confiscation of property without compensation and contravenes the provisions of Art.

31 of the Constitution.” The prayer in the petition is that this Courts might be “,pleased to issue- (a)a writ of certiorari or other order in the nature of certiorari quashing the order of the Sales Tax Officer, Allahabad, dated 20th December 1958;

(b)a writ of Mandamus directing the opposite parties not to realise any sales tax from the petitioner on the basis of the said order dated 20th December, 1958.” 700 No argument has been addressed to us that the impugned order of assessment is in contravention of Art. 31. Such a contention would be wholly untenable in view of the decision of this Court in Ramjilal v. Income-tax O.fficer (1) and Laxmanappa Hanumantappa v. Union of India (2), where it has been held that when tax is authorised by law as required by Art. 265, the levy is not open to attack under Art. 31 of the Constitution. The whole of the argument on behalf of the petitioner is that the assessment order is unconstitutional as infringing Art. 19(1)(g). It is contended in support of this position that, the Sales Tax O.fficer has misconstrued the notification dated December 14, 1957, in holding that exemption of tax thereunder is limited to biris on which additional excise duty had been levied, that as result of such misconstruction tax has been imposed which is unauthorised, and that constitutes an interference with the eight of the petitioner to carry on business guaranteed by Art. 19(1)(g). That is how the jurisdiction of this Court under Art. 32 is invoked.

To this, the answer of the respondents is that the Sales Tax O.fficer had correctly construed the notification in limiting the exemption to goods on which additional excise duty had been paid The respondents further raise a preliminary objection to the maintainability of this petition on the ground that laws of taxation which are protected by Art. 265 fall outside the purview of Part III of the Constitution, and are not open to attack as infring- ing fundamental rights guaranteed therein, and that even if they are subject to the restrictions in Part III, an order of assessment made by a tribunal acting judicially under a statute which is intra vires such as the impugned order dated December 20 1958, does not infringe Art. 19(1)(g), and that, further, a petition under Art.32 is not maintainable (1) [1951] INSC 2; [1951] S.C.R. 127, 136, 137.

(2) (1-55) 1 S.C.R. 769, 772.

791 for challenging it, even if it is erroneous on the merits.

On these contentions, the points that arise for decision are whether taxation laws are subject to the limitations imposed by Part III ;whether the order of assessment dated December 20, 1958, is in contravention of Art. 19(1)(g); and whether it can be impugned in a petition under Art. 32 of the Constitution. The first question -that falls to be considered is whether the restrictions imposed in Part ITT of the Constitution have application to taxation laws. The contention of the respondent.,; is that taxation is a topic which is dealt with separately in Part XII of the Constitution, that the governing provision is Art.265, which enacts that no tax shall be levied or collected except by authority of law, that when there is a law authorising the imposition of tax and that does not contravene any of the inhibitions in Part XII, then the levy thereunder cannot be attacked as infringing any of the fundamental rights declared in Part III. In support of this contention, the following observations in Ramjilal’s case were relied on:

“”Reference has next to be made to article 265 which is in Part XII, Chapter 1, dealing with “Finance”. That article provides that 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. 3 1 (1), then there was no point in making a separate provision again as has been made in article 265. It, therefore, follows that clause (1) of Article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes (1) [1951] INSC 2; (1951) S.C.R. 127,136, 137.

792 wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise ” of police power or eminent domain. Our Constitution evidently has also treated taxa- tion as distinct from compulsory do question of property and has made independent provision giving protection against taxation save by authority of law……… In our opinion, the protection against imposition and collection of taxes save by authority of law directly comes from article 265, and is not secured by clause (1) of Article 31. Article 265 not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32. It is not our purpose to say that the right secured by article 265 may not be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be founded on article 32 read with article 31 (1) to this court is misconceived and must fail.” A similar decision was given in Laxmanappa Hanumantappa v.

Union ‘of India (1). Where an order of assessment made in November, 1953, was attacked in a petition under Art. 32 on the ground that the Act under which it was made, viz., the Taxation on Income (Investigation Commission) Act (30 of 1947) was void under Art. 14 of the Constitution. Rejecting this contention, Mahajan, C. J., delivering the Judgment of the Court, observed :

“The assessment orders under the Income-tax Act itself were made against the petitioner in November, 1953. In these circumstances ( 1) [1954] INSC 98; [1955] 1 S.C.R. 769, 772.

793 we are of the opinion that he is entitled to no relief under the provisions of article 32 of the Constitution. It was held by this Court in Ramjilal v. Income-tax officer, Mohindergarh(1) ,that As there is a special provision in article 265 of-the Constitution that no tax shall be levied or collected accept by authority of law, clause (1) of article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and in as much as the right conferred by article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under article 32.” The argument of the respondents based on the above decisions is that a law imposing a tax enacted by’ a competent legislature is not open to attack under the provisions of Part III.

The contention of the petitioner, on the other hand, is that a law of taxation is also subject to the limitations prescribed in Part III of the Constitution, and the recent decision of this Court in K. T. Moopil Nair. v. The State of Kerala (2) is relied on in support of it. There, the question was whether the provisions of the Travancore-Cochin Land Tax Act 15 of 1955, as amended by the Travancorecochin Land Tax (Amendment) Act 10 of 1957 contravened Art. 14 of the Constitution. The Court was of the opinion that they did. Then the contention was raised that in view of Art.

265 the legislation was not open to attack under, the provisions of Part III. In repelling this contention, the Court observed :

“Article 265 imposes a limitation on the taxing. power’ of the State in so ‘far as it provides that, the State shall not levy or collect a tax, except by, authority of law, that (1) [1951] INSC 2; (1951) S.C.R. 127,136, 137.

(2) [1960] INSC 285; (1961) 3 S.C.R. 77.

794 is to say, a tax cannot be levied or collected by a mere executive flat. It has to be done by authority of law, which must mean valid law. In order that the law ‘May be valid the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Art.13 of the Constitution. One of such conditions envisa- ged by Art. 13(2) is that the legislature shall not make any law which takes away or acrid ages 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.” In the result, the impugned legislation was struck down as unconstitutional.

It might appear at first sight that this decision is in conflict with the decisions in Ramjilal’s case(1) and Laxmanapp’s case (1). But when the matter is closely examined, it will be seen that it is not so In Ramjilal’s case (1) and in Laxmnappa’s case (2) the contention urged was that the tax which is duly authorised by valid legislation as required by Art. 265 will still be bad under Art. 31(1) as amounting to deprivation of property. This was negatived and it was held that Art. 31(1) had no application to a law, which was within the protection afforded by Art. 265. There are observations in the above decisions which might be read as meaning that taxation laws are altogether outside the operation of Part Ill. But, in the context, they have reference to the application of Art.

31(1). In (1) ( [1951] INSC 2; 1951) S.C.R. 127, 136, 137.

(2 [1954] INSC 98; (1955) 1 S.C.R. 769,772 795 Moopil Nair’s case (1), the contention urged was that even though a taxing law might be discriminatory, it was not open to attach under Art. 14 by reason of Art. 265. In negativing this contention, this Court held that a Yaw which authorised the imposition of a tax under Art. 265 was also a law within Art. 13, and that, therefore, if it contravened Art. 14 it was liable to be struck down. This decision is clearly an authority for the position that laws of taxation must also pass the test of the limitations prescribed in Part III of the Constitution. But it is not an authority for the position that all the provisions contained in Part III are necessarily applicable to those laws. It did not decide contrary to Ramjilal’s case (2) and Laxmanappa’s case,(1) that Art.31 (1) would apply to a taxation law, which is otherwise valid. In our judgment. the correct position in law is that a taxation law infringes a fundamental right cannot be shutout on the ground that Art.

265 grants immunity to it from attack under the provisions of Part III, but that whether there has been infringement must be decided on a consideration of the terms of the particular Article, which is alleged to have been infringed, It is on this reasoning that taxation laws were held in Ramjilal’s case (2) and in Laxmanappa’s case (3) to be unaffected by Art. 31 (1), whereas in Moopil Nair’s case (1) they were held to be within the purview of Art. 14.

In this view, the question that arises for decision is whether Art. 10(1) (g), which is alleged to have been infringed, is applicable to a sales tax law which has been enacted by a competent legislature and which is not otherwise ultra vires. Article 19(1) (g) enacts that all citizens have the right to practice any profession or to carry on any occupation, trade or business. Is a law imposing a tax on sale by a dealer an infringement of his right to carry on trade ? we must (1) (1961) 3 S.C 77 (2) [1951] INSC 2; (1951) S.C.R. 127,136,137, (3) [1954] INSC 98; (1955) 1 S.C.R. 769,722 796 assume for the purpose of the presents discussion that the sales tax statute in question is within the competence of the legislature and is not ultra vires. Where a law is passed by a legislature which has no competence to enact it as when a States Legislature imposes what is in substance, a tax on income, a subject which is within the exclusive competence of the Centre under Entry 82, that legislation has no existence in the eye of law and any levy of tax under the provisions of that law Will not be within , the protection afforded by Art. 265, and will, in consequence, be hit by Art. 19(1) (g). The same result would follow when a law though disguised as a taxation law, is, in substance a law which is intended to destroy or even burden trade and not to raise revenue. That is colorable legislation which cannot claim the benefit of Art. 265, and it must be held to contravene Art. 19(1) (g) unless saved by Art. 19(6). But where the law in within the competence of the legislature and is otherwise valid and is not colourable can it be said that it is liable to be attacked as infringing Art. 19(1) (g) ? The object of the legislation is not to prevent the dealer from carrying on his business. Far from it, envi- sages that the trader will carry on his business and carry it on a large scale so that the State might earn the tax.

It is, therefore, difficult to conceive how a sales tax law can fall within the vision of Art. 19(1) (g). Arts. 19(1) (f) and 19(1) (g) are in the same position as Art. 31 (1).

They all of them enact that the citizen shall have the right to hold property or to carry on business without interference by the State. If Art. 31 (1) is as held in Bamjilal’8 case (1) and Laxamanappa’s case ( 2) inapplicable to taxation laws, Arts. 19(1) (f) must on the same reasoning also be held to’ be inapplicable to such laws.

(1) [1951] INSC 2; (1951) S.C.R. 127, 136, 137.

(2) [1954] INSC 98; (1955) 1 S.C.R. 769,772.

797 The question can also be considered from another standpoint.

Art. 19(1) (g) and Art. 19 (6) from parts of one law which has for its object the definition of the fundamental right of a citizen to carry on business. Article 19(1) (g) declared that rights and Art. 19(6) prescribes its limits.

The two provisions together make-up the whole of the fundamental right to carry on business. If a taxation law is within Art. 19(1) (g) it must also be capable of being upheld as a reasonable restriction under Art. 19(6). But can imposition of a tax be properly said to be a restriction on the carrying on of trade within Art. 19(6)?. It is only if that is so that the question of reasonableness can arise.

If,the imposition of sales tax is a restriction on the carrying on of business then the imposition of income tax must be that even to a greater degree. Likewise land tax must be held to be a restriction on the right of a citizen to hold property guaranteed by Art. 18(1) (g). Indeed it will be impossible to conceive of any taxation law which will not be a restriction under Art. 19(1) (f) or Art. 19(1) (g). It is difficult to imagine that is the meaning which the word “restriction” was intended to bear in Arts. 19(5) and (6). That this is not the correct interpretation to be put on the word “restrictions will be clear when Art. 19(6) is further examined. Under that provision, the question whether a restriction is reasonable for not is one for the determination of the Court and that determination has to be made on an appreciation of the facts established. If it is to be held that taxation laws are within Art. 19(1) (g) then the question whether they are reasonable or not becomes justifiable and how is the Court to judge whether they are so or not? Can the Court say that the taxation is excessive and. is unreasonable ? What are the materials on which the matter could be decided, and what are the criteria on which the decision thereon could 798 be reached ? It would, therefore, seem that the reasonableness of taxation laws is not a matter which is justiciable and therefore they could not fall within the purview of Arts. 19 (5) and (6). If it is to be held that taxation laws are within the inhibition enacted in Art.

19(2) (g), then all those laws must be struck down as unconstitutional, because they could never be saved under Art. 19(5) and Art. 12(6). It should be noted that Art.

19(1) (g) and Art. 19(6) form parts of one scheme and for a proper understanding of the one, regard must be had to the other, Article 19(1) (g) cannot operate where Art. 19(6) cannot step in and the considerations. arising under Art.

19(6) being foreign to taxation laws Art. 19(1) (g) can have no application to them.

We may now refer to the decisions of this Court where the question of applicability of Art. 19(1) (g) to taxation laws has been considered. Himmatlal Harilal Metha v. The State of Madhya Pradesh (1) the question arose with reference to a sales tax which was sought to be imposed under explanation II to s. 2 (g) of the Central Provinces and Berar Sales Tax Act 21 of 1947. under which a sale was defined as a transaction by which property in goods which were actually within the state was transferred wherever the sale might have been made. That provision was held to be ultra vires the State Legislature. A dealer then filed an application under Art. 226 in the High Court of Nagpur questioning the wires of that provision’ and asking for appropriate writ.

The State resisted the application on the ground that as there was a special machinery provided in the Act for questioning the assessment a petition under Art. 226 was not maintainable. In rejecting this contention this Court held that, “Explanation II to section 2 (g) of the Act having been declared ultra vires, any (1) [1954] S.C.R. 1122.1127.

799 imposition of sales tax on the appellant in Madhya Pradesh is without the ‘authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realitise it from the appellant is a sufficient infringement of his fundamental ,right under Art. 19(1) (g) and.

it was clearly entitled to relief under Art.

226 of the Constitution”.

This decision, is a direct authority for the proposition that when a provision in a taxing statute is ultra vires and void any action taken thereunder is without the authority of law, as required under Art. 265 and that in that situation Art. 19 (1) (g) would be attracted.

This decision was approved in The Bengal Immunity Company Limited v. The State of Bihar (1). The facts of that, case are that the appellant-Company filed a petition under Art.

226 in the High Court of Patina for a writ of prohibition restraining the Sales Tax O.fficer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that the sales sought to be assessed were made in the course of inter-State Trade that the provisions of the Bihar sales Act 19 of 1947 which authorised the imposition of tax on such sales were repugnant to Art.

286(2) and void and that, therefore, the proceedings taken by the Sales Tax O.fficer should be quashed. Thai application was dismissed by the High Court on the ground that if the Sales Tax O.fficer made an assessment which was erroneous the assessee could challenge it by way of appeal or revision under ss.24 & 25 of the Act and that as. the matter was within the jurisdiction of the Sales Tax O.fficer, no writ of prohibition or certiorari could be issued. There was an appeal against this (1)[1955] 2. S. C. R. 603, 619, 620.

800 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 O.fficer. In rejecting this contentdon 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 & valid law. The contention of theappellant company is that the Act which authorises the assessment, levying and collection of Sales tax on inter state trade contravenes & constitutes an infringement of Art. 286 and is therefore ultra vires, void and unenforceable.

If however this contention be well-founded the remedy by way of a writ must on principle and apthority 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- “The answer to this plea is,short and sumple.

The remedy under the Act cannot be said to be adequate and is, indeed, nugatory,or useless if the Act which provides for such remedy is itself ultra vires and void and the principle relied upon can, therefore, have no application where a party comes to Court with an allegation that his right has been or is being threatened to be infringed by a,law which is ultra vires the powers of the legislature which enacted it and as such void and prays for appropriate relief under article 223”.

It will be seen that in this case the question arose with reference to a provision in the taxing statute, which was ultra vires, and the decision was only that any action taken, under such a provision 801 was without the authority of law and was therefore,, an unconstitutional interference with the right to carry on business under Art. 19(1)(g). There is nothing in, these two decisions which lends any support to the contention that, where the provision of law, under which assessment is made is intra vires, the order is liable to be impugned as contravening Art. 19(1)(g), if the order is on the merits, errors. Chat,, -however, was held in the decision in Kailas Nath v., Stae of U. P.

In that case, a petition under Art. 32 of the Constitution was filed in this Court challenging an order of assessment on the ground that the Sales Tam, Officer had disallowed an exemption on a misconstruction of a notification issued under s. 4 of the U. ‘P. Sales Tax Act, and that thereby the right of the petitioner to carry on business under Art.

19(1)(g) had been infringed. An objection was takes that,, even if the Sales Tax Officer had misconstrued the notification, no fundamental right of the petitiouer had been infringed, and that the petition was not maintainable, Overruling this contention Govinda Menon, J. observed:

“If a tax is levied without due legal authoon any trade or business, then it is’ open ,,to the citizen aggrieved to approach this Court ‘for a writ under Art. 32, “since his right to carry on a trade is violated, or infringed by the -imposition and such being the case, Art. 19(1)(g) comes into play”.

In support of this view, the observations in The Bengal Immunity Company’s case (2) were relied on. The Petitioner contends that, on this reasoning, Art. 1,9(1)(g)must be held to be violated not merely when an assessment is made under a statute which is ultra vires, but also when it is made on a misconstruction of’ a statute, which is intra vires. It is (1) A.I.R. 1957 S.C. 790, 792, 793.

(2) (1955) 2 8 C’.R. 603,619, 620 802 incontrovertible that that is the effect of the decision in Kailash Nath’s case (1). But it is equally jnoon.

trovertible that the decision in The, Bengal Immunity Company’s case (2), which it purports to follow.. does not support it. There is a fundamental distinction between an order of assessment made on a provi. sion, which is ultra vires, and one made on a valid provision, which is misconstrued. Where the provision is void, the protection under Art. 265 fails, and what remains is only unauthorised interference with property or trade by a State O.fficer, and Arts. 19(1) (f ) and (g) are attracted. But where the provision itself is valid, Art. 265 operates, and any action taken thereunder is protected by it. An authority having jurisdic. tion to decide a matter has jurisdiction to decide wrong as well as right, & the protection afforded by Art.

265 is not destroyed, if its decision turns out to be erroneous. To such cases, Art. 19(1)(g) has no application.

Both in Himmatlal’s case(8) and in Bengal Immunity Company’s case (2) the, decision of the Court that the proceedings constituted an infringement of the rights of the citizen under Art. 19(1)(g) was based expressly on the ground that Art. 265 did not apply to those proceedings. But this ground did not exist in Kailash Nath’s owe (6), and that makes all the difference in the legal position. The decision in Kailash Nath’s case 16) which merely purported to follow The Bengal Immunity Company’s owe (2), is open to the criticism that it has overlooked this distinction.

We may now refer to two decision subsequent to the one in Kailash Nath case (1), which have been relied on by the petitioner. In Pata Iron and Steel Co., Ltd. v. S. R.

Sarkar (4), the question arose under the Central Sales Tax Act. Under that Act, sales in the course of inter-State trade are (1) AIR 1957 S.C. 790, 792, 793.

(3) [1954] INSC 26; (1954) S.C.R. 1122, 1127, (2)(1955) 2. S.C.R. 603, 619. 620- (4)(1961) 1 S.C.R. 3 79, 389, 402.

803 liable to be taxed at a single point. The petitioner was I assessed to tax on certain sales falling within Act by the Central Sales Tax O.fficer, Bihar, and the tax was also duly paid. Thereafter, the Central Sales Tax O.fficer in West Bengal made an order assessing to tax the very sales in respect of which tax had been paid. The petitioner then moved this Court under Art. 32 for an order quashing the order of assessment. A preliminary objection to the maintainability of the petition was taken on behalf of the respondent State on the ground that, under the Act the petitioner could file an appeal against the order of assessment, and that proceedings under Art.32 were, therefore, incompetent. In overruling this contention, Shah, J., referred to the decisions of this Court in Himmatlal’s case (1), Bengal Immunity company’s case (2) and The State of Bombay v. United Motors (India) Ltd (3) and observed;

“In these oases, in appeals from orders passed by the High Courts in petitions under rt. 226, this Court held that an attempt to levy tax under a statute which was ultra,vires, infringed the fundamental right of the citizens, and recourse to the High Court for protection of the fundamental right was not prohibited because of the provisions contained in Art. 265., In the case before us, the vire s of the Central Sales Tax Act, 1956, are not challenged; but in Kailash Nath v. State of U.

P., 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 Kaikash Nath’s case is inconsistent with the view expressed by this court in Ramjilal’s Case (1) [1954] INSC 26; (1954) S C.R. 1122, 1127. (2) (1955) 2 S.C R. 603, 619, 620.

(3) [1953] INSC 24; (1953) S.C.R. 1069.

804 The learned Judges then proceeded to hold that, as there was under the Act a single liability and that had been discharged, proceedings for the assessment of the same sales a second time to tax infringed the fundamental right of the petitioner to hold property. Dealing with this.

point, Sarkar, J., observed in the same case:

“This Court held that an illegal levy of sales tax on a trader under an Act the legality of which was not challenged violates his fundamental rights under Art. 19(1) (g) and a petition under Art. 32 with respect to such violation lies. The earlier case of 1951 S.

C. R. 127 does not appear to have been considered. It is contended that the decision in Kailash Nath’s case, requires reconsideration. We do not think, however, that the present is a fit case to go into the question whether the two cases are not reconcilable and to decide. the preliminary question raised. The, point was taken at a last stage of the, proceedings after much costs had been incurred”.

It is clear from the above observations that the learned Judges were of the opinion that the decision in Kailash Nath’s case, (1) required reconsideration. The ratio of the decision in Tata Iron and Steel Co. Ltd. v. S.R. Sarkar(2) would appear to be that, as the law did not authorise the imposition of tax a second time on sales, on which tax has been levied and collected, proceedings for assessment a second time are without jurisdiction, and, therefore, Art.

19 (1) (f) is attracted. In the present cage, there is no contention that the proceedings of the Sales Tax officer are without jurisdiction.

The petitioner also relied on a recent decision (1) A.T R. 1957 S C 790, 792, 793.

(2) [1960] INSC 131; (1961) 1 S.C. R. 379 3, 402.

805 of this Court in Shri Madanlal Arora v. The Exciseand Taxation officer, Amritstir (1). In that case, a notice for assessment was issued after the expiry of the period prescribed therefor by the Statute. The assessee thereupon applied to this Court under Art. 32 for quashing the proceedings 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 must be quashed. This ,gain is a.

case, in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax,, and it makes no difference that such assumption of jurisdiction was based on a misconstruction of statutory provisions. In the present case. we are concerned with an alleged ,misconstruction, which bears on the merits of the assessment, and does not affect the jurisdiction of the, Sales Tax O.fficer to make the assessment, and the two are essentially different. And we should add that the present question was not raised or decided in that case.

It remains to refer to the decision in Moopil Nair’s Case (2), which has been already discussed in connection with Art. 14. In that case, the provisions of the Travancore- Cochin Land Tax Act 15 of 1955 as amended by the Travancore- Cochin Land Tax (Amendment) Act 10 of 1957, were held to be bad as violative also of Art. 19 (1) (f). As the considerations applicable to Arts. 19 (1) (f) and 19 (1) (g) are the same, we should have to examine the’ ground on which this decision rests. They were thus stated:

“Ordinarily, a taxing statute lays down a regular machinery for making ‘assessment- of the tax proposed to be imposed by the statute.

It lays down detailed procedure as (1) (1962) 1 S.C. R. 923.

(2) [1960] INSC 285; (1961) 3 S.C.R. 77.

806 to notice to the proposed assessee to make return in respect of property proposed to be taxed,presc ribes the authority and the procedure for hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, a to the right to challenge the regularity of assessment made, by recourse to proceeding in a higher Civil Court The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the Executive to evolve the requisite machinery and procedure. The whole ‘thing from beginning to end, is treated as of a purely administrative character, completely ignoring the Jegal position that the assessment of a tax on person or property is at least of a quasi-judicial character It is clear therefore, that apart from being discriminat cry and imposing unreasonable restrictions on holding property, the Act is clearly confisca- tory in character and effect …. For these reasons, as also for the reasons. for which the provisions of ss. 4 and 7 have been declared to be unconstitutional, in view of the provisions of Art. 14 of the Constitution, all these operative sections of the Act, namely, 4, 5A and 7, must be held to offend Art. 19 (1) (f) of the Constitution also.” From the above observations, it will be seen that the ground on which the law was held to be in contravention of Art. 19 (1) (f) was not one which had any reference to the merits of the assessment but- to the procedure laid down for imposing tax. This decision if; an authority only for the position that, where the procedure laid down in a taxing statute is opposed to rules of natural justice, then any imposition of tax under such a procedure must be held to violate Art. 19 807 Reference may be made to the following passage in Willoughby’s Constitution of the United States, Second Edn, Vol. 3, p. 17, 18 relied on for the respondents :

“It is established that the guaranty to suitors of due process of law does not furnish to them a right to have decisions of courts reviewed upon the mare ground that such decisions have been based upon erroneous findings of fact or upon erroneous determina- tions of law. Such errors, if committed by trial courts, can be corrected only by ordinary appellate proceedings as provided for by law. Especially has this doctrine been declared in cases in which the Federal Courts have been asked to review the decisions of State courts”.

Our attention was also invited to the decisions in Me Govern v. New York (1) and American Railway Express Co. v. Kentucky (2). It was observed in the latter case :

“It is firmly established that a merely erroneous decision given by a State court in the regular course of judicial proceedings does not deprive the unsuccessful party of property without due process of law.” The above remarks support the contention of the respondent that an order of a Court or tribunal is not hit by Art. 19 (1) (g).

The result of the authorities may thus be summed up:

(1)A tax will be valid only if it is authorised by a lawenacted by a competent legislature. That is Art. 265.

(1) [1913] 229 U. S. 363, L. ed, 1228.

(2) [1927] USSC 34; [1927] 273 U. S. 269. 71 L. ed.. 639, 642.

808 (2)A law which is authorised as aforesaid must further be not repugnant to any ,of the provisions of the Constitution.

Thus) a law which contravenes Art. 14 will be bad, Moopil Nair’s case (1).

(3)A law which is made by a competent legislature and which is not otherwise invalid, is not open to attack under Art.

31 (1). Ramjilal’s case and Laxmanappa’s case 2).

(4)A law which is ultra vires either because the legislature- has no competence over it or it contravenes, some constitutional inhibition has no legal existence, and any action taken thereunder will be an infringement of Art.

19 (1)(g)Himmatlal’s case (4) and Laxmanappa’s case (1)- The result will be same when the law is a colourable piece of legislation.

(5)Where assessment proceedings are taken without the authority of law, or where the proceedings are repugnant to rules of natural justice, there is an infringement of the right guaranteed under Art. 19 (1)(f) and Art. 19 (1)(g):

Tata Iron & Steel Co. Ltd. (5); Moopil Nair’s came (1) and Shri Madan Lal Arora’s case (6).

Now, the question is, when a law is enacted by a competent legislature and it is not cnoonstitutional as contravening any prohibition in the Constitution such as Art. 14, and went proceeding for assessment of tax are taken thereunder in the manner provided therein, and there is no violation of rules of natural justice, does Art. 19 (1)(g) apply, even though the taxing authority might have,, in the exercise of its jurisdiction, misconstrued the legal provisions ? The derision in Kailash Nath 8 case( 7 )would appear to support the contention that it does; but for the reasons already given, we think (1) [1960] INSC 285; (1961) 3 S.C.R. 77.

(2) (1951) S.C.R. 197. 13 6,137.

(3) [1954] INSC 98; (1955 1 S.C.R. 769,792.

(4) [1954] INSC 26; (1954) S.C.R. 1122, 1127.

(5) [1960] INSC 131; (1961) 1 S.C.R. 379, 383, 402.

(6) [1961] INSC 144; (1962) 1 S.C.R. 823.

(7) AIR 1957 S.C. 790, 792, 793.

809 that its correctness is open to question and the point needs reconsideration.

There is another objection taken to the maintainability of this petition. Art. 32, under which it is presented, confers on a person, whose fundamental right guaranteed in.

Part III is infringed, a right to move this Court for appropriate write for obtaining redress. The contention. of the petitioner is that the order of assessment dated December 20, 1958, amounts to interference with the right of the firm to carry on business and is,, therefore, in contravention of Art. 19 (1) (g)., and that relief should be granted under Art. 32. Now, the objection that is taken on behalf of the respondents is that the guarantee given under Art. 19 (1) (g) is against an action of the executive, or legislature of the State, that the order of assessment now in question is one passed in judicial proceedings and’ is, therefore, outside the purview of Art. 19 (1) (g) If this contention is well-founded, then Art. 32. will have no application and the present petition must fail on this ground.

The constitutional provisions bearing on this question are Arts. 12, 13, 19 and 32. Article 12 enacts that “In this Part, unless the context otherwise requires, the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India”.

Article 13 (3) (a) defines “law’ as follows ” law includes any O.rdinance, order, byelaw, rule, regulation, notification, custom or usage having in the territory of, India the force of law;” 810 Article 19 (1) enacts that the citizen shall have the seven rights mentioned therein, and Arts. 19, (2) to 19 (6) save laws, whether existing, or to be made, which impose reasonable restrictions on the exercise of those rights, subject to the conditions laid ‘down therein. Article 32 (1) guarantees “the right to move the Supreme Court by, appropriate proceedings for the enforcement of the rights conferred by this Part”. Then we have Art. 32 (2), which is follows “The Supreme Court shall have power to issue directions or orders or writs, Including writs in the nature of habeas corpus, mandamus, prohibition, quo Warrants ‘and certiorari, which ever may be appropriate, for the enforcement of any of the rights conferred by this Part”.

It will be convenient now to set out the contentions of the parties urged in sun-Dort of their respective positions.

The contention of the respondents based upon Art. 12 is that the word “State.” in Part III means only the Executive and the Legislature, that the Judiciary is excluded therefrom, and that, therefore, no question of a fundamental right can arise with reference to an order passed by an authority discharging judicial functions. The answer of the petitioner to this is that the word “State” comprehends all the three organs, the Executive the Legislature and the Judiciary, that the express mention of the Government and the Legiolicture in Art. 12 cannot be construed as excluding the Judiciary, that the use of the word “includes” shows that the enumeration which follows is not exhaustive, and that, therefore, the ordinary and the wider connotation of the word ,State’ is not out down by Art. 12.

It is true that the word “includes” normally signifies that what is enumerated as included is, not 811 exhaustive. But the question ultimately; is, what, is the intention of the Legislature, and that has to be gathered on a reading: of the enactment ‘as a whole. It is possible that in some context the word “includes” might import that the enumeration in exhaustive. The following ‘observations of ‘Lord Watson in Dilworth v. Commissioner of Stamps (1) were relied upon “The word “‘include’ is very generally. used in interpretation clauses in order to enlarge the meaning of words or phrases’ ,,Occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as the signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word include’ is susceptible of another construction, which may become. imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to mean and include,’ and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.” Now, when the Legislature wants to enlarge the sense in which an expression is generally, used so as to take in certain other things, it does so by using the word “,includes”. Therefore, it may be argued that the word “includes” would be appropriate only, when the expression, the connotation of which is sought to be extended by the word “includes”, does not, in its ordinary sense, include what is sought to be “included” and that as the (1) [1899] A. C. 99, 103,106.

812 Executive and the Legislature of a State &rib, according to all accepted notions, understood as included in the word “State”, the use of the word “includes” with reference to them would make no sense. The Article also provides that the word “State” is to include “,all local or other authorities”. with reference to them, the use of the word “includes” will be quite appropriate, because they would not in the ordinary sense of the words “the State”, be understood as included therein. A reading of the Article, as a whole, would seem to show that the intention of the Legislature was, on the one hand, to restrict the accepted connotation of the word “State”, and, on the other hand, to extend it by including “local or other authorities”. There is much to be- said in favour of the contention of the respondents that in the context the word “includes” must to be read as “”means and includes”.

In further support of the contention that orders of Courts and Tribunals are not, in general, within the purview of Part III, the respondents rely on the definition of “law’ in Art. 13(3). Judgments and orders made in the course of judicial proceedings do not fall within that definition. It is contended that the scheme of the Constitution is that, whenever-there is an infringement of a fundamental ,right by the Executive or the Legislature, the person aggrieved has a right of resort to this Court under Art. 32, that being the consequence of the definition of ‘State’ under Art. 12 and of law’ under Art. 13(3); that Courts and tribunals are not law-making bodies in the sense in which law is defined in Art. 13(3), their function being to interpret law; and that it will, therefore, be inappropriate to bring them within Part III,, which enacts limitations on power to make laws.

It is urged that the scheme of the Constitutions does no contemplate judicial orders being brought up before this Court in a petition under 813 Art. 32. Whenever a fundamental right is infringed, it is said, the party aggrieved has a right to resort to the Civil Courts either in their ordinary .jurisdiction or under Art.

226, and the decisions of the Courts will ultimately come up to this Court on appeal under Arts. 132 to 136. Thus, when executive and legislative action infringes fundamental rights, the Supreme Court can deal with it under Art. 32, whereas orders of Courts and Tribunals, in which questions of infringement of fundamental rights are decided, will come’ up for review before the Supreme Court under Arts. 132 to 136.

We may now refer to the decisions where this question has been considered by this Court. In Bashesher Nath v. The Commissioner of Income-tax (1) occur the following observations. relied on for the respondents:

“In the third place it is to be observed that, by virtue of Art. 12, the State’ which is, by Art. 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other ,subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Art. 13 …

That apart, the very language of Art. 14 of the Constitution expressly directs that the State’, by which Art. 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Art. 14 (1) [1959] Supp. (1) S.C.R. 528 551, 552.

814 protects us from both legislation,and executive tyranny by way of discrimination.” The above remarks are based on the view that the words “the State” in Art. 12 comprehend only the Executive and the Legislature.

A more direct decision on this point is the one in S. S. Md.

Amirabbas Abbasi v. State of Madhya Bharat (1). There, the facts mere that one Amirabbas Abbasi applied to the Court of the District Judge at, Ratlam for an order that he should, be appointed guardian of the person and properties of his two children. The application was rejected by the District Judge, who appointed another person, Sultan Hamid Khan, as the guardian. An appeal against this order to the High Court was also dismissed. Amirabbas Abbasi then filed a petition in this Court under Art. 32 of the Constitution, challenging the validity of the order of the District Court on the ground that it was discriminative and violative of Art. 14 of the Constitution. In dismissing this petition, this Court observed:

“The second respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but not against the decision of a com- petent tribunal. The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.” The following observations in Ratilal v. State of Bombay are also relied on for the respondents:

“The second observation which must be made is that the protection afforded by the (1) [1960] INSC 31; [1960] 3. S. C. R.. 138, 142.

(2) A.I.R.[1959] Bom. 242, 253, 815 Constitution to fundamental rights is against executive, or legislative interference. A decision of a regularly constituted Court cannot however be challenged as an interference with fundamental rights in the abstract. The Court in the very nature of things adjudicates upon conflicting claims and declares rights and does not by the operation of its own order seek to infring any Fundamental rights.” These observations would appear to apply with equal force to judicial proceedings before tribunals, as they cannot be regarded as representing the executive or the legislative function of the State.

It is next contended for the petitioner that the Sales Tax Officer will at least fall within the category of “other authorities” in Art. 12. The meaning of the expression “other authorities” was considered in The University of Madras v. Shantha Bai (1). There, the question was as to whether the University of Madras was “other authority” within that Article. In deciding that it was not, it observed that the words “other authorities” must be construed ejusdem generis with what had been enumerated in the Article, namely, the Government or the Legislature.

This clearly supports the respondents.

It is contended for the petitioner that even if Courts could not be held to be “other authorities”, quasi judicial tribunals must be regarded as falling within that expression, and that Sales Tax Officers are at best only quasi judicial officers, and they cannot be put on the same footing as regular Courts. It is argued that sales tax authorities are Officers of Government to whom is entrusted the work of levy and collection of taxes, that that is primarily an executive function, that the officers have, no doubt, to act judicially in determining the (1) I.A.R. 1954 Mad. 67.

816 tax payable but that that is only incidental to the discharge of what is essentially an administrative act, that, at best, the assessment proceedings are quasi-judicial in character, and that accordingly an Officer imposing a tax must be held to be ,other authority’ within Art. 12. In this view, it is urged, the assessment order dated December 20, 1958, falls within the purview of Part III.

The respondents dispute the correctness of this contention.

They concede that a Sales Tax Officer has certain functions of an administrative character, but urge that the proceedings with which we are concerned, are entirely judicial. In this connection, it will have to be borne in mind that it is a feature well-known,in the Government of this country that both executive and judicial functions are vested in the same Officer, and because of the undesirable results which followed from this combination, Art. 50 of the Constitution has enacted as one of the Directive Principles that, “The State shall take steps to separate the judiciary from the executive in the public services of the State”.

When an authority is clothed with two functions, one administrative and the other judicial, proceedings before it which fall under the latter category do not cease to be judicial by reason of the fact that it has got other non- judicial functions What has to be seen is the capacity in which the authority acts with reference to the impugned matter. It will, therefore, be necessary to examine the character in which the Sales Tax Officer functions when he takes proceedings for assessment of tax. Under the pro- visions of the Act, the Sales Tax Officer has to issue notice to the assessee, take evidence in the matter, hear him and then decide, in accordance with the provisions of the statute, whether tax is payable, and if so, how much.

Against his order there is an 817 appeal in which again the parties have to be heard and a decision given in accordance with law. The, legality or propriety of an order passed in an appeal is again open to consideration on revision by a Revising Authority who must be “a person qualified under clause (2) of Art. 217 of the Constitution for appointment as Judge of a High Court”.

Section 11, which is on the same lines as s. 66 of the Indian Income-Tax Act, provides that the Revising Authority might refer for the opinion of the High Court any question of law arising out of its order, and under a. 11(4), the assessee has a right to move the High Court for an order that the Revising Authority do refer the question of law arising out of the order, if there has been an erroneous refusal to refer, Now the respondents contend that the proceedings commencing with a notice issued by the Sales Tax Officer and ending with a reference to the High Court are entirely judicial, that it is in that view that petitions for certiorari and prohibition are entertained against orders of assessment under Art.226 of the Constitution and appeals against such orders are entertained by this Court under Art. 136. It will be inconsistent, it is urged, to hold, on the one hand, that the orders passed in these assessment proceedings are open to appeal under Art. 136 on the footing that they are made by Tribunals, and, on the other, that they are open to attack under Art. 32 of the footing that they are made by executive authorities.

It is also contended for the petitioner that the definition of “State” in Art. 12 is to govern Part III “unless the context otherwise required”, and that in the context of Art.

32; “The State” would include Courts and Tribunals exercising judicial functions. Article 32, it will be noticed; confers on the Court jurisdiction to issue among others, writs of Certiorari and prohibition. The argument is that ‘as these writs are issued only with reference to judicial proceedings, the restricted 818 definition of “‘the State” in Art. 12 as, excluding them must give way to the express language of Art. 32. It is accordingly contended that even on the footing that the order of assessment is judicial in character, the present petition for issue of certiorari is within Art. 32. It is true argue the respondents, that certiorari and prohibition lie only in respect of judicial and not administrative acts, and it must, therefore, be taken that Art. 32 does envisage that there could be a petition under that Article with respect to judicial proceedings. It is also true, as held by this Court, that the right of an aggrieved party to resort to this court under that Article is itself a fundamental right under Art. 32. But the right of resort to this Court under Art. 32(1) is only when there is an infringement of a fundamental right which had been gua- ranteed in Part III, that it is Articles 14 to 31 that declare what those, fundamental rights are, for the breach of which remedy can be had under Art. .32(2), and that what has to be seen, therefore, is whether there is anything in the Article which is said to have been infringed, which is repugnant to the definition of “the State” in Art. 12.

Examining, it is said, Art-19(1)(g) which is alleged to have been violated, there is nothing in it which is repugnant to the restricted connotation of the expression “the State” in Art.12, and judicial proceedings therefore cannot be brought within it. It is further argued that Art.19(2) to 19(6) clearly show that it is only laws existing and to be made that are within their purview, and judicial pronouncements not being law cannot fall within the ambit of those provisions. In the result, it is contended that the definition of “State” in Art. 12 stands and an order made by a Court or tribunal cannot be held to infringe Art. 19(1) (g) read along with Art. 12.

If that is the true position, replies the, petitioner, then what purpose is served by the provi- 819 sion in Art. 32 that this Court might ‘issue writs of certiorari or prohibition ? The answer of the respondents is that among the substantive enactments forming Arts. 14 to 3 1, there are some ‘which. are specially, directed against judicial proceedings, and the writ’ of certiorari or prohibition will lie in respect of them. One such, for example, is Art. 20, which is as follows- “20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of Any offence shall be compelled to be a witness against himself.” This Article clearly applies to prosecutions and convictions for offences. It has reference, therefore.- to judicial proceedings, and the restricted definition of “State” in Art. 12 is, in the context, excluded. And proceedings contemplated by Art. 20 being judicial, writs of certiorari and prohibition can issue. In this connection, the respondents rely upon the expression ,,”whichever may be appropriate” occurring in Art. 32(2). It means, it is said, that when once an infringement of a fundamental rights is established, the writ which the Court can issue must depend upon the nature of the right involved. It is accordingly contended that Art. 19(1)(g) is, on its terms inapplicable to judicial proceedings, and no writ of certiorari can issue for the infringement of a right under that Article.

It was also argued for the petitioner that 820 under the American law certiorari lies against decisions of the State Courts when they are repugnant to the provision of the Constitution, and the decision in National Association for the Advancement of Colored People v. State of Alabama (1) was relied support of this position. There the question related to the validity of a provision in a statute of Alabama requiring foreign corporations to disclose, among other things, the names and addresses of their local members and agents. The appellant-Corporation having made default in complying with this provision, the State instituted an action for appropriate relief, and the Court granted the same. Then the Corporation moved the Supreme Court for a writ of certiorari on the ground that the provision in the statute was an invasion of the right to freely assemble, guaranteed by the Constitution. One of the grounds on which the State resisted the application was that no certiorari will lie for quashing an order of Court. In rejecting this contention, the Court observed ;

It is not of moment that the State has there acted solely through its judicial branch for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.” It is unnecessary to refer to other decisions in which similar views have been taken. The principle on which all these decisions are based was thus stated in Virginia, v.

Rives (2) :

“It is doubtless true that a State may act through different agencies,-either by its legislative, its executive, or its judicial authorities ; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws whether (1) (1958) 2 L. ed. 2d. 1483[1958] USSC 150; , 1500,357 U. S. 449.

(2) [1879] USSC 188; (1880) 100 U.S 313, 318: 25 SI. ed. 667, 669.

821 it be action by one of these agencies or by another.” These decisions have no bearing on the point now under consideration, which is not whether a writ of certiorari will lie under the general law against decisions of Courts—on that, there could be and has been no controversy-but whether, on the terms of Art. 12, that will lie against an order a of Court or Tribunal.

The above is a resume of the arguments addressed by both sides in support of their respective contentions. 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 question : —

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 ? 1962. April 10. The matter was finally heard by a larger Bench consisting of S. K. Das, J. L. Kapur, A. K.

Sarkar, K. Subba Rao, M. Hidayatullah, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ. and The following Judgments were delivered S. K DAS, J.-The facts of the case have been stated in the judgment of my learned brother 822 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 importance of the question raised, I, would like to state in my own words the reasons for reaching that conclusion.

The two questions which have been referred to this larger Bench are:

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 there under?

2. Can the validity of such an order be questioned in a petition under Art. 32 of the Constitution ? These two questions are inter-connected and substantially relate to one matter: is the validity of an order made with jurisdiction under an Act which is Intra vires and good law in all respects, or of a notification properly issued thereunder, liable to be questioned in a petition under Art.

32 of the Constitution on the sole ground that the provisions of the Act, or the terms of the notification issued thereunder, have been misconstrued ? It is necessary, perhaps, to start with the very Article, namely, Art. 32, with reference to which the question has to be answered.

“32. (1) The right to move the. Supreme Court by appropriate proceedings for ‘the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or write, 823 including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari, whichever may be appropriate, for the enforcement of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” The Article occurs in Part III of the Constitution headed ‘Fundamental Rights’. It is one of a series of articles which fall under the sub-head, “Right to Constitutional Remedies”. There can be no doubt that the right to move the Supreme Court by appropriate proceedings for the enforcement of a right conferred by Part III is itself a guaranteed fundamental right. Indeed, cl. (1) of the Article says so in express terms. Clause (2) says that this 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 Constitu- tion. 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 824 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 may be appropriate for the enforcement of such rights. Indeed, this Court has held in more than one decision that under the Constitution it is the privilege and duty of this Court to uphold the fundamental rights, whenever a person seeks the enforcement of such rights. The oath of office which a Judge of the Supreme Court takes on assumption of office contains inter alia a solemn affirmation that he will “upheld the Constitution and the laws”.

The controversy before us centres round the expression “‘enforcement of the rights conferred by this Part” which, occurs in cls. (1) and (2) of the Article. It has not been disputed before us that this Court is not trammelled by technical considerations relating to the issue of writs habeas corpus. mandamus, Prohibition, quo warranto and certiorari’ This Court said in T. C. Basappa v. T. Nagappa (1)’.

“In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these write in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari, in all appropriate case and in appropriate manner, (1) [1954] INSC 57; [1955] 1 S.C.R. 250. 256.

825 so long as we keep to the broad and fundamental principles that regulate the exercise. of jurisdiction in the matter of granting such writs in English law.” Therefore, apart altogether from all technical considerations, the broad question before us is-in what circumstances does the question of enforcement of the rights conferred by Part III of the Constitution arise under Art.

32 of the Constitution, remembering all the time’ that the constitutional remedy under Art. 32 is itself a fundamental right? On behalf of the petitioner it has been submitted that whenever it is prima., facie established that there is violation of a fundamental right, the question of its enforcement arises; for example, (a) it may arise when the statute itself is ultra vires and some action is taken under such statute, or (b) it may also arise when some action is taken under an intra vires statute, but the action taken is without jurisdiction so that the statute though intra vires does not support it; or (c) it may again arise on misconstruction of a statute which is intra vires, but the misconstruction is such that the action 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 826 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 different ways;

for example, in a case where an inter. State transaction of sale is sought to be taxed despite the constitutional prohibition in Art. 286 of the Constitution as it stood previously, by wrongly holding that the transaction is intra State, there is a transgression of constitutional limits.

Similarly, where a quasi-judicial authority commits an error as to a fact or issue which the authority has complete jurisdiction to decide under the statute, but the error is of such a nature that it affects a fundamental right, there is again a transgression of constitutional limits. The argument is that there is no distinction in principle between these classes of misconstruction of a statute, and the real test, it is submitted, should be the individuality of the error, namely, whether the error impings on a fundamental right. If it does, then the person aggrieved has a right to approach this Court by means of a petition under Art. 32 of the Constitution.

On the contrary, the contention of the respondents which is urged as a preliminary objection to the maintainability of the petition in that on the facts stated in the present petition no question of the enforcement of any fundamental right arises and the petition is not maintainable. It is stated that the validity of the Act not being challenged in any manner, every part of it is good law; therefore, the provision in the Act authorising the Sales-tax Officer as a quasi-judicial tribunal to assess the tax is a valid provision and a decision made by the said tribunal strictly acting in exercise of the quasi-judicial power given to it must necessarily be a fully 827 valid and legal act. It is pointed out that there is no question here of the misconstruction leading to a transgression of constitutional limits nor to any error relating to a collateral fact. The error which is complained of, assuming it to be an error, is, in respect of a matter which the assessing authority has complete jurisdiction to decide; that decision is legally valid irrespective of whether it is correct or otherwise. It is stated that a legally valid act cannot offend any fundamental right and the proper remedy for correcting an error of the nature complained of in the present case is by means of an appeal or if the error is an error apparent on the face of the record, by means of a petition under Art. 226 of the Constitution.

Before I proceed 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. Chhota- bhai Jethabhai Patel & Co. v. The Sales Tax Officer, 828 Agra and another (Civil Appeal No. 99 of 1961) in which Judgment is also being delivered to-day.

The writ petition, however, has been referred to a larger Bench for the decision of the two important constitutional questions relating to the scope of Art. 32, which have stated earlier in this judgment. It is, therefore, necessary and proper that I should decide those two questions which undoubtedly arise as a preliminary objection to the maintainability of the writ petition.

I now proceed to a consideration of the main arguments advanced before us. On some of the aspects of the problem which has been debated before us there has been very little disagreement. I may first delimit the filed where there has been agreement between the parties and then go on to the controversial area of disagreement. It has not been disputed before us that where the statute or a provision thereof is ultra vires, any action taken, under such ultra vires provision by a quasi-judicial authority which violates or threatens to violate a fundamental right does give rise to a question of enforcement of that right and a petition under Art. 32 of the Constitution will lie. There are several decisions of this Court which have laid this down.

It is unnecessary to cite them all and a reference need only be made to one of the earliest decisions on this aspect of the case, namely, Himmatlal Harilal Mehta v. The State of Madhya Pradesh A similar but not exactly the same position arose in the Bengal Immunity Company Limited v. The State of Bihar The facts of the case were that the appellant company filed a petition under Art. 226 in the High Court of Patna for a writ of prohibition restraining the Sales Tax Officer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that the sales (1) [1954] INSC 26; [1954] S.C.R. 1122.

(2) [1955] 2 S. C. R. 603, 619. 620.

829 sought to be assessed were made in the course of inter-State trade, that the provisions of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) which authorised the imposition of tax on such sales were’ repugnant to Art. 286 (2) and void, and that, therefore, the proceedings taken by the Sales Tax Officer should be quashed. The application was dismissed by the High Court on the ground that if the Sales Tax Officer made an assessment which was erroneous, the assessee could challenge it by way of appeal or revision under 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 :

“The answer to this plea is short and simple.

The remedy under the Act cannot 830 be said to be adequate and is, indeed, nuga- tory or useless :if the Act which provides for such remedy is itself ultra vires and void and the principle relied upon can, therefore, have no application where a party comes to Court with an allegation that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and prays for appropriate relief under article 226”.

It will be seen that the question which arose in that case was with reference to a provision in the taxing statute which was ultra vires and the decision was. that any action taken under such a. provision was without the authority of law and was, therefore, an unconstitutional interference with the right to carry on business under Art. 19 (1) (f)In circumstances somewhat similar in nature there have been other decision of this Court which the violation of a fundamental right was taken to have been established when the assessing authority sought to tax a transaction the taxation of which came within a constitutional prohibition.

Such cases were treated as on a, par with those cases where the provision itself was ultra vires.

The decision in Bidi Supply Co. v. The Union of India (1) arose out of a somewhat different set of facts. There the Central Board of Revenue transferred by means of a general order certain cases of the petitioner under s. 5 (7-A) of the Indian Income-tax Officer, District III, Calcutta, to the Income-tax Officer, Special Circle, Ranchi. It was held that an omnibus wholesale order of transfer as was made in the case was not contemplated by the sub-section and, therefore, the impugned order of transfer which was expressed in general terms without reference to any particular case and (1) [1956] 2 S.C.R. 67.

831 without any limitation’ as to time was beyond the competence of the Central Board of Revenue. It was also held that the impugned order was discriminatory against the petitioner and violated the fundamental right guaranteed by Art. 14 of the Constitution. This decision really proceeded upon the basis that an executive body cannot, without authority of law, take action violative of a fundamental right and if it does, an application under Art. 32 will lie. In that case no question arose of the exercise of a quasi-judicial. 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 (1) 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 (2); and Madan Lal Arora v. The Excise and Taxation Officer Amritsar (3). In Tata Iron and Steel Co. Ltd. v. S. R. Sarkar(2) the question arose under the Central Sales Tax Act, 1956. Under that Act sales in the course of inter-State trade are liable to be, taxed at a single point. The petitioner was assessed to tax on certain sales (1) [1956] INSC 86; [1957] S.C. R.233.

(2) [1960] INSC 131; [1961] 1 S. C. R. 379, 383, (3) [1961] INSC 144; [1962] 1 S. C. R. 823.

832 falling within the Act by the Central Sales Tax Officer’ Bihar, and the tax was also duly paid. Thereafter the Central Sales Tax Officer in West Bengal made an order assessing to tax the very sales in respect of which tax had been paid. The petitioner then moved this Court under Art.

32 for an order quashing the assessment. A preliminary objection to the maintainability of the petition was taken on behalf of the respondent State on the ground that under the Act the petitioner could file an appeal against the order of assessment and that proceedings under Art. 32 were, therefore, incompetent. In overruling this contention Shah, J.,referred to the decisions of this Court in Himmatlal Harilal Mehta’s case (1) Bengal Immunity’s Company’s case (2) and The State of Bombay v. United Motors (India) Ltd.(3) and observed:

“In these cases, in appeals from orders passed by the High Courts in petitions under Art.

226, this Court held that an attempt to levy tax under a statute which was ultra vires infringed the fundamental right of the citizens and recourse to the High Court for protection of the fundamental right was not prohibited because of the provisions contained in Art. 265. In the case before us, the vires of the Central Sales Tax Act, 1956, are not challenged ; but in Kailash Nath v. The State of Uttar Pradesh (4) 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 principal of Kailash Nath’s case (4) is inconsistent with the view expressed by this Court in Ramjilal v. Income-tax Officer, Mohindargarh (5).” (1) [1954] INSC 26; [1954] S.C.R. 1122. (2) [1955] 2 S.C.R.603, 619, 620.

(3) [1953] S.C.R. 1969. (4) A.I.R. 1957 S.C. 790.

(5) [1951] INSC 2; [1951] S. C. R. 127, 833 The learned Judge then proceeded to hold that as there was under the Act a single liability and that s had been discharged, there could be no proceedings for the assessment of the same sales a second time to tax. The ratio of the decision would appear to be that as the law did not authorise the imposition of tax a second time on sales on which tax had been levied and collected, proceedings for assessment a second time were without jurisdiction. In Madan Lal Arora’s case(1) 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 rules are to be regarded as mandatory in which case disobedience will render void or voidable what has been done, or as directory in which case disobedience will be treated as a more’ irregularity not affecting the validity of what has been done. A quasi- judicial authority is under an obligation to act judicially.

Suppose, it does not (1) [1961] INSC 144; (1962) 1 S.C.R. 823.

834 so act and passes an order in violation of the principles of natural justice. What is the position then? There are some decisions, particularly with regard to customs authorities, where it has been held that an order of a quasi-judicial authority given in violation of the principles of natural justice is really an order without jurisdiction and if the order threatens or violates a fundamental right, an application under Art. 32 may lie. (See Sinha Govindji v.

The Deputy Controller of Imports & Exports, Madras(1).

These decisions stand in a class by themselves and really proceed on the footing that the order passed was procedurally ultra vires and therefore without jurisdiction.

So far I have dealt with three main classes of cases as to which there is very little disagreement: (1) where action is taken under an ultra vires statute; (2) where the statute is intra vires, but the action taken is without jurisdiction;

and (3) where the action taken is procedurally ultra vires.

In all these cases the question of enforcement of a funda- mental right may arise and if it does arise, an application under Art. 32 will undoubtedly lie. As to these three classes of cases there has been very little disagreement between the parties before us.

Now, I come to the controversial area. What is the position with regard to an order made by a quasi-judicial authority in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is admittedly intra vires ? It is necessary first to clarify the concept of jurisdiction.

Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until (1) (1962) 1 S.C.R. 540.

835 reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. 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(1)). 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 determine. The strength of this theory of jurisdiction lies in its logical consistency. But there are other oases where Parliament when it empowers an inferior tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the tribunal’s findings within one area being conclusive and with in the other area impeachable. “The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a, fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists (1) [1841] EngR 193; [1841] 1 Q.B. 66,74.

836 or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess.” (Halsbury’s Laws of England, 3rd Edn. Vol. II page 59). The characteristic attribute of a judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasijudicial body cannot, in general, be’ impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts strito sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Living stone v. Westminister Corporation (1) Re Birkenhead Corporation (2) Re 56 Denton Road Twickenham(3) Society of Medical Officers of Health v.

Hope(4). In Burn & Co. Calcutta v. Their Employees(5) (1) [1904] 2 K.B. 109. (2) (1952) Ch. 359, (3) [1953] Ch. 51. (4) [1959] 2 W.L.R. 377, 391, 396, 397, 402.

(5) [1956] INSC 56; [1956] S.C.R. 781.

837 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. (1) 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 satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even handmade biris, have been subject to Sales Tax since long before the dated of the issue of the above notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957, was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales Tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957, to (1) [1961] 2 S.C.A. 591.

838 30th June, 1958, the petitioner was liable neither to payment of excise duty nor to pay- ment of Sales Tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to ‘apply only to those goods on which an addi- tional Central excise duty had been levied and paid”.

If the observations ‘quoted above mean that the High Court rejected the petition also on merits, apart from the other ground given, then the principle laid down in Daryao v. The State of U. P. (1) will apply and the petition under Art. 32 will not be maintainable on the ground of res judicata. It is,’ however, not necessary to pursue the question of res judicata any further, because I am resting my decision on the more fundamental ground that an error of law or fact committed by a judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

In Malkarjun Narhari (2) the Privy Council dealt with a case in which a sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment. debtor’s estate, and the executing court had erroneously decided that he was to be treated as such representative. The Privy Council said :

“In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right;

(1) (1961) 2 S.C.A. 591.

(2) [1950] L.R. 279, A, 216. 225.

839 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 (1). 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 Cus- todian 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 our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an. appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the. infringement of a fundamental right, for she has no such right”.

2. Gulabdas & CO. v. Assistant Collector, of Customs (2):

In this case certain imported goods had been assessed to customs tariff. The assessee continued in a petition under Art. 32 that the duty (1) [1961] INSC 112; [1962] 1 S.C.R. 505.

(2) A.LR. [1957] S.C. 733, 736.

840 should have been charged under a different item of that tariff and that its fundamental right was violated by reason of the assessment order charging it to duty under a wrong item in the tariff. This Court held that there was no violation of fundamental right and observed :

“If the provisions of law under which impugned orders have been passed are with jurisdiction, whether they be right or wrong on fact,’ there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal”.

3. Bhatnagar & Co. Ltd. v. The Union of India(1). In this case the Government had held that the petitioner had been trafficking in licences and in that view confiscated the goods imported under a licence. A petition had been filed under Art. 32 challenging this action. It was held :

“If the petitioner’s grievance is that the view taken by the appropriate authority in this matter is erroneous, that is not a matter which can be legitimately agitated before us in a petition under Art. 32”.

4. The Parbhani Transport Co-operative Society. Ltd. v.

Regional Transport Authority, Aurangabad (2). In this case it was contended that the decision of the Transport Authority in granting a permit for a motor carriage service had offended Art. 14 of the Constitution. This Court held that the decision of a quasi-judicial body, right or wrong, could not offend Art. 14.

There are, however, two decisions which stand out and must be; mentioned here. A contrary view was taken in Kailash Nath v. The State of U.P. (3) (1) [1957] INSC 20; [1957] S.C.R. 701, 702. (2) [1960] INSC 36; [1960] 3 S.C.R. 177.

(3) A.I.R. (1957) S. C.790.

841 There a question precisely the same as the one now before us had ‘arisen. A trader assessed to sales tax had claimed exemption under certain 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(1) and Bidi Supply Co’s case (2). 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 (3).

In Ramavatar Budhai Prasad v. Assistant Sales Tax Officer ( 4) 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 view of the assessing authority that they were not exempted. The question as to the maintainability of the application under Art. 32 was neither raised nor was it decided. This decision cannot, therefore, be taken as an authority for holding that an application under Art. 32 is maintainable even in respect of orders which are made in the undoubted exercise of jurisdiction by a quasi-judicial authority.

Certain other decisions were also cited before us, namely, Thakur Amar Singhji v. State of Rajas. than (5); M/s.

Mohanlal Hargovind Dass v. The State (1) (1955) 2 S.C.R. 603, 619, 620.

(3) A I.R. (1957) S.C. 790.

(2) [1956] INSC 23; (1956) S.C.R. 267, (4) [1961] INSC 98; (1962) 1 S.C.R. 279.

(5) [1955] INSC 27; (1955) 2 S.C.R. 303.

842 of Madhya Pradesh (1); Y. Mahaboob Sheriff v. Mysore State Transport Authority (2), J. V. Gokal & Co. (Private) Ltd., v. The Assistant Collector of Salestax (Inspection) (3); and Universal Imports Agency v. Chief Controller of Imports and Exports (4). These decisions fall under the category in which an executive authority acts without authority of law, or a quasi-judicial authority acts in transgression of a constitutional prohibition and without jurisdiction. I do not think that these decisions support the contention of the petitioner.

In my opinion, the correct answer to the two questions which have been referred to this larger Bench must be in the negative. An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder.

Nor can the validity of such an order be questioned in a petition under Art. 32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of. appeal, or if the error is an error apparent on the face of the record, then by an application under 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. I have, therefore, come to the conclusion that no question of the (1) [1955] INSC 40; (1955) 2 S. C. R. 509.

(3) [1960] INSC 12; (1960) 2 S.C.R. 852.

(2) (1960) 2 S.C.R. 14 (4) (1960) 1 S.C.R. 305.

843 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 aside on the, ground of wrong advice.

Furthermore, in the appeal filed on behalf of M/s.

Chhotabhai Jethabhai Patel & Co. v.. The Sales Tax Officer, Agra and another (Civil Appeal No. 99 of 1961) we have decided the question on merits and have held that the assessing authorities did not put a wrong construction on the notification in question.

KAPUR, J. In this petition under Art. 32 of the Constitution which is directed against the order passed by the Sales Tax Officer, Allahabad, dated December 20, 1958, the prayer is for a writ of certiorari or other order in the nature of certiorari quashing the said order, a writ of mandamus against the respondents to forbear from realizing the sales tax imposed on the basis of the said 844 order and such other writ or direction as the petitioner may be entitled to.

The petitioner is a partner in the firm M/s. Mohanlal Hargovind Das which carried on the business of manufacture and sale of handmade biris, their head office being in Jubbalpore in the State of Madhya Pradesh. They also carry on business in U. P. and in that State their principal place’ of business is at Allahabad.

Under s. 4 (1) of the U. P. Sales Tax Act (Act XV of 1948) hereinafter called the ‘Act’, the State Government is authorised by a notification to exempt unconditionally under cl. (a) and conditionally under cl. (b) any specified goods.

On December 14, 1957, the U.P. Government issued a notification under s. 4 (1) (b) of the Act exempting cigars, cigarettes, biris and tobacco provided that the additional Central Excise Duties leviable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957) had been paid. This notification was subsequently modified and on November 25, 1958, another notification was issued unconditionally exempting from sales tax biris both handmade and machine-made with effect from July 1 , 1958.

The exemption of biris from sales tax was conditional under the notification dated December 14, 1957, for the period December 14, 1957, to June 30, 1958, but was unconditional as from July 1, 1958.

The petitioners firm submitted its return for the quarter beginning April 1, 1958, to June, 30, 1958 showing a gross turnover of Rs. 75,44,633 and net turnover of Rs. 111. The firm claimed that as from December 14, 1957, biris had been exempted from payment of sales tax which had been replaced by the additional 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. 111 845 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 provided that the additional Central Excise duties leviable thereon from the closing of business on 13-12-1957 have been paid on such goods. The assessees paid no such Excise duties. Sales of biris by the assessees are therefore liable to sales tax”.

Against this order the firm took an appeal under s. 9 of the Act to the Judge (Appeals ) Sales Tax, Allahabad, being Appeal No. 441 of 1959, but it was dismissed on May 1, 1959.

The petitioner’s firm filed a petition under Art. 226 of the Constitution in the High Court of Allahabad challenging the validity of the order of assessment and demand by the Sales Tax Officer. This was Civil Miscellaneous Writ No. 225 of 1959 which was dismissed on January 27, 1959 on the ground that there was another remedy open to the 846 petitioner under the Act. The High Court also observed:- “We have come to the conclusion that the Sales Tax Officer has not committed any apparent or obvious error in the interpretation of the notification of 14th December 1957”.

Against the order of the High Court an appeal was brought to this Court on a certificate under Art. 133(1)(a). During the pendency of the appeal this petition under Art. 32 was filed and rule was issued on May 20, 1959. Subsequently the appeal which had been numbered C-A. 572/60 was dismissed by a Divisional Bench of this Court for non-prosecution. An application has been filed in this Court for restoration of the appeal and for condonation of delay. That matter will be dealt with separately.

In the petition under Art. 32 the validity of the order of assessment dated December 20, 1958, is challenged on the ground that the levy of the tax amounts to “infringement of the fundamental right of the petitioner to carry on trade and business guaranteed by Art. 19(1)(g)” and further that it is an “illegal consfiscation of property without payment of compensation and contravenes the provisions of Art. 31 of the Constitution”. The prayers have already been set out above.

As before the Constitution Bench which heard the petition a preliminary objection against the competency of the petitioner’s right to move this court under Art. 32 of the Constitution, was raised and the correctness of the decision in Kailash Nath v. The State of U.P. (1) was challenged, the Constitution Bench because of that decision and of certain other decisions of this court and because of the importance of the question raised made the following order:

(1) A.I.R. 1957 S. C. 790.

847 “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, Mohindergarh(1) over the later view taken in the second Kochunni (2) case or K. T. Moopil Nair v. State of Kerala (3), (2) whether the word ,State” in Art. 12 of the Constitution Comprises judicial power exercised by courts and (3) the wider question whether Art. 32 is applicable in the case of infringement of tights by private parties. The controversy in the present case in this ; the petitioner contends that an erroneous order, in this (1) [1951] INSC 2; (1951) S.C.R. 127, (2) (1960) 3 S.C.R, 887.

(3) [1960] INSC 285; (1961) 3 S.C.R. 77 848 case, of assessment resulting from a misconstruction of a notification issued under a statute by a quasi-judicial authority like the Sales Tax Officer even if the statute is intra tires is an infringement of the fundamental right to carry on trade under Art. 19(1) (g) on the ground that the essence of the right under that Article is to carry on trade unfettered and that such a right can be infringed as much by an executive act of an administrative tribunal as by a quasi-judicial decision given by such a tribunal. The petitioner mainly relies on the decision of this Court in Kailash Nath v.State of U.P. (1).

The submission of the respondent, which was urged as a preliminary objection to the maintainability of this petition, was that the impugned decision of the Sales tax Officer does not violate any fundamental right. The respondent argued that if the constitutionality of the Act is not challenged then all its provisions must necessarily be constitutional and valid including the provisions for the imposition of the tax and procedure for assessment and appeals against such assessments and revisions therefrom would be equally valid. A decision by the Sales tax Officer exercising quasi-judicial power and acting within his powers under the Act and within his jurisdiction must necessarily be valid and legal irrespective of whether the decision is right or wrong. Therefore an order of the Sales tax Officer even if erroneous because of misconstruction of notification issued thereunder remains a valid and legal order and a tax levied thereunder cannot contravene fundamental rights and cannot be challenged under Art. 32. An aggrieved party must proceed against the decision by way of’ appeal etc. as provided under the statute or in appropriate cases under Art. 226 of the Constitution and finally by appeal to this Court under Art. 136. For the order to 849 be valid and immune from challenge under Art. 32, it 1s necessary therefore that (1) the statute is intra vires in all respects; (2) the authority acting under it acts quasi- judicially ; (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 (1), 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 (2) said :- “The question then is, did the judges of the Lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It, appears that they had perfect jurisdiction to decide the question which was before them’ and they did, decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case ; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity”.

(1) [1900] L.R. 27 I.A.216.

(2) [1884] L.R. 11 I.A. 237, 239.

850 “This principle has been accepted by this Court in cases to which reference will be made later in this judgment.

Although these cases were dealing with the decisions of Courts they ,are equally applicable to decisions of quasi- judicial. tribunals because in both cases where the authority has jurisdiction to decide a matter it must have jurisdiction to decide that rightly or wrongly and if the decision is wrong the aggrieved party can have recourse to the procedure prescribed by the Act for correcting the erroneous decision.

Now Art. 32 is a remedial provision and is itself a fundamental right which entitles a citizen to approach this court by an original petition in any case where his fundamental right has been or nay be infringed. The relevant part of the Article provides:- Art. 32 (1) “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, que warranto and certiorari, whichever may be appropriate for the enforce- ment of any of the rights conferred by this Part”.

Under Art. 32 (1) a citizen can approach this Court when his fundamental rights guaranteed under Part III of the Constitution are invaded the remedy for which is provided in cl. (2) of Art. 32. Thus the remedy under Art. 32 is not available unless the fundamental rights of a citizen are invaded.

In my opinion the contention raised by the respondents is well founded. If the statute and it constitutionality is not challenged then every par_ 851 of it is constitutionally valid including the provisions authorising the levying of a tax and the mode and procedure for assessment and appeals etc. A determination of a question by a Sales tax Officer acting within his jurisdiction must be 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 with out 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 quasi- judicial authority the wronged party is not left without a remedy. In the first place under the Act before an assessment is made the Sales tax Officer is required to give notice and hear objections of a taxpayer and give decision after proceeding in a judicial manner that is after considering the objections, and such ‘evidence as is led.

Against the order of assessment an appeal is provided by s.

9 of the Act and against such an appellate order a revision can be taken under s. 10.of the Act under s. 11 a reference to the High Court on a question of law 852 is provided and if the revising authority refuses to make a reference then the High Court can be moved to direct the revising authority to state a case and then an appeal would lie under Art. 136 of the Constitution of India and it may be added that a petition under Art. 226 would lie to the High Court in appropriate cases against which an appeal will lie to this Court under Art. 136. It may here be added that the procedure prescribed by the Act shows that the Sales tax Officer has to determine the turnover after giving the tax- payer a reasonable opportunity of being heard and such an assessment is, a quasi-judicial act Province of Bombay v.

Kusaldas S. Advani (1). If a Sales tax Officer acts as a quasi-judicial authority then the decision, whether right or wrong, is a perfectly valid act which has the authority of an intra vires statute behind it. Such a decision, in my opinion, does not infringe any fundamental right of the petitioner and any challenge to it under Art. 32 is unsustainable.

Before giving the reasons for any opinion I think it necessary to refer to the constitutional provisions dealing with the power to tax. This subject is dealt with in Part XII of Constitution and Art. 265 therein which is the governing provision provides :- “No tax shall be levied or collected except by authority of law.” Therefore a taxing law enacted by a legislature, which it is not competent to enact, will have no existence in the eye of law and will be violative of Art. 19 (1)(g). The same result will follow if the law is a colourable piece of legislation e.g., a law disguised as a taxing law but really law but confiscatory measure the object of which is not to raise revenue but confiscation. Similarly, if a tax is assessed by an authority which has no jurisdict- (1) [1950] INSC 22; [1950] 1 S.C.R. 621, 725.

853 tion to impose it will also be outside the protection of law being without authority of law. The, same will be the case where an Executive authority levies an unauthorised tax.

Then there are cases like the present one where a quasi- judicial 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 (1) 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 aggrieved by the order filed a petition under Art. 32 and objection to its maintainability was that the application could not be sustained because no fundamental right had been violated by the impugned order it having been properly and correctly made by the authorities competent to make it. The petitoner there contained that the goods imported, which were called ‘Lyra’ brand Crayons were not crayons at all and therefore imposition of a higher duty by holding them to be crayons was an infringement of fundamental (1) A.I.R. 1957 S.C. 733, 736.

854 right under Art. 19(1) (f ) & (g). This contention was repelled. Delivering the judgment of the Court, S.K. Das, J., observed at p. 736 :- “What, after all, is the grievance of the petitioners? They do not challenge any of the provisions of the India Traiff Act, 1934 (XXXII of 1934) or any of the provisions of the Sea Customs Act, 1878 (VIII of 1878). It is for the Customs authorities to determine under the provisions of the said Acts what duty is payable in respect of certain imported articles. The Customs authorities came to a decision, right or wrong. and the petitioners pursued their remedy by way of an appeal to the Central Board of Revenue.

The Central Board of Revenue dismissed the appeal. Unless the provisions relating to the imposition of duty are challenged as unconstitutional, or the orders in question are challenged as being in excess of the powers given to the Customs authorities and therefore without jurisdiction it is difficult to see how the question of any fundamental right under Art. 19(1) cls. (f) & (g) of the Constitution can at all arise.

If the provisions of law under which the impugned orders have been passed are good provisions and the orders passed are with’ jurisdiction, whether they be right or wrong.

on facts, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts o r merits, the proper remedy is by way of an appeal.

All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any 855 fundamental right under Art. 19 of the Constitution.” The second case is Bhatnagar Co. Ltd. v. The Union of India (1). In that case the Sea Customs authorities ordered the confiscation of goods on the ground that the petitioner had been trafficking in licenses under which the goods had been imported. 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 authorities.” The third case is The Parbhani Transport Cooperative Society Ltd. v. The regional Transport Authority, Aurangabad (2) where the (1) [1957] INSC 20; (1957) S.C.R. 701, 712. (2) [1960] INSC 36; [1960] 3 S.C.R. 177, 188.

856 decision of a Transport Authority in granting a motor carriage permit was challenged as . a contravention of Art.

14. The Court held that the Regional Transport Authority acts in a quasijudicial capacity in the matter of granting permits, and if it comes to an erroneous decision the decis- ion is not challengeable under Art. 32 of the Constitution because the decision right or wrong could not infringe Art.

14. Sarkar J., said at P. 188:- “The decision of respondent No. 1 (Regional Transport Authority) may have been right or wrong……… but we are unable to see that the decision offends Art. 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasijudicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art. 14”.

Lastly reliance was placed on an unreported judgement of this Court in Aniyoth Kunhamina Umma v. The Ministry of Rehabilitation, Government of India, New Delhi (1) The petitioner’ in that case was a representative-in-interest of her husband who had been declared an evacuee by the Custodian of Evacuee property. Her appeals first to the Deputy Custodian and then to the Custodian General were unsuccessful. She then field a petition under Art. 32 of the Constitution. It was held that the appropriate authorities of competent jurisdiction under the Administration of Evacuee Property Act 1950 having determined that the husband was an evacuee within that Act and the property was evacuee property it was not open to the petitioner to challenge the decision of the Custodian (11) [1961] INSC 112; [1962] 1 S.C.R. 505.

857 General under Art. 32 of the Constitution. S. K. Das, J., delivering the judgment of the Court observed:- “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 at right can arise as a ground for a petition under- Art. 32 of the Constitution unless the decision on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of As losing 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 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 858 which this Court was approached. In support of his case the Attorney General mainly relied on Kailas Nath v. State of U.P.(1) and tried to buttress that decision by certain cases decided before and subsequent to it. He submitted that a misconstruction of a provision of law even by a quasi- judicial tribunal is equally an infringement of fundamental rights under Art. 19(1)(f) & (g) because as a consequence of such misconstruction the tax is an illegal imposition. In Kailash Nath’s case it was contended before the Sales tax Authorities that cloths, on which Excise duty had already been paid and which was then processed, hand-printed and exported, no sales tax was leviable as it was exempt under the notification under s. 4 of the U. P. Sales Tax Act. The Sales tax Authorities however held the exemption to be applicable only to cloth which had not been processed and hand-printed and was in the original condition. A petition under Art. 32 was filed against that order and it was contended that the rights of the assessee under Art.

19(1)(g) were infringed by the order misinterpreting the notification. The Court said:- “If a tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this court for a writ under Art. 32 since his right to carry on trade is violated or infringed by the imposition and such being the case, Art..

19(1)(g) comes into play, The objection there taken on behalf of the State was in the following terms:- That the imposition of an illegal tax will not entitle the citizen to invoke Art. 32 but he must resort to remedies available under ordi- nary law or proceed under Art. 226 of the Constitution, in view of the fact that the right (1) A.I. R. 1957 S.C. 790.

859 to be exempted from the payment of tax cannot be said to be a fundamental right which comes within the purview of Art. 32”.

This contention was repelled because of the following observations in the Bengal Immunity Co. Ltd. v.State of Bihar (1):

“We are unable to agree the above conclusion.

In reaching the conclusion the High Court appears to have overlooked the fact that the main contention of the appellant company, as set forth in its petition, is that the Act, in so far as it purports to tax a nonresident dealer in respect of an inter-State sale or purchase of goods, is ultra vires the Constitution and wholly illegal………..” The other cases referred to in that judgment were Mohammad Yasin’s. Town Area Committee, Jalalabad(2); State of Bombay v. United Motors (3); Himmatlal Harilal Mehta v. State of Madhya Pradesh (4) and Bidi Supply Co. v. Union of India (5). 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 (IL) [1955] 2S.C.R.603,618.

(3) [1953] INSC 24; [1953] S.C.R. 1069,1017.

(2) [1952] INSC 10; [1952] S.C.R. 572.

(4) [1954] INSC 26; [1954] S. C. R. 1122.

(5) [1956] S.C.R. 257,271, 277.

860 under a provision of law which is ultra vires in fundamental in the matter of applicability of Art.32.In the former case the provision of law being valid the order will be protected as being under the authority of a valid law and therefore it will not be violative of Art. 19(1)(g) and Art. 32 is not available to challenge that order. In the latter case, the provisions of law being void the protection of law does not operate and the order is an unauthorised interference with the rights of a citizen under Art. 19(1)(g). It can therefore be challenged under Art. 32. This distinction does not seem to have been kept in view in Kailash Nath’s case (1) That case in further open to the criticism that it is based of decisions which were not cases of erroneous interpretations of notifications under intra vires statute but were cases where an unconstitutional provision of law wag sought to be used to support a tax. For the reasons I have given Kailash Nath’s case(1) cannot be accepted as well founded”.

In yet another case where the remedy under Art. 32 was sought to challenge the decision of Sales tax Officer is Ramavtar Budhaiprasad etc,. Assistant Sales tax Officer, Akola (2). There a Sales tax Officer on a construction of a Schedule of the Sales tax Act had held that betel leaves were subject to sales tax as they were not vegetable which were exempt from that tax and this Court upheld that decision. The question as to the availability of Art. 32 was not raised.

Besides Kailash Nath’s case which, I have de, with above the other case relied upon by the learned Attorney General fall within the following categories in none of which the question as now argurarose or was considered.

(1) Where the tax imposed or action taken under a statute which is unconstitutional.

(1) A.I.R. 1957 S.C. 790.

(2) [1962] 1 S.C.R. 219.

861 (2) Where the Executive action is without authority of law.

(3) Where the taxing authority imposes a tax or acts without authority of law.

(4) Where the quasi-judicial authority without having jurisdiction determines a fact or gives a decision.

I shall now discuss the cases which fall in the first category i.e. where action is taken under a statute which is unconstitutional. The action taken thereunder must necessarily be unconstitutional which is challengeable by an aggreived party under Art. 32.

In Himmatlal Harilal Mehta v. The State of Madhya Pradesh (1) sales tax was neither levied nor demanded but apprehending that an illegal sales 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 (3). In the Bengal Immunity case also the right infringed was by an Act which was ultra vires (1) [1954] INSC 26; (1954) S.C.R. 1122. (2) [1951] INSC 2; (1951) S.C.R. 127, (3) (1953) 2 S.C.R. 603, 618.

862 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 Patna for a writ of prohibition restraining the Sales tax Officer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that sales sought to be assessed were made in the course of inter-State trade, that the provisions of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) which authorised the imposition of tax on such sales were repugnant to Art. 286 (2) and void, and that, therefore, the proceedings taken by the Sales tax Officer should be quashed. The application was dismissed by the High Court on the ground that if the Sales tax Officer made an assessment whiCh was erroneous, the assessee could challenge it by way of appeal or revision under ss. 24 and 25 of the Act and that as the matter was within the jurisdiction of the Sales tax Officer, no writ of prohibition or certiorari could be issued. There was an appeal against this order ‘to this Court and therein a preliminary objection was taken that a writ under Art. 226 was not the appropriate remedy open to an assessee for challenging the legality of the proceedings before a Sales tax Officer. In rejecting this contention, this Court observed “It is, however, clear from 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 unen- forceable. If, however, this contention be well founded,, the remedy by way of a writ 863 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 :- “The answer to this plea is short and simple.

The remedy under the Act cannot be said to be adequate and is indeed nugatory or useless if the Act which provides for such remedy is itself ultra vires and void and the principle relied upon can, therefore, have no application were a party comes to Court with an allegation, that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and prays for appropriate relief under article 226.” (p. 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 (1) 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 (2) 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.

(1) (1952)S.C.R. 572.

(2) (1952) 2 S.C.R.983 864 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 to enact. Socondly the constitutionality of the provision was questioned on the ground that it violated the doctrine of equality. before the law under Art. 14 of the Constitution and that ground was also repelled and it was held that the legislature had selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetuate fraud on taxation. The third.

ground of attack wag based on Art. 19(1)(f) & (g) of the constitution. Relying upon the case of Mohd. Yasin v. Town Area Committee,(1) which was a case of license fees and Himmatlal Harilal Mehta’s case (2) in which there was no determination by any tribunal but there was a threat of an illegal imposition, the court held that not only must a law be valid in the sense of there being legislative competence, it must also not infrings the fundamental rights declared by the Constitution. This again was not a case of a deter- mination of a question by a taxing authority acting quasi- judicially but the constitutionality and vires of the statute were challenged.

The second category of cases is were the Taxing Authority imposes a tax or acts without authority of law and the assessment made by the Taxing Authority is without jurisdiction. Tata Iron & Steel Co., Ltd,, v. S. R. Sarkar (3) was a case under the Central Sales Tax Act under which sales in the course of inter-State trade are liable to be taxed only once and by one State on behalf of the Central Government.- The petitioner company in that case was assessed to tax of certain sales falling within that-Act by the Central Sales tax Officer, Bihar, and the tax was paid.

They were again taxed by the (1) [1952] INSC 10; (1952) S.C.R. 572. (2) [1954] INSC 26; (1954) S.C.R 1122 (3) [1960] INSC 131; (1961) 1 S.C.R. 379. 402.

865 Central Sales’ tax Officer, West Bengal who held that under the statute that was the “Appropriate State” to levy the tax as the situs of sale was in West Bengal and that was assailed under Art. 32. The objection to the maintainablity of the petition on the ground that an appeal against the order of assessment could be taken and that proceedings under Art. 32 were incompetent was overruled. Shah J., in delivering the judgment of the majority referred to the decision of this Court in Himmatlal Harilal Mehta’s case, (1); the Bengal Immunity Co. case(2) and the State of Bombay v. United Motors India Ltd. (3) and observed 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 challeng- ed; 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 ex- pressed by this Court in Ramjilal’s case [1951] INSC 2; [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 (1) [1954] INSC 26; (1954) S.C.R. 1122. (2) (1955) 2.S.C.R. 603,648, (3) [1953] INSC 24; [1953] S.C.R. 1069, 1077.

866 State only and one sale could not be taxed twice. It having been- collected once the threat to recover’ it again was Prima facie an infringement of the fundamental right of the petitioner. Sarkar J., who gave the minority judgment observed:- “In Kailash Nath v. The State of U. P., A.I.R.

1947 S. C. 790, this Court held that an illegal levy of sales tax on a trader under an Act the legality of which was not challenged violates his fundamental rights under Art.

19(1)(g) and a petition under Art. 32 with respect to such violation lies. The earlier case of Ramjilal v. Income tax Officer, Mohindergarh [1951] INSC 2; [1951] S.C.R. 127 does not appear to have been considered. ‘It is contended that the decision in Kailash Nath’s case requires reconsideration. We do not think however that the present is a fit case to go into the question whether the two cases not reconcilable and to decide the preliminary question raised.The point was taken as a late stage of proceedings after much costs had been incurred. The question arising on this petition is further of general importance a decision of which is desirable in the interest of all concerned. As there is at least one case supporting the competence of the petition, we think it fit to decide this petition on its merits on the footing that it is competent”.

it cannot be said that this case is an authority which supports the contention of the petitioner. Apart from the fact I that Kailash Nath’s case (1) did not receive approval it was decided on the ground of the Central Sates tax being a tax, which could be collected on a sale once and by one State on behalf of the Government of India, and having been imposed and paid once could not be imposed a second time.

In other words it was (1) A.I.R.1957 S.C. 790 867 a tax which was without jurisdiction and therefore fell within Art. 12(1)(f).

A similar case also relied upon by the petitioner is J. V.

Gokal & Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection) (1). The There the petitioner had entered into contracts, with the Government of India for the supply of certain quantities of foreign sugar. When the, goods were on the high seas the petitioner delivered to the Government shipping documents pertaining to the goods and received the price. On their arrival they were taken possession of by the Government of India after paying the requisite customs duty. For the assessment year 1954-55 the petitioner was assessed to sales tax in calculating which 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 868 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 of Bombay (1) which was not a petition under Art. 32 but an appeal against can order under Art. 226. In that case under the Bombay Labour Welfare Fund Act, which authorised the constituting of a fund for financing labour welfare, notices were served upon the’ appellant company to remit the fines and unpaid accumulations in its custody to the Welfare Commissioner.The appellant company questioned in a petition under Art 226 the validity’ of that Act as a contravention of Art. 31(2).

The High Court held that Act intra vires and dismissed the petition. On appeal against that judgment this Court held that the unpaid accumulations of wages and fines were the property of the Company and any direction for the payment of those sums was a contravention of Art. 31(2) and therefore invalid.It was also held that assuming that the money was not property within the meaning of Art. 31(2 )and Art. 19(1) (f) applied that Article would also be of no help to the Welfare Commissioner because it could not be supported under Art. 19 (5) of the Constitution. Moreover this was not a case of a determination by a quasi-judicial tribunal but was a case of executive action without authority of law.

In Bidi Supply Co, v. The Union of India ( 2) an order passed by Central Board of Revenue transferring the assessment records and proceedings of the petitioner from Calcutta to Ranchi under s. 5 (7A) of the Income tax Act was challenged under Art. 32 as an infringement of the fundamental rights of the petitioner under Arts. 14, 19(1)(g) and 31 of the Constitution. The impugned order by the Central Board of Revenue ,Was made acting in its executive capacity and this (1) [1957] INSC 115; (1958) S.C.R. 1122.

(2) (1956) S.C.R.257,271,277.

869 Court, without deciding the question whether the order could- be supported on the ground of reasonable classification hold that the order expressed in general terms without any reference to any particular case and without any limitation. as to time was not contemplated or sanctioned by sub-s. 7(A) of s. 5 and therefore the petitioner was entitled to the benefit of the provisions of sub-ss. 1 and 2 of s. 64 of Indian Income tax Act. The question decided therefore was that the Central Board of Revenue acting under s. 5(7A) was not empowered to pass an “omnibus wholesale order of transfer”. It was not a quasi- judicial order of an administrative tribunal acting within its jurisdiction but an unauthorised executive order 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 (1) 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(2) 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.

(1) [1956] INSC 86; [1957] S. C. R. 233. (2) [1955] INSC 27; [1955] 2 S. C. R. 303.

870 A case strongly relied upon by the petitioner was M/s.

Mohanalal Hargovind Das, Jabalpur v. The State of Madhya Pradesh (1). The petitioners there were called upon to file their returns of the total purchase, of tobacco made by them out of Madhya Pradesh with a view to assess and levy purchase tax. The return was filed under protest and the Sales, tax Authorities’ as it was required under the law, called upon the petitioners to deposit the purchase tax. No quasi-judicial determination was made, no decision was given after hearing the taxpayer, but deposit was asked to be made as that was a requirement of the statute. In a petition under Art. 32 of the Constitution for a writ of mandamus restraining the State of Madhya Pradesh from enforcing Madhya Pradesh Act ‘against the petitioners it was contended that the transactions were in the course of inter-State trade. The nature of the transaction was that finished to- bacco which was supplied to the petitioners by the suppliers moved from the State of Bombay to the State of Madhya Pradesh and the transactions which were sought to be taxed were therefore in the course of inter-State trade and were not liable to tax by the State. That was not a case of mis- construction of any statue by any quasi-judicial authority but that was a case in which the very transaction was outside the taxing powers of the State and any action taken by the taxing authorities was one without authority of law.

The statue did not give jurisdiction to the Authority to decide an inter State transaction was an intra-State sale.

If it had so done the statute would have been un- constitutional under Art. 286(1)(a).

in Madanlal Arora v. The Excise Taxation Officer Amritsar (2), notices were issued to the assesee enquiring him to attend with the documents and (1) [1955] INSC 40; [1955] 2 S. C. R. 509.

(2) [1961] INSC 144; [1962] 1 S.C.R. 823.

871 other evidence in support of his returns. In the last of these notices it was stated that on failure to produce the documents and evidence the case will be decided “on beat judgment assessment basis”. The petitioner did not comply with the notices but. filed a petition under Art. 32 of the Constitution challenging the right of the authority to make a “best judgment assessment” on the ground that at the date of the last notice the sales tax authority had no right to proceed to make any “best judgment assessment” as the three years within which alone such assessment could be made had expired. This contention was held to be well founded. In- deed the respondent conceded that he could not contend to the contrary. 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 (1). 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) [1959] INSC 130; [1960] 2 S. C. R. 146.

872 permit had to be not less than three and not more than five years. It was held that it had to be for that period as provided in sub-s. (1) (a) of s. 58 read with sub-s. 2 of that section. This, it was submitted, was an authority for the proposition that where a provision is misconstrued by an authority having jurisdiction to construe a section a petition under Art. 32 is competents. In the first ‘place the question as to whether Art. 32 was applicable was not raised and was therefore not decided. Secondly what was held was that if the authority renewed a permit the renewal had to be for a particular period as specified, in s. 58 and could not be for a lesser period. The question was therefore of jurisdiction.

In Universal Imports Agency v. The Chief Controller of Imports and Exports (1). the petitioners, in Pondicherry, entered before its merger with India, into firm contracts with foreign sellers and the goods agreed to be imported were shipped before Or after the merger. The goods were confiscated by the Controller of Customs on the ground that they were imported without a licence but as an option in lieu of confiscation the goods were released on, payment of a fine. On a petition under Art. 32 it was held by a majority that under paragraph 6 of the French Establishments (Application of Laws) Order 1954, the transactions in question fell within the words ,,things done” in the saving clause and were not liable to tax. This saving clause was contained in the Order applying Indian laws in place of the French laws. The construction was not of the taxing statute but of certain Orders by which the taxing statute had been applied to Pondicherry. , These Orders the Taxing Officer had no power to construe and there was no law to support the order of the Collector. In any case this is an instance of want of jurisdiction to tax transactions (1) [1960] INSC 127; [1961] 1 S. C. R. 305.

873 which the law excludes from the taxing powers of the authority levying the tax. Thera again the question of the applicability of Art. 32 to quasi-judicial determination was not raised.

There is one other class of cases of which K. T. Moopil Nair’s case (1) is an example. That was a case where the tax was of a confiscatory nature and the procedure was contrary to rules of natural justice. The imposition of land tax at a flat rate of Rs. 2 per acre imposed under the provisions of Travancore Cochin Land Tax Act (Act 15 of 1955) as amended by Travancore Cochin 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 quasi- judicial 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 whether Art. 19 (1) applies to taxing laws or not was not debated by the parties before us. On the main 874 contention as to the applicability of Art. 32 these were the submissions of the learned Attorney-General.

A review of these cases shows that (1) the law which is ultra vires either because of the legislative incompetence or its contravention of some constitutional inhibition is a non-existing law and any action taken thereunder, quasi- judicial or otherwise, would be a contravention of Art. 19 (1) (f) and (g) and the result will be no different if it is a colourable piece of legislation; (2) where the proceedings are repugnant to the rules of natural justice the right guaranteed under Art. 19 (1) (f) and (g) are infringed; (3) the consequence is the same where assessment is made by an authority which has no jurisdiction to impose the tax and (4) if an administrative tribunal acting quasi-judicially misconstrues a provision which it has jurisdiction to construe and therefore imposes a tax infringement of Art. 19 (1) (g) would result according to Kailash Nath’s case (1) but there is no such infringement according to cases which the learned Additional Solicitor General relied upon and which have been discussed above. The reason why the deci- sion in the latter cases is correct and the decision in Kailash Nath’s case (1) is not have already been given and it is unnecessary to repeat them.

Mr. Palkhivala who intervened in C. M. P. 1496/61 in support of the petition in the main argued the question whether a misconstruction of a taxing statute can involve the violation of a fundamental right under Art. 19 (1) (g). His contention was that an erroneous construction which result in transgression of constitutional limits would violate Art.

(19) (1) (g) and that the difference between jurisdictional and non-jurisdictional error was immaterial and that a misconstruction of a statute can violate the right to trade and he relied upon (1) A.I.R. 1957 S.C. 790.

875 M/s. Mohanlal Hargovind Das v. The State of Madhya Pradesh (1) which was a case of inter-State sale and which has already been discussed. He also relied upon the decision in R. S. Ram Jawaya St” Kapur v. The State of Punjab (2). In that case it was held that the acts of the Executive even if deemed to be sanctioned by the legislature can be declared void if they infringe any of the fundamental rights but no question of judicial determination by quasi-judicial tribunal arose there. Similarly in M/s. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sales tax (a) 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 contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even hand-made biris have been subject to Sales tax since long (1) [1955] INSC 40; [1955] 2 S.C.R. 509. (2) [1955] 2 S.C.R. 225.

(3) (1955) 2 S.C.R. 498.

876 before the date of the issue of the above notification. The object of passing the Addi- tional Duties of Excise (Goods of Special Im- portance) Central Act, No. 58 of 1957 was to levy an additional excise duty on certain im- portant articles and with the concurrence of the State Legislature to abolish Sales tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957 to June 30, 1958, the petitioner was liable neither to payment of excise duty nor to payment of sales tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to apply only to those goods on which an additional Central excise duty had been levied and paid.” It is unnecessary to decide this question in this case.

It was next argued that the Sales tax Authorities are all officers of the State charged with the function of levy and collection of taxes which is essentially administrative and that when they act as quasi-judicial tribunals that function is Only incidental to the discharge of their administrative function and therefore the assessment order of December 20, 1958, was an executive order and falls within Art. 19(1)(g).

Reference was made to Bidi Supply Co., v. The Union of India (1) (at pp. 271 and 277), a case under s. 5(7-A) of the Income tax Act. At page 271 the definition of the word “State” is set out and at p. 277 Das, C. J., said that the “State” includes its Income tax Department. There is no dispute that the Sales tax Department is a department of the State and is included within the word “State” but the question is what is the nature and quality of the determination made by a Sales Tax Officer (1) (1956) S.C.R. 257, 271, 277.

877 when he is performing judicial or quasi-judicial functions.

The argument of the learned Attorney General comes to this that even though in the performance of qaasi-judicial functions the Taxing Officer may have many of the trappings of a court still he is not a court and therefore the decision of the taxing authority in the present case was not entitled to the protection which an erroneous decision of a proper court has; Chaparala Krishna Brahman v. Gurura Govardhaiah (1) 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 (2), 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 judi- cially, 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 of the trappings of a court including the power to summon witnesses, receive evidence on oath and making judicial determinations. In the strict sense of the term he is not a court exercising judicial power; but the (1) A.I.R. 1954 Mad. 822.

(2) (1931) A. C. 275, 298.

878 question for decision in the present case is not whether be is a Court or not but whether the determination made by him in regard to the exemption available to the petitioners on the sale of biris was a decision made by a quasi-judicial authority in the exercise of its statutory powers and within its jurisdiction and therefore not an administrative act.

The characteristic of an administrative tribunal is that it has no ascertainable standards. It only follows policy and expediency which being subjective considerations are what a tribunal makes them. An administrative tribunal acting as an administrative tribunal and acting as a judicial tribunal may be distinguished thus:

“Ordinarily ‘administrative’ tribunal need not act on legal evidence at all, but only on such considerations as they see fit. A statut e requiring such evidence to be received prevents a tribunal’s making up its mind until it has given this evidence a chance to weigh with it. But it is a fallacy to assume that the tribunal is thereby limited to acting on that evidence. If it is an ‘administrative’ tribunal it must still be governed by policy and expendiency until it has beard the evi- dence, but the evidence need not influence its policy any further than it sees fit. A con- trary view would involve the decision’s being dictated by the evidence, not by policy and expediency; but if certain evidence with it a right to a particular decision, that decision would be a decision on legal rights; so the tribunal would be administering ‘justice’ and would be exercising judicial not administra- tive”., ((1933) L. Q. R. 424).

There are decisions of this court in which certain 879 tribunals have been held judicial bodies; Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd. (1) Province of Bombay v. Kusaldas S. Advani (2) where Das, J., (as he then was) observed at p. 725:

“that if a statutory authority has power to do any act which will prejudicially affect the subject then, although there are not two parties apart from the authority and the contest between the authority proposing to do the act and the subject opposing it, the final 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(3).

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.

(1) [1950] INSC 20; (1950) S C.R 459, 463. (2) [1950] INSC 22; (1950 S.C.R. 621, 725.

(3) [1958] INSC 6; (1958) S.C.R. 1240, 1257, 1258.

880 Mr. Chari, intervening on behalf of the State of Bihar, submitted that in Art. 12 the judicial branch of the State was not included in the definition of the word “State,” and the words ,other bodies” there did not comprise a tribunal having jurisdiction to decide judicially and its decisions could not be challenged by way of a petition under Art. 32 of the Constitution. In view of my decision that a quasi- judicial order of the Sales tax Officer is not challengeable by proceedings under Art. 32, I do not think it necessary to decide the wider question whether the definition of the word “State” as given in Art. 12 comprises the judicial department of the State or not.

In view of the decision as to the correctness of the decision in Kailash Nath’s case (1). it is not necessary in this case to go into the correctness or otherwise of the order of the Sales tax Officer. The petition under Article 32 therefore fails and is dismissed. There will be no orders as to costs.

(C. M. P. No. 1349 of 1961) KAPUR, J.-Messrs. Mohanlal Hargovind Das, the assessee firm bad filed an appeal on a certificate of the Allahabad High Court against the order of the Court dismissing their petition under Art. 226 of the Constitution challenging the imposition of the sales tax, on the ground that another remedy was available. The appeal against that order was dismissed by this Court for non-prosecution on February 20, 1961. Against that order of dismissal the assessee firm has filed an application for restoration on the ground that it had been advised that in view of the rule having been issued under Art. 32 of the Constitution wherein the contentions were the same as raised in the appeal against the order under Art. 226 it was unnecessary to prosecute the appeal.

It also prayed for condonation of delay in filing the application for restoration.

(1) A. 1. R. (1957) S.C. 790.

881 No sufficient cause has been made out for allowing the application for restoration. The assessee firm deliberately allowed the appeal, which was pending in this Court, to be dismissed for nonprosecution and after deliberately taking that step it cannot be allowed to get the dismissal set aside on the ground of wrong advice. The application for restoration is therefore dismissed with costs.

SARKAR, J. I have had the advantage of reading the judgments just delivered by my brothers Das and Kapur and I am in agreement with them.

SUBBA RAO, J.I have carefully gone through the 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 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 fur other 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, (1) A.I.R. 1957 S.C. 790.

882 namely, bidis, and that it is a clear infringement of the fundamental right of the petitioner to carry on business in bidis. Whenever such a right is infringed, the argument proceeds, by a State action here we are only concerned with State action-it is the duty of this Court to give the appropriate relief and not to refuse to do so on any extraneous considerations.

The Additional Solicitor General appearing for the State does not admit this legal position. He says that the Act is a reasonable restriction on the petitioner’s right to carry on business in bidis, that thereunder a Sales-Tax Officer has jurisdiction to decide, rightly or wrongly, whether bidis are exempted from sales-tax, and that, therefore, his order made with jurisdiction cannot possibly infringe the fundamental rights of the petitioner.

Mr. Chari, who appears for the intervener, while supporting the argument of learned Solicitor General emphasizes the point that the fundamental rights enshrined in Art. 19(1)(g) of the Constitution is only against State action, that the definition of “State” in Art. 12 thereof excludes all authorities exercising judicial power, that the sales-tax authority, in making the assessment in exercising judicial power, and that, therefore, no writ can be issued by this Court against the said authority.

Before attempting to answer the questions raised, it is relevant and convenient to ascertain precisely the position of the fundamental rights under the Constitution and the scope of the jurisdiction of this Court in enforcing those rights.

Fundamental rights are enshrined in Part III of the Constitution as the paramount rights of the people. Article 13(2) prohibits the State from making any law which takes away or abridges the rights conferred by the said Part and declares that 883 any law made in contravention of this clause shall, to the extent of the contravention, be void. These rights may be broadly stated to relate to (i) right to equality-Arts. 14 to 18, (ii) right to freedom Arts. 19 to 22, (iii) right against exploitation Arts. 23 and 24, (iv) right to freedom of religion Arts. 25 to 28, (v) cultural and educational rights Arts. 29 and 30, (vi) right to property -Arts. 31 and 31A, and (vii) right to constitutional remedies Arts. 32 to

35. These are the inalienable rights of the people of this country-some of them of noncitizens also-believed to be necessary for the development of human personality ; they are essential for 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(1). In State of Madras v. Shrimati Champakam Dorairajan (2) 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 approp- riate 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 (1) [1950] INSC 14; (1950) S.C.R. 88.

(2) (1951) S.C.R.525,531.

884 Executive, the Legislature of the Judiciary, can only function in exercise of the powers conferred on it that is, the Constitution is the paramount law. As the Constitution declares the fundamental rights and also prescribes the restrictions that can be imposed thereon, no institution can overstep the limits, directly or indirectly, by encroaching upon the said rights.

But a mere declaration of the fundamental rights would not be enough, and it was necessary to evolve a machinery to enforce them. So our Constitution, entrusted the duty of enforcing them to the Supreme Court, the highest judicial authority in the country. This Court has no more important function than to preserve the inviolable fundamental rights of the people ; for, the fathers of the Constitution, in their fullest confidence, have entrusted them to the care of this Court and given to it all the institutional conditions necessary to exercise its jurisdiction in that regard without fear or favour. The task is delicate and sometimes difficult ; but this Court has to discharge it to the best of its ability and not to abdicate it on the fallacious ground of inability or inconvenience. It must be borne in mind that our Constitution in effect promises to usher in a welfare State for our country; and in such a state the Legislature has necessarily to create innumerable administrative tribunals, and entrust them with multifarious functions. They will have powers to interfere with every aspect of human activity. If their existence is necessary for the progress of our country, the abuse of power by them may bring about an authoritarian or totalitarian state. The existence of the aforesaid power in this Court and the exercise of the same effectively when the occasion arises is a necessary safeguard against the abuse of the power by the administrative tribunals.

The scope of the power of this Court under Art. 32 of the Constitution has been expounded by 885 this Court on many occasions. The decisions not only laid down the amplitude of the power but also the mode of exercising that power to meet the different situations that might present themselves to this Court.In Rameshh Thappar v. State of Madras (1) this Court declared that under the Constitution the Supreme Court constituted as the protector guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications 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 (2) 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 (3), 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 op- pressed 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(4). Das, C. J., after reviewing the earlier case law on the subject observed:

“Further, even if the existence of other adequate legal remedy may be taken into con- sideration by the High Court in deciding (1) [1950] INSC 16; (1950) S.C.R. 594.

(2) [1950] INSC 13; (1950) S.C.R. 566.

(3) [1954] INSC 57; (1955) 1 S.C.R. 250, 256.

(4) (1959) Supp. 2 S C. R. 316, 325. 337, 886 whether it should issue any of the prerogative writs on an application under Art. 226 of the Constitution, as to which we say nothing now- this Court cannot, on a similar ground, decline to entertain a petition under Art. 32, for the right to move this Court by appropri- ate proceedings for the enforcement of the rights conferred by Part III of the Constitu- tion is itself a guaranteed right.” In that case it was pressed upon this Court to hold that in exercise of its power under Art. 32 of the Constitution, this Court could not embark upon an enquiry into disputed questions of fact, and various inconveniences were pointed out if it was otherwise. After considering the cases cited in support of that, contention, this Court came to the conclusion that it would fail in its duty as the custodian and protector of fundamental rights if it was to decline to entertain a petition under Art. 32 simply because it involved the determination of disputed questions of fact.

When it was pointed out that if that view was adopted, it might not be possible for this Court to decide questions of fact on affidavits, the learned Chief Justice observed:

“As we have already said, it is possible very often to decide questions of fact on affi- davits. If the petitions and the affidavites in support thereof are not convincing and the court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases by filing further affidavits or by issuing a commission or even by setting the application down for trial 887 on evidence, as has often been done on the original sides of the High Courts of Bombay and Calcutta, or by adopting some other ap- propriate procedure. Such occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a cogent reason for refusing to entertain the petition under Art. 32 on the ground that it involves dispu- ted questions of fact.” Finally, this Court also held that in appropriate cases it had the power, in its discretion, to frame writs or orders suitable 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. (1). 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 cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32.

If a writ (1) [1961] INSC 118; (1962) 1 S.C.R. 574.

888 petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine, without passing a speaking order then such dismissed cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Art. 32. if the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court.” Though this decision applies the doctrine of res judicayta the aforesaid observations indicate the anxiety of the Court to confine it within the specified limits and to prevent any attempt to overstep the said limits. Shortly stated it is settled law that Art. 32 confers a wide jurisdiction on this Court to enforce the fundamental rights, that the right to enforce a fundamental right is itself a fundamental right, and that it is the duty of this Court to entertain an application and to decide it on merits whenever a party approaches it to decide whether he hag 899 a fundamental right or if so whether it has been infringed irrespective of the fact whether the question raised involves a question of law or depends upon questions of fact. The doctrine of res judicata applied by this Court does not detract from the amplitude of the jurisdiction, but only negatives the right of a petitioner on the ground that a competent court has given a final decision against him in respect of the right claimed.

In this case 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 on the turn-. over of bidis is certainly an infringement of his fundmental right. He comes to this Court and prays that his fundamental right may be enforced against the Sales-tax Officer. The Officer says, “It may be true that my order is wrong it may also be that the Supreme Court may hold that my construction 890 of the section as accepted by the highest tribunal is perverse; still, as under the Act I have got the power to decide rightly or wrongly, my order though illegal operates as a reasonable restriction on the petitioner’s fundamental right to carry on business.” This argument in my view, if accepted, would in effect make the wrong, order of the Sales-tax Officer binding on the Supreme Court, or to state it differently, a fundamental right can be defeated by a wrong order of an executive officer, and this Court would become a helpless spectator abdicating its functions in favour of the subordinate officer in the Sales-tax Depart- ment. The Constitution says in effect that neither the Parliament nor the Executive can infringe the fundamental rights of the citizens, and if they do, the person affected has a guaranteed right to approach this Court, and this Court has a duty to enforce it; but the Executive authority says, “I have a right to decide wrongly and, therefore the Supreme Court cannot enforce the fundamental right”.

There is nothing in the Constitution which permits such an extraordinary position.It cannot be a correct interpretation of the provisions of the Constitution if it enables any authority to subvert the paramount power conferred on the Supreme Court.

It is conceded that if the law is invalid, or if the officer acts with inherent want of jurisdiction, the petitioner’s fundamental right can be enforced. It is said that if a valid law confers jurisdiction on the officer to decide rightly or wrongly, the petitioner has no fundamental right.

What is the basis for this principle ? None is discernible in the provisions of the Constitution. There is no provision which enables the Legislature to make an order of an executive authority final so as to deprive the Supreme Court of its jurisdiction under Art, 32 of the Constitution.

891 But the finality of the order is sought to be sustained on the principle of res judicata. It is argued that the Sales- tax Tribunals are judicial tribunals in the sence they are courts, and, therefore their final decisions would operate as res judicata on the principle enunciated by this Court in Daryao’s case (1). 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 Act with which we are now concerned, shows that the authorities constituted thereunder are only such administrative tribunals as mentioned above. The preamble to the Act shows that it was enacted to provide for the levy of tax on the sale of goods in Uttar Pradesh. The Act imposes a tax on the turnover of sales of certain commodities and provides a machinery for the levy, assessment and collection of the said tax. Under the Act the State Government is authorized to appoint certain assessing authorities. It provides for an appeal against the order of the assessing authority and for a revision in (1) [1961] INSC 118; (1962) 1 S.C.R. 574.

892 some cases and a reference to the High Courts in others.

The State Government is also authorized to appoint a hierarchy of authorities or tribunals for deciding the appeals or revisions. The assessing authorities are admittedly the officers of the Sales-tax Department and there is nothing in the Act to indicate that either the assessing authority or the appellate authority need possess any legal qualification. It is true that legal qualification is prescribed for the revising authority, but that does not make him a court or make the inferior tribunals courts. The said authorities have to follow certain principles of natural justice, but that does not make them courts. The scheme of the Act clearly shows that the saletax authorities appointed under the Act, following the principles of natural justice, ascertain the turnover of an assessee and impose the tax. The hierarchy of tribunals are intended to safeguard the interest of the assessees as well as the State by correcting wrong orders. The fact that, following the analogy of the Income-tax Act, at the instance of the party aggrieved a reference can be made by the reviewing authority to the High Court on a question of law shows only that the help of the High Court can be requisitioned only to elucidate questions of law, but the High Court has no power to make final orders, but on receipt of the judgments of the High Court, the revising authority shall make an order in conformity with such judgment.

Now let us consider the decisions cited at the Bar which would throw some light on the nature of such tribunals. In considering whether the Board of review created by s. 41 of the Federal Income-Tax Assessment Act, 1922-25 was a judicial authority, the Judicial Committee in Shell Company of Australia Limited v. Federal Commission of Taxation (1) observed.

“The authorities are clear to show that there are tribunals with many of the trappings (1) (1930) A. C. 275,296,298.

893 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. (1) held that the Income- tax 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 favour of one of them and against the other, unless, indeed, the entire public are regarded as the other party”.

The Income-tax authorities are mainly concer- ned with finding out the assessable income for the year and not with deciding any question of title. But to arrive at that income they have at times to decide certain general questions which might affect the determination of the assessable income not only in the year in question but also in subsequent years ………

(1) A.I.R.1950 AII.249,251.

(2) (1897) A.C. 556 894 An assessment is inherently of a passing nature and it cannot provide an estoppel by res judicata in later years by reson of a matter being taken in to account or not being taken into account by the Income-tax Officer in an earlier year of assessments An instructive discussion on the question whether an Income- tax Officer is a court within the meaning of s. 195 of the Code of Criminal Procedure is found in Krishna Brahman v.

Goverdhanaiah (1), where Balakrishna Ayyar, J., after considering the case law on the subject and the provisions of the Income-tax Act, held that an income-tax officer was not a “court”. The learned Judge did not think that the adoptation of norms of judicial procedure or the fact that appeals were provided for, was sufficient to make them courts. The learned Judge observed:

“When exercising his powers under Chapter IV of the Act, it seems to me, that the income- tax Officer is acting in a purely admini- strative capacity. It is his duty to ascertain what the income of the particular individual is and what amount of tax he should be required to pay. There is therefore no ‘lis’ what- ever before him.” The same reasoning would equally apply to sales-tax authorities. This Court in Bidi Supply Co. v. The, Union of India(1), speaking through Das, C.J., set aside the order of an Income-tax Officer and in “Here, ‘the State which includes its Income- tax Department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fundamental right under article 14 of the Constitution.

(1) A.I.R. 1954 med. 822, 826.

895 Though this cannot be called a direct decision on the question raised in the present case, it indicates that this Court treated the Income-tax Officer as a department of the executive branch of St the Government. This Court again in Gullapalli Nageswara Rao v. State of Andhra Pradesh (1) 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 prin- ciples of natural justice and by adopting the same well- known trappings of judicial procedure, does not make them any the less the executive orgnas of the State. It is not possible to apply the principle of res judicata to the orders of such tribunals, for obviously s. II of the Code of Civil Procedure does not apply to such orders, and the general priciple of res judicata dehors that provision has never been applied to such orders. It is true that some statutes expressly or by necessary implication oust the jurisdiction of Civil Courts in respect of certain matters but such exclusion cannot affect the extraordinary powers of superior courts conferred under Arts. 226, 227 and 32 of the Constitution.

(1) [1959] Supp. 1 S.C.R. 319, 353-354.

896 There is a simpler answer to the plea of res judicata. In the present case the Sales-tax authorities decided the case a against the petitioners. The petitioners are seeking the help of this Court under Art.32 of the Constitution to enforce their fundamental rights on the ground that he said order infringes their rights. To put it differently, the petitioners by this application question the orders of the Sales-tax authority. How is it possible to contend that the order which is now sought to be quashed can operate as res- judicata precluding this Court from questioning its correctness ? The principle underlying the doctrine of res judicata is that no one shall be vexed twice on the same matter. This implies that there should be two proceedings and that in a former proceeding in a court of competent jurisdiction, an issue has been finally decided inter partes and therefore the same cannot be reagitated in a subsequent proceeding. On the said principle the impugned order itself cannot obviously be relied upon to sustain the plea of res judicata.

The argument ab-inconvenienti does not appeal to me. As it is the duty of this Court to enforce a fundamental right of a party if any authority has infringed his right, considerations based upon inconvenience are, of no relevance. it is suggested that if the jurisdiction of this Court is not restricted in the manner indicated, this Court will be flooded with innumerable petitions. Apart from the fact that this is not a relevant circumstance, a liberal interpretation of Art. 32 has not had that effect during the ten years of this Court’s existence, and I do not see any justification for such an apprehension in the future. It is further said that if a wider interpretation is given namely, that if this Court has to ascertain in each case Whether a.

statutory authority has infringed a, 897 fundamental right or not, it will have to decide complicated questions of fact involving, oral and documentary evidence, and the machinery provided under Art. 32 of the 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 (1) 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 exhausting his remedies and after the tribunals have given their finding’s of fact, this Court may ordinarily accept the findings of fact as is does in appeals under Art. 136 of the Constitution. If the party complains that the order made against him by a tribunal is based upon a wrong construction of the provisions of a statute, this Court may ascertain whether on a correct interpretation of . the statute, the petitioner’s fundamental right has been violated. There may be many other situations, but I have no doubt (1) [1959] Supp.

(2) S.C.R.316 325, 337.

898 that this Court will deal with them as and when they arise.

I would, therefore, unhesitatingly reject the argument based on inconvenience.

I shall now proceed to deal with the main argument advanced by learned counsel for the respondent. Briefly stated, the argument is that the Sales-tax Officer has jurisdiction to construe rightly or wrongly the provisions of the Act, which is a valid law, and that even if the said authority wrongly constructed a provision of the Act and imposed the tax, though on a right construction of the said provision it cannot be so imposed, the said order does not infringe the fundamental right of the petitioner. With respect, if I may say so, this argument equates the guaranteed right of a citizen under Art. 32 of the Constitution with that of the prerogative writs obtaining in England, such as writs of certiorari, prohibition and manadamus, issued against orders of inferior tribunals or authorities. This also confuses the fundamental right enshrined in Art. 32 of the Constitution with one or more of the procedural forms this Court may adopt to suit each occasion. The approach to the two question is different. The jurisdiction of the Supreme Court under Art. 32 is couched in comprehensive phraseology and, as pointed out earlier,, is of the widest amplitude: it is not confined to the issue of prerogative writs, for the Supreme Court has power to issue directions or orders to enforce the fundamental right; even in respect of issuing the said writs, this Court is not oppressed by the procedural technicalities of the prerogative writs in England. While under Art. 32 this Court may, for the purpose of enforcing a fundamental right, issue a writ of certiorari, prohibition or mandamus, in a suitable case, it may give the relief even in a case not reached by the said writs. The limitations imposed on the prerogative writs cannot 899 limit the 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 (pro- hibition and certiorari; or to ensure the exercise of jurisdiction (mandamus). The jurisdiction of inferior tribunals may depend upon the fulfilment of some condition prece- dent (such as notice) or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination whether it exists or not is logically and tempo.rally prior to the determination of the actual question which the inferior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact: when, at the inception of an inquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction of not.” 900 “There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that, an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess or deprive itself of a jurisdiction which it otherwise would possess”.

It is clear from this passage that a tribunal may have to decide collateral facts to exercise its jurisdiction, but unless the relevant statute confers an exclusive jurisdiction on that tribunal, it cannot wrongly clutch at jurisdiction which it has not or refuse to exercise jurisdiction which it possesses. The doctrine of jurisdiction with its limitations may be relevant in the matter of issue of prerogative writs to quash the orders of tribunals made without or in excess of jurisdiction, but the said restrictions cannot limit the power of the Supreme Court in enforcing the fundamental rights, for under Art. 32 of the Constitution for enforcing the said rights it has power to issue directions or orders uncontrol by any such limitations. That apart, even within the narrow confines of the doctrine of jurisdiction, it is wrong to confine the jurisdiction to inherent want of jurisdiction. A person, who has within the narrow confines of the doctrine of no authority to function under an Act, if he purports to act under that Act, his order will be no doubt without jurisdiction. If an authority by a wrong construction of a section purports to exercise jurisdiction under an Act which it does not possess at all, it may again be described as inherent want of jurisdiction. But there may be 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 901 wrong construction of the provisions of the Act it may make an order affecting a particular subject- s 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 Sales- tax authority makes its order. A Sales-tax authority may issue only a notice threatening to take action under the Act : at that point of time, there is no decision by the tribu- nal. The person to whom notice is given approaches this Court and complains that the authority under the colour of the Act proposes to infringe his fundamental right; in that case, if this Court is satisfied that his fundamental right is infringed, it has a duty to enforce it. But it is said that when the Sales-tax Act provides a machinery for getting the validity of his claim tested by the tribunals, he must only resort to that machinery. This argument may be relevant to the question whether a civil courts jurisdiction is ousted in view of the special machinery created by a statute, but that circumstance cannot have any bearing on the question of enforcement of fundamental rights, for no law can exclude the jurisdiction of this Court under Art. 32 of the Constitution. Nor is the 902 argument that if a citizen comes to this Court when the proceeding before the Sales-tax authorities is in the midstream, this Court will be permitting a citizen to short- circuit the rest of the procedure laid down by the Act, has any relevance to the question of its jurisdiction under Art.

32. This may be an argument of inconvenience and this Court, as has already been indicated, may adjourn- the case till the entire proceedings come to an end before the highest Sales-tax authority. This argument of inconvenience cannot obviously arise when a party approaches this Court after availing himself of all the remedies available to him under the Act.

I would, therefore, hold that the principles evolved by the courts in England and accept by the courts in India governing the issue of prerogative writs cannot circumscribe the unlimited power of the Supreme Court to issue orders and directions for the enforcement of the fundamental rights.

Even otherwise, in cases similar to those covered by the illustration Supra, a prerogative writ can be issued for quashing the order of an inferior tribunal, and a ,fortiori an order can be issued for enforcing a fundamental right under Art. 32 of the Constitution.

Even if the said legal position be wrong, the present case falls within the limited scope of the principle governing the issue of a writ of certiorari. In Hari Vishnu Kamath v.

Syed Ahmad Ishaque(1), the scope of that power vis-a-vis an error of law has been stated thus:

.lm15 “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, (1) [1954] INSC 122; [1955] 1 S.C.R. 1104, 1123.

903 is not so much in the statement of the prin- ciple 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 clear- cut 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 (1), that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record, cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.” Whether there is an error of law on the face of the record can be determined only on the facts of each case, and, as this Court pointed out, an error that might be considered as self-evident by one Judge may not be so considered by another. Except perhaps in a rare case,, it is always possible to argue both ways. I would not, therefore, attempt to law down a further criterion then that which has been accepted by this Court, namely, (1) A.I. R. [1953] Bom. 133.

904 that the question must be left to be determined judicially on the facts of each case. In the present case, the recitals in the notification clearly disclose that there is an error of law on the face of the order of the tribunals.

If that error is corrected, as we should do, the position is that the Sales-tax tribunals imposed a tax on the sales transactions of biris which they had no power to do. In that event there is a clear infringement of the fundamental rights of the petitioners to carry on business in, biris.

Now let us look at the decisions of this Court to ascertain ‘whether all or any of them have applied the criterion of jurisdiction in the matter of enforcement of fundamental right of a citizen.

Where under s. 11 of the Bihar Buildings (Lease, Rent and Eviction)Control Act, 1947, the Controller was given jurisdiction to determine whether there was non-payment of rent or not, as well as the jurisdiction, on finding that there was non-payment of rent, to order eviction of a tenant, it was held by this Court in Rai Brij Raj Krishan v.

S. K. Shaw and Brothers (1) that even if the Controller had wrongly decided the question whether there had been non- payment of rent, his order for eviction on the ground that theme had been non-payment of rent could not be questioned in a civil court. This decision has nothing to do with the scope of this Court’s power to enforce a fundamental right, but it deals only with the question of the ouster of the civil court’s jurisdiction when a special tribunal is created to finally decide specific matters. In Messrs.

Mohanlal Hargovind Das Biri Merchants Jabalpur v. The State of Madhya Pradesh (2 ) when the Sale-tax authorities of Madhya Pradesh on a wrong view of the transactions carried on by (1) [1951] INSC 6; [1951] S.C.R. 145.

(2) [1955] INSC 40; [1955] 2 S.C.R. 509.

905 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 (1) the Sales-tax authorities determined the turnover of the petitioners including therein the proceeds of sales held by them to be intrastate transactions. This Court held, considering the nature of the transactions once again, that they were not sales inside the State and were only sales in the course of interState trade and commerce, and, on that basis, enforced the fundamental right of the petitioners. This Court again enforced the fundamental rights of the petitioners in J. V. Gokul & Co. v. Asstt. Collector of Sale-tax (2) by reversing the finding of the Sales-tax Officer, who had held that the sales in that case were intrastate and holding that they were made in the course of import.

Ignoring the first decision wherein there was no order of the Sales-tax Officer on merits, in the other two decisions, the Sale-tax: Officer in exercise of his jurisdiction decided on the facts before him that the sales were intra- State sales, whereas this Court on a reconsideration of the facts hold that they were outside sales. The criterion of jurisdiction breaks in these cases, for the Sales-tax Officer (1) [1955] INSC 41; (1955) 2 S C R 483.

(2) (196O) 2 S.C.R. 852.

906 has inherent jurisdiction to decide the question whether the sales were inside sales or outside sales. But an attempt is made to distinguish these cases on the ground that by a wrong view of the transacting, the sales-tax Officer violated the provisions of Art. 286 of the Constitution, and therefore he had no inherent jurisdiction to impose the tax There are no merits in this distinction. The Sales tax Officer had jurisdiction to decide under the relevant sales- tax Act whether a transaction was inside or outside sale.

He had the jurisdiction to decide rightly or wrongly; on the basis of his finding, though a wrong one, the’ sales were not exempt from taxation. If, on the facts of the case, the Sales-tax Officer bad arrived at the correct conclusion, he would not have any power to impose a tax on inter-State sales under the Act; he would also have infringed Art. 286 of the Constitution, if he had imposed a tax on such a sale.

The absence of jurisdiction or want of power in one case was traceable to a statutory injunction, and in the other to a constitutional prohibition; but that in itself cannot sustain the distinction in the application of the criterion of jurisdiction, for in either case the said wrong finding of fact was the root of the error.

The decision of this Court in Kailash Nath v. State of U. P.

(1), which necessitated the reference to this Bench, is another instance where this Court enforced the fundamental right of the petitioner by accepting an interpretation 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 whereunder tax was (1) A.I.R. 1957 S.C. 790.

907 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 interpretation of the notification.

Let me now consider the decisions of this Court which are alleged to have departed from the view expressed in that case. In Gulabdas & Co. v. Asstt. Collector of Customs(1), the petitioners were established importers holding quota rights for importing stationery articles and having their places of business in Calcutta. They had a licence for a period of 12 months to import goods known as “Artists’ Materials” falling under Serial No. 168(C) of Part IV of the Policy Statement. Item No. 11 of Appendix XX annexed to the Import Trade Control Policy Book was described as “Crayons”.

The petitioners, on the basis of the licence, imported “Lyra” brand crayons. The Assistant Collector of Customs instead of assessing duty on them under item 45(A), assessed duty under item 45 (4) of the Indian Customs Tariff. On appeal the Central Board of Revenue confirmed it. It was argued, inter alia, that the Customs authorities imposed a duty heavier than the goods had to bear under the relevant provisions. This Court held that no question of fundamental right arose in that case.

(1) A.1 R. [19S7] S. C. 733, 736.

908 In that context, the following observations were made.

“If the provision of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal.” “If the petitioners were aggrieved by the order of the Central Board of Revenue they bad a further remedy by way of an application for revision to the Central Government ………… All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any fundamental right under Art.

19 of the Constitution”.

In that case, on facts, the Customs authorities held that the petitioners were liable to pay a particular duty on the goods, and this Court accepted that finding and, therefore, no question of fundamental right arose. But, if on the other hand the observations meant that the order of the Customs authorities was binding On this Court, I find it difficult to accept that view. It is one thing to say that this Court ordinarily will accept the findings of adminis- trative tribunals on questions of fact, 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 (1) accepted the findings of fact recorded by the relevant Customs authorities, and observed (1) [1957] INSC 20; [1957] S.C.R. 701, 712.

909 “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: on that basis, no question of fundamental right would arise. The decision in The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad (1) related to the fundamental right of the petitioner therein to carry on the business of plying motor buses as stage carriages.

The State applied for permits for all these routes under Ch. IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 1956, and the petitioner applied for renewal of its permit.

The Regional Transport Authority rejected the petitioner’s right and granted the permit to the State. One of the contentions raised was that the provisions of Art. 14 of the Constitution had been infringed. This Court held that the Regional Transport Authority, on the facts, had held that there was no discrimination. Dealings with that contention, this Court observed:

“This contention is in our view clearly untenable. The decision of respondent No. 1 may have been right or wrong and as to that ,we say nothing, but we are unable to see that (1) [1960] INSC 36; (1960) 3 S.C.R. 177,183.

910 that decision offends Art. 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi-judi- cial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Art. 14.” This decision in effect refused to interfere with the findings of fact arrived at by the tribunal for the reasons mentioned therein. If the findings stand no question of fundamental right would arise. The decision in A. V.

Venkateswaran, Collector of Customs Bombay v. Ramchand Sobhraj Vadhwani (1) is of no assistance, as it was a decision under Art. 226 of the Constitution. In Aniyoth Kunhamina Umma v. The Ministry of Rehabilitation, Government of India, New Delhi (2) the petitioner therein filed a writ petition for enforcement of his fundamental right on the ground that the property in question was not evacuee property. The authorities under the relevant Act decided that it was an evacuee property, and the petitioner carried the matter to the appellate tribunals without success. This Court dismissing the petition on the ground that the, petitioner had no fundamental right made the following observations:

“It is, indeed, true that s. 28 of the Act cannot affect the 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 jurisdic- (1) [1961] INSC 132; (1962) 1 S C.R. 753.

(2) [1961] INSC 112; (1962) 1 S.C.R. 505.

911 tion on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands. the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacaee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Arts. 19(1)(f) and 31 of the Constitution.” Concluding the judgment, it was observed:

“We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no such right.” It would be seen that the tribunals found, on the facts of that case, that the property was evacuee property, and if that finding was accepted, DO question of fundamental right arose. It is true that this Court accepted that finding on the ground that it had become final and the petitioner had not questioned the correctness of that decision in a proper court by an appropriate proceeding., As I have said earlier, this Court may ordinarily accept the findings of fact arrived at by tribunals; but, on the other hand, if the judgment meant that under no conceivable circumstances this Court could 912 interfere with the findings of an administrative tribunal even if there was a clear infringement of fundamental right, in my view, it would amount to an abdication of its jurisdiction in favour of administrative tribunals. Nor does the decision of this Court in Madan Lal Arora v. The Excise & Taxation Officer, Amritsar (1) carry the matter further. There, the petitioner was a dealer registered under the Punjab General Sales Tax Act. Notices were served on him by the Sales tax authority, the last of them being that if the relevant documents were not produced within a particular date the case would be decided on the ,best judgment assessment basis”. It wag contended on the basis of a. 11 of the Punjab General Sales Tax Act that at the date of the notice last mentioned the Sake Tax authorities bad no right to proceed to make any “best judgment” assessment as the three years within which only such assessment could be made had expired before then. This Court accepted the construction put forward by the petitioner and held that no assessment could be made on the petitioner; and, in that view, it enforced his fundamental right. There was no inherent want of jurisdiction in the Sales Tax authorities, for they had jurisdiction to construe the relevant provisions of s. 11 and hold whether the assessment could be made within a particular time or not.

Notwithstanding that circumstance, 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 (1) [1961] INSC 144; (1962) 1 S.C.R. 823.

913 infringed by the State. That question was approached by this Court from different perspectives, having regard to the facts of each case. When a fundamental right of a petitioner was infringed by an action of an officer purporting to exercise a power under an Act which is ultra vires or unconstitutional, or without jurisdiction, this Court invariably enforced the fundamental right. So too, this Court give relief under Art. 32 of the Constitution whenever a statutory authority infringed a fundamental right of petitioner on a wrong construction of the provisions of a statute whereunder he purported to act. This Court, as a rule of practice, accepted the findings of fact arrived at by tribunals and on that basis held that no fundamental right was infringed. But I do not understand any of these decisions as laying down that the amplitude of the jurisdiction conferred on this Court under Art. 32 of the Constitution and the guaranteed right given to a citizen under the said article should be restricted or limited by some principle or doctrine not contemplated by the Constitution.

Mr. Chari, appearing for one of the interveners, raised a wider question. His argument is that a relief under Act. 32 cannot be given against an authority exercising judicial power and that the Sales-tax authorities are authorities exercising judicial power of the State. This argument is elaborated thus : Under the Constitution, the institutions created thereunder can exercise either legislative, executive or judicial functions and sometimes the same institution may have to exercise one or more of the said powers; institutions exercising legislative powers make laws, those exercising powers, administer the laws, and those exercising judicial powers decide the disputes between citizens and citizens, between citizens and State and state, the said judicial powers can be conferred in the 914 manner prescribed by the Constitution on any institution of individual officer, whether it is a court or not; with that background if Art. 12 of the Constitution is looked at, the argument proceeds, the institutions exercising judicial power are excluded therefrom. Article 32 enables the Supreme Court to enforce a fundamental right only against the State action-. no fundamental right can he enforced ,against an officer exercising judicial power as he does not come under the definition of State in Art. 12 of the Constitution.

It is not necessary in.this case to decide the two questions, namely, (1) whether a person can approach this Court to enforce his fundamental right on the ground that it was infringed by a deciSion of a court of law, and (2) whether the right guaranteed by Art. 19 of the Constitution can be enforced under Art. 32 against the action of a pri- vate individual. We are concerned only with the narrow question whether such a right can be enforced against the action of an administrative tribunal. It can certainly be enforced against it, if it comes under the definition of a State under Art. 12 of the Constitution. We have already held that an administrative tribunal is not 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 (1) construed the words “,’local or other authorities” under Art. 12 of the Constitution thus:

“These words must be construed as (1) A.I.R. 1954 Mad. 67,68.

915 ejusdem generis with Government or Legisla.

ture and so construed can only mean autho- rities exercising governmental functions.

They would not include persons natural or juristic who cannot be regarded as instrumentalities of the Government.” Applying this definition to Art. 12, it is manifest that authorities constituted under the Sales-tax Act for assessing the tax would be “other authorities” within the meaning of Art. 12; for the said authorities exercise governmental functions and are the instrumentalities of the Government. But it is contended that if the fathers of our Constitution intended to include in the definition authorities exercising judicial functions, having included the Government and the Parliament, they would not have omitted to mention specifically the judicial institutions therein. This argument may have some relevance if the question is whether a court of law is included within the definition of ,,-State”, but none when the question is whether an administrative tribunal is included in the said definition. An administrative tribunal is an executive authority and it is clearly comprehended by the words “other authorities”. If the argument of learned counsel be accepted, Government, also shall be excluded from the definition where it exercises quasi-judicial functions. So too, Parliament will have to be excluded when it exercises a quasi-judicial function. That would be to introduce words which are not in the Article. It is, therefore, clear to my mind that the definition of the word, whether it takes in a court or not, certainly takes in administrative tribunals.

If an administrative tribunal is a ,-State” and if any order made or action taken by it infringes a fundamental right of a citizen under Art. 19 of the Constitution, it can be enforced under Art. 32 thereof.

Let me now restate the legal position as I 916 conceive it: (1) A citizen has a fundamental right to carry on business in bidis under Art. 19 (1) of the Constitution.

(2) The State may make a law imposing reasonable restrictions on that right: it is conceded that the Uttar Pradesh Sales Tax Act is such a law. (3) The Sales-tax authorities constituted under the Act, purporting to exercise their powers thereunder, may make an illegal order infringing that right. (4) The order may be illegal because the authority concerned has acted without jurisdiction in the sense that the authority is not duly constituted under the Act or that it has inherent want of jurisdiction; the order may be illegal also because the said authority has construed the relevant provisions of the Act wrongly and has decided the facts wrongly or drawn the inferences from the facts wrongly. (5) The Act expressly or by necessary implication cannot give finality to the order of the authority or authorities so as to prevent the Supreme Court from questioning its correctness when the said order in fact affects the fundamental right of a citizen. (6) The aggrie- ved 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 cons- truction 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 917 exercise of the powers conferred on them under the Act, this Court may in its discretion ordinarily accept the findings and dispose of the application on the basis of those findings.

The following of this procedure preserves the jurisdiction of this Court as envisaged by the Constitution and safeguards the guaranteed rights of the citizens of this country without at the same time affecting the smooth working of the administrative tribunals created under the Act. If the other view is accepted, this Court will be abdicating its jurisdiction and entrusting it to administrative tribunals, who in a welfare State control every conceivable aspect of human activity and are in a dominant position to infringe the fundamental rights guaran- teed to the citizens of this country. I would prefer this pragmatic approach to one based on concepts extraneous to the doctrine of fundamental rights.

I would, therefore, hold that in the present case if the Sales-tax officer; by a wrong construction of the provisions of the Act, made an illegal order imposing a tax on the petitioner’s fundamental right, it is liable to be quashed, The next question is whether the Sales-tax officer has wrongly construed the notification issued by the Government under s. 4(1)(a) of the Act. Section 4(1) of the Act reads as follows:

“No tax shall be payable on- (a) The sale of water, milk, salt, newspa- pers and motor spirit as defined in the U. P.

State Motor Spirit (Taxation) Act, 1939, and of any other goods which the State Government may by notification in the official Gazette, exempt.

(b) the sale of any goods by the All. India Spinners’ Association or Gandhi Ashram, 918 Meerut, and their branches or such other per- sons or class of persons as the State Govern- ment may from time to time exempt on such conditions and on payment of such fees, if any, not exceeding eight thousand rupees annually as may be specified by notification in the Official Gazette.” The following notification dated December 14, 1957 was issued under the said section:

“In partial modification of notifications No.

ST-905/X, dated March 31, 1956 and ST-418/X 902 (9)-52, dated January 31,1957, and in exercise of the powers conferred by clause (b) of sub-section (1) of section 4 of the U.P.

Sales Tax Act, 1948 (U. P. Act No. XV of 1948) as amended up to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957 by the dealers in respect of the following classes of 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.” 819 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 substitu- tion for the sales-tax levied upon them, and that the Central Government agreed to collect the enhanced excise duty on the said commodities and distribute the additional income derived amongst the State Governments. To implement that arrangement, Parliament passed Act No. 58 of 1957 called the Additional Duties of Excise (Goods of Special Importance) Act, 1957, on December 24, 1957. The long title of that Act shows that it was enacted to provide for the levy and collection of additional duties of excise on certain goods and for the distribution of a part of the net proceeds thereof among the States in pursuance of the principles of distribution formulated and the recommendation made by the Finance Commission. ‘Under the Central Act, before the amendment, there was excise duty on tobacco used for various purposes, including machine-made bidis, but there was no excise duty on hand-made bidis. Therefore, under the amended Act, additional duty was payable only on tobacco products already taxable under criminal Act : with the result, enhanced tax was imposed on tobacco which went in to make hand-made bidis, but no additional tax was imposed on hand made bidis.

With this background let us look at the notification issued under s. 4 (1) of the Act. There is some controversy whether that notification was issued under s. 4(1)(a) or 4(1)(b) of the Act ; but that need not detain us, for I shall assume that the notification was issued under s.

4(1)(b). The 920 goods specified therein were exempted conditionally. The goods exempted under the notification were bidis and tobacco. Bidis might be hand-made or machine-made, and the tobacco included tobacco out of which bidis were made.

Under the first part of the notification the said bidis and tobacco were exempted from the sales-tax from December 14, 1957. The condition imposed for the operation of that exemption was that additional central excise duties leviable thereon from the closing of business on December 13,1957, should have been paid on such bidis and tobacco. Briefly stated, the bidis and tobacco, among others, were exempted from payment of sales-tax, if excise duties leviable thereon were paid during the relevant period. So far as the hand- made bidis were concerned under the amending Act no tax was leviable thereon. The condition was applicable to bidis as a unit. Out of bidis, no excise duty was leviable on hand- made bidis, while excise duty was leviable in respect of machine-made bidis. Therefore, the condition imposed has no application 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 dis- puted 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 hand- made bidis were exempted from taxation under the Act.

921 There was also.. 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 amen- ding Act, excise duty was imposed on machine-made bidis- mainly; though not solely,, for protecting the business in.

the former in competition with the latter. In the circumstances it. was. but reasonable to assume that the State Government, by the amending Act did not intend to, impose sales-tax: on handmade bidis, though additional excise, duty was imposed on tobacco out, of which, the said bidis were manufactured.. The entire scheme of protection of one against unfair competition from the other would break if the Central Government could impose additional excise duty on tobacco and the State could impose sales-tax, on bidis Made out of the @aid tobacco. That this was the. intention of the State Government was made clear by the subsequent notification dated December 14, 1957, exempting hand. made bidis from taxation without any condition. am, therefore, clearly of the opinion that, on a fair reading of the said notification, sales of handmade bidis were exempted from taxation under the Act.

In the result there will be an order directing the respondents not to proceed to realize any sales-tax from the petitioner on the basis of the order dated December 20, 1958. The petitioner will have her costs.

Now coming to Civil Appeal No. 572 of 1960, the said appeal was dismissed for non-prosecution by order of this Court dated February 20, 196 1. The assessee firm has filed an application for restoration of the said appeal on ‘the ground that it did not press the appeal in view of the decision of this Court 922 in Kailash Nath v. State of Uttar Pradesh but, as I have said that the said decision is still good law, this ground is not open to the said firm . In the result the application for restoration of Civil Appeal No. 572 of 1960 is dismissed with costs.

HIDAYATULLAH, J.-The facts have been set out fully in the order of Venkatarama Aiyar, J., and need not be stated at length. The petitioner is a partner in a firm of bidi manufacturers registered under the Uttar Pradesh Sales Tax Act. Under a scheme by which certain additional Central Excise duties are being levied under special Acts for the purpose and are being distributed among the States in respect of certain classes of goods. on which the States have foregone collection of safes tax locally, the Government of Uttar Pradesh issued notification on December 14, 1957, exempting bidis from sales tax under the U. P.

Sales Tax Act, provided the additional duties of excise were paid. This was followed by another notification on November 25, .1958, by which bidis, whether machine-made or hand- made, where exempted without any condition 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.

(1) A. 1. R. 1957 S. C. 790.

923 When she obtained a rule in the petition, the firm did not prosecute the appeal and it was dismissed. In this petition, she claims a writ of certiorari against the order of the Sales Tax Officer as also a mandamus to the Department not to levy the tax. As a further precautionary measure, lest it be held that the remedy under Art. 32 is misconceived, the firm has also applied for the revival of the appeal. I shall1 deal with the application later.

The question is whether the exemption granted by the notification of December 14, 1957, exempting bidis conditionally upon payment of additional duty of excise applied to the petitioner during the quarter ending June 30, 1958. This question depends upon the words of the notification and the schedule of articles on which additional duty of excise was payable and the fact whether such excise duty was, in fact, paid or not. But the question which has been debated in this case is one which arises at the very threshold, and it is this: whether a petition under Art. 32 can lie if the petitioner alleges a breach of fundamental rights, not because the tax is demanded under an invalid or unconstitutional law but because the authority is said to have misconstrued certain provisions of that law. The petitioner contends that she has paid additional excise duty on tobacco used in the manufacture of bidis and the word “tobacco” is used comprehensively in the Central Excise Salt Act, 1944, and in Act No. 58 of 1957 and would include bidis in the exemption.

The Sales Tax Officer rejected this claim, observing:

“The exemption envisaged in this notification applies to dealers in respect of sales of Biris, provided that the, additional Central Excise duties leviable thereon from the closing of business on December 13, 1957, have been paid on such goods. The assessee paid no such 924 Excise duties. Sales of Biris by the assessee are) therefore, liable to Sales Tax.” Whether there has been a misconstruction of any of the provisions is a matter which, of course, could be considered on revision, or- in a reference to the High Court on point of law arising out of the order finally passed or even ultimately by appeal-to this Court with its special leave under Art. 136. The petitioner, however, contends that she is entitled to file a petition under Art. 32 of the Constitution,, if by a wrong construction of a provision of law, a tax is demanded which is not. due because it. amount to a deprivation of property without authority of law and also a restriction upon her right to carry on trade or business. The breach of fundamental rights is thus stated to arise under Arts. 31 (1) and 19 (1)(g) primarily by the wrong interpretation and secondarily by the result thereof, namely, the demand of a tax which is not due. The other side contends that no fundamental rights can 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. (1) where the allegation was that an exemption was (1) A.I.R. 1957 S.C. 790 925 wrongly refused on a misconstruction of a notification under s. 4 of the U.P. Sales Tax Act, it was held that the fundamental rights of the taxpayer were. in jeopardy, and the remedy under Art. 32 was,open. Govinda Menon, J., then observed “If tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this Court for a writ under Article 32 since his right to carry on a trade is violated, or infringed by the imposition and such being the case Article 19(1) (g) comes into play.” This proposition was rested upon the case of this Court.in the Bengal Immunity Company (1) ; but a close examination of the latter case shows that no such proposition was stated there. In the latter case, exemption was claimed on the ground that the sales sought to be taxed were made in the course of inter-State trade and the Bihar Sales Tax Act, which purported to authorise such levy offended Art. 286(2) of the Constitution and thus was invalid. On the other hand, doubts were cast on the decision in Kailash Nath’s (2) on this point, in Tata Iron & Steel Co. Ltd. v. S.R. Sarkar (3); but the question was left open. The question has now been raised and argued before this special Bench. In this judgment. I am only concerned with the question of constitutional law raised, since I agree’ with the interpretation placed on the notification by my brother, Kapur,J.

The general principles underlying Part III of the Constitution have been stated so often by this Court that it is hardly necessary to refer to them, except briefly, before considering to what extent and in what circumstances actions or orders of judicial, quasi-judicial and administrative authorities (1) (1955) 2 S.C.R. 603. (2) A.I.R. 1957 S.C. 790.

(3) [1960] INSC 131; (1961) 1 S.C.R 379.

926 are open to question under Art. 32 The Constitution has accepted a democratic form of Government with the characteristic division of authority of the State between the Legislature, the Judiciary and the Executive. The Constitution being federal in form, there is a further division of powers between the Centre and the States This division is also made in the jurisdictions of three Departments of the State. To achieve these purposes, the distribution of legislative powers is indicated in Part XI and of taxes in Part XII, and certain special provisions regarding trade, commerce and intercourse within the territory of India are placed in Part XIII. In addition to these Parts of the Constitution, to which some reference may be necessary hereafter, the Constitution has also in other Parts indicated what things can only be done by law to be made by Parliament or the State Legislatures. These Articles are too numerous to specify here. But this much, however, is clear that *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 927 which these rights can be abridged are also indicated in that Part. Briefly stated, the conditions are that they can be abridged only by a law in the public interest or to achieve a public purpose. These rights are not like the Directive Principles, which indicate the policy and general pattern for State action to enable India to emerge, after its struggle with poverty, disease, inequalities and prejudices, as a welfare State. These Directive Principles are not justiciable, but any breach of fundamental rights gives a cause of action to the aggrieved person.

The sum total of this is that the Constitution insists upon the making of constitutional and otherwise valid laws as the first step towards State action. No arbitrary or capricious action affecting the rights of citizens and others is to be tolerated, if it is unsupported by such law. But even the Legislature cannot go beyond the limits set by the Chapter on Fundamental Rights, because ingress upon those rights is either forbidden absolutely or on condition that the action is either in an emergency or dictated by the overriding pubic interest. The executive can never affect the fundamental rights unless a valid law enables that to be done. To secure these fundamental rights, the High Courts by Art. 226 as part of their general jurisdiction and the Supreme Court by Art. 32 have been given the power to deal any breach complained of and to rectify matters by the issue of directions’ orders or writs including certain high prerogative writs. Article 32 is included in the Chapter on Fundamental Rights, and provides an expressly guaranteed remedy of approach to the Supreme Court in all cases where fundamental rights are invaded. . This right is the most valuable right of the citizen against the State. The Article provides further that the right of moving the Supreme Court is also a fundamental right. Thus, It was that this Court said in Romesh Thappar’s case (1) that this (1) [1950] INSC 16; [1950] S.C.R. 594, 596, 597.

928 Court is the protector and guarantor of fundamental rights, in Rahid Ahmed v. Municipal Board, Kairana (1) that the Supreme Court’s powers under Art. 32 are wider ‘than the mere rights to issue prerogative writs, in A. K. Gopalan’s case(2) that the fundamental rights are the residue from the power surrendered by the people and kept back by them to themselves, and in Champakom Doraijan’s case (3) that the fundamental rights are sacrosanct and incapable,of being abridged by any legislative or executive action except to the extent provided in the appropriate Articles in Part III.

It may, however, be stated that under certain Articles of the Constitution, laws can be made without a challenge in Courts notwithatanding 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 ( ), 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(5), 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 applicatio (1) [1950] INSC 13; [1950] S.C.R. 566 (2) [1950] INSC 14; [1950] S.C.R. 88.

(3) [1961] 3 S.C.R. 525,531. (4) [1960] INSC 285; [1961] 3 S.C.R. 77.

(5) [1960] INSC 131; [1961] 1 S.C.R. 379.

929 the executive departments make their own actions vulnerable.

A Law can give protection to an action only which is within itself, but it cannot avail, if the action it outside.

Thus, in Chintaman Rao’s case(1), a law was struck,down because it arbitrarily and excessively invaded a fundamental right and in Lachmandas Kewalram Ahuja, v. The State of Bombay (2), s. .12 of the Bombay public Safety Measures Act, 1947 was declared void (after January 26, 1950) as it did not proceed upon any purported classification. Of these two cases, the first was a petition under Art. 32 of the- Constitution and the latter, an appeal on a certificate of the High Court under Art. 132 of the Constitution. ‘The method of approach to this court was different, but it made no difference to the application of the provisions of Part III. There are other such decisions, but these two suffice.

The inference is, therefore, quite clear that this Court will interfere under Art..32. if a breach of fundamental rights- comes before it, and indeed, it was so stated- in Romesh Thappar’s case (3) that this Court- “cannot, consistently with the responsibility so laid upon it, refuse to entertain appli- cations seeking protection against infringe- ments of such rights,,, although. such, applications are made to the Court in the first instant without resort to a ‘High Court, and the American cases about exhausting of other remedies were not followed. In Himmatlat’s case (4 ) this Court issued a writ prohibiting assessment of a tax under an in valid law, even though there was no assessment begun or even a threat of one. In K.K. Kochunni Moopil Nayar v. State of Madras(5) (1) [1950] INSC 29; (1950) S.C.R. 759.

(2) (1952) S.C.R.710.

(3) (1950) S.C.R. 593, 596, 597.

(4) (1951) S.C.R. 1122.

(5) (1959) Supp. 2 S.C.R. 316, 325.

930 Das, C. J. after considering all previous cases of this Court laid down.

“Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writ,% on an application under Art. 226 of the Constitution, as to which we say nothing now his Court cannot, on a similar ground decline to entertain a petition under Art. 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right.” In that case, the learned Chief Justice said that, if necessary, 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. (1)- “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, (1) [1961] INSC 118; [1962] 1 S.C.R. 574.

931 because if there is a decision of the High Court negating fundamental rights or their breach, then the decision of the competent Court must be removed by appeal to establish the rights or their breach.

From these cases, it follows that what may be said about a direct appeal to this Court without following the intermediate steps may not be said about Art. 32, because resort to other forums for parallel reliefs is strictly not necessary where a party complains of breach of fundamental rights. Of course, when he makes an application under Art.

32, he take the risk of either succeeding or failing on that narrow issue, and a finding of the High Court or some tribunal below on some point, if not set aside in appropriate proceedings may stand in his way. The right under Art appeal, and cannot be used as such . 32 is not a right of and this Court may not be in a position to examine the case with the same amplitude as in an appeal. But, if a party takes the risk of coming to this court direct on the narrow issue, he cannot be told that he has other remedies.

To take this restricted view of Art. 32 may, in some cases, by delay or expense involved in the other remedies, defeat the fundamental rights before even they can be claimed. But this is not to say that the other remedies are otiose. The issue to be tried under Art. 32 is a narrow one, and once that issue fails, everything else must fail. In jurisdictions like that under Art. 226 and/or in. appeals ‘Under Art. 132 or Art. 136, not only can the breach of fundamental rights be considered but all other matters which the Court may permit to be raised. It, therefore, follows that if a person chooses to invoke Art. 32, he cannot be told that he must go elsewhere first. The right to move this Court is guaranteed. But this Court in dealing with the petition will deal with it from the narrow standpoint of fundamental rights and not as an appeal.

932 Though the area of action may be thus limited, the power exercisable therein are vast. The power to issue writs in the nature of the five high prerogative writs of hebeas corpus, mandamus prohibition, quo warranto and certiorari is, in itself, sufficient to compel obedience by the State (as defined in Art. 12)and observance by it. of the Constitution and the laws in all cases where a breach of fundamental right or rights is established. The writ of mandamus is a very flexible writ and has always been called in, aid to ampliate justice and proves sufficient in most cases of administrative lapses or excesses. Then, there is the writ of certiorari to get rid of orders which affect fundamental rights, the writ of prohibition to stop action before 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 any body 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.

933 may be appropriate for the enforcement of any of the rights conferred by this Part (Part III)’ Show the wide ambit of the power. As far back as Basappa v. Naggappa (1) Mukerjea, J, (as he then was) observed “In view of the express provisions in our Constitution we need, not now look back to the early history or the . procedural technical- ities of these writs in English law, nor feel oppressed by any differences or change of opinion expressed’ in particular cases by English Judges.” Speaking then of the writ of certiorari the learned Judge added:

“We can make an order or issue a writ in the nature of certiorari in all appropriate cases and, in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.” What has been said. here has my respectful concurrence, and is applicable to the other writs also. These principles have now become firmly established in the interpretation of Arts. 32 and 226 of the Constitution. The difference in the two Articles is in two respects : firstly, Art. 32 is available only for the enforcement of fundamental rights, but the High Courts can use the Powers for other purposes (a power which Parliament can also confer on the Supreme Court by law, vide Art. 139), and secondly, that the right of moving the supreme Court, is itself a Guaranteed right (Art.

39 (1) and is unaffected by the powers of the High Court (Art. 226 (2)).

The foregoing is a resume of the interpretations placed upon Art. 32, but there are other provisions of the’ Constitution relating to the Supreme (1) [1954] INSC 57; (1955) 1. S. C. R. 250, 256.

934 Court which must be viewed alongside, because the Supreme Court has other roles to perform under the Constitution.

Those provisions give an indication of how the Supreme Court is intended to use its powers.

The Supreme Court is made, by Arts. 133 and 134, the final Court of appeal over the High Court in all civil and criminal matters, though the right of appeal arises only in certain classes of cases and subject to certain conditions.

Under Arts. 132 and 133 (2), the Supreme Court is also the final Court of appeal over the High Court in all matters involving an interpretation of the Constitution. By Art.

136, the Supreme Court has been given the power to grant, in its discretion, special leave to appeal to itself from any judgment, decree, determination,sentence or order in any cause or matter passed or made by any Court of tribunal in the territory of India. The last power is overriding, because Art. 136 commences with the words “notwithstanding any thing 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 935 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 (1). Indian Aluminium Co. v. Commissioner of Income tax (1), and Kanhaiyalal Lohia v. Commissioner of Income- tax (3) In exercising the discretionary powers to grant special leave, the Supreme Court now insists on the aggrieved party exhausting all its remedies under the law before approaching it.

From what has been said above it is clear that there are three approaches to this Court, and they are : (a) by appeal against the decision of the High Court, (b) by special leave granted by this Court against the decision of any Court or tribunal in India and (c) by a petition under Art. 32. No Court or tribunal in India other than the Supreme Court and the High Courts has been invested with the jurisdiction to deal with breaches of fundamental rights. through the Constitution has reserved the power to Parliament to invest by law this jurisdiction in any other Court [(Art. 32 (3)].

As a result, the enforcement of fundamental rights can only be had in the High Court or the Supreme Court. In most taxation laws, there is a jurisdiction and a right to invoke the advisory jurisdiction of the High Court and in some there is a right of appeal or revision to the High Court, but the question of a breach of fundamental rights cannot be raised in the proceedings before the tribunals. In its advisory jurisdiction, the High Court can only answer the question referred to it or raise one which arises out of the order passed and in its appellate and revisional jurisdiction, the High Court can deal with the matter on law or fact or both (as the case may be) but only in so far as the tribunal has the jurisdiction. In these jurisdictions, the plain question of the enforcement of fundamental rights may (1) [1961] INSC 178; (1962) 2 S.C.R. 276.

(2) Civil Appeal No. 176 of 1959 decided on April 24,1961.

(3) [1961] INSC 225; (1962) 2 S.C.R. 839.

936 not arise. There, is, however, nothing, to prevent a party moving a separate petition under Art. 32 of the Constitution and raising the issue; as was actually done in this case.

The result thus is that no question of a breach of fundamental rights can arise except under Arts. 226 and 32 of the Constitution, and it must be raised before the High Court and the Supreme Court respectively, by a proper petition. But,where the High Court decides such an issue on a petition under Art 226, the question can be bought before this Court under Arts. 132 and 136.

If this be the, true position; and if this Court can 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 includes the ordinary Courts of civil judicature. That question does not 937 arise here and must be left for decision in a case in which it properly does. Whether or not be word “State” covers the ordinary Courts, there is authority to show that tribunals which play the dual role as dcciding issues in a quasi- judicial way and acting as the instrumentalities of Governments are within the word “‘State” as used in Part III of the Constitution. In the Bidi Supply Co., v. Union of India(1), Das, C. J., observed:

“Here the State’ which includes its Income-tax department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of laws and the petitioner can legitimately complain of an infraction of his fundamental rights under article 14 of th Constitution.” Again, in Gullapalli Nageshwara Rao v. State of Andhra Pradesh (2) it was observed:

“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 power.” The taxing departments are instrumentalities of the State.

They are not a part of the legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, they have to follow a pattern of action, which is considered judicial. They are not thereby converted into Courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of ,State’ in Art. 12. In this view of the matter, their actions (1) [1956] INSC 23; (1956) S C.R. 267. 277.

(2) (1959) Supp. 1 S.C.R 319, 353, 3S4.

938 must be regarded, in the ultimate analysis, as executive in nature, since their determinations result in the demand of tax which neither the legislature nor the judiciary can collect. Thus, the actions of these quasi-judicial bodies may be open to challenge on the ground of breach of fundamental rights.

I have already said that the attack on fundamental rights may proceed from laws or from executive action. Confining myself to taxation laws and executive action in furtherance of taxation laws, I shall now indicate how the breaches of fundamental rights can arise and the extent of interference by this 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 special procedure for making 939 it. A simple example is imposition of Profession Tax by Parliament, which it has no power to impose, or the imposition of a tax above Rs. 250 per year on a single person by the State Legislature, which is beyond the powers of the State Legislature. In these cases, the laws fail, because in the first case, Parliament lacks the power completely, and in the second, because the State Legislature transgresses a limit set for it. Such a law is no law at all, and will be struck down under Art. 265 read with the appropriate provisions of the Constitution. A question arising under Art. 265 cannot be brought before the Supreme Court under Art.32, because that Article is not in the Chapter on Fundamental Rights. But an executive action to enforce the law would expose the executive action to the processes of Arts. 226 and 32, if a fundamental right to carry on a profession or an occupation, trade or business is put in jeopardy. In the order of reference in this case, this position is summed up in the following observation:

“Where the provision is void, the protection under Art. 265 fails, and what remains is only unauthorised interference with- property or trade by a State Officer, and articles 19(1)(f) and (g) are attracted.” Where the law fails being opposed to fundamental rights as, for example, when it is void because it involves discrimination or otherwise invades rights protected by Part III the protection of Art. 265 is again lost. Indeed, the, law fails not because of Art. 265 but because of Art. 13, and a cause of action under Art. 35 may arise. This was recognised in K. P. Moopil Nair v. State of Kerala(1) where it was observed:

“Article 265 imposes a limitation on the taxing power of the State in so far as it provides that the State shall not levy or (1) [1960] INSC 285; (1961) 3 S.C.R. 77.

940 collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Art.

13 of the Constitution. One of such conditions envisaged by Art. 13(2) is that the Legislature shall not make any law which 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 (1) and Laxmanappa Hanumantappa v. Union of India (2). 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 pro- vision 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 (1) (1951) S.C.R.127.

(2) (1951) S.C.R. 769.

941 again as has been made in article 265. It, therefore, follows that clause (1) of article 31 must be regarded as concerned with depriva- tion of property otherwise than by the impo- sition or collection of tax, for otherwise article 265 becomes wholly redundant………

In our opinion, the protection against imposi- tion and collection of taxes save by authority of the law directly comes from article 265, and is not secured by clause (1) of article

31. Article 265 not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this Court under article 32.lt is not our purpose to say that the right secured by article 265 may not be enforced.

It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be ‘founded on article 32 read with article 31(1) to this Court is misconceived and must fail.” Similar observations were made in the other case.

If by these observations it is meant to convey that the protection under Art. 265 cannot be sought by a petition under Art. 32, 1 entirely agree. But if it is meant to convey that a taxing law which is opposed to fundamental rights must be tested only under Art. 265, I find it difficult to agree. Articles 31 (1) and 265 speak of the same condition. A comparison of these two Articles shows this Art. 31 (1)-“‘No person shall be deprived of his property save by authority of law.” Art. 265-“No tax shall be levied or collected except by authority of law.” The Chapter on Fundamental Rights hardly stands in need of support from Art. 265. If the 942 law is void under that Chapter, and property is seized to recover a tax which is void, I do not see why Art. 32 cannot be invoked. Where the authority of the law fails a tax, Art. 265 is offended, and the tax cannot be collected. A collection of such a tax will also offend Art. 32. Where the law is opposed to fundamental rights, and in the collec- tion of such a void tax, a person is deprived of his property, Art. 31(1) is offended. It is not possible to circumscribe Art. 32 by making the remedy only upon Art.

From this, it is clear that laws which do not offend Part III and are not otherwise ultra vires are protected from any challenge whether under Art. 265 or under the Chapter on Fundamental Rights. Where the laws are ultra vires but do not per se offend fundamental rights (to distinguish the two kinds of defects), they are capable cf a challenge under 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 funda- mental rights is said to arise from the wrong inter- pretation. 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, 943 where the first collection is legal (Tata Iron and Steel Company’s case (1); or acting beyond the period of limitation (Madanlal Arora v. The Excise and Taxation Officer, Amritsar) (2). In such cases, even if the taxing authority thought on its own understanding of the law that it was acting within its jurisdiction, it would not avail, and the want of jurisdiction, if proved, would attract Art.

32. Speaking of such a situation, the order of reference in this case has said:

“This again is a case in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax, and it makes no difference that such assumption of jurisdiction was based on a misconstruction of statutory provisions.” The above was said of Madanlal Arora’s case(2) But, where the law in made validly and in conformity with the fundamental rights and the officer enforcing it acts with jurisdiction, other considerations arise. If, in the course of his duties, he has to construe provisions of law and miscarries, it gives a right of appeal and revision, where such lie, and in other appropriate cases, resort can be had to the provisions of Arts. 226 and 227 of the Constitution, and the matter brought before this Court by further appeals. This is because every erroneous decision does not give rise to a breach of fundamental rights. Every right of appeal or revision cannot be said to merge in the enforcement of fundamental rights. Such errors can only be corrected by the processes of appeals and revisions, Article 32 does not, as already stated, confer an appellate or revisional jurisdiction on this Court, and if the law is valid and the decision with jurisdiction, the protection of Art. 265 in not destroyed. There is only one exception to this, and it lies within extremely narrow (1) [1960] INSC 131; (1961) 1 S.C R. 379.

(2) [1961] INSC 144; (1962) 1 S.C.R. 823.

944 limits. That exception also beam upon jurisdiction, where by a misconstruction the State Officer or a quasi-judicial tribunal embarks upon an action wholly outside the pale of the law he is enforcing. If, in those circumstances, his action constitutes a breach of fundamental rights, than a petition under Art. 32 may lie. The cases of this Court in which interference can be sustained on this ground are many;

but as examples may be seen the following: Amar Singh, case (2) and Mohanlal Hargovind’s case (‘). The first is not a case of a taxing statute, but the second is.

The decision in Kailas Nath’s case (3), with respect, appears to have unduly widened the last narrow approach by including cases of interpretation of provisions of law where the error is not apparently one of jurisdiction as within Art. 32. It cited as authority the case of Bengal Immunity Company (4), which does not bear out the wide proposition.

The case involved an interpretation of notification to find out whether an exemption applied to a particular case or not, and no question of want of jurisdiction, as explained by me, arose there. Kailas Nath’s case (3) 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 respect- fully-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 (1) [1955] INSC 27; (1955) 2 S.C.R. 303. (2) [1955] INSC 40; (1955) 2 S.C. R. 509.

(3) A.I.R. 1957 S.C. 79. (4) (1955) 2 S.C. R. 603.

945 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. Whether the Sales Tax Officer’s interpretation is right or the contrary interpretation suggested on behalf of the petitioner is right, is a matter for decision on the merits of the case. If there is an error, it can be corrected by resorting to appeals, revisions, references to the High Court and ultimately by appeal to this Court. This Court can@ not ignore these remedies and embark upon an exa- mination of the law and the interpretation placed by the authorities, when no question of jurisdiction is involved.

To do so would be to convert the powers under Art. 32 into those of an appeal. In my opinion, the petition under Art.

32 is misconceived in the circumstances of this case.

would, therefore, dismiss it with costs.

As regards the application of the appeal, I am of opinion that the party was negligent in not prosecuting it. I would therefore, dismiss the application for restoration but without any order about costs.

AYYANGAR, J.-This bench has been constituted for deciding the following two questions set out at the conclusion of what might be termed the order of reference (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 mis-construction of a provision of the Act or of a notifica- tion issued thereunder? (2) Can the validity of such an order be questioned in a petition under Art. 32 of the Constitution? Though the matter was not discussed with any elaborateness, both these questions were answered in the affirmative by this Court in Kailash nath v. The State of U.P. (1). In effect therefore the bench has been constituted for (1) A.I.R.[1957] S.C.79.

946 considering the correctness of the decision on these points in Kailash nath’s case.

Before proceeding to consider the submissions of learned Counsel on either side it is necessary to point out two matters;

(1) It was agreed before us that in deciding the first question set out above we need not consider the special features applicable to taxing legislation and in particular the point as to whether the constitutional validity of such legislation could be tested with reference to the criteria laid down by Art. 19(1 ) (f); in other words, the limits to which Art. 19 would be attracted to a law imposing a tax.

The discussion in this judgment therefore proceeds on the basis of there being no distinction between at law imposing a tax and other laws.

(2) The second matter which I consider it necessary to state at the outset is that notwithstanding the industry of Counsel which has enabled them top lace before us quite a large number of decisions of this Court which have been referred to in the judgments of Kapur and Subba Rao, JJ., in none of them was the point approached with reference to the matters argued before us. Some of these decisions proceed on the basis that in the circumstances stated in question No. 1 a fundamental right had been invaded and on that basis afforded to the petitioner before them the relief sought.

Other decisions state that no fundamental right was involved in the grievance put forward by the petitioners before them and relief has been refused on that basis. In none of them was the question discussed on principle as to when alone a fundamental right would be invaded and in particular as to whether a breach by a quasi-judicial authority of the provisions of a law which is otherwise valid, could involve an invasion of a fundamental right. For this reason I propose to discuss 947 the question on principle and without reference to the decisions which were placed before us at the hearing. I feel further justified in doing so because they have all been referred to in the judgment of Kapur, J., and discussed in detail by Subba Rao, J.

I shall now proceed to consider what in my view should be the answer to the first of the questions propounded for our decision and am ignoring the reference therein to a taxing enactment. Pausing here it might be useful to recall briefly the function of Part III in the Constitution. The rule of British Constitutional Law and in general of the Dominion Constitutions framed by the British Parliament might broadly be stated to be that it asserts the sovereignty of the Legislature in the sense that within the sphere of its activity in the case of a Federal Constitution and in every sphere in the case of a unitary one its will was supreme and was the law of the land which the Courts were bound to administer. As Dicey has pointed out, there are no legal limits to the sovereignty of Parliament.

Public opinion, as well as the fear engendered by the possibility of a popular revolt, might impose practical restraints upon the exercise of sovereignty but so would be the limitations or restraints dictated by good sense, justice or a sense of fairplay. But so far as the legal position was concerned, any law made by Parliament was legal and could be enforced. Our Constitution makers did not consider that to the conditions of this country such a vesting of power in the legislatures or in the State would be proper or just or calculated to further the liberty of the individual which they considered was essential for democratic progress. It was in these circumstances and with these ideas that they imposed fetters on State action in Part III entitled ,Fundamental Rights”. Article 13 laid down that “every law whether made before or after the Constitution which was inconsistent with 948 the rights guaranteed by the succeeding Articles should, save as otherwise expressly provided, be invalid to the extent of the repugnancy”. And “law” was defined in a comprehensive manner so as to include not merely laws made by Parliament or the legislatures but every piece of subsidiary legislation including even notifications. The scheme therefore of the Constitution makers was to prescribe a code of conduct to which State action ought to conform if it should pass the test of constitutionality. The rights included in the eighteen Articles, starting from 14 up to 31, comprehend provisions for ensuring guarantees against any State action for protecting the right to life, liberty, and property, to trade and occupation, besides including the right to freedom of thought, belief and worship. The general scheme of Part III may be stated thus: Certain of the freedoms are absolute, i.e., subject to on limitations, e.g., Art. 17, Art. 20(1). In respect of certain others the Articles (vide Art. 19) set out the precise freedom guaranteed as well as its content and the qualifications to which the exercise of that freedom might be subjected by enacted law or action taken under such law. Having thus enumerated these freedoms and laid down the limitations, if any to which they could be subjected Art. 32 vests in the Supreme Court the authority and jurisdiction to ensure that the fundamental rights granted by Part III are not violated, and even the right to move this Court for appropriate relief for infraction of a fundamental right is itself made a fundamental right which ordinary legislation may not affect.

The purpose of my drawing attention to these features is two fold: (1) to emphasize the great value which the Constitution-makers attached to the freedoms guaranteed as the sine qua non of progress and the need which they con- sidered for marking out a field which was immune from State action, and (2) the function of this 949 Court as a guardian of those rights for the maintenance of individual liberty enshrined in the Constitution. It was with advertance to this aspect of the matter that this Court observed in Daryao v.The State of U. P. (1):

“There can be no doubt that the fundamental right guaranteed by Art. 32(1)is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself.

It is because of this aspect of the matter that in Romesh Thappar v. The State of Madras, [1950] INSC 16; (1950 S. C. R. 594) in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under Art. 32 on the ground that as matter of orderly procedure the petitioner should first have resorted to the High Court under Art.

226, and observed that ,this Court is thus constituted the protector and guarantor of the fundamental rights, and it cannot, consisten- tly with the responsibility so laid upon it, refuse to entertain applications seeking pro- tection against infringements of such rights’.

Thus the right given to the citizen to move (1) [1961] INSC 118; (1962) 1 S.C R. 574.

950 this Court by a petition under Art. 32 and claim an appropriate writ against the uncon- stitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the applications of the rule of res judicata this aspect of the matter has no doubt to be borne in mind.” Before dealing with the merits of the case it is necessary to mention that the following positions were conceded on the side of the respondent and, in my opinion, properly: (1) If the levy was imposed or the burden laid on a citizen (as the petition before us is concerned with a legislation imposing a tax I am using phraseology appropriate to such an enactment, but as would be seen, the principle is of wider application and would cover infringement of liberties other than in relation to property and by laws other than in relation to taxation) by a statue beyond the competence of a legislature to enact as not falling within the relevant entry in the legislative list the action by government or governmental officers would involve the violation of the freedom guaranteed by Art. 19 (1)(f)-to acquire, bold and dispose of property or by clause (g) to carry on any trade or business, either the one or the other and in some cases both and could therefore furnish a right to invoke the jurisdiction of this Court Art. 32 notwithstanding that the particular action impugned was by a quasi-judicial authority created under such an enactment. The reason for this concession must obviously be that the authority functioning under such a law could have no legal basis for its existence and therefore his or its action would be without authority of law. (2) The legislature may profess to legislate under a specified head of legislative power which it has, but might in reality be seeking to achieve indirectly what it could not do 951 directly. In such a case also it was conceded that the tax imposed would infringe the guarantee embodied in Art.19(1)(f) and (g). It would, however, be seen that this is in reality merely one manner in which there might be lack of legislative power already dealt with under head (1), (3) The same result would follow and there would be a breach of a fundamental right if though there was legislative competence to enact the legislation in the sense that the subject-matter of the law fell within one of the entries of the Legislative List, appropriate to that legislature, but the legislation was invalid as violating other fundamental rights of a general nature applicable to all legislation, such as the violation of Art. 14, etc. (4) Even in cases where the enactment is valid judged by the tests in 1 to 3 above, if on a proper construction of the enactment, the quasijudicial authority created to function under the Act and to administer its provisions, acted entirely outside the jurisdiction conferred on him or it by the enactment, such action, if violative of the fundamental rights, could be complained of by a petition under Art. 32 and this Court would be both competent and under at duty to afford relief under that Article. Here again, the ratio on which the concession is based is similar to, though not identical with the basis upon which the concession as regards action under invalid legislation was made. (5) Where even if the officer or authority had jurisdiction, still if he had adopted a proceedure contrary to either the Mandatory provisions of the statute or to the principles of natural justice, the resulting order and the imposition of liability effected thereby were conceded to involve a breach of the fundamental right.

These exceptions having been conceded by learned Counsel for the respondent, it is sufficient if attention’ is confined to the question, whether a patently incorrect order passed on a misconstruction 952 of a charging enactment would or would not result in the violation of a fundamental right and is that the very narrow question which this bench is called upon to answer.

The argument of the learned Attorney-General who appeared for the petitioner, was short and simple. His submission rested on the correctness of the following steps:

(1) The Constitution has vested in this Court the power to ensure, when approached by a petition under Art. 32, that fundamental rights were not violated and accordingly there is a constitutional duty cast upon the Court to afford relief when so approached in every case where fundamental rights were violated.

(2) The two matters which a petitioner seeking relief under Art. 32 of the Constitution would have to establish would therefore be: (a) the existence in him of the fundamental right which he complains has been infringed, and (b) its violation by State action. If these two conditions are satisfied the petitioner is entitled as of right to the grant of relief and the Court would be under a duty to afford him that relief by passing appropriate orders or directions which would be necessary to ensure the maintenance of his fundamental right.

(3) There was no dispute that a fundamental right could be invaded by State action which was legislative in character, or where the complaint was as regards the action of executive and administrative authorities created even under valid statutes.

(4) If the above premises which were not in dispute were granted, the next step was whether the decision of a quasi- judicial authority constituted under a valid law could violate a guaranteed freedom. A quasi-judicial authority he urged is as much 953 part of the machinery of the State as executive and administrative authorities, and its decisions and orders are as much State action and if the function of Part III of the Constitution is to protect the citizen against improper State action, the protection should logically extend to the infraction of rights effected by such orders of quasi- judicial authorities.

The short question for decision may in the circumstances be formulated thus: Can an action of a quasi-judicial authority functioning under a valid enactment and not overstepping the limits of its jurisdiction imposed by the Act and not violating the procedure required by the principles of natural justice but whose decision is patently erroneous and wholly unjustified on any proper interpretation of the relevant provision, be complained of as violative of the fundamental rights of a party prejudicially affected by such misinterpretation. Taking the handy illustration of a taxing statute, if by a plain misinterpretation of the charging-provision, an assessing-authority levies a tax on transaction A while the statute on its only possible con- struction imposes no tax on such a transaction, is any fundamental right of the party who is subjected to such an improper levy prejudicially affected by such an imposition ? In considering the proper answer to this question it is necessary to exclude one matter which is apt to cloud the issue and it is this. The statute under which the quasi- judicial authority functions or makes the decision or order may contain provisions for enabling the correctness of the decision reached or the order passed being challenged by an appeal or may provide for a gradation of appeals and further revisions The existence of procedures for redressing grievances or correcting errors of primary or appellate authorities is obviously wholly irrelevant for a consideration of the question as to whether the order of the authority involves an 954 infringement of fundamental rights or not. This Court has laid down in a large number of cases of which it is sufficient to refer to-. Union of India v. T. R. Varma (1), The State of Uttar Pradesh v. Mohammad Nooh (2), and A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobharj Wadhwani (3) 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 non- existence 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 bearing on the reasonableness of the law, but it has none on the point now under discussion. Besides, it cannot be that if the remedies open under the statute are exhausted and the authority vested with the ultimate authority under the statute has made its decision and there is no longer any possibility of an objection on the score of an alternative remedy being available, there would be a violation of a fundamental right with the consequence that this Court would have jurisdiction, but that if it was

(1) [1958] S.C.R. 499.
(2) [1957] INSC 80; [1958] S.C.R. 595.
(3) [1961] INSC 132; [1962] 1 S.C.R. 753.

955 approached at an earlier stage there was no violation of a fundamental right and that it lacks jurisdiction to afford relief under Art. 32, for it must be admitted that in ultimate analysis there is no distinction between the nature and quality of an order passed by an original as distinct from one by an appellate or revisional authority-in its consequences vis-a-vis the fundamental right of the individual affected. It is common ground and that is a matter which has already been emphasized that if a petitioner made out to the satisfaction of the Court that be has a fundamental right in respect of the subject-matter and that the same has been violated by State action, it is imperative on the Court to afford relief to the petitioner the Court not having any discretion in the matter in those circumstances. On this basis the only ground upon which the jurisdiction could be denied would be that the order or decision of the authority which is impugned does not prejudicially affect the fundamental right of the petitioner, for it cannot be that the order of the ultimate authority under the statute could involve the violation of a fundamental right but that the same orders passed by authorities lower down in the rung under the statute would not involve such a violation.

Pausing here, one further matter might also be mentioned for being put aside. This Court has laid down that the principal underlying the rule of res judicata is based on principles of law of general application and as such would govern also the right to relief under Art. 32. That principle is not involved in the consideration of the point under discussion, because what is sought to be challenged as violating a fundamental right is the very order of the authority and we are not concerned with a collateral attack on an order that had become final as between the parties thereto.

956 Coming back to the point under consideration it was conceded by the learned Additional Solicitor General who appeared for the respondent that legislative action might involve an infraction of fundamental rights and that similarly the action of the executive-authorities might involve such an infraction even when the legislation under which they acted or purported to act was within legislative competence and within the constitutional limitations imposed by Part III.

His contention, however, was that a very different state of circumstances arose when the action complained of was by a quasi-judicial authority. His submission may be summarised in the following terms:-Where a statute was within legislative competence and does not by its provisions violate any of the constitutional guarantees in Part III, it follows as a matter of law that every order of a quasi- judicial 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 by saying that such a quasi-judicial authority has as much jurisdiction to decide rightly as to decide wrongly and that if there was error in such a deci- sion the only remedy of the citizen affected was by resort to the tribunals set up by the Act for rectifying such errors and that in the last resort, that is after the entire machinery under the Act was exhausted, the affected party had a right to approach the High Courts under Art. 226 in cases where the error was of a type which could be brought within the scope of the remedial-writs provided by that Article.

Before examining the correctness of this submission it is necessary to mention that Mr. Chari 957 who appeared for some interveners supporting the Respondent, made a submission which if accepted Si would have far- reaching consequences. His contention was that the State in Part III against whose action the fundamental rights were guaranteed was confined to the legislative and the executive branches of State activity and that the exercise of the judicial power of the State would never contravene the fundamental rights guaranteed by Part III. It would be seen that this is wholly different from the submission made on behalf of Government by the learned Additional Solicitor- General and it would be convenient to deal with this larger question after disposing of the arguments of Mr. Sanyal, The question for consideration is what exactly is meant when it is said that a statute is valid in the sense of: (a) being legally competent to the legislature to enact, and (b) being constitutional as not violative of the freedoms guaranteed by Part III. It is obvious that it can only mean that the statute properly construed is not legally incompet- ent or constitutionally invalid. In this connection it is of advantage to refer to a point made by Mr. Palkhivala who appeared for some of the interveners in support of the petition. One of his submissions was this: Suppose there is an Act for the levy of sales-tax which is constitutionally valid. On its proper construction it does not purport to or authorise the imposition of a tax on a sale “,in the course of export or import.” If it did so expressly authorise, it is obvious that such a provision in the enactment would be ultra vires and unconstitutional as violative of the prohibition contained in Art. 286 (1) (a). Suppose further that an authority functioning under such an enactment vested with jurisdiction to assess dealers to sales tax proceeds to levy a tax and includes in the computation of the assessable turnover not merely those items which are properly within the legislative competence of the 958 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 bring to tax a transaction which it was constitutionally incompetent for the legislature itself to tax. I find the logic in this reasoning impossible to controvert, nor did the learned Additional Solicitor-General attempt any answer to this argument.

It appears to be manifest that the fact that an enactment is legislatively competent and on its proper construction constitutionally valid, i. e., it does not contain provisions obnoxious to Part III of the Constitution, does not ipso jure immunise the actions of quasi-judicial authorities set up under the statute from constituting an invasion of a fundamental right. What the legislature could not in express terms enact, could not obviously be achieved by the State vesting power in an authority created by it to so interpret the enactment as to contravene the Constitution. It might be suggested that such a case would fall within the exception which it is conceded 959 exists that an act of a quasi-judicial authority which is plainly beyond its jurisdiction could give rise to the violation of a fundamental right in regard to which this Court might afford relief if moved under Art. 32. In my opinion, this is not quite a satisfying answer because the suggestion is coupled with the assertion of the wellworn dictum as regards the jurisdiction of the tribunal to decide wrongly as much as rightly. The illustration I have given of unconstitutional action by authorities acting under valid and constitutional enactments cannot be properly answered unless it be held that a plain and patent misinterpretation of the provisions of the enactment could it self give rise to a plea that it was beyond the jurisdiction of the authority but that would be stretching the concept of jurisdictional errors beyond what is commonly understood by that term.

Let me next take a case where the mis-interpretation by the quasi-judicial, authority does not involve the levy of a duty beyond the competence of the legislature enacting the statute. In the type of case now under consideration the quasi-judicial authority by a plain misinterpretation of, let us say, the charging provision of a taxing enactment (as that furnishes a handy illustration of the point now under discussion) levies a tax on a transaction which, under the Constitution, it was competent for the legislature to levy if it had been so minded. In other words, there are two related transaction or taxable events-A & B. The taxing- statute 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 960 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 no statutory authority behind the tax liability imposed upon him by the assessing authority. The Act which imposed the tax and created the machinery for its assessment, levy and collection is, no doubt, perfectly valid but by reason of this circumstance it does not follow that the deprivation of property occasioned by the collection of a tax which is not imposed by the charging section does not involve the violation of a fundamental right merely because the imposition was by reason of an order of an authority created by the statute, though by a patent misinterpretation of the terms of the Act and by wrongly reaching the conclusion that such a transaction was taxable.

I consider, that the four concessions made by the respondent which I have set out earlier, all proceed on the basis that in these cases there is no valid legislative backing for the action of the authority-executive, administrative or quasi- judicial. I consider that the reason of that rule would equally apply to cases where the quasi-judicial authority commits a patent error in construing the enactment-for in such a case also there would obviously be no legislative backing for the action resulting form his erroneous decision.

961 There is however one matter to which it is necessary to advert to avoid misconception, and that concerns the effect of findings reached on questions of fact by quasi-judicial authorities. Provided there is relevant evidence on which the finding could rest., the finding would preclude any violation of a fundamental right because this Court, though in the absence of a finding of a duly constituted authority would have the power and jurisdiction to investigate even disputed facts in an appropriate case, would however accept findings of fact by duly constituted authorities and proceed to find out whether on that basis a fundamental right exists and is prejudicially affected by the action impugned. The distinction which I would, in this context, draw and emphasise is between a misinterpretation of a statute by which an authority brings within the scope of an enactment transactions or activities not within it on any possible construction of its terms, and erroneous findings on facts by reason of which the authority considers a transaction as being within the Act even if properly construed.

To sum up the Position: (1) If a statute is legally enacted in the sense of being within legislative competence of the relevant legislature and is constitutional as not violating any fundamental rights, it does not automatically follow that any action taken by quasi-judicial authorities created under it cannot violate fundamental rights guaranteed by Part III of the Constitution. The legislative competence, the existence of which renders the enactment valid, is confined to action by the authorities created under it, which on its proper construction could be taken. In an authority constituted under such a legal and valid enactment oversteps the constitutional limitations on the legislative power of the State Legislature, the acts of such an authority would be plainly unconstitutional and the consequences arising out of unconstitutional 962 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 result cannot be different because the State acts through the mechanism of a quasi-judicial authority which is vested with jurisdiction to interpret the enactment. The absence of legislative sanction for the imposition of an obligation or the creation of a liability cannot be filled in by the misinterpretation by an authority created under the Act.

To hold that a patently increased interpretation of a statute by a quasi-judicial authority by which a liability is imposed on a citizen does not violate his fundamental rights under Arts. 19(1)(f) and (g) might not have done consequences but for two circumstances. The first is as regards the difficulty of designating with certainty an authority as quasijudicial. The fact is that there is no hard and fast formula for determining when an authority which is vested with power to act on behalf of the State falls within category which is termed quasi-judicial’. As Prof. Robson stated; ‘,’Lawyers, of course, have often had to decide, in practical cases arising in the courts, whether a particular activity was of a judicial or an administrative (or ministerial’) character; and important consequences have flowed from their decisions. But those decisions disclose no coherent principle, and the reported cases throw no light on the question from the wider point of view…………

save to demonstrate, by the very confusion of thought which they present, the difficulty of arriving at a clear basis of distinction”. The significance of this point stems from the fact that it is a matter of 963 concession that where the power of the State is vested in an executive or administrative authority under an enactment which is valid and constitutional and such an authority does an act which on the proper construction of the relevant statute is not justified by it, the act may be of such a character as to violate a fundamental right guaranteed by Part III, i.e., if the impact is in a field which is pro- tected from State interference, and such a violation could be complained of by a petition to this Court under Art. 32.

At the same time it is the contention of the respondent that a similar act, order or decision by a quasi-judicial functionary which is not warranted by the terms of the statute, does not give rise to the violation of fundamental rights.

It is therefore necessary to examine somewhat closely the dividing line between an executive authority whose actions may give rise to the violation of a fundamental right and what is termed a “”quasi-judicial” authority whose actions do not have that effect. To start with, it is obvious that the nature of the act or of the order might be the same, so that if the same act proceeded from one authority it would have a particular effect but would have quite a different effect or would not have that effect if the same act proceeded from a slightly different type, of authority also exercising the power of the State. This Court in Express Newspapers (Private) Ltd. v. The Union of India (1) quoted with approval the following statement of the law as sum- marised 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 (1) (1959) S.C.R, 12 , 113,114.

964 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. Manchester Legal Aid Committee (1) which this Court extracted it was observed:

“The true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be im- possible, and, indeed, inadvisable, to attempt to define exhaustively.” The question therefore whether an authoritiy created under a statute is a quasi-judicial authority or, in other words, an authority which is bound to act judicially cannot be laid down by any hard and fast rule but must be gathered from the entire provisions of the Act read with the purpose for which the power is vested in the authority as well as the grounds for the creation of such authority. I must however confess that this is a branch of law in which authorities far from shedding light are in reality unhelpful-for one gets nowhere if these lay down as they do. that an authority would be quasijudicial, if (not being a court) it is bound to act judicially and that to find out when-, apart from clear provisions in the statute, it is bound to act judicially-you are told that it is when it is a quasijudicial authority.

Bearing in mind these circumstances I find it not possible to accept the contention that if the power of the State be exercised by an authority which on a conspectus of the statute is deemed to be quasi-judicial and the exercise of such power prejudicially affects rights of life, liberty or property which are guaranteed by Part III the same cannot amount to a violation of a fundamental right, whereas if on a proper construction of the (1) [1952] 2 Q.B. 413.

965 statute that authority were a mere administrative body but the act remains the same, it would so involve.

Let me next see whether there could be any rational or reasonable basis on which such a contention could rest. I take it that the reason why quasi-judicial authorities are suggested as being exceptions to the general rule that State action which involves a prejudicial result on a person’s right to property etc. involves a violation of fundamental rights is that a quasi-judicial authority is vested with the jurisdiction to decide and that the conferment of such a jurisdiction carries with it by necessary implication a right to decide rightly as well as wrongly; in other words, that it does not outstep the limits of the jurisdiction by a decision which is erroneous. I consider that it is the case of the transference of a principal to a branch of law or a situation in which it has no place or relevance.The question for consideration in the context of a petition under Art.

32 is whether there is valid legal sanction behind the action of the authority, for apart from such a sanction it must be and it is conceded that there would be a violation of a fundamental right. Besides, if this proposition is right, then it must rest on the principal that the quasi- judicial 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 966 merely the procedure before the decision is reached and is not the essence of the distinction. Besides, as pointed out by Prof. Robson in ‘Justice and Administrative Law’ (a), “Sometimes the administrative and judicial functions of an office have been so inextrica- bly blended that it is well-night impossible to say which capacity is the dominant one.” In this state of affairs to determine the maintainability of a petition under Art. 32 by proceeding on an investigation as to the nature of the authority which passed that order when, as I have pointed out earlier, there is no essential difference in either the nature or the quantum of the injury suffered by the citizen, cannot be sustained on any proper interpretation either of the Constitution or the principles of law governing the interpretation of statutes. I would, therefore, hold that the freedoms guaranteed by Part III may be violated by the action of a quasi-judicial authority acting within the limits of its jurisdiction under a valid and constitutional statute where it plainly misinterprets the provisions of the statute under which it functions or which it is created to administer.

As regards the practical effect of accepting the contention of the learned Additional Solicitor General there is a second matter to which I consider it essential to draw attention. With a very great increase in governmental activity and the diverse fields in which it operates owing to the State being a welfare State as contrasted with a Police-State concerned mainly with the maintenance of law and order, there has necessarily been a great proliferation of governmental departments with the attendant creation of several authorities which have to pass decisions in spheres affecting the citizen at manifold points. It is therefore true to say that in a modern welfare State administrative agencies 967 exercising quasi-judicial authority are vastly more numerous and if I may add, more important and more vital than even the normally constituted Courts. In such a situation to hold that fundamental rights would not be involved by the activities of these various authorities which are increasing in number day by day would, be, in my opinion, to deny to the citizen the guarantee of effective relief which Art. 32 was designed to ensure in the great majority of cases. In such a situation to assert at one breath the prime importance and significance of the function of this Court as a protector and guarantor of fundamental rights, and at the same time to hold that these numerous statutory authorities which are created to administer the law cannot invade those rights would be to render this assertion and this guarantee of relief mostly empty of meaning. Though if the words of the Constitution were explicit, considerations such as there would be of no avail, yet even if the matter were ambiguous I am clearly of the opinion that the rejection of the broad contention raised on behalf of the respondent is justified as needed to give effect to the intentions of the framers of the Constitution. But as I have pointed out already, on no logical basis could it be held that where an act or order of a quasi-judicial authority lacks legislative backing, it cannot still impinge on a person’s fundamental right and where an order suffers from patent error, it is no legislative sanction behind it.

It now remains to consider the point urged by Mr. Chari that ‘State” action which involves the violation of a fundamental right does not include that resulting from what be termed “the judicial authority of the State”. The argument put forward in Support of this proposition was rested in most part, 1 not wholly, on the terms of Art. 12 of the Constitution and the definition of the expression “‘State” contained in it. Article 12 enacts:

968 “In this part,, unless the context otherwise requires, ‘the state’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.” It was pointed out that the “State” whose action might involve the violation of fundamental rights or rather as against whom the citizen had been granted a guarantee of certain rights under this Part was defined to include the “Government’ and “Parliament” of the Union and of the states, and the local authorities, did not name the “Judicial power of the State” as within it. If learned Counsel is right in this submission that the State in Part III impliedly excludes judicial and quasi-judicial autho- rities by reason of the absence of specific mention the further submission that by any of the actions of such anthorities fundamental rights could not be violated would appear to be made out and it has to be added that if this contention is right some of the concessions made by Mr.

Sanyal would be unjustified.

There are several considerations to which I shall immediately advert which conclusively negative the correctness of the inference to be drawn from judicial and quasi-judicial authorities not being specifically named in Art. 12. (1) In the first place, it has to be pointed out that the definition is only inclusive, which itself is apt to indicate that besides the Government and the Legislature there might be other instrumentalities of State action which might be comprehended within the expression “State”. That this expression “includes” is used in this sense and not in Chat in which it is very occasionally used as meaning “means and includes” could be gathered not merely from other provisions 969 of Part III but also from Art. 12 itself. Article 20(1) would admittedly refer to a limitation imposed upon the judicial power of the State and is obviously addressed also, if not wholly, to judicial authorities. Mr. Chari however sought to get over the implication arising from Art. 20(1) by suggesting that the definition in Art. 12 which excluded judicial and quasi-judicial authorities from within the pur- view of the expression “State” should be understood as applying only subject to express provision to the contrary.

I feel wholly unable to accept the method suggested of reconciling the presence of Art. 20(1) with the interpretation of Art. 12 as excluding judicial and quasi- judicial 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 administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws (2). Among the reliefs which on the terms of Art. 32 this Court might afford to persons approaching it complaining of the violation of the 970 fundamental right is the issue of a writ of certiorari specifically enumerated in that Article. It is common ground that that writ is available for issue only against judicial or quasi-judicial authorities and it would normally follow that quasi-judicial authorities could equally with other instruments of State action violate fundamental rights which could be redressed by the issue of this type of writ.

(3) The theory propounded by learned Counsel is based on what might be termed the rigid doctrine of the separation of powers which is not any feature of our Constitution as has bean repeatedly laid down by this Court. (4) Even on the words of Art. 12 as they stand the construction suggested by learned Counsel has to be rejected. The article refers to the government (of Union and of the States) as within the definition of a ,State”. It is however admitted that both the Government of the Union as well as of the State, function as quasi-judicial authorities under various statutory enactments. The question would at once arise whether when the “government” exercise such powers it is deemed to be a “government” falling within the definition of “State” or should be classified as a judicial authority wielding the judicial power of the State” so as to be outside the definition, so that its decisions and orders do not give rise to a violation of a fundamental right.

Article 12 on any reasonable construction cannot permit the dissection of “‘government” for the purpose of discovering the nature or the quality of the powers exercised by it, into the three fields of executive pure and simple, judicial and legislative for the purpose of a fresh reclassification into certain categories. When government exercises any power, be it executive pure and simple, or quasi-judicial under a statute or quasi-legislative in say framing subordinate legislation, it does so as “government” and no further subdivision of it 971 is possible except for the purposes merely of academic study or for determining the nature of the relief which might be had by persons affected by its activities in any particular field. Similarly, Parliament is vested with a quasi- judicial 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 description of laws” as defined by Art. 1 3. Municipal Councils are vested with administrative functions and they also exercise quasi-judicial functions when assessing taxes, hearing taxation appeals, 10 mention only a small fraction of the quasi-judicial power which they possess and exercise in the discharge of their functions as the local administration. If the local authority” as a whole is a ‘State” within the definition there is no canon of construction by which any part of the action of that authority could be designated as not 972 failing within State action for the purpose of giving rise to violation of a fundamental right. (6) There is only one other matter which need be referred to in this connection.

Both this Court, as well as the High Court have vested in them the power to make rules, and it cannot be disputed that such rules would be “‘laws” within the definition of the ex- pression in Art. 13. If so, it is manifest that such rules might violate the fundamental rights, i.e their validity would depend inter alia on their passing the test of permissible legislation under Part III.This would directly contradict any argument that Courts and quasi-judicial authorities are outside the definition of State in Art. 12.

In the face of these deductions following from the Constitution itself, I find it wholly impossible to accede to the submission that what is termed as judicial power of the State which, it is submitted, would include quasi- judicial authorities created under statutes do not fall within the definition of the “State” and that their actions therefore are not to be deemed “‘State” action against which the Constitution has provided the rights guaranteed under Part III.

I would therefore answer the question referred to the Bench by saying that the action of quasijudicial authority could violate a fundamental right if on a plain mis-construction of the statute or a patent misinterpretation of its provisions such an authority affects any rights guaranteed under Part III. This would be in addition to the three broad categories of cases in regard to which it was conceded that there could be a violation of fundamental rights: (1) where the statute under which it functions was itself invalid or unconstitutional, (2) where the authority exceeds the jurisdiction conferred on it by the Act, and (3) where the authority though functioning under statute, contravenes mandatory procedure prescribed in the statute or 973 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 infringed and vested with power to protect them, and quasi-judicial authorities which are created under particular statutes and with a view to implement and administer their provisions. I shall be content to leave the topic at this.

This brings me to the question as to whether there has been a patent misinterpretation of the statute, as I have described earlier, and whether as a result the petitioner has established a violation of a fundamental right. section 4(1) of the U. P. Sales Tax Act enacted:

“No tax shall be payable on:

(a) the sale of water, milk…………on any other goods which the 974 State Government may, by notification in the official gazette, exempt.

(b) the sale of any goods by the All India Spinner- Association or such other person or class of persons as the State Government may, from time to time, exempt on such conditions as may be specified by notification in the official gazette.” Pursuant of the powers conferred by a s. 4 (1) (b) the Government of Uttar Pradesh published a notification dated December 14, 1957 and it is the proper interpretation of this notification that forms the central point of the merits of this petition. The notification read:

“………… In exercise of the powers conferred by cl. (b) of sub-s. (1) of s. 4 of the U. P. Sales Tax Act 1948 as amended up to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from the 14th of December 1957 by the dealers in respect of the following classes of goods:

Provided that the Additional Central Excise Duties leviable thereon from the clossing of business on December 13, 1957 have paid on such goods and that the dealers there of furnish proof to 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, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and 975 stems of the tobacco plant but does not in- clude any part of a tobacco plant while still attached to the earth.” The petitioners are manufacturers of handmade biris and there was no duty of excise payable on them under the relevant entry in the Central Excise Act, nor was there any imposition of any fresh duty on biris so manufactured under Central Act 58 of 1957 whose object was to provide for the levy and collection of “additional duties interalia on tobacco and tobacco products and for the distribution of a part of the net proceeds thereof among the States in place of the sales tax which was to be forborne by the States on those goods. Briefly stated, the, contention urged on behalf of the petitioner was that in the proviso to the notification dated December 14, 1957, the expression have been paid on such goods” applied only to those cases where an additional duty was payable and was framed to deny the benefit of the exemption to parties who being liable to pay such duty failed to pay the same. Where, however, no duty, was payable at all, no question of the levy of duty arose and the proviso was inapplicable. On the other hand, the Sales Tax Officer construed the notification with the aid of the proviso as meaning that the exemption from payment of sales tax was granted only in those cases where an additional duty having become payable the same had been paid i. e. the State was intended to be deprived of the right to levy Sales tax only when it obtained some benefit from the additional excise duty which was distributed to it. The question that arises is not whether the construction con- tended for by the petitioner is the correct or the preferable one, but whether that adopted by the Sales Tax Officer was not one which it was possible for one reasonably to take of the provision. If not withstanding that the one is preferable to the other or that a Court of construction would more 976 readily accede to the one rather than to the other, the officer had adopted a construction which it was possible to take, could it be said that there was an error apparent on the face of the record justifying the issue of a writ of certiorari. Judged from the point of view I am inclined to hold that where it is possible reasonably to uphold the construction adopted by an inferior tribunal it would be a case of mere error of law and not a patent error, or an error apparent on the face of the record which should justify the issue of a writ of certiorari. In this view I would dismiss the writ petition.

As regards the application to restore the appeal to the file, I do not consider that the request ought to be allowed and for two reasons : Firstly, the applicant having voluntarily withdrawn the appeal I do not see any justification for acceding to his present request.

Secondly, if as I have held, the error in the order of the officer was not such as to justify the issue of a writ of certiorari to quash the same the judgment of the High Court under Art. 226 was correct and the petitioner would not gain any advantage by the revival of the appeal. In the circumstances I would dismiss the petition for restoration of the appeal.

MUDHOLKAR, J.-The question which arises for consideration in this petition under Art. 32(1) of the Constitution is whether a right guaranteed by Part III such as a right to carry on trade or business is breached because a taxing authority, though acting under a law which is inter vires and following a procedure which is constitutionally as well as legally permissible has erroneously assessed and levied a tax on a trade or business. Unless we hold that an erroneous assessment, be it due to misconstruction of law or misappreciation of facts, constitutes an invasion of a right guaranteed, by Part III, the remedy provided by Art. 32(1) will not be available. The 977 substance of the petitioner’s contention is that when the construction placed by a taxing authority upon a provision of law is wrong the levy of tax is one which is not authorised by law and thus the assesee’s right under Art.

19(1)(g) of the Constitution is infringed.

What had to be construed by the Sales Tax Officer in the case before us was not a statutory provision but a notification issued by the Government of Uttar Pradesh on December 14, 1957 under s. 4(1) of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act XV of 1948). The aforesaid pro- vision 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 sought and obtained a certificate from the High Court to the effect that the case is fit for appeal before this Court.

Thereafter the petitioner moved the present petition before this Court but took no steps to bring the appeal before this Court.. That appeal was thereupon dismissed for non- prosecution on February 20, 1961. I may incidentally mention here that the petitioner has now applied for restoration of the appeal. But that has nothing to do with the point which I have referred to earlier.

978 This petition went up before a constitution bench of this Court. At the hearing reliance was ,placed on behalf of the petitioner on the decision of this Court in Kailash Nath v.

State of U.P.(1) in which by accepting an interpretation on a provision of the Sales Tax Act different from that put upon it by the sales tax authorities this Court held that the petitioner before it was being deprived of his property without the authority of law. The correctness of the decision was challenged on behalf of the respondent State on the basis of various decisions, including some of this Court, and in view of the importance of the question involved the case was directed to be placed before the Chief Justice for constituting a large Bench. In the referring Order the following two questions were formulated by the learned Judges who made the reference :

(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 petition under Art. 32 of the Constitution ? I have not discussed the decisions of this Court as they have been considered fully in the judgments of my brethren but have approached the questions with reference to the principles of law applicable to the questions placed before us;

The two questions are really one : ‘Can an erroneous order of assessment by a taxing authority result in a breach of a right to carry on trade or business so as to entitle the person complaining of the breach to approach this Court under Art. 32 ? The remedy provided by this Article-which is (1) A.I.R. 957 S.C. 790.

979 itself a fundamental right-is restricted to the enforcement of fundamental rights and does not extend to other rights such as a right to have a wrong order quashed. On the one hand it was contended at one stage, on the authority of the decisions in Ramjilal v. Income-tax Officer, Mohindargarh (1) and Laxmanappa Hanumantappa Jamkhandi v. The Union of India (2) 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 ; State of Bombay v. United Motors (India) Ltd., Shree Meenakshi Mills Ltd., Madurai v. A. V. Viswanatha Sastri (5); Ch. Tika Ramji’ v. The State of Uttar Pradesh (6) ; Balaji v. Income Tax Officer, Special Investigation Circle, (7)]. If it violates any of the guaranteed rights, recourse to the provisions of Art. 32 is avail- able to the aggrieved person.

Fundamental rights enumerated in Art. 19(1) are, however, liable to be restricted by laws Permissible under cls. 2 to 6 and, therefore, we must first consider the limits within which a person can claim to assert and exercise his fundamental right. We must also bear in mind the nature of a quasi-judicial tribunal and the legal efficacy of its decisions.

The right to carry on trade, business etc., with which we are concerned here falls under (1) [1951] INSC 2; [1951] S.C.R. 127.

(3) [1952] INSC 10; [1952] S.C.R. 572, 578.

(5) [1955] 1 S.C.R. 787.

(2) [1954] INSC 98; [1955] 1 S.C.R 769.

(4) [1953] INSC 24; [1953] S.C.R. 1069.

(6) [1956] INSC 30; [1956] S.C.R. 393.

(7) [1961] INSC 235; [1962] 2 S.C.R. 983.

980 el. (1) (g) and can be restricted by a law permissible by el. 6. This right is further subject to the sovereign power of the State to levy a tax. For, the right to levy a tax is essential for the support of the State and in exercise thereof the State can impose a tax on a trade or business.

Article 265 of the Constitution provides that the imposition must be under the authority of a law. Further our Constitution being, broadly speaking, federal, the right to levy taxes has been divided between the Union and the States and the fields in which the Union and the States can respectively levy taxes have been demarcated in the lists contained in the Seventh Schedule to the Constitution.

Despite the demarcation, each is supreme in its own field in the matter of levying taxes. There is yet another limitation on the power of the State to make laws including a law levying a tax and that is placed by el. (2) of Art. 13 of the Constitution which runs thus :

“The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.” A .rm60 pre-constitution law like the U. P. Sales Tax Act with which we are concerned here must also be consistent with Art.

13(1) which runs thus :

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are incon- sistent with the provisions of this Part, shall, to the extent of such in consistency, be void.” Such a law or any provision thereof to the extent of its inconsistency with the provisions of Part III of the Constitution will be void. The law must further not be violative of any other constitutional 981 provision as for example Art. 276(2), Art. 286, Art. 301 etc. The law must also have been enacted after complying with all the requirements of the Constitution and where it is subordinate legislation, those of other relevent laws.

If a law imposing a tax is in contravention of any of the rights conferred by Part III of the Constitution the law would be void and a person aggrieved would be entitled to move this Court under Art. 32 on the ground that one of his fundamental rights has been infringed. Similarly, if a law is beyond the competence of the legislature which enacted it or if it contravenes any provision of the Constitution such as Art. 276 or Art. 286 it would be an invalid law as being ultra vires the Constitution and the tax levied thereunder would also be one which is not authorised by law and the assessee can move this Court under Art. 32 on the ground that his right under Art. 19(1)(g) is breached. Similarly, if a tax is levied by an authority not empowered by law to do so, or by a competent authority in violation of the procedure permitted by law or in violation of the principles of natural justice, the levy would be unauthorised 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 accepted before us on behalf of the State.

But where a tax is levied by a competent legislature, after due compliance with all the requirements relating to the making of laws and when it is subordinate legislation, the requirements of other relevant laws, and is also not in violation of any provision of the Constitution it will operate as a reasonable restriction upon the right of a person to carry on his trade, business etc. Though a person’s right to carry on a trade or business is a fundamental right it is thus subject to the aforesaid limitations. The quantum of the right left to an individual to 982 carry on his trade or business will be that which in left after a valid restriction is placed upon it by the State under cl. (6) of Art. 19. His actual right would be to carry on business burdened with the aforesaid restriction.

Where, as here, the restriction is placed on a dealer and takes the form of a liability to pay a tax on the turnover of sales on certain commodities by him then he can carry on his trade subject to his liability to pay the tax as asses- sed from time to time. It is this which is the nett content of his right to carry on trade, ignoring for the moment restrictions laid upon it by other competent laws made by the State. After a valid restriction is placed upon a fundamental right what will be enforceable under Art. 32 would be not the unrestricted right but the restricted right.

It was not disputed before us that where a quasi-judicial tribunal constituted under the Act whereunder a tax is levied, by an erroneous construction of the Constitution or of that Act holds the tax to be within the competence of the State legislature or as not contravening a provision of the Constitution, its decision will still be deemed to affect a fundamental right of the person upon whom a tax is levied in pursuance of that decision. This position was rightly not disputed before us because, in the premises, the Act would itself be void and consequently no legal liability can arise by virtue of the quasi-judicial tribunal constituted under it. A restriction imposed by a void law being illegal falls outside el. (6) of Art. 19.

Now when a State wants to impose a tax on a trade or business it must necessarily provide for the machinery for assessing and collecting it The assessment and collection of a tax cannot be arbitrary and, therefore, the State must confer upon the taxing authority the power and impose upon it the duty to act judicially. Absence of such a provision will make the law bad as being violative 983 of Art. 19 (1) (g): K. T. Moopil Nair v. State of Kerala (1).

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 incumbent upon it to ascertain facts and apply the taxing law to those facts. It must apply its mind to the relevant provisions of the law and to the facts of each case and arrive at its findings. It is, therefore, inevitable that the authority should have the power to construe the facts as well as the laws. In other words, it must have jurisdiction to do those things or else its decisions can never have any value or binding force.

A taxing authority which has the power to make a decision on matters falling within the purview of the law under which it is functioning is undoubtedly under an obligation to arrive at a right decision. But the liability of a tribunal to err is an accepted phenomenon. The binding force (1) [1960] INSC 285; (1961) 3 S.C.R. 77.

984 of a decision which is arrived at by a taxing authority acting within the limits of the jurisdiction conferred upon it by law cannot be made dependent upon the question whether its decision is correct or erroneous. For, that would create an impossible situation. Therefore, though erroneous, its decision must bind the assessee. Further, if the taxing law is a valid restriction the liability to be bound by the decision of the taxing authority is a burden imposed upon a person’s right to carry on trade or business.

This burden is not lessened or lifted merely because the decision proceeds upon a misconstruction of a provision of the law which the taxing authority has to construe.

Therefore, it makes no difference whether the decision is right or wrong so long as the error does not pertain to jurisdiction.

The U. P. Act empowers the sales tax officer to make the assessment, to ascertain the necessary fasts for holding whether or not a person is liable to pay tax and if he is liable, to determine the turnover of his sales. Since sales tax is imposed only on certain commodities and tax at different rates is since sales chargeable an different commodities the power of the Sales Tax Officer to makes an assessment carries with it the power to determine whether the sales of particular commodities effected by the assessee fall within the ambit of the Act or not and if they do, to determine the rate or rates of tax chargeable in respect of sales of different commodities. In regard to all these matters he has to follow the procedure prescribed by the Act. If he finds upon a construction of the Act and of the rules and notifications issued thereunder that a certain commodity is liable to pay a tax then so long as the transaction is one upon which the State legislature could impose a tax and the commodity is one on which the State legislature could impose a tax it is 985 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 is- one 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 have the right to move this Court under Art.

32. But where ‘such is not the case and the error of the Sales Tax Officer lay only in holding that a tax is payable on a certain commodity, as in this case bidis, even though bidis may have been exempted from such tax by a notification made by the Government, how could he be said to have acted without jurisdiction ? It was, however, contended that where the erroneous construction by the Sales Tax Officer results in the levy of a tax for which there is no authority in law the fundamental right to carry on trade or business will necessarily be breached. The answer to this contention is that since he has the power to construe the law and decide whether a particular transaction or commodity is taxable his decision though erroneous must be regarded as one authorised by law and consequently the tax 986 levied thereunder held to be one authorised by law. For, what is authorised by law is that which the appropriate authority upon consideration and construction of the law holds to be within the law.

It was said that the answer would take in oven erroneous decisions as to commodities and transactions with respect to which ‘the State legislature, is incompetent to make laws.

I have no doubt that it would not, because the power of the Sales Tax Officer to levy a tax cannot extend beyond that of the State legislature.

The Sales Tax Officer functioning under the Act in question has, clearly, the power to summon witnesses, call documents, record evidence and so on. The Act imposes a duty on him to give an opportunity to the person sought to be assessed to be heard. His decision upon matters falling within the scope of the laws governing the proceedings before him, unless revised or modified by a tribunal or authority or a court to which he is subordinate must, therefore, be regarded as having as much validity as that of a court of law in the exercise of its judicial power subject, of course, to the limitations stated earlier. The decision may be erroneous. It may proceed upon a blatant or obvious error on the face of the record. Even so, it cannot be regarded as ‘non est’ or void or a mere nullity. If that is the correct legal position, what difference would it make if as a result of an erroneous decision arrived at by a Sales Tax Officer resulting from ‘ a misconstruction of a notification under the Sales Tax Act, a person is held liable to pay tax upon sales of a commodity which, upon a proper construction, would appear to be exempted from tax by the law like the notification in question? Just as a person cannot complain of a breach of his fundamental right to carry on trade or business because an erroneous decision of a court of law renders him liable to pay a sum of money, so too 987 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 a tax, that decision cannot be thrown to the winds, and a complaint made to this Court that a fundamental right has been violated. The decision being one made in exercise of a judicial power and in performance of a duty to make it is a valid adjudication though as a result of it a person may not be able to occupy his house or may have to pay a tax. The decision may be a right one or a wrong one. If it is not a nullity when it is right I fail to see how it can be said to be a nullity because it is erroneous, so long of course, as the law is a good law, the decision is of an authority competent to act under the law, the procedure followed by it is as prescribed by the law and the error does not pertain to jurisdiction. The error may lie in the construction placed upon a statue by the tribunal. If it is that and no more,, Such erroneous construction cannot render the action taken thereunder arbitrary or unauthorised. The error has to be corrected in the manner permitted by law or the Constitution and until it is so 988 corrected it would not be open to the party to say that its fundamental right is violated.

Looking at the matter from the aspect of the nature of the right which is capable of being enforced under Art. 32 the same conclusion is reached. Thus when the provisions of a taxing law entitle a taxing authority to assess and levy a tax and for these purposes to decide certain matters judicially and give binding effect to its decision and none of the provisions of that law are void under Art. 13 or otherwise invalid the right enforceable under Art.32 would be the right to carry on business subject to the payment of the tax as assessed by the taxing authority and not a right to carry on trade or business free from that, liability. It makes no difference even if the assessment of the tax is based upon an erroneous construction of the taxing law inas- much as the right to have a correct determination of the tax is not part of the fundamental right to carry on business but flows only from the taxing law. It would follow therefore that in such a case nothing is left for being enforced under Art. 32 when the taxing authority does no more than assess and levy a tax after determining it.

One more point needs to be dealt with. It was said that a quasi-judicial tribunal being an instrumentality of the State its action is State action and so it will be under the same disabilities as the State to do a thing which it is incompetent or impermissible for the State to do. ‘It is also said that what a State cannot do directly it cannot do indirectly. In so far as the incompetency of the State arises out of a constitutional prohibition or lack of legal authority due to any reason whatsoever, it will attach itself to the action of the quasijudicial tribunal purporting to act as the instrumentality_ of the State.

Where, in such a case, any fundamental right of a person is violated by the action of the quasi-judicial tribunal that person is 989 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 provisions of a law, the State exercises judicial power, as for instance, by entertaining an appeal or revision or assessing or levying a tax it acts as a quasi-judicial tribunal and its decision even though erroneous will not be a nullity and cannot be ignored. It can be corrected only under Art. 226 or Art.

227 by the High Court or under Art. 136 by this Court inasmuch as the State would then be acting as a quasi- judicial tribunal.

To summarise, my conclusions are these

1. The question of enforcement of a fundamental right will arise if a tax is assessed under a law which is (a) void under Art. 13 or (b) is ultra vires the Constitution or (c) where it is subordinate legislation, it is ultra vires the law under which it is made or inconsistent with any other law in force.

2. A similar question will also arise if the tax is assessed and/or levied by an authority (a) other than the one empowered to do so under the taxing law or (b) in violation of the procedure prescribed by the law or (c) in colourable exercise of the powers conferred by the law.

3. No fundamental right is breached and 990 consequently no question of enforcing a funda- mental right arises where a tax is assessed and levied bona fide, by a competent authority under a valid law by following the procedure laid down by that law, even though it be based upon an erroneous construction of the law except when by reason of the construction placed upon the law a tax is assessed and levied which is beyond the competence of the legislature or is violative of the provisions of Part III or of any other provisions of the Constitution.

4. A mere misconstruction of a provision of law does not render the decision of a quasi- judicial tribunal void (as being beyond its jurisdiction). It is a good and valid deci- sion in law until and unless it is corrected in the appropriate manner. So long as that decision stands, despite its being erroneous, it must be regarded as one authorised by law and where, under such a decision a person is held liable to pay a tax that person cannot treat the decision as a nullity and contend that what is demanded of him is something which is not authorised by law. The position would be the same even though upon a proper construction, the law under which the decision was given did not authorise such a levy.

My answer to each of the two questions is in the negative.

By COURT : In accordance with the judgments of the majority, Writ Petition No. 79 of 1959 is dismissed, but the parties will bear their own costs. C. M. P. No. 1349 of 1961 for restoration of Civil Appeal No. 572 of 1960 is also dismissed, but the parties will bear their own costs.

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BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:
1961 AIR 1457 1962 SCR (1) 574

CITATOR INFO :
RF 1962 SC1621 (15,75,78,111,132)
R 1963 SC 996 (2)
R 1964 SC 782 (4,5)
D 1964 SC1013 (17)
RF 1965 SC1150 (7)
R 1965 SC1153 (5,27,53)
RF 1967 SC 1 (59)
RF 1967 SC1335 (4)
E 1968 SC 985 (4)
E 1968 SC1196 (4,5,6,7)
R 1970 SC 898 (3,4,36,37A,54,57)
RF 1974 SC 532 (11)
R 1975 SC 202 (16)
RF 1977 SC1680 (7)
R 1978 SC1283 (10)
F 1979 SC1328 (9,10)
RF 1981 SC 728 (5,7,8,9,10)
RF 1981 SC 960 (13)
RF 1981 SC2198 (13,33)
E&D 1987 SC 88 (8)
F 1987 SC 522 (24)
R 1988 SC1531 (126)
R 1990 SC 53 (15)
R 1990 SC1607 (35)
RF 1991 SC1309 (3)

ACT:
Fundamental Right-Res judicata-Dismissal of writ Petition by High Court-If and when bar to petition in Supreme CourtConstitution of India, Arts. 32, 226.

HEADNOTE:
Where the High Court dismisses a writ petition under Art. 226 of the Constitution after hearing the matter on the merits on the ground that no fundamental right was proved or contravened or that its contravention was constitutionally justified, a subsequent petition to the Supreme Court under Art. 32 of the Constitution on the same facts and for the same reliefs filed by the same party would be barred by the general principle of res judicata.
There is no substance in the plea that the judgment of the High Court cannot be treated as res judicata because it cannot under Art. 226 entertain a petition under Art. 32 of the Constitution. Citizens have ordinarily the right to invoke Art. 32 for appropriate relief if their fundamental rights are illegally on unconstitutionally violated and it is incorrect to say that Art. 32 merely gives this Court a discretionary power as Art. 226 does to the High Court. Basheshar Noth v. Commissioner of Income-tax, Delhi and Rajasthan, [1959] SUPP. 1 S.C.R. 528, referred to. Laxmanappa Hanumantappa jamkhandi v. The Union of India, [1955] 1 S.C.R. 769, and Diwan Bahadur Seth Gopal Das Mohla v. The Union of India, [1955] 1 S.C.R. 773, considered. The right given to the citizens to move this Court under Art. 32 is itself a fundamental right and cannot be circumscribed or curtailed except as provided by the Constitution. The expression “appropriate proceedings” in Art. 32,(1), properly construed, must mean such proceedings as may be appropriate to the nature of the order, direction or writ the petitioner seeks from this Court and not appropriate to the nature of the case. Romesh Thappar v. The State of Madras, [1950] S.C.R. 594, referred to, Even so the general principle of res judicata, which has it.; foundation on considerations of public policy, namely, (1) that binding decisions of courts of competent jurisdiction should be final and (2) that no person should be made to face the same kind of litigation twice over, is not a mere technical rule that cannot be applied to petitions under Art. 32 of the Constitution, Duchess of Kingston’s case, 2 Smith Lead. Cas. 13th E-d. 644, referred to.

The binding character of judgments of courts of competent jurisdiction is in essence a part of the rule of law on which the administration of justice, so much emphasised by the Constitution, is founded and a judgment of the High Court under Art. 226 passed after a hearing on merits as aforesaid must bind the parties till set aside in appeal as provided by the Constitution and cannot be circumvented by a petition under Art. 32. Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha, [1961] 1 S.C.R. 96 and Raj Lakshmi Dasi v. Banamali Sen, [1053] S.C.R. 154, relied on. Janardan Reddy v. The State of Hyderabad, [1951] S.C.R. 344, Syed Qasion Rezvi v. The State of Hyderabad, [1953] S.C.R. 589 and Bhagubhai Dullabhabhai Bhandari v. The District magistrate, Thana, [1956] S.C.R. 533, referred to. It was not correct to say that since remedies under Art. 226 and Art. 32 were in the nature of alternate remedies the adoption of one could not bar the adoption of the other, Mussammat Gulab Koer v. Badshah Bahadur, (1909) 13 1197 held inapplicable. Consequently,
(1) where the petition under Art. 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties unless modified or reversed by appeal or other appropriate proceedings under the Constitution;
(2) Where the petition under Art. 226 is dismissed I not on the merits but because of laches of the party applying for the writ or because an alternative remedy is available to him, such dismissal is no bar to a subsequent petition under Art. 32 except in cases where the facts found by the High Court may themselves be relevant even under Art. 32;
(3) Where the writ petition is dismissed in limine and an order is pronounced, whether or not such dismissal is a bar must depend on the nature of the order;
(4) if the petition is dismissed in limine without a speaking order, or as withdrawn, there can be no bar of res judicata.

JUDGMENT:

ORIGINAL JURISDICTION: Writ Petitions Nos. 66 and 67 of 1956, 8 of 1960, 77 of 1957, 15 of 1957 and 5 of 1958. Writ Petitions under Article 32 of the Constitution of India for the enforcement of Fundamental Rights.
Naunit Lal, for the petitioner in W. Ps. Nos. 66 and 67 of 1956.
C. P. Lal, for respondent No. 1 in W. Ps. Nos. 66 and 67 of 1956. Bhawani Lal and P. C. Agarwal, for respondents Nos. 3a and 4 in W. Ps. Nos. 66 and 67 of 1956.
C. B. Agarwala and K. P. Gupta, for the petitioner in W. P. No. 8 of 1960.
Veda Vayasa and C. P. Lal, for respondent in W. P. No. 8 of 1960.
Pritam Singh Safeer, for the petitioner in W. P. No. 77 of 1957.
S. M. Sikri, Advocate-General, Punjab, N. S. Bindra and D. Gupta, for respondent No. 1 in W. P. No. 77 of 1957. Govind Saran Singh, for respondent. No. 2 in W. P. No. 77 of 1957.
A. N. Sinha and Raghunath, for petitioner in W. P. No. 15 of 1957.
C. K. Daphtary, Solicitor-General for India, N. S Bindra and R. H. Dhebar, for respondent in W.P. No 15 of 1957.
B. R. L. lyengar, for the petitioner in W. P. No. 5 of 1958.
C. K. Daphtary, Solicitor-General for India, R. Gana- Dar pathy Iyer and R. H. Dhebar, for the respondent in W. P. No. 5 of 1958. 1961. March 27.

The Judgment of the Court was delivered by GAJENDRAGADKAR, J.-These six writ petitions filed Gaje, under Art. 32 of the Constitution have been placed before the Court for final disposal in a group because though they arise between separate parties and are unconnected with each other a common question of law arises in all of them. The opponents in all these petitions have raised a preliminary objection against the maintainability of the writ petitions on the ground that in each case the petitioners had moved the High Court for a similar writ under Art. 226 and the High Court has rejected the said petitions. The argument is that the dismissal of a writ petition filed by a party for obtaining an appropriate writ creates a bar of res judicata against a similar petition filed in this Court under Art. 32 on the same or similar facts and praying for the same or similar writ. The question as to whether such a bar of res judicata can be pleaded against a petition filed in this Court under Art. 32 has been adverted to in some of the reported decisions of this Court but it has not so far been fully considered or finally decided; and that is the preliminary question for the decision of which the six writ petitions have been placed together for disposal in a group.

In dealing with this group we will set out the facts which give rise to Writ Petition No. 66 of 1956 and decide the general point raised for our decision. Our decision in this writ petition will govern the other writ petitions as well. Petition No. 66 of 1956 alleges that for the last fifty years the petitioners and their ancestors have been the tenants of the land described in Annexure A attached to the petition and that respondents 3 to 5 are the proprietors of the said land. Owing to communal disturbances in the Western District of Uttar Pradesh in 1947, the petitioners had to leave their village in July, 1947; later in November, 1947, they returned but they found that during their temporary absence respondents 3 to 5 had entered in unlawful possession of the said land. Since the said respondents refused to deliver possession of the land to the petitioners the petitioners had to file suits for ejectment under s. 180 of the U. P. Tenancy Act, 1939. These suits were filed in June, 1948. In the trial court the petitioners succeeded and a decree was passed in their favour. The said decree. was confirmed in appeal which was taken by respondents 3 to 5 before the learned Additional Commissioner. In pursuance of the appellate decree the petitioners obtained possession of the land through Court. Respondents 3 to 5 then preferred a second appeal before the Board of Revenue under s. 267 of the U. P. Tenancy Act, 1939. On March 29, 1954, the Board allowed the appeal preferred by respondents 3 to 5 and dismissed the petitioner’s suit with respect to the land described in Annexure A, whereas the said respondents’ appeal with regard to other lands were dismissed. The decision of the Board was based on the ground that by virtue of the U. P. Zamindary Abolition and Land Reforms (Amendment) Act XVI of 1953 respondents 3 to 5 had become entitled to the possession of the land.

Aggrieved by this decision the petitioners moved the High Court at Allahabad under Art. 226 of the Constitution for the issue of a writ of certiorari to quash the said judgment. Before the said petition was filed a Full Bench of the Allahabad High Court had already interpreted s. 20 of the U. P. Land Reforms Act as amended by Act XVI of 1953. The effect of the said decision was plainly against the petitioners’ contentions, and so the learned advocate who appeared for the petitioners had no alternative but not to press the petition before the High Court. In consequence the said petition was dismissed on March 29, 1955. It appears that s. 20 has again been amended by s. 4 of Act XX of 1954. It is under these circumstances that the petitioners have filed the present petition under Art. 32 on March 14, 1956. It is plain that at the time when the present petition has been filed the period of limitation prescribed for an appeal under Art. 136 against the dismissal of the petitioners’ petition before the- Allahabad High Court had already expired. It is also clear that the grounds of attack against the decision of the Board which the petitioners seek to raise by their present petition are exactly the same as the grounds which they had raised before the Allahabad High Court; and so it is urged by the respondents that the present petition is barred by res judicata.

Mr. Agarwala who addressed the principal arguments on behalf of the petitioners in this group contends that the ’principle of res judicata which is no more than a technical rule similar to the rule of estoppel cannot be pleaded against a petition which seeks to enforce the fundamental rights guaranteed by the Constitution. He argues that the right to move the Supreme Court for the enforcement of the fundamental rights which is guaranteed by Art. 32(1) is itself a fundamental right and it would be singularly inappropriate to whittle down the said fundamental right by putting it in the straight jacket of the technical rule of res judicata. On the other hand it is urged by the learned Advocate-General of Punjab, who led the respondents, that Art. 32(1) does not guarantee to every citizen the right to make a petition under the said article but it merely gives him the right to move this Court by appropriate proceedings, and he contends that the appropriate proceedings in cases like the present would be proceedings by way of an application for special leave under Art. 136 or by way of appeal under the appropriate article of the Constitution. It is also suggested that the right to move which is guaranteed by Art. 32(1) does not impose on this Court an obligation to grant the relief, because as in the case of Art. 226 so in the case of Art. 32 also the granting of leave is discretionary.

In support of the argument that it is in the discretion of this Court to grant an appropriate relief or refuse to do so reliance has been placed on the observations made in two reported decisions of this Court. In Laxmanappa Hanumantappa Jamkhandi v. The Union of India & Another (1), this Court held that as there is a special provision in Art. 265 of the Constitution that no tax shall be levied or collected except by authority of law, cl. 1 of Art. 31 must be regarded as concerned with deprivation of property otherwise than by imposition or collection of tax and as the right conferred by Art. 265 is not a fundamental right conferred by Part III of the Constitution, it cannot be enforced under Art. 32. In other words, the decision was that the petition filed before this Court under Art. 32 was not maintainable; but Mahajan, C.J.., Who spoke for the Court, proceeded to observer that “even otherwise in ’the peculiar circumstances that have arisen it would not be just and proper to direct the issue of any of the writs the issue of which is discretionary with this Court”. The learned Chief Justice has also added that when this position was put to Mr. Sen he fairly and rightly conceded that it was not possible for him to combat this position. ’To the same effect are the observations made by the same learned Chief Justice in Dewan Bahadur Seth Gopal Das Mohta v. The Union of India & Another (2). It will, however, be noticed that the observations made in both the cases are obiter, and, with respect, it would be difficult to treat them as a decision on the question that the issue of an appropriate writ tinder Art. 32 is a matter of discretion, and that even if the petitioner proves his fundamental rights and their unconstitutional infringement this Court nevertheless can refused. to issue an appropriate writ in his favour Besides, the subsequent decision of this Court in Basheshar Nath v. The Commissioner of Income-tax, Delhi and, Rajasthan (3) tender to show that if a petitioner makes out a case of illegal contravention of his fundamental rights he may be entitled to claim an appropriate relief and a plea of waiver cannot be raised against his claim. It is true that the question of res judicata did not fall to be considered in that case but the tenor of all the judgments, which no doubt disclose a difference in approach, seems to emphasise the basic importance of the fundamental rights guaranteed by, the Constitution and the effect of the decision appears to be that the citizens are ordinarily entitled to appropriate relief under Art. 32 once it is shown that their fundamental rights have been illegally or unconstitutionally violated. Therefore, we are not impressed by the argument that we should deal with the question of the applicability of the rule of res judicata to a petition under Art. 32 on the basis that like Art. 226 Art. 32 itself gives merely a discretionary power to the Court to grant an appropriate relief.
(1) [1955] 1 S.C.R. 760, 772, 773-
(2) [1955] 1 S.C.R. 773,
(3) [1959] SUPP. 1 S.C.R. 528

The argument that Art. 32 does not confer upon a citizen the right to move this Court by an original petition but merely gives him the right to move this Court by an appropriate proceeding according to the nature of the case seems to us to be unsound. It is urged that in a case where the petitioner has moved the High Court by a writ petition under Art. 226 all that he is entitled to do under Art. 32(1) is to move this Court by an application for special leave under Art. 136; that, it is contended, is the effect of the expression “appropriate proceedings” used in Art. 32(1). In our opinion, on a fair construction of Art. 32(1) the expression “appropriate proceedings” has reference, to proceedings which may be appropriate having regard to the nature of the order, direction or writ which the petitioner seeks to obtain from this Court. The appropriateness of the proceedings would depend upon the particular writ or order which he claims and it is in that sense that the right has been conferred on the citizen to move this Court by appropriate proceedings. That is why we must proceed to deal with the question of res judicata on the basis that a fundamental right has been guaranteed to the citizen to move this Court by an original petition wherever his grievance is that his fundamental rights have been illegally contravened. There can be no doubt that the fundamental right guaranteed by Art. 32(1) is a very important safeguard for the protection of the fundamental rights of the citizen, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself.

It is because of this aspect of the matter that in Romesh Thappar v. The State of Madras (1), in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under Art. 32 on the ground that as a matter of orderly procedure the petitioner should first have resorted to the High Court under Art. 226, and observed that “this Court in thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of Ruch rights”. Thus the right given to the citizen to move this Court by a petition under Art. 32 and claim an appropriate writ against the unconstitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the application of the rule of res judicata this aspect of the matter had no doubt to be borne in mind. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in s. 11 of the Code of Civil Procedure has no doubt, some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts’ of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Art. 32.
(1) [1950] S.C.R. 594.

In considering the essential elements of res judicata one inevitably harks back to the judgment of Sir William de Grey, (afterwards Lord Walsingham) in the leading Duchess of King8ton’s case (1). Said Sir William de Grey, (afterwards Lord Walsingham) “from the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: First, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question in another court; Secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter, between the same parties, coming incidentally in question in another court for a different purpose”. As has been observed by Halsbury, “the doctrine of res judicata is not a technical doctrine applicable only to records; it is a fundamental doctrine of all courts that there must be an end of litigation” (2 ). Halsbury also adds that the doctrine applies equally in all courts, and it is immaterial in what court the former proceeding was taken, provided only that it was a court of competent jurisdiction, or what form the proceeding took, provided it was really for the same cause”(p. 187, paragraph 362). “Res judicata”, it is observed in Corpus Juris, “is a rule of universal law pervading every well regulated system of jurisprudence, and is put upon two grounds embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the, interest of the State that there should be an end to s litigation interest republican ut sit finis litium; the other, the hardship on the individual that he should be vexed twice for the same cause-nemo debet bis vexari pro eadem causa” (1). In this sense the recognised basis of the rule of res judicata is different from that of technical estoppel. “Estoppel rests on equity able principles and res judicata rests on maxims which are taken from the Roman Law” (2). Therefore, the argument that res judicata is a technical rule and as such is irrelevant in dealing with petitions under Art. 32 cannot be accepted.
(1) 2 Smith Lead. Cas. 13th Ed., pp. 644, 645.
(2) Halsbury’s Laws of England, 3rd, Ed., Vol. 15, para. 357, P. 185.

The same question can be considered from another point of view. If a judgment has been pronounced by a court of competent jurisdiction it is binding between the parties unless it is reversed or modified by appeal, revision or other procedure prescribed by law. Therefore, if a judgment has been pronounced by the High Court in a writ petition filed by a party rejecting his prayer for the issue of an appropriate writ on the ground either that he had no fundamental right as pleaded by him or there has been no contravention of the right proved or that the contravention is justified by the Constitution itself, it must remain binding between the parties unless it is attacked by adopting the procedure prescribed by the Constitution itself. The binding character of judgments pronounced by courts of competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the administration of justice on which the Constitution lays so much emphasis. As Halsbury has observed “subject to appeal and to being amended or set aside a judgment is conclusive as between the parties and their privies, and is conclusive evidence against all the world of its existence, date and legal consequences”(3). Similar is the statement of the law in Corpus Juris: “the doctrine of estoppel by judgment does not rest on any superior authority of the court rendering the judgment, and a judgment of one court is a bar to an paragraph 1660. action between the same parties for the same cause in the same court or in another court, whether the latter has concurrent or other jurisdiction. This rule is subject to the Limitation that the judgment in the former action must have been rendered by a court or tribunal of competent jurisdiction” (1). “It is, however’ essential that there should have been a judicial determination of rights in controversy with a final decision thereon” In other words, an original petition for a writ under Art. 32 cannot take the place of an appeal against the order passed by the High Court in the petition filed before it under Art. 226. There can be little doubt that the jurisdiction of this Court to entertain applications under Art. 32 which are original cannot be confused or mistaken or used for the appellate jurisdiction of this Court which alone can be invoked for correcting errors in the decisions of High Courts pronounced in writ petitions under Art. 226. Thus, on general considerations of public policy there seems to be no reason why the rule of res judicata should be treated as inadmissible or irrelevant in dealing with petitions filed under Art,. 32 of the Constitution. It is true that the general rule can be invoked only in cases where a dispute between the parties has been referred to a court of competent jurisdiction, there has been a contest between the parties before the court, a fair opportunity has been given to both of them to prove their case, and at the end the court has pronounced its judgment or decision. Such a decision pronounced by a court of competent jurisdiction is binding between the parties unless it is modified or reversed by adopting a procedure prescribed by the Constitution. In our opinion, therefore, the plea that the general rule of res judicata should not be allowed to be invoked cannot be sustained.
(1) Corpus juris, VOl. 34, P 743- (2) Ibid. P. 745-
(3) Halsbury’s Laws of England, 3rd Ed., VOl. 22, P- 780,

This Court had occasion to consider the application of the rule of res judicata to a petition filed under Art. 32 in Pandit M. S. M. Sharma v. Dr. Shree Krishna Sinha (3). In that case the petitioner had moved this Court under Art. 32 and claimed an appropriate writ against the Chairman and the Members of the Committee of Privileges of the State Legislative Assembly. The said petition was dismissed. Subsequently he filed another petition substantially for the same relief and substantially on the same allegations. One of the points which then arose for the decision of this Court was- whether the second petition was competent, and this Court held that it was not because of the rule of res judicata. It is true that the earlier decision on which res judicata was pleaded was a decision of this Court in a petition filed under Art. 32 and in that sense the background of the dispute, was different, because the judgment on which the plea was based was a judgment of this Court and not of any High Court. Even so, this decision affords assistance in determining the point before us. In upholding the plea of res judicata this Court observed that the question determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which are substantially the same. In support of this decision Sinha, C. J., who spoke for the Court, referred to the earlier decision of this Court in Raj Lakshmi Dasi v. Banamali Sen (1) and observed that the principle underlying res judicata is applicable in respect of a question which hag been raised and decided after full contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject-matter of the dispute was not exactly the same in the two proceedings. We may add incidentally that the Court which tried the earlier proceedings in the case of Raj Lakshmi Dasi (1) was a Court of exclusive jurisdiction. Thus this decision establishes the principle that the rule of res judicata can be invoked even against a petition filed under Art. 32.
(1) Corpus juris Secundum, VOI. 50 (judgments), p. 603.
(2) Ibid. p. 608.
(3) [1961] 1 S.C.R. 96.

We may at this stage refer to some of the earlier decisions of this Court where the presedt problem was posed but not finally or definitely answered. In Janardan Reddy v. The State of Hyderabad (2), it appeared that against the decision of the High Court a petition for specialleave had been filed but the, same had been, rejectedand this was followed by petitions under Art. 32.These petitions were in fact entertained though on the merits they were dismissed, and in doing so it was observed by Fazl Ali, J., who delivered the judgment of the Court, that “it may, however, be observed that in this case we have not considered it necessary to decide whether an application under Art. 32 is maintainable after a similar application under Art. 226 is dismissed by the High Court, and we reserve our opinion on that question”. To the same effect are the observations made by Mukherjea, J., as he then was, in Syed Qasim Razvi v. The State of Hyderabad (1). On the other hand, in Bhagubhai Dullabhabhai Bhandari v. The District Magistrate, Thana (2) the decision of the High Court was treated as binding between the parties when it was observed by reference to the said proceedings that “but that is a closed chapter so far as the Courts including this Court also are concerned inasmuch as the petitioner’s conviction stands confirmed as a result of the refusal of this Court to grant him special leave to appeal from the judgment of the Bombay High Court”. In other words, these observations seem to suggest that the majority view was that if an order of conviction and sentence passed by the High Court would be binding on the convicted person and cannot be assailed subsequently by him in a proceeding taken under Art. 32 when it appeared that this Court had refused special leave to the said convicted person to appeal against the said order of conviction.
(1) [1953] S.C.R. 154
(2) [1951] S.C.R. 344, 370-

The next question to consider is whether it makes any difference to the application of this rule that the decision on which the plea of res judicata is raised is a decision not of this Court but of a High Court exercising its jurisdiction under Art. 226. The argument is that one of the essential requirements of s. 11 of the Code of Civil, Procedure is that the Court which tries the first suit or proceeding should be competent to try the second suit or proceeding, and since the High Court cannot, entertain an application under Art. 32 its decision cannot be treated as res judicata for the purpose of such a petition. It is doubtful if the technical requirement prescribed by s. 11 as to the Competence of the first Court to try the subsequent suit is an essential part of the general rule of res judicata; but assuming that it is, in substance even the said test is satisfied because the jurisdiction of the High Court in dealing with a writ petition filed under Art,. 226 is substantially the same as the jurisdiction of this Court in entertaining an application tinder Art. 32. The scope of the writs, orders or directions which the High Court can issue in appropriate cases under Art. 226 is concurrent with the scope of similar writs, orders or directions which may be issued by this Court under Art. 32. The cause of action for the two applications would be the same. It is the assertion of the existence of a fundamental right and its illegal contravention in both cases and the relief claimed in both the cases is also of the same character. Article 226 confers jurisdiction oil the High Court to entertain a suitable writ petition, whereas Art. 32 provides for moving this Court for a similar writ petition for the same purpose. Therefore, the argument that a petition under Art. 32 cannot be entertained by a High Court under Art. 226 is without any substance; and so the plea that the judgment of the High Court cannot be treated as res judicata on the ground that it cannot entertain a petition under Art. 32 must be rejected.
(1) [1953] S.C.R. 589-
(2) [1956] S.C.R. 533.

It is, however, necessary to add that in exercising its jurisdiction under Art. 226 the High Court may sometimes refuse to issue an appropriate writ or order on the ground that the party applying for the writ is guilty of laches and in that sense the issue of a high prerogative writ may reasonably be treated as a matter of discretion. On the other hand, the right granted to a citizen to move this Court by appropriate proceedings under Art. 32(1) being itself a fundamental right this Court ordinarily may have to issue an appropriate writ or order provided it is shown that the petitioner has a fundamental right which has been illegally or unconstitutionally contravened. It is not unlikely that if a petition is filed even under Art. 32 after a long lapse of time, considerations ma arise whether rights in favour of third parties which may, have arisen in the meanwhile could be allowed to be’ affected, and in such a case the effect of laches on the, part of the petitioner or of his acquirence may have to be considered; but, ordinarily if a petitioner makes out a case for the issue of an appropriate writ or’ order he, would. be entitled to have such a writ or, order under Art. 32 and that may be said to constitute a difference in the right conferred on a citizen to move the High Court under Art. 226 as distinct from the right conferred on him to move this Court. This difference must inevitably mean that if -the High, Court has refused to exercise its discretion on the ground of laches or on the ground that the party has an efficacious alternative remedy available to him then of course the decision of the High Court cannot generally be pleaded in support of the bar of res judicata. if, however, the matter has been considered on the merits and the High Court has dismissed the petition for a writ on the ground that no fundamental right is proved or its breach is either not established or is shown to be constitutionally justified there is no reason why the said decision should not be treated as a bar against the competence of a subsequent petition filed by the same party on the same facts and for the same reliefs under Art. 32.

In this connection reliance has been placed on the fact that in England habeas corpus petitions can be filed one after the other and the dismissal of one habeas corpus petition is never held to preclude the making of a subsequent petition, for the same reason. In our opinion, there is no analogy between the petition for habeas corpus: and petitions filed either under Art. 226 or under Art. 32. For historical reasons the writ for habeas corpus is treated as standing in -a category by itself; but, even with regard to a habeas corpus petition it has now been- held in England in Re, Hastings (No. 2) (1) that “an applicant for a writ (1) (1958) 3 All E.R. Q.B.D. 625. 590 of habeas corpus in a criminal matter who has once been heard by a Divisional Court of the Queen’s Bench Division is not entitled to be heard a second time by another Divisional Court in the same Division, since a decision of a Divisional Court of the Queen’s Bench Division is equivalent to the decision of all the judges of the Division, just as the decision of one of the old common law courts sitting in bank was the equivalent of the decision of all the judges of that Court.” Lord Parker, C. J., who delivered the judgment of the Court, has elaborately examined the historical genesis of the writ, several dicta pronounced by different judges in dealing with successive writ petitions, and has concluded that “the authorities cannot be said to support the principle that except in vacation an applicant could go from judge to judge as opposed to going from court to court” (p. 633), so that even in regard to a habeas corpus petition it is now settled in England that an applicant cannot move one Divisional Court of the Queen’s Bench Division after another. The-said decision has been subsequently applied in Re Hastings (No. 3) (1) to a writ petition filed for habeas corpus in a, Divisional Court of tile Chancery Division. In England, technically an order passed on a petition for habeas corpus is not regarded as a judgment and that places the petitions for habeas corpus in a class by themselves. Therefore we do not think that the English analogy of several habeas corpus applications can assist the petitioners in the present case when they seek to resist the application of res judicata to petitions filed under Art. 32. Before we part with the topic we would, however, like to add that we propose to express no opinion on the question as to whether repeated applications for habeas corpus would be competent under our Constitution. That is a matter with which we are not concerned in the present proceedings.

There is one more argument Which still remains to be considered. It is urged that the remedies available to the petitioners to move the High Court under Art. 226 and this Court under Art. 32 are alternate remedies and so the adoption of one remedy cannot bar the adoption of the other. These remedies are not exclusive but are cumulative and so no bar of res judicata can be pleaded when a party who has filed a petition under Art. 226 seeks to invoke the jurisdiction of this Court under Art. 32. In support of this contention reliance has been placed on the decision of the Calcutta High Court in Mussammat Gulab Koer v. Badshah Bahadur (1). In that case a party who had unsuccessfully sought for the review of a consent order on the ground of fraud brought a suit for a similar relief and was met by a plea of res judicata. This plea was rejected by the Court on the ground that the two remedies though co-existing were not inconsistent so that when a party aggrieved has had recourse first to one remedy it cannot be precluded from subsequently taking recourse to the other. In fact the judgment shows that the Court took the view that an application for review was in the circumstances ail inappropriate remedy and that the only remedy available to the party was that of a suit. In dealing with the question of res judicata the Court examined the special features and conditions attaching to the application for review, the provisions with regard to the finality of the orders passed in such review proceedings and the limited nature of the right to appeal provided against such orders. In the result the Court held that the two remedies cannot be regarded as parallel and equally efficacious and so no question of election of remedies arose in those cases. We do not think that this decision can be read as laying down a general proposition of law that even in regard to alternate remedies if a party takes recourse to one remedy and a contest arising therefrom is tried by a court of competent jurisdiction and all points of controversy are settled the intervention of the decision of the court would make no difference at all. In such a case the point to consider always would be what is the nature of the decision pronounced by a Court of competent jurisdiction and what is its effect. Thus considered there can be no doubt that if a writ petition filed by a party has been dismissed on the merits by the High Court the,, judgment thus pronounced is binding between the parties and it cannot be circumvented or bypassed by his taking recourse to Art. 32 of the Constitution. Therefore, we are not satisfied that the ground of alternative remedies is well founded.
(1)(1909) 1 3 C.W.N. 1197.
(1) [1959] 1 AR E.R. Ch.D. 698.

We, must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Art. 226 is considered on the merits as &-contested matter, and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Art. 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs. If the petition filed 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 or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Art. 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Art. 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot be treated as creating a bar of res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar The petition filed under Art. 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent Gaj petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res jadirata which has been argued as a preliminary issue in these writ petitions and no other. It is in the light of this decision that we will now proceed to examine the position in the six petitions before us.

In Petition No. 66 of 1956 we have already seen that the petition filed in the High Court was on the same allegations and was for the same relief The petitioners had moved the High Court to obtain a writ of certiorari to quash the decision of the Revenue Board against them, and when the matter was argued before the High Court in view of the previous decisions of the High Court their learned counsel did not press the petition. In other words, the points of law raised by the petition were dismissed on the merits. That being so, it is a clear case where the writ petition has been dismissed on the merits, and so the dismissal of the writ petition creates a bar against the competence of the present petition under Art. 32. The position with regard to the companion petition, No. 67 of 1956, is exactly the same. In the result these two petitions fail and are dismissed; there would be no order as to costs.

In Writ Petition No. 8 of 1960 the position is substantially different. The previous petition for a writ filed by the petitioner (No. 68 of 1952) in the Allahabad High Court was withdrawn by his learned counsel and the High Court therefore dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and so no order is to costs was passed. This order the writ petition withdrawn which was passed on February 3, 1955, cannot therefore support the plea of res judicata against the present petition. It appears that a co-lessee of the petitioner had also filed a similar Writ Petition, No. 299 of 1958. On this writ petition the High Court no doubt made certain observations and findings but in the end it came to the conclusion that a writ petition was not the proper proceeding for deciding such old disputes about title and so it left the petitioner to obtain a declaration about title from a competent civil or revenue court in a regular suit. Thus it would be clear that the dismissal of this writ petition (on 17-3-1958) also cannot constitute a bar against the competence of the present writ petition. The preliminary objection raised against this writ petition is therefore rejected and it is ordered that this writ petition be set down for hearing before a Constitution Bench.

In Petition No. 77 of 1957 the petitioner has stated in paragraph 11 of his petition that he had moved the High Court of Punjab by a writ petition under Arts. 226 and 227 but the same was dismissed in limine on July 14, 1957. It is not clear from this statement whether any speaking order was passed on the petition or not. It appears that the petitioner further filed an application for review of the said order under O. 47, r. 1 read with s. 151 of the Code but the said application was also heard and dismissed in limine on March 1, 1957. It is also not clear whether a speaking order was passed on this application or not. That is why, on the material as it stands it is not possible for us to deal with the merits of the preliminary objection. We’ would accordingly direct that the petitioner should file the two orders of dismissal passed by the Punjab High Court. After the said orders are filed this petition may be placed for hearing before the Constitution Bench and the question of res judicata may be, considered in the light of our decision in the present group.

In Petition No. 15 of 1957 initially we had a bare recital that the writ petition made by the petitioner in the Punjab High Court had been dismissed. Subsequently, however, the said order itself has been produced and it appears that it gives no reasons for dismissal. Accordingly we must hold that the said order does not create a bar of res judicata and so the petition will have to be set down for hearing on the merits.

In Writ Petition No. 5 of 1958 the position is clear. The petitioner had moved the Bombay High Court for an appropriate writ challenging the order of the Collector in respect of the land in question. The contentions raised by the petitioner were examined in the light of the rejoinder made by the Collector and substantially the petitioner’s case was rejected. It was held by the High Court that the power conferred on the State Government by s. 5(3) of the impugned Act, the Bombay Service Inam (Useful to the Community) Abolition Act, 1953, was not arbitrary nor was its exercise in this particular case unreasonable, or arbitrary. The High Court also held that the land of the petitioner attracted the relevant provisions of the said impugned statute. Mr. Ayyangar ’for the petitioner realised the difficulties in his way, and so he attempted to argue that the contentions which he wanted to raise in his present petition are put in a different form, and in support of this argument he has invited am attention to grounds 8 and 10 framed by him in paragraph X of the petition. We are satisfied that a change in the form of attack against the impugned statute would make no difference to the true legal position that the writ petition in the High Court and the present writ petition are directed against the same statute and the grounds raised by the petitioner in that behalf are substantially the same. Therefore the decision of the High Court pronounced by it on the merits of the petitioner’s writ petition under Art. 226 is a bar to the making of the present petition, under Art. 32. In the result this writ petition fails and is dismissed. There would be no order as to costs.

Petition dismissed.

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BENCH: GAJENDRAGADKAR, P.B. SINHA, BHUVNESHWAR P.(CJ) WANCHOO, K.N. GUPTA, K.C. DAS SHAH, J.C.

CITATION:
1964 AIR 1013 1963 SCR Supl. (1) 172

CITATOR INFO :
D 1965 SC1150 (9)
R 1965 SC1153 (51,56)
E 1970 SC 898 (14)
RF 1971 SC 57 (4,11)
RF 1977 SC1680 (7)

ACT:
Coal Tax–Levy–Validity–Writ Petition, if barred by res judicata–Enhanced levy after first imposition–Absence of Previous sanction by Local Government–Legality of such levy–Constitution of India, Arts. 19 (1) (f), 32, 141, 226–Central Provinces Local Self Government Act, 1920 (C. P. IV of 1920), s. 51(2).

HEADNOTE:
The 1st appellant in the first batch of appeals had filed a writ petition in this Court challenging the notices calling upon him to pay the tax of 9 pies per ton on coal including coal despatched outside the State of Madhya Pradesh on two grounds, namely, that the levy of the tax by the Independent Mining Board was invalid at the date of its initial imposition and, therefore, the respondent Sabha which was the successor of the Mining Board could not continue the levy and also that on a proper construction of s. 51 of the Act, the levy could not be made. Another point namely, the increase in the rate of tax from the original 3 pies to the 9 pies per ton at which the tax was demanded was illegal was sought to be canvassed but was not allowed to be argued by the Court as it had not been raised in the petition. The writ petition was rejected.

The appellant challenged the levy of the tax for the further periods byway of a writ petition before the High Court of Madhya Pradesh on grounds distinct and separate from those which had been rejected by this Court. The High Court dismissed the writ petition on the ground that it was barred by res-judicata by reason of the earlier judgment by this Court. In the case of the other appellants the High Court held that the matter was also concluded on the authority of the decision of this Court. The appellants in the first batch of appeals came by special leave and also filed writ petitions challenging the validity of the levy.

Held, that while the general principle of res-judicata applies to writ petitions under Art. 32 and Art. 226 of the Constitution, in its application to Art. 32 of the Constitution, the doctrine only regulates the manner in which the fundamental rights could be successfully asserted and does not in any way impair or affect the content of the fundamental rights. Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha, [1961] 1 S. 0. R. 96, Raj Lakshmi Dasi v. Banamali Sen, [1953] S. C. R. 154 and Daryao v. State of U.P., [1962] 1 S.C.R. 574, referred to. Constructive res-judicata was a creature of statute and its application could not be extended to other proceedings particularly those questioning tax liability for different years.

Held, further, that the law declared by the Supreme Court which is binding under Art. 141 of the Constitution of India is that which has been expressly declared and any implied declaration though binding was subject to revision by this Court when the point was subsequently directly and expressly raised before this Court.

Held, further, that the procedure of assessment of tax authorised by the relevant statutory provisions and the Rules could not be said to be a capricious administrative or executive affair so as to violate Art. 19(1) (f) of the Constitution. Kunnathat Thathunni Moopil Nair v. State of Kerala, [1961] 3 S. C. R. 77, distinguished.

As the Rule which prescribed the maximum rate had itself been deleted it could not be said that there had been a levy in excess of the maximum prescribed.

As neither the Act nor the Rules prescribed a ceiling on the levy, the expression “first impositions occurring in s. 51(2) would include every increase of the levy after its initial imposition and the increased levy would require the previous sanction of the Local Government and such sanction not being there, the levy at the rate of 9 pies per ton was illegal.

Considering the nature of the tax and the periods for which it was assessed and in the absence of any provision, the assessment once made by r. 10 was final and there could be no re-assessment.

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 469, 470,506, 507 and 529 to 534 of 1962. Appeals by special leave from the judgment and order dated December 18, 1961, of the Madhya Pradesh High Court in Misc. Petition Nos. 24, 29, 42, to 45, 58, 70, 95 and 213 of 1960. WITH Petitions Nos. 70 and 71 of 1962. Petition under Art. 32 of the Constitution of India for enforcement of Fundamental rights. Sachin Chaudhri, B. Sen, J. B. Dada-chanji, O. C. Mathur and Ravinder Narain, for the appellants (in C. As. Nos. 469 and 470/62) and the Petitioners (in Petitions. Nos. 70 and 71 of 62). A. V. Viswanatha Sastri, R. Ganapathy Iyer and G. Gopalakrishnan, for the respondent (in C. As. Nos. 469 470, 506 and 507 of 62), Respondents Nos. 1 and 3 (in C. As. Nos. 529 to 534/62) and Respondent No. 1 (in Petn. Nos. 70 and 71/62). B. Sen and I. N. Shroff, for the appellants (in C. As. Nos. 506 and 507/62). 175 N. C. Chatterjee, Y. S. Dharmadhikaree and M. S. Gupta, for the appellants (in C. As. Nos. 529 to 534 of 62). I. N. Shroff, for the respondents Nos. 2 and 4 (in C. As. 529 to 534 of 62). 1962. September 24. The judgment of the Court was delivered by GAJENDRAGADKAR, J.-
These ten appeals and two writ petitions have been placed for hearing together in a group, because they raise common questions of law. The appellants in these matters are all colliers holding mining leases under the Government of Madhya Pradesh for the extraction of coal from collieries situated in the Chhindwara District. The respondent, Janapada Sabha, Chhindwara, has issued notices against them calling upon them to pay coal tax “’for coal manufactured at the mines, sold for export by rail or sold otherwise than for export by rail within the jurisdiction of the original Independent Mining Board for the said area It appears that the mining area in question was within the territorial limits of the Independent Mining Local Board which had the status and powers of a District Council under the Central Provinces Local-Self Government Act, 1920 (hereinafter called the Act). The respondent Sabha is the successor of the said Mining Board and, therefore, claims to be entitled to continue the levy and recover the tax in question.

On March 12, 1935, the Mining Board exercising its powers under section 51 of the Act, resolved to levy coal tax, and accordingly, the first imposition made by it received the sanction of the local Government on December 16, 1935, as per Notification No. 8700-2253-D-VIII. This notification came ’into force from January 1, 1936. On December 16, 1935, the local Government notified the rules for the assessment and collection of the tax which it had framed in exercise of the powers conferred on it by section 79 (1), clauses (xv), (xix) and (xxx). Rule 2 of these Rules provided that the tax shall be payable by every person, firm or company holding a mining lease for coal within the limits of the Independent Mining Local Board’s jurisdiction. Rule 3 provided that the tax shall be levied @ three pies per ton on coal, coal dust or coke manufactured at the mines, sold for export by rail or sold otherwise than for export by rail within the territorial jurisdiction of the Independent Mining Local Board. In 1943, the words “’coke manufactured at the mines” were deleted from Rule 3 and the tax was confined to coal and coal dust. The rate thus prescribed was increased from time to time. On December 22, 1943, the rate was made 4 pies per ton; on July 29, 1946, it was made 7 Pies, per ton; and on July 1. 9, 1947, it was made 9 pies. The Mining Board continued to recover the tax at the said rates until the Act was repealed in 1948 and in its place was enacted the Central Provinces and Berar Local SelfGovernment Act, 1948 (No. 38 of 1948). The respondent Sabha has now taken the place of the said Mining Board and has issued the notices against the several appellants, calling upon them to pay the coal tax for the different periods mentioned in the said notices.

The appellants in Civil Appeals Nos. 469 and 470 of 1962 are : The Amalgamated Coalfields Ltd. and The Pench Valley Coal Co. Ltd. They are companies in operated under the Indian Companies Act, 1913, andor both have Shaw Wallace & Co., Ltd., as their Managing Agents. On August 23, 1958, notices were served on the two appellants calling upon them to pay Rs. 21,898/ 64 np and Rs. 11,838/9 np respectively as tax assessed @ 9 pies per ton from ,,January 1, 1958, to June 30, 1958: This tax was claimed in respect of coal which included coal despatched by the appellants outside the State of Madhya Pradesh. The validity of these notices was challenged by the appellants in this Court by their Writ Petition ’No. 31 of 1959. On February 10, 1961, the said writ petition was dismissed by this Court and it was held that the notices served on them were valid (Vide The Amalgamated Coalfields Ltd. v. The Janapada Sabha, Chhindwara(1).

On September 13, 1960 and March 2, 1961, two notices of demand were served on the appellants calling upon them to pay Rs. 1,16,776/25 nP. and Rs. 65,261/19 nP. respectively in regard to the tax assessed @ nine pies per ton on all coal despatched by the appellants from their collieries for the half years ending June 30, 1958. December 31, 1958, June 30), 1959, December 31 1959, June 30, 1960 and December 31, 1960. The appellants challenged the validity of these notices by a Writ Petition filed by them in the High Court of Madhya Pradesh on April 1.2, 1961 (No. 95 of 1961).

Whilst the said writ petition was pending before the High Court, the appellants filed another writ Petition in the same High Court (No. 213 of 1961). By this writ petition, the appellants challenged the validity of notices issued against them on June 9, 1959, by which coal tax was demanded from them for a period between April 1, 1951 to December 31, 1957. This tax was levied in respect of coal despatched by the appellants outside the State of Madhya Pradesh. The amounts demanded were Rs. 1,92,144/66 nP. and Rs. 68,319/36 nP. respectively.

These two petitions along with eight others were heard together by the High Court. So far as the appellants’ petitions were concerned, the High Court has held that the appellants’ claims were barred by res judicata by reason of the earlier decision of this Court in the case of the Amalgamated Coalfields Ltd. (1). The appellants then applied for and obtained special leave from this Court on April 23, 1962 and it is by special leave thus granted to them that they have come to this Court in Civil Appeals 469 & 470 of 1962.
(1) [1962] 1. S. C. R. 1.

The appellants have also filed two Writ Petitions Nos. 70 & 71/1962 under Art. 32 of the Constitution. By these writ petitions, the two appellants challenged the validity of the notices served on them on Julie 9, 1959 as well as on September 13, 1960. The appellants’ case is that these notices are illegal and without jurisdiction and so, they want them to be quashed by an appropriate writ or order issued against the respondent in that behalf. Thus, the two appellants, the Amalgamated Coalfields Ltd., and the Pench Valley Coal Co. Ltd.,, arc concerned with the two appeals Nos 469 & 470/1962) and Writ Petitions 70 & 71/1962. The other appeals arise from the writ petitions filed in the High Court of Madhya Pradesh by the respective appellants which were tried along with the writ petitions filed by the Amalgamated Coalfields Ltd. & Anr. In dealing with these writ petitions, High Court has held that the decision of this Court is the case of Amalgamated Coalfields Ltd.(1) concludes the points raised by them in challenging the validity of the notices, and so, following the said decision, the High Court has dismissed all the said petitions. The appellants applied for and obtained special leave to come to this Court against the said decisions and it is with the special leave thus granted to them that these appellants have come before us.

Civil Appeal No. 506 arises from the decision of the High Court of ’Madhya Pradesh dismissing the writ petition filed before it by the appellant, the Central Provinces Syndicate (P) Ltd. By its writ petition the appellant had challenged the validity of the notice served by the respondent calling upon it to pay arrears of the tax amounting to Rs. 20,776/88 nP. being arrears from April 1, 1951 to June 30, 1959.

It appears that for the said period, the appellant had been taxed by the respondent, but the said tax was not imposed on coal which had been transported by the appellant outside the limits of the State of Madhya Pradesh. The respondent now sought to reopen the assessment levied against the appellant for that period by including a claim for tax in respect of coal sold by the appellant outside the limits of the State. The High Court has rejected the Writ Petition and that decision ’has given rise to Civil Appeal No. 506 of 1962. Civil Appeal No. 507 of 1962 arises from a writ petition filed by the appellants M/s. Kanhan Valley Coal Co. (Private) Ltd., in the High Court of Madhya Pradesh in which the validity of the notice issued by the respondent calling upon the appellants to pay the coal tax amounting to Rs. 10,970/- as arrears from April 1, 1951 to June 30, 1959 has been challenged. The High Court has dismissed the writ petition, and so, the appellants have come to this Court by their Appeal No. 507/1962. Civil Appeals Nos. 529 to 534 of 1962 similarly arise out of six writ petitions filed by the appellants M/s. Newton Chickli Collieries (P) Ltd. & five others in the High Court of Madhya Pradesh challenging the validity of the notices of demand served on them to recover by way of arrears coal tax for the periods mentioned in the notices in regard to coal sent by them outside the State of Madhya Pradesh for export. These writ petitions were dismissed by the High Court, and the appellants have, therefore, come to this Court by appeals Nos. 529-534/1962. That, in brief, is the genesis of the ten appeals and two writ petitions which have been grouped together for hearing in this Court.
(1) [1962] 1 S.C.R. 1.

It will thus be seen that Civil Appeals Nos. 469 & 470/1962 and Writ Petitions Nos. 70 & 71/1962 raise a preliminary question about the applicability of the doctrine of res judicata to writ- petitions filed under Art. 226 or to petitions under Art. 32, whereas the said appeals and writ petitions as well as the other appeals raise an additional question about the validity of the notices issued against the respective appellants. We would, therefore, deal with civil appeals Nos. 469 and 4 70/1962 and Writ Petitions Nos. 70 and 71/1962. Our decision in these matters will govern the other appeals in this group. The first point which falls for our decision, in these appeals is one of res judicata. The High Court has held that the challenge made by the appellants against the validity of the demand notices issued against them by the respondent is barred by res judicata by virtue of the decision of this Court in the earlier case brought by the appellants themselves before this Court. The Amalgamated Coalfields Ltd.(1) Before dealing with this point it is necessary to refer to the said decision. In that case, the validity of the impugned notices was challenged on two grounds ; it was urged that the levy of the tax by the Independent Mining Board was invalid at the date of its initial imposition in 1935 and so, the respondent Sabha which was the successor of the said Mining Board could claim no authority to continue the said tax. This contention was based on the assumption that before the power conferred by s. 51 of the Act could be exercised,, the previous sanction of the Governor-General had to be obtained, or that there should be fresh legislation in that behalf. This Court held that the Act having received the assent of the GovernorGeneral, its validity cannot be challenged in view of the saving clauses in the proviso to section 80A (3) and s. 84(2) of the Government of India Act, 1915. That being so, it was not open to any party to suggest that any subsequent amendments of the Government of India Act could affect the continued validity and operation of the Act. The second contention raised was one of construction. It was urged that on a fair construction of s. 51, the coal tax was excluded from the purview of the local authority. The This argument was based on the opening clause of s. 51 which provided that its provisions would operate subject to the provision of any law or enactment for the time being in force. It was suggested that this clause took in the provisions of s. 80A(3) of the Government of India Act read with the Scheduled Taxes Rules framed under that section, but this argument was also rejected. It appears that at the hearing of the petition, the appellants also attempted to take an additional point against the validity of the. impugned notices on the ground that the rate of tax which had been increased from 3 pies to 9 pies per ton was invalid. The appellants’ case was that this increase was effected after the commencement of the Government of India Act, and so, it was invalid. This argument was not considered by the Court, because it was not even hinted in the petition filed by the appellants and the Court thought that it would not be proper to permit the appellants to raise that point at that stage. That is how the appellants’ challenge to the validity of the impugned notices served on them on August 23, 1958 was repelled and the writ petition filed by them in that behalf was dismissed.
(1) [1962] 1 S.C.R. 1.

It appears that the authority of the Janapada Sabha to levy the impost under s.51 of the Act was challenged on another ground in the case of Ram Krishna Ram Nath v, Janapad Sabha (1). This time the attack against the competence of the janapad Sabha proceeded on the ground that in repealing the Act of 1920, the subsequent Act of 1948 had not provided for the continuance of the said power in the janapad Sabhas which were the successors of the Independent Mining Boards. Section 192(c) purported to provide that all rates, taxes and cesses due to the District Council, Local Board or Independent Local Board shall be deemed to be due to the Sabha to whose area they pertain. But it was obvious that this clause could apply to, and save, only rates, taxes and cesses already due; it did not authorise the imposition of fresh cesses, taxes or rates in future. Having realised that the relevant provision did not save future imposts, an amending Act was passed in 1949 by which the said saving was extended to include the right of the janapad Sabhas to continue the levy of the impugned tax and this amendment was made retrospective f from June 11, 1948, when the parent Act had come into force. In the case of Ram Krishna (1) the validity and effectiveness of this amendment of 1949 was challenged. It was thus a basic challenge to the power of the janapad Sabhas to levy any impost on the ground that the subsequent amendment was invalid. This Court repelled the said challenge and held that the retrospective operation of the amendment was valid. According to this decision, the Provincial Legislature was competent to legislate for the continuance of the tax, provided the relevant conditions of s.143(2) of the Government of India Act 1935 were satisfied. These conditions required that the tax should be one which was lawfully levied by a local authority for the purposes of a local area at the commencement of Part III of the Government of India Act; that the identity of the body that collects the tax, the area for whose benefit the tax is to be utilised and the purposes for which it is to be utilised continue to be the same, and that the rate of the tax is not enhanced nor is its incidence materially altered, so that, in substance, it continues to be the same tax. Since these tests were satisfied by the impost levied by the janapad Sabha, it was held that the impost was valid and that the retrospective amendment of s.192 was effective.
(1) [1962] Supp. 3 S.C.R. 70.

The present proceedings constitute a third challenge to the validity of the notices issued by the janapad Sabha, and as we have already seen, the challenge made by the appellants by their writ petitions before the High Court has been repelled on the preliminary ground that it is barred by res judicata. In that connection, the first question to consider is whether the general principle of res judicata applies to writ petitions filed under Art. 32 of the Constitution.
(1) [1962] Supp. 3 S.C.R. 70.

This question has been considered by a special Bench of this Court in the case of Pandit M. S. M. Sharms v. Dr. Shree Krishna Sinha (1). Chief justice Sinha, who delivered the unanimous opinion of the Court, has answered this question in the affirmative. In that connection, the learned Chief justice has referred to an earlier decision of this court in Raj Lakshmi Dasi v. Banamali Sen, (2) where it has been laid down that the principle underlying res judicata is applicable in respect of a question which has been raised and decided after full’ contest, even though the first Tribunal which decided the matter may have no jurisdiction to try the subsequent suit and even though the subject matter of the dispute was not exactly the same in the two proceedings. It ought to be added that the Tribunal which had tried the first dispute in that case was a Tribunal of exclusive jurisdiction. Then the points raised on behalf of the petitioner Sharma were considered and it was noticed that, in substance, they were the same points which had been agitated before this Court on an earlier occasion and had been rejected. “In our opinion”, said the judgment, “the questions determined by the previous decision of this Court cannot be reopened in the present case and must govern the rights and obligations of the parties which as indicated above, are substantially the same.” Thus, this decision shows that even petitions filed under Art. 32 are subject to the general principle of res judicata.

The question about the applicability of the doctrine of res judicata to the petitions filed under Art. 32 came before this Court in another form in Daryao v. The State of U. P. (1), and in that case it has been held that where the petition under Art. 226 is considered on the merits as a contested matter and dismissed by the High Court, the decision pronounced is binding on the parties, unless modified or reversed by appeal or other appropriate proceedings under the Constitution, and so, if the said decision was not challenged by an appropriate remedy provided by the Constitution, a writ petition filed in respect of the same matter would be deemed to be barred by res judicata. Therefore, there can be no doubt that the general principle of res judicata applies to writ petitions filed under Art. 32 or Art. 226. It is necessary to emphasise that the application of the doctrine of res judicata to the petitions filed under Art. 32 does not in any way impair or affect the content of the fundamental rights guaranteed to the citizens of India. It only seeks to regulate the manner in which the said rights could be successfully asserted and vindicated in courts of law. The question in the present appeals, however, is somewhat different. The notices which are challenged by the appellants in the present proceedings are in respect of the tax levied for a period different from the period covered by the notices issued on August 23, 1958 which were the subject-matter of the earlier writ proceedings (The Amalgamated Coalfields Ltd. ( 2 ) ) . Where the liability of a tax for a particular year is considered and decided, does the decision for that particular year operate as res judicata in respect of the liability for a subsequent year ? In a sense, the liability to pay tax from year to year is a separate and distinct liability; it is based on a different cause of action from year to year, and if any points of fact or law are considered in determining the liability for a given year, they can generally be deemed to have been considered and decided in a collateral and incidental way.
(1) [1961] 1. S.C.R. 96.
(2) [1953] S.C.R. 154.

The trend ’of the recent English decisions on the whole appears to be, in the words of Lord Radcliffe, ’,,that if is more in the public interest that tax and rate assessments should not be artificially encumbered with estoppels (I am not speaking, of course, of the effect of legal decisions establishing the law, which is quite a different matter), even though in the result,’ some expectations may be frustrated and some time wasted.” (vide Society of Medical Officers of Health v. Hope Valuation Officer (1)). The basis for this view is that generally, questions of liability to pay tax are determined by Tribunals with limited jurisdiction and so, it would not be inappropriate to assume that if they decide any other questions incidental to the determination of the liability for the specific period, the decisions of those incidental questions need not create a bar of res judicata while similar questions of liability for subsequent years are being examined. In that connection, it would be interesting to refer to four English decisions. In the case of Broken Hill Proprietary Co. Ltd. and Municipal Council of Broken Hill, (2) the question which fell for decision was how the average annual value of a mine for rating purposes had to be determined, and it was held by the Privy Council that the said value was to be ascertained by dividing the value of the output during the three years by three, not by multiplying it by 205 and dividing it by 365. One of the points which the Privy Council had to consider was whether a contrary decision reached by the High Court of Australia between the parties as to the valuation for a previous year, operated as res judicata. In rejecting the plea that the principle of res judicata applied, Lord Carson. observed that “”the decision of the High Court related to a valuation and a liability to a tax in a previous year, and no doubt as regards that year, the decision could not be disputed. The present case relates to a new question, viz., the valuation for a different year and the liability for that year. It is not eadem questio, and therefore, the principle of res judicata cannot apply.” (p. 100).
(1) [1960] A. C. 551, 563,
(2) [1926] A. C. 94.
(1) [1962] 1 S. C. R. 574.
(21 (1962) 1 S. C. R. 1.

It, however, appears that in the same year, the Privy Council came to a somewhat contrary decision in the case of Hoystead v. Commissioner of Taxation.(1) In that case, the question which arose for decision was about the deduction claimable under ther elevant provision of the Land Tax Assessment Act, 1916 (Aust.) Upon the assessment for 1919- 20, the Commissioner allowed only one deduction of 5,000 lbs. contending that the beneficiaries were not joint owners within the meaning of the Act. The case was then stated to the full Bench which upheld the Commissioner’s view and rejected the argument that the Commissioner was estopped from coming to that conclusion in view of his decision in a previous year. When the matter went before the Privy Council, it reversed the decision of the Full Court, because it held that the Commissioner was estopped, even though in the previous litigation no express decision had been given whether the beneficiaries were joint owners, it being assumed and admitted that they were, and the Privy Council thought that the matter so admitted was fundamental to the decision then given. It would thus be seen that this decision applied the principle of res judicata even where there was no express decision on the point, but the point had been conceded in the earlier proceedings.

In 1960, the House of Lords had occasion to consider this question in the case of Society of Medical Officer of Health (2). We have already quoted one statement of ’the law from the speech of Lord Radcliffe in that case. In that case, the main reason given for repelling the application of the principle of res judicata in rating cases, was that the jurisdiction of the Tribunal which deals with those cases is limited, in that its function begins with and ends with deciding the assessment or liability of a person for a terminable period. Besides, it was held that the position of a valuation officer is that of a neutral official charged with the recurring duty of bringing into existence a valuation list, and he cannot properly be described as a party so as to make the proceedings a lis inter partes. In coming to the conclusion that the doctrine of res judicata would not apply in such cases, Lord Radcliffe was influenced by the consideration that if decisions in rating cases are to be treated as conclusive for all time that Would be to impose a needlessly heavy burden upon the administration of rating (p.566). This decision purported to approve of the view taken in the case of the Broken Hill Proprietary Co. Ltd.(1) and to distinguish the view taken in the Hoystead case. (2) Lord Radcliffe had occasion to return to the same subject again in Gaffoor v. Income-tax Commissioner. (3) Speaking for the Privy Council, Lord Radcliffe considered the problem of the application of res judicata to taxation cases, examined it in detail and came to the conclusion that the said doctrine did not apply to tax cases in the sense that the decision for the levy of a tax for one year does not operate as res judicata in dealing with the question of a tax for the subsequent year. On this occasion, emphasis was not placed so much on the limited nature of the jurisdiction of the Tribunal that deals with tax cases, but it was held that even if the matter goes to a High Court on a statement of the case, the decision of the High Court would also not create a bar of res judicata in dealing with the tax claim for a subsequent year. “’The critical thing,” said Lord Radcliffe, “’is that the dispute which alone can be determined by any decision given in the course of these proceedings is limited to one subject only, the amount of the assessable income for the year in which the assessment is challenged.” He, no doubt, recognised that in the process of arriving at the necessary decision, it was likely that the consideration of questions of law turning upon the construction of the ordinance or of other statutes or upon the general law, may be involved, but he thought that the decision of those questions should be treated as collateral or incidental to what is the only issue that is truly submitted to determination (pp. 800-801). This decision would, therefore, support the appellants’ contention that the High Court was in error in dismissing their writ petitions on the preliminary ground that they were barred by res judicata.
(1) [1926] A.C. 94.
(2) [1926] A.C. 155,
(3) [1961] 2 W.L.R.794.
(1) [1926] A. C. 155.
(2) [1960] A. C. 551, 563.

In considering this question, it may be necessary to distinguish between decision on questions of law which directly and substantially arise in any dispute about the liability for a particular year, and questions of law which arise incidentally or in a collateral manner, as Lord Radcliffe himself has observed in the case of the Society of Medical Officers of Health, (1) that the effect of legal decisions establishing the law would be a different matter. If, for instance, the validity of a taxing statute is impeached by an assessee who is called upon to pay a tax for a particular year and the matter is taken to the High Court or brought before this Court and it is held that the taxing statute is valid, it may not be easy to hold that the decision on this basic and material issue would not operate as res judicata against the assessee for a subsequent year. That, however, is a matter on which it is unnecessary for us to pronounce a definite opinion in the present case. In this connection, it would be relevant to add that even if a direct decision of this Court on a point of law does not operate as res judicata in a dispute for a subsequent year, such a decision would, under Art. 141, have a binding effect not only on the parties to it, but also on all courts in India as a precedent in which the law is declared by this Court. The question about the applicability of res judicata to such a decision would thus be a matter of merely academic significance.

In the present appeals, the question which arises directly for our decision is : does the principle of constructive res judicata apply to petitions under Art. 32 or Art. 226 where the dispute raised is in respect of a year different from the year involved in a prior dispute decided by this Court ? We have already noticed the points actually decided by this Court against the appellants on the earlier occasion (vide The Amalgamated Coalfields Ltd.(1)). One of the points sought to be raised was in regard to the validity of the increase in the rate of tax from 3 pies to 9 pies per ton; and since this point had not been taken in the petition and relevant material was not available on record, this Court refrained from expressing any opinion on it. The appellants contend that the order passed by this Court refusing permission to the appellants to raise this point on the earlier occasion does not mean that this Court has decided the point on the merits against the appellants; it may mean that the appellants were given liberty to raise this point later: but even otherwise, the point has not been considered and should not be held to be barred by constructive res judicata . It is significant that the attack against the validity of the notices in the present proceedings is based on grounds different and distinct from the grounds raised on the earlier occasion. It is not as if the same ground which was urged on the earlier occasion is placed before the Court in another form. The grounds now urged are entirely distinct, and so, the decision of the High Court can be upheld only if the principle of constructive res judicata can be said to apply to writ petitions filed under Art. 32 or Art. 226. In our opinion, constructive res judicata which is a special and artificial form of res judicata enacted by section 11 of the Civil Procedure Code should not generally be applied to writ petitions filed under Art. 32 or Art. 226. We would be reluctant to apply this principle to the present appeals all the more because we are dealing with cases where the impugned tax liability is for different years. In dismissing the appellants’ petitions on the ground of res judicata, the High Court has no doubt referred to Art. 141 under which the law declared by this Court is binding on all Courts within the territory of India. But when we are considering the question as to whether any law has been declared by this Court by implication, such implied declaration, though binding must be held to be subject to revision by this Court on a proper occasion where the point in question is directly and expressly raised by any party before this Court. Therefore, we are inclined to hold that the appellants cannot be precluded from raising the new contentions on which their challenge against the validity of the notices is based.
(1) [1962] 1. S. C. R. 1.
(1) [1960] A.C. 551, 563.

The first. ground urged by the appellants on the merits is that the levy authorised to be imposed by the Act and the Rules framed thereunder violates the fundamental rights guaranteed to the citizens under Art. 19 (1) (f) of the Constitution, and in support of this Arguments reliance is placed on the decision of this Court in Kunnathat Thathunni Moopil Nair v. The State of Kerala (1). In that case, the impugned Act was struck down because it suffered from several serious infirmities; it was confiscatory in character and its provisions in regard to the levy of the impost were so arbitrary and unreasonable that the Court took the view that the Legislature had completely ignored the legal position that the assessment of a tax on person or property was at least of a quasi-judicial character. This conclusion was based on the examination of the relevant statutory provisions. in the present case, we are not satisfied that this decision can assist the appellants at all, because the nature of the statutory provisions and the Rules framed under the Act in the present appeals is entirely different.

At this stage, it is necessary to refer to the relevant statutory provisions and the Rules. Section 51 of the Act (which, in substance, corresponds to section 90 of the Act of 1948) reads thus
(1) [1961] 3 S. C. R. 77.
“51. (1) Subject to the provisions of any law or enactment for the time being in force, a District Council may, by a resolution passed by a majority of not less than two-thirds of the members present at a special meeting convened for the purpose, impose any tax, toll or rate other than those specified in sections 24, 48, 49 and 50.
(2) The first imposition of any tax, toll or rate under sub-section (1) shall be subject to the previous sanction of the Provincial Government.
x x x X”
Sub-section (3) and the proviso are not relevant for our purpose.

Then we go to section 79 which confers power on the Provincial Government to make Rules. Section 79 (1)(xv) is relevant for our purpose. It provides that :
“The Provincial Government may make rules consistant with this Act and with reference, if necessary, to the varying circumstances of different local areas, as to the assessment and collection of the cases and rates specified in sections 48, 49 & 50 and of any tax, toll or rate imposed under section 51, as to the maximum amounts or rates at which any of them may be imposed, as to the prevention of evasion of assessment or payment thereof, as to the agency by which they shall be assessed and collected, and as to the manner in which account thereof shall be rendered by District Councils.”

In pursuance of the powers conferred on the local Government by s. 79, rules have been framed on December 16, 1935. Rules 3 to 10 deal with the question of the impost of tax and provide how decisions made in that behalf by appropriate authorities become final. Rule 3 prescribed the rate at 3 pies per ton, Rule 4 provides that the figures reported by the concessionaires and the Railway companies half yearly to the Dy. Commissioner, shall be the basis for the assessment of the tax. Under Rule 5, every mining lessee has to submit a statement half yearly. On receipt of the statement, the assessment has to be made by the Chairman of the Independent Mining Local Board under Rule 6. A notice of demand follows under rule 7. Fifteen days’ period is given for filing objections under Rule 8. Rule 9 provides for the Consideration and disposal of the objections, and Rule 10 lays down that if no objection is filed, the Chairman’s assessment shall be final, if any objection is received, the Independent Mining Local Board’s decision shall be final and shall be communicated to the assessee as soon as possible. It would thus be seen that the scheme of these Rules provides ample opportunity to the assessees to object to the notice of demand served on them and in fact, the demand notices are substantially based on the figures supplied by the railway companies and the concessionaires and the statements submitted by the assessees themselves. Therefore, it would be idle to suggest that the impost of the tax authorised by the relevant statutory provisions and the Rules is a capricious administrative or executive affair and so, should be held to violate Art. 19(1)(f) of the Constitution.

Then it is urged that the demand of the tax @ 9 ’es per ton is invalid, because it is inconsistent with Rule 3 which has prescribed the maximum rate permissible to be levied against the assessees.

We have already noticed that s. 79(1)(XV) authorised the making of a rule as to the maximum amounts or rates at which any of the articles can be taxed. This was introduced by an amendment made in 1933 by C.P. Act VII of 1933, and so, the argument is that Rule 3 which provides that the tax shall be levied @ 3 pies per ton must be deemed to pro- vide for the maximum rate which can be levied and that is 3 pies per ton and no more. This argument is no doubt wellfounded., because Rule 3 will have to be read in the light of the power conferred on the local Government by s. 79(XV) and that would mean that the rate of 3 pies per ton has been prescribed by the Rule of the maximum rate permissible. But this argument ignores the fact that this Rule has been subsequently deleted by a notification on September 6, 1943 published in the Government Gazette on September 10, 1943. When this notification was cited before us, the appellants conceded that the argument based on the construction of Rule 3 was not available to them. Therefore, the contention that Rule 3 prohibits the levy at a rate higher than 3 pies cannot succeed since the Rule itself has been subsequently deleted and was not a part of the Rules at the relevant time when the impugned notices were issued.

It is then argued that the impost of the tax at the rate of 9 pies per ton is not valid, because it does not comply with the requirements of s. 51(2) of the Act, and that raises the question of the construction of the said section. Section 51(1) authorises the imposition of the tax, provided, of course, the procedure prescribed by it and the requirements laid down by it are satisfied. Sub-Section (2) then lays down that the first imposition of any tax shall be subject to the previous sanction of the Provincial Government. The appellants contend that in the context, the “first imposition” means not only the first imposition in the senseof an initial imposition, but it includes every fresh imposition levied at an increased rate. On the other hand, the respondent Sabha contends that the first imposition means only the initial levy or impost and cannot take in subsequent imposts or levies. ’In this connection, it is relevant to remember that sub-section (2) was added by the same Amending Act by which s. 79(XV) was amended, and so, it would not be unreasonable to assume that when the legislature gave power to the local Government to prescribe by rules the maximum rates permissible to be levied, it introduced sub-section (2) in s. 51 because it was thought necessary that whenever the rates were changed, the imposition of the tax at the increased rates should receive the previous sanction of the Government. If the respondent’s construction is accepted, it would mean that the respondent should obtain the previous sanction of the Government at the initial levy and thereafter may go on increasing the rate of the levy to any extent without securing the sanction of the Government in that behalf. Now that Rule 3 has been deleted and no maximum has been or can be prescribed by the Rules, it would be unreasonable to hold that the respondent is given an unfettered and unguided authority to levy the impost in question at any rate it likes. Since no ceiling has been placed by the Rules in that behalf, it would, we think be fair to hold that if the rates are increased and levy is sought to be imposed on the altered rates, the imposition of the levy at these altered rates should be deemed to be included in the express on “first imposition” under s. 51(2). We are, therefore, inclined to accept the appellants’ construction of s. 51(2). That being so, it is necessary to enquire whether the imposition of the tax @ 9 pies has received the previous sanction of the local Government.

During the course of his arguments, Mr. Sastri for the respondent attempted to suggest that sanction had been obtained for the increase in the rates from time to time and a typed summary of the notifications issued in that behalf was supplied to us at the time of arguments. This summary refers to the three increments made in 1943, 1946 and 1947 respectively to which we have already referred. The summary read as if the increments had been sanctioned by the State Government. But Mr. Sachin Choudhury for the appellants contended that the summary supplied by the respondent was incomplete and inaccurate and that the examination of the Gazette in which the notifications were published, would show that the amendments in the rates had been made not with the previous sanction of the Government, but by the Mining Local Board itself. Two of these notifications were then produced before us by the respondent, and they supported the contention made by Mr. Choudhury. Therefore, the argument that the imposition @ 9 pies per ton has received the sanction of the Government must fail, and so, the impugned notices which seek to recover the tax from the appellants @ 9 pies per ton must be held to be invalid The respondent is entitled to levy tax only @ 3 pies per ton because that levy has received the sanction of the Government, but if the respondent intends to increase the rate of the said tax, it must follow the procedure prescribed by s.51(2), provided of course, it is open to the respondent to increase the said tax.

There is yet another point on which the appellants are entitled to succeed, and that has reference to the fact that the respondent is seeking to reopen some of the assessments made by it against the appellants. The argument is that once an assessment is made for a specific period, it becomes final and it is not open to the respondent to demand additional amount by way of tax in respect of the said period. The genesis of the tax is somewhat interesting. It appears that roads were constructed by the Independent Mining Local Board at enormous cost at the request of the Mining interests and even debt had to be incurred by the Board for completing the work of the construction of roads. Since the mining companies received substantial benefit from these roads, the Legislature thought of levying a tax on coal, and that is the origin of the tax. When the first notification was issued on December 16, 1935 it authorised and sanctioned the imposition by the Independent Mining Local Board at Chhindwara in the Chhindwara District “of a tax at 3 pies per ton on coal, coal dust or coke, manufactured at the mines, sold for export by rail or sold otherwise than for export by rail, within the jurisdiction of the Independent Mining Local Board.” This tax was recovered by the Board and thereafter by the respondent in respect of coal whether sold inside the district of Chhindwara or sold outside the district of Chhindwara or even outside the State of Madhya Pradesh. In other words, the total coal produced by each mining lease-holder substantially came to be taxed. But after the Constitution came into force, doubts arose as to whether Art. 286 of the Constitution did not preclude the respondent from recovering tax in respect of coal exported out of the State of Madhya Pradesh, and in view of the advice given to the respondent by the Government of Madhya Pradesh, the respondent did not collect the tax in respect of coal which was exported by rail outside the State of Madhya Pradesh from about 1952. The respondent wanted to consult legal opinion on this point, but the State Government refused permission to the respondent to incur expenditure in that behalf. Subsequently however, this question came to be decided by the High Court of Madhya Pradesh in a writ petition filed by M/s. Newton Chickli Collieries (Pvt.) Ltd. (No. 265 of 1957). The High Court held that the tax levied by the janapada Sabhas under s.51 of the Act did not amount to a sales tax nor to an excise duty and so, the respondent thought that it could levy tax even on coal exported by rail outside the State of Madhya Pradesh. In fact after this judgment was pronounced by the High Court on August 6, 1958, the Provincial Government withdrew its instructions to the respondent not to levy tax on exported coal. That is how the respondent has issued notices against the appellants in respect of coal exported by rail out of the State of Madhya Pradesh in regard to the years for which assessment has already been levied against the appellants for the coal not so exported, and the contention of the appellants is that this reopening of the assessment is not permissible under the Rules.

This contention appears to be well-founded. We have already seen the scheme of the Rules and we have noticed that Rule 10 provides that if no objection is filed, the Chairman’s assessment shall be final and if an objection is received, the decision of the Mining Board would be final. In other words, the scheme clearly provides that at the end of each six monthly period, the tax has to be assessed, notices to be issued to the assessee, his objections to be considered and the tax to be ultimately determined in the light of the decision on the said objections; and under Rule 10, the two decisions specified therein become final. It may be that the Rules do not prescribe any limitation within which these steps have to be taken by the respondent for each period, but that is another matter. In view of the provisions of Rule 10, it is difficult to hold that the respondent is entitled to reopen assessments already made and rendered final under the said Rule. There is no other provision for reopening assessment as we have under sections 34 & 35 of the Indian Income Tax Act, and so,. the respondent is not justified in issuing notices for the years which arc covered by assessment orders already passed. The finality provided for by Rule 10 will work as much against the respondent as against the assessees.

In support of the appeals, another argument was sought to be raised against the increase of the rates. It was urged that the tax is in the nature of an excise duty or a sales-tax and, therefore, any increase in the said tax beyond the limit of 3 pies–the continuance of which has been saved by the provisions of Art. 143 of the Government of India Act, 1935 and Art. 277 of the Constitution-will be invalid. This argument is based on the terms used in the notification of December 16, 1935. Since coal is described as manufactured at the mines, the argument is that it is in the nature of an excise duty and since the notification also refers to coal sold for export by rail or sold otherwise than for export by rail, it is’ argued that it is a sales-tax. On the other hand, the respondent contends that it is neither a sales-tax nor an excise duty and as such, the rate can be increased subject, of course, to the requirements of s. 51 (2) of the Act. It appears that by notification issued on September 6, 1943, the preamble of the Rules was modified by substituting for the words “’coal, coal dust or coke” by “coal and dust coal” and by deleting the words “’manufactured at the mines”. Curiously enough, these amendments have not been made in the original notification itself. We have already noticed that this latter notification deleted Rule 3. Some arguments were urged before us by learned counsel on both sides as to the effect of this notification which modified the preamble to the Rules. We do not, however, think it necessary to consider these arguments in the present appeals because of our conclusion that the impugned notices levying the tax @ 9 pies per ton are invalid for two reasons: the increase in the rates has not been sanctioned by the State Government under s. 51 (2) and an attempt to recover at the increased rate the tax for the years already covered by assessment orders passed in that behalf, is barred by Rule 10.

The result is, the appeals and the writ petitions are allowed and an appropriate direction or order is issued restraining the respondent from recovering the tax at a rate higher than 3 pies per ton and also restraining the respondent from recovering any additional tax in respect of the years for which tax has already been assessed against the appellants. The same will be the order in the other companion appeals.

The appellants will be entitled to their costs, but one set of bearing fees will be taxed.

Appeals and writ petitions allowed.

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SUPREME COURT OF INDIA

K. M. NANAVATI …PETITIONER
Vs.
STATE OF MAHARASHTRA …RESPONDENT

DATE OF JUDGMENT: 24/11/1961
BENCH: SUBBARAO, K. DAS, S.K. DAYAL, RAGHUBAR

CITATION:
1962 AIR 605 1962 SCR Supl. (1) 567

CITATOR INFO :
R 1964 SC1563 (6)
F 1974 SC1570 (19)
RF 1976 SC 966 (32)
F 1983 SC 855 (16)
D 1987 SC 852 (9)
R 1990 SC1459 (24)

ACT:

Jury Trial-Charge-Misdirection-Referenceby Judge,if andwhen competent-Plea of General Exception-Burden ofproof-“Grave an sudden provocation”-Test-PowerofHigh Courtin reference-Code of Criminal Procedure(Act, 5of 1898), 88. 307, 410, 417, 418 (1), 423(2), 297,155 (1), 162-Indian Penal Code, 1860 (Act 45 of 1860),

88. 302, 300, Exception I-Indian Evidence Act, 1872 (1 of 1872), 8. 105.

Held, that theconnections were without substance and the appeal must fail.

Judged byits historical background and properly construed, s. 307 of the Code of Criminal Procedure was meant toconfer widerpowersof interference on the High Court than 569 in an appeal to safeguard against anerroneous verdict of the jury. This special jurisdiction conferred on the High Court by s. 307 of the Code is essentiallydifferent from itsappellate jurisdiction under ss. 410 and 417 of the code, s.

423(2) conferring no powers but onlysaving the limitation under s. 418(1), namely, that an appeal against an order of conviction or an acquittal in a jury trial must be confined to matters of law.

The words”for the ends of justice” ins.

307(1) of the Code, which indicate that the Judge disagreeing with the verdict,must be of the opinionthatthe verdict was onewhichno reasonable body of men could reach on the evidence, coupled with the words ‘clearly of the opinion’ gave the Judge a wide and comprehensive discretion to suit different situations. Where.

therefore, theJudge disagreedwith the verdict and recorded the grounds ofhis opinion, the reference wascompetent, irrespective of the question whether theJudgewas right inso differing from the jury or forming such an opinion as to the verdict. There is nothing in s. 307(1) of theCode that lends support to the contention that though the Judge had compliedwith the necessary conditions, the High Court should reject the reference without going into the evidence if the reasons given in the order of reference did not sustain the view expressed by the Judge.

Section 307(3) of the Code by empowering the High Court either to acquit or convict the accused after considering the entire evidence, giving due weight to the opinionsof the Sessions Judge and the jury, virtually conferredthe functions both of the jury and the Judge on it.

Where, therefore,misdirections vitiated the verdict of the jury, the HighCourt had as much the power to go intothe entire evidencein disregard of the verdict of the jury as it had when there were no misdirections andinterfere with it if itwas such as no reasonable body of persons could have returned on the evidence. In disposing of the reference, the High Court could exercise any of the procedural powers conferred on it by s. 423 or any other sections of the Code.

Ramanugarh Singh v. King Emperor, (1946) L.R.

73 I. A. 174,Akhlakali Hayatalli v.Stateof Bombay, [1953] INSC 80; [1954]S.C.R. 435, Ratan Rai v. State of Bihar, [1957] S.C.R. 273, Sashi Mohan Debnath v.

State of West Bengal [1958] S. C. R.960, and Emperor v. Ramdhar Kurmi, A. I. R. 1948 Pat. 79, referred to.

A misdirection is something which the judge in hischarge tells the jury and is wrong or in a wrong manner 570 tending to mislead them. Even an omissionto mentionmatters which areessential to the prosecution orthe defence case in order to help the jury to come to a correct verdict may also in certain circumstances amount to a misdirection.

But ineither case, every misdirection or non- direction is not in itself sufficient to set aside a verdict unless it can be said to have occasioned a failure of justice.

Mustak Hussein v. State of Bombay [1953] S.

C. R. 809 andSmt. Nagindra Bala Mitra v. Sunil Chandra Roy, [1960] INSC 21; [1960] 3 S. C. R. 1, referred to.

There is no conflict between the general burden that lies on the prosecution in a criminal case and the special burden imposed on the accused under s. 105 of the Evidence Act where he pleads any ofthe General Exceptions mentioned in the Indian Penal Code. The presumption of innocence in the favour of the accused continues all through and theburden that lies on the prosecutionto prove his guilt, except where the statute provides otherwise, never shifts. Even if the accused fails to prove the Exceptionthe prosecution hasto discharge its own burden and the evidence adduced, although insufficient to establish the Exception, may besufficient to negative one or more of the ingredients of the offence.

Woolmington v.Director of Public Prosecutions, L. R. [1935] UKHL 1; (1935) A. C. 462, considered.

Attygalle v. Emperor, A.I. R. 1936 P.C.

169, distinguished.

State ofMadrasv. A.Vaidyanatha Iyer, [1957] INSC 79; [1958] S. C. R. 580 and C. S. D. Swamy v. State, [1959] INSC 98; [1960] 1 S. C. R. 461, referred to.

Consequently, where, as in the instant case, the accused relied on the Exception embodied in s.

80 of the Indian Penal Code and the Sessions Judge omitted to point out to the jury the distinction between the burden that lay on the prosecution and that onthe accused and explain the implications of the terms’lawful act’, lawful manner’, ‘unlawful means’ and’withpropercare and caution’ occurring in that section and point out their application to the facts of the case these were seriousmisdirections that vitiated the verdict of the jury.

Extra-judicial confession made by the accused is a direct piece of evidenceand the stringent rule of approach to circumstantial evidence has no application toit. Since in the instant case, the Sessions Judgein summarisingthe circumstances mixed up the confession withthe circumstances while directingthe jury to apply the ruleof circumstantial evidence and 571 it might well be that the jury applied that rule to it, his charge was vitiated bythe grave misdirection that must effect that correctness of the jury’s verdict.

The question whether theomission to place certain evidence before the jury amounts toa misdirection has to bedecided on the factsof each case. Under s. 297 of the Code of Criminal Procedure it is the duty of the Sessions Judge after the evidence isclosed and the counsel for the accused and the prosecution have addressed the jury, to sum up the evidencefrom the correct perspective. The omission of the Judge in instant case, therefore, to place thecontents of the letters writtenby the wife to her paramour which in effect negatived the case made by the husband and thewife in theirdeposition was a clear misdirection. Althoughthe letters were readto jury bythe counsel for the parties, that did not absolve the judge fromhis clear duty in the matter.

R. V. Roberts, [1942] 1 All. E. R. 187 and R.

v. Affield, [1961] 3 All.E. R.243, held inapplicable.

The commencement of investigationunders.

156 (1)of theCode of Criminal Procedure in a particular case, which is a question of fact, has to bedecided on the facts ofthe case, irrespective ofany irregularity committed by the Police Officerin recording the first information report under s. 154 of the Code.

Where investigation had in fact commenced, as in theinstant case, s. 162of theCode was immediately attracted.But the proviso to that sectiondid not permit theeliciting froma prosecution witness in course of his cross- examination ofany statement that hemight have made to the investigation officer where such statement was not used to contradict his evidence.

The proviso also had no applicationto-a oral statement madeduring investigationand not reduced to writing.

In the instant case, therefore, there could be nodoubtthat the Sessions Judge acted illegally in admitting the evidence of P. W. 13 to contradict P. W. 12 in regard to the confession of the accused and clearly misdirected himselfin placing the said evidence before the jury.

Exception 1 to s.300 ofthe Indian Penal Code could have no application to the case. The test of”grave and sudden” provocation under the Exception mustbe whether areasonable person belonging to the sameclass of society as the accused, placedin a similar situation, would be so provoked as to lose his self control. In India, unlike in England, words and gestures may, under certaincircumstancescausegrave and sudden provocation soas to attract that Exception. The mental background created by any previous act of the victim can 572 also be taken intoconsideration in judging whether the subsequent act could cause grave and sudden provocation, but the fatal blow should be clearly tracedto theinfluence of the passion arising from that provocationand notafter the passion had cooled down by lapse of timeor otherwise, giving room and scope for premeditation and calculation.

Mancini v.Director of Public Prosecutions, L.R. (1942) A.C. I, Holmes v. Director of Public Prosecutions, L. R. (1946) A.C. 588 Duffy’s case, [1949]1 All. E. R. 932 and R. v. Thomas, [1837] EngR 242; (1837) 7 C. & P. 817, considered.

Empress v.Khogayi, (1879) I. L.R. 2 Mad.

122, Boya Munigadu v. The Queen, (1881) I. L. R. 3 Mad. 33, In re Murugian I. L. R. (1957) Mad. 805, In re C. Narayan, A.I.R. 1958 A. P. 235, Jan Muhammad v. Emperor, I. L. R.(1929) Lah. 861, Emperor v. Balku, I. L. R. (1938) All 789 and Babu Lal v. State A. I. R. 1960 All. 223, referred to.

Semble: Whether a reasonable person in the circumstances ofa particular case committed the offence under grave and sudden provocation isa question of fact for the juryto decide.

Holmes v.Director of Public Prosecution, L.

R. (1916) A. C. 588, considered.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 195 of 1960.

Appeal by special leave from the judgment and order dated March 11,1960, of the Bombay High Court in Criminal Jury Reference No. 159 of 1959.

G. S. Pathak, S. G. Patwardhan, Rajini Patel, Porus A. Metha, J. B. Dadachaji, Ravinder Narain and O. C. Mathur, for the appellant.

M. C. Setalvad, Attorney-General of India, C.

M. Trivedi, V. H. Gumeshte, B. R. G. K. Achar and R. H. Dhebar, for the respondent.

1961. November 24. The Judgment of the Court was delivered by SUBBA RAO,J.-This appealby special leave arises out of the judgment ofthe Bombay High Court sentencing Nanavati, the appellant, to life imprisonment for the murder of Prem Bhagwandas Ahuja, a businessman of Bombay.

573 This appeal presents the commonplace problem of an alleged murder by an enraged husband of a paramour of his wife: but it aroused considerable interest in the publicmind by reason of the publicity it received and theimportant constitutional point it had given rise to at the time of its admission.

The appellant was chargedunder s. 302as well asunder s. 304, Part I, of the Indian Penal Code and was tried by the Sessions Judge, Greater Bombay, with the aid of special jury. The jury brought in a verdict of “not guilty” by 8: 1 under both the sections; but the Sessions Judge did not agree with the verdict of the jury, as in his view the majority verdict of the jury was such that no reasonable body of men could, having regard to the evidence, bringin such a verdict. The learned Sessions Judgesubmitted the case under s. 307 of the Code of Criminal Procedure to the Bombay High Court after recording the grounds for his opinion.

The said reference washeard by a division bench of thesaid High Court consisting of Shelat and Naik, JJ. The two learned Judges gave separate judgments, butagreed in holding that the accused was guilty of the offence of murder under s. 302 of the Indian Penal Code andsentenced himto undergo rigorous imprisonment for life. Shelat, J., having held that there were misdirections to the jury, reviewed the entire evidence and came to the conclusion that the accused was clearly guilty of theoffence of murder, alternatively,he expressed the view that the verdict of the jury was perverse, unreasonable and, in any event, contrary to the weightof evidence.Naik, J., preferred tobase his conclusionon the alternative ground, namely, that no reasonable body ofpersons could have come to the conclusion arrived at by the jury. Boththe learned Judges agreed that no case had beenmade out to reduce the offence from murder to culpable 574 homicide not amountingto murder. The present appealhas been preferredagainstthe said conviction and sentence.

The case of the prosecution maybe stated thus: This accused, atthe time of the alleged murder, was second in command of the Indian Naval Ship “Mysore”.He married Sylvia in 1949 in the registry officeat Portsmouth, England. They have three children by themarriage, a boy aged 9 1/2 years a girl aged 5 1/2 years and another boy aged 3 years. Since the time of marriage, the couple were living at different places having regard to the exigenciesof service of Nanavati. Finally, they shifted to Bombay. In the samecity the deceased Ahujawas doing business in automobiles and wasresiding, along with his sister, ina building called “Shreyas” till 1957 and thereafter in another buildingcalled”JivanJyot”in Setalvad Road.In the year 1956, Agniks, who were common friends of Nanavatis and Ahujas, introduced Ahuja and his sisterto Nanavatis.Ahuja was unmarried and was about 34 years of age at the time ofhis death, Nanavati, as a Naval Officer, was frequently going away from Bombay in his ship, leaving his wife and children in Bombay.

Gradually, friendship developed between Ahuja and Sylvia,whichculminated inillicit intimacy between them. On April 27, 1959, Sylvia confessed to Nanavati of her illicit intimacy with Ahuja.

Enraged at the conduct of Ahuja, Nanavati went to his ship, took from the stores of the ship a semi- automatic revolver and six cartridges on a false pretext, loadedthe same, went to the flatof Ahuja entered his bed-room and shothim dead.

Thereafter, the accused surrendered himself to the police. He was put under arrest and in due course he wascommitted to the Sessions forfacinga charge under s. 302 of the Indian Penal Code.

The defence version, asdisclosed in the Statement madeby the accused before the Sessions Court under s. 342 of the Code of Criminal Procedure and 575 his depositionin thesaid Court, may be briefly stated: The accused was away with his ship from April 6, 1959, to April 18,1959. Immediately after returning to Bombay, he and his wife went to Ahmednagar forabout three days in the company of his younger brother and his wife. Thereafter, they returned to Bombay and aftera fewdays his brother and his wife left them. After they had left, the accused noticed that hiswife was behaving strangely and was not responsiveor affectionate tohim. When questioned, she used to evade the issue. At noon on April 27, 1959, when they were sitting in the sitting-room for the lunch to be served, the accused put his arm round his wife affectionately, whenshe seemed to go tense and unresponsive. After lunch, whenhe questioned herabout her fidelity, she shook her head toindicate thatshe was unfaithful to him.

He guessed that her paramour was Ahuja. As she did not even indicate clearly whether Ahuja would marry her and look after the children, he decided to settle the matter with him. Sylvia pleaded with him not go toAhuja’s house,as he might shoot him. Thereafter, he drove his wife, two of his children and a neighbour’s child in his car to a cinema, droppedthem there and promised to come and pick them up at 6 P.M. when the show ended. He then drove his car to his ship, as he wanted to get medicine for his sick dog, he represented to the authoritiesin theship, that he wantedto draw arevolver and six rounds from the stores of the ship as he was going to drivealoneto Ahmednagar by night, though the real purpose was to shoot himself. On receiving the revolver and six cartridges, andput it inside a brown envelope. Then he drove his car to Ahuja’s office, and notfinding him there, hedrove to Ahuja’s flat, rang the door bell, and, when it was opened by a servant, walked to Ahuja’s bed-room, went into the bed-room and shut the door behind him. He also carried with him the envelope containing 576 the revolver. The accused saw the deceased inside the bed-room, called him a filthy swine and asked him whether he would marry Sylvia and look after the children. The deceased retorted,”Am Ito marry every woman I sleep with ?” The accused became enraged,put the envelope containing the revolver on a cabnit nearby, and threatenedto thrash the deceased. The deceased made a sudden move tograsp at the envelope, when the accused whipped out his revolver and told him to get back.

A struggle ensued between the two and during that struggle two shots went off accidentally and hit Ahuja resultingin hisdeath. After the shooting the accused went backto his car and drove it to the police station where he surrendered himself.

This is broadly, omitting the details, the case of the defence.

It would be convenient to dispose of at the outset the questions of law raised in this case.

Mr. G. S Pathak,learnedcounsel for the accused, raisedbefore us the following points:

(1) Under s.307 of theCode of Criminal Procedure, theHigh Court should decide whether a reference madeby a Sessions Judge was competent only ona perusal of the order of reference made to it and it had no jurisdiction to consider the evidence and come to a conclusion whether the reference was competent or not. (2)Unders.

307(3) of the said Code, theHigh Court had no power to set aside the verdict of a jury on the ground that there were misdirections in the charge made bythe Sessions Judge. (3) I here were no misdirections at all in the charge made by the Sessions Judge; and indeed his charge was fair to the prosecutionas well to the accused. (4) The verdict of the jury was not perverse and it was such that a reasonable bodyof persons could arrive at it on the evidence placed before them.

(5) Inany view, the accused shot at the deceased under grave and sudden provocation, and therefore even if he had committed 577 an offence, itwouldnot bemurderbut only culpable homicide not amounting to murder.

Mr. Pathakelaborates hispointunder the first heading thus: Under s. 307 of the Code of Criminal Procedure, the High Court deals with the reference in two stages. In the first stage, the High Court has to consider, on the basis of the referring order, whether a reasonable bodyof persons could not have reached theconclusion arrived at by the jury; and, if it is of the view that such a body could have come to that opinion the reference shall be rejected as incompetent. At this stage, the High Court cannot travel beyond the order of reference, but shall confine itself only tothe reasons given by the Sessions Judge.

If, ona considerationof thesaid reasons,it will ofthe view that no reasonable bodyof persons could have come to that conclusion,it will then have to consider the entire evidence to ascertain whether the verdictof the juryis unreasonable. If the High Court holdsthat the verdict of the jury is not unreasonable, in the case ofa verdict of “not guilty”, the High Court acquits the accused, and in the case where the verdictis one of “guilty”it convicts the accused. In case the High Court holds that the verdictof “not guilty”, isunreasonable,it refers back the case to the Sessions Judge, who convicts the accused; thereafter the accused will have aright of appeal wherein he can attack the validity of his conviction onthe ground that there were misdirections in the charge of the jury. So too, in the case of a verdict of “guilty” by the jury, the High Court, if it holds that the verdict is unreasonable, remits the matter to the Sessions Judge,who acquits the accused, and the State, in an appeal against that acquittal, may question the correctness of the said acquittal on the ground that thechargeto thejury was vitiated by misdirections. In short, the argument may beput in three propositions, namely, (i) the High Court rejects the 578 reference as incompetent, if on the face of the reference the verdict of the jury does not appear to be unreasonable, (ii) ifthe referenceis competent, theHighCourtcan consider the evidence to come to a definite conclusion whether the verdict is unreasonable or not, and (iii) the High Court has no power under s. 307 of the Code of Criminal Procedure to set aside the verdict of the jury on the ground that it is vitiatedby misdirections in the charge to the jury.

The question raisedturnsupon the construction ofthe relevant provisions of the Code of Criminal Procedure. The said Code contains two fasciculeof sectionsdealingwith two different situations. Under s.268 ofthe Code, “All trials before a Court ofSession shallbe either by jury, or by the Judge himself.” Under s.

297 thereof:

“In cases tried by jury, when the case for the defence and the prosecutor’s reply, ifany,are concluded,the Court shall proceed tocharge the jury, summing up the evidence for the prosecution and defence, and laying down the law by which the jury are to be guided ………………”.

Section 298 among other imposes a duty on a judge to decide all questions of law arising in the course of the trial, and especially all questions as to the relevancy of facts which it is proposed to be proved, and the admissibility of evidence or the propriety of questions asked by or on behalf of theparties, and to decide upon all matters of fact which it is necessary toprove in order to enable evidenceof particular matter to be given.

It is the dutyof the jury “to decide which view of thefacts is trueand then to return the verdict which under such view ought, according to the directions of the Jury, to be returned.” After the charge tothe jury, the juryretireto consider their verdict and, after due consideration, the foreman of the jury informs the Judge what is their verdict or what is the verdict of the majority of the jurors.

579 Where the Judge does not think it necessaryto disagree with the verdict of the jurors or of the majority of them, he gives judgment accordingly.

If theaccusedis acquitted,the Judge shall record a verdict of acquittal; if the accused is convicted, theJudge shall pass sentence on him according to law. In the case of conviction, there is a right of appeal under s. 410 of the Code, and in a case of acquittal, under s. 417 of the Code, to theHigh Court. But s.418 ofthe Code provides:

“(1) An appeal may lie on a matter of fact as well as a matter of law except where the trialwas byjury, in which case the appeal shall lie on a matter of law only.” Sub-section (2) therefore provides for a case of a person sentenced to death, with which we are not now concerned.Section 423 confers certain powers on an appellate Courtin the matter of disposing of an appeal, such as callingfor the record, hearing of the pleaders, and passing appropriate orders therein. But sub-s. (2) of s. 423 says:

“Nothing hereincontained shall authorise the Court to alter or reverse the verdict ofthe jury, unless it is of opinion that suchverdict is erroneous owning to a misdirection bythe Judge, or toa misunderstanding on the part of the jury of the law as laid down by him.” It maybe noticed at this stage, asit will be relevant in considering oneof thearguments raised in this case, that sub-s. (2)does not confer any power on an appellate court, but only saves the limitation on the jurisdiction ofan appellate courtimposed under s. 418 of the Code.

it is,therefore, clear that in an appeal against conviction or acquittal in a jury trial, the said appeal is confined only to a matter of law.

The Code of Criminal Procedure also provides for a different situation. The Sessions Judge may 580 not agree with the verdict ofthe jurors or the majority of them; and in that event s. 307 provides for a machinery to meet that situation.

As the argument mainlyturnsupon the interpretation of the provisions of this section, it will be convenient to read the relevant clauses thereof.

Section 307: (1) If in any such case the Judge disagrees with the verdict of the jurors, or of a majority of jurors, on all or any of the charges on which any accused person hadbeen tried, and is clearlyof opinion that it is necessary for the ends of justice to submit the case in respect of such accused person to the High Court, he shall submit thecase accordingly, recording the grounds of his opinion, and, when the verdict is one ofacquittal, stating the offence which he considers to have beencommitted, and in such case,if the accused is further charged under the provisions such charge as if such verdict had been one of conviction.

(3) In dealing with thecaseso submitted the High Court may exercise any of the powers whichit may exercise onan appeal, and subject thereto it shall, after considering the entire evidenceand after giving dueweight to theopinions of the Sessions Judge and thejury,acquitor convict such accused of any offence of which the jury could have convicted him upon the charge framed and placedbefore it; and, if it convicts him, may pass such sentence as might have beenpassedby theCourtof Session.

This section is a clear departure from the English law. There are good reasons for itsenactment.

Trial by jury outsidethe PresidencyTowns was first introduced in the Code of Criminal Procedure of 1861, and the verdict of the jury was, 581 subject to re-trial oncertain events, final and conclusive. This led to miscarriage of justice through jurors returning erroneous verdicts due to ignorance and inexperience. The working of the systemwas reviewed in 1872, by acommittee appointed for that purpose and on the basis of the reportof the saidCommittee, s.262 was introduced inthe Code of 1872. Under that section, wheretherewas difference of view between the jurors andthe judge, the Judge was empowered to refer thecase to the High Court in the ends of justice, and the High Court dealt with the matter as an appeal. But in 1882 the section was amended and underthe amended section the condition for reference was that theHigh Court should differ from the jury completely; but in the Code of1893 the section was amended practically in terms as itnow appears in theCode. The history of the legislation shows that the section was intended as a safeguardagainsterroneous verdicts of inexperienced furorsand also indicates the clear intentionof the Legislature to confer on a High Court a separate jurisdiction, which for convenience maybe describedas “reference jurisdiction”. Section 307 of the Code of Criminal Procedure, while continuing the benefits of the jury system to persons tried by a Court of Session, also guards against any possible injustice, having regard totheconditions obtaining in India. Itis, thereforeclear that there is an essential difference between the scope of the jurisdiction of the High Court in disposing of an appeal against a conviction or acquittal, as the case may be, in ajury trial, and that in a case submittedby theSessions Judge whenhe differs from the verdict of the jury: in the former the acceptance of the verdict of the jury by thesessions Judge isconsidered tobe sufficient guarantee against its perversity and therefore an appeal is provided only on questions of law,whereas in the latter the absence of such agreement necessitatedthe conferment of a larger power on 582 the High Court in the matter of interfering with the verdict of the jury.

Under s. 307(1) of the Code, the obligation cast upon the Sessions Judge to submit the case to the High Court is made subject to two conditions, namely, (1) the Judgeshall disagreewith the verdict of the jurors, and (2) he is clearly of the opinion that it is necessary in the ends of justice to submit thecase to the High Court. If the twoconditions arecomplied with, he shall submit the case, recording the grounds of his opinion. The words “for the ends of justice” are comprehensive, and coupled with thewords “is clearlyof opinion”,they give the Judgea discretion to enable him to exercisehis power under different situations, the onlycriterion being his clear opinion that the reference is in the ends of justice. But the Judicial Committee, in Ramanugrah Singh v. King Emperor(1), construed the words “necessary for the ends of justice” and laid down that the words mean that the Judge shall be of the opinion that the verdict of the jury is one which no reasonable body of men could have reached on the evidence. Having regard to that interpretation, it may be held that the second condition for reference is that the Judge shall be clearly of the opinionthat the verdict is one which no reasonable body of men could have reached on the evidence. It followsthat if a Judge differs from the juryand isclearly of such an opinion, he shall submit the case tothe High Court recordingthe grounds of his opinion.In that event, the said reference is clearly competent. Ifon the other hand,the case submitted to the High Court does not ex facie show that the said two conditions have been complied with by the Judge, it is incompetent. The question of competency of the reference does not depend upon the question whether the Judge 583 is justified in differing from the jury or forming such anopinion on the verdict of the jury. The argument thatthoughthe SessionsJudge has complied with the conditions necessary for making a references, the HighCourtshall reject the reference as incompetent without going in to the evidence if the reasons given do not sustain the view expressedby theSessions Judge, is not supported by the provisions of sub-s.(1) of s.

307 ofthe Code. But it is said that it is borne out ofthe decision of the Judicial Committee in Ramanugrah Singh’s case(1). In thatcase the Judicial Committee relied upon the words “ends of justice” end held that the verdict was one which no reasonable body ofmen could have, reached on the evidence and further laid downthat the requirements ofthe ends of justice must be the determining factor both for the Sessions Judge in making the reference and for the High Courtin disposing of it. The Judicial Committee observed:

“In general,if theevidence is such that it can properly support a verdict either of guiltyor notguilty, according to the view takenof itby the trial court, and if the jury take oneview of the evidence and the judgethinks that they should have taken the other, theview of the jury. must prevail, since they are the judges of fact.

In such a case a reference is not justified, and it is only by accepting their view that the High Court can give due weight to the opinion ofthe jury. If, however, the High Court considers that onthe evidenceno reasonable body of men could have reached the conclusion arrivedat bythe jury, then the referencewas justifiedand the ends of justice requirethatthe verdictbe disregarded.” The Judicial Committee proceeded to state:

“In their Lordships’opinion had the High Courtapproached thereference on the right 584 lines and given due weight to the opinion of the jury they would have been bound to hold that the reference was not justified and that the ends of justice didnot require any interference with the verdict of the jury.” Emphasis is laid on the word “justified”, and it is argued that the High Courtshould reject the reference as incompetent if the reasons given by the Sessions Judge in the statement of case do not support his view that it is necessary in the ends of justice to refer the caseto the High Court.

The Judicial Committee does not lay down any such proposition. There, the jury brought in a verdict of not”guilty” unders. 302, Indian Penal Code.

The Sessions Judge differed from the jury and made a reference to the High Court. The High Court accepted the reference and convicted the accused and sentenced him to transportation for life. The Judicial Committee held, on the facts of that case, that the High Court was not justified in the ends ofjustice to interfere with the verdict of the jury. They were not dealing with the question of competency of a reference but only with that of the justification of the Sessions Judge in making the reference, and the High Court in accepting it.

It was also not considering a case of any disposal of the reference by the High Court on the basis of the reasons given inthe reference,but were dealing with a case where theHigh Court ona consideration of the entire evidence accepted the reference and the Judicial Committee held on the evidence that there was no justification for the ends ofjustice to accept it. This decision, therefore, hasno bearing on the competency of a reference unders. 307(1) of the Code of criminal Procedure.

Now, coming to sub-s. (3) of s. 307 of the Code, it is in two parts. The first part says that the High Court may exercise any of the powers which it may exercise in an appeal. Under the 585 second part, after considering the entire evidence and after giving due weight to the opinions of the Sessions Judgeand the jury, the High Court shall acquit or convict theaccused. These parts are combined by the expression and subject thereto”.

The words “subject thereto” were added to the section by an amendment in 1896. This expression gave rise toconflict of opinion and itis conceded that it laces clarity. That may be due to the fact that piecemeal amendments have been made to the section from time to time to meet certain difficulties. But we cannot ignore the expression, but wemust give it a reasonable construction consistent withthe intentionof the Legislature in enacting the said section. Under the second part of the section,special jurisdictionto decide a case referredto it is conferred on the High Court. It also defined the scope of its jurisdiction and its limitations The High Court can acquit or convict an accused of an offence of which the jury could have convicted him, and also pass such sentence asmight have been passed by the Court of Session.But before doing so,it shall considerthe entire evidence and give due weight to the opinionsof the Sessions Judge and the jury. The second part does not confer on the High Court any incidental procedural powers necessary to exercise the said jurisdiction in a case submitted to it, for it is neither an appeal nor arevision. Theprocedural powers are conferred on the High Court under the first part.

The first part enables the High Court to exercise any of the powers which it may exercise in appeal, for without such powers it cannot exercise its jurisdiction effectively. But theexpression “subject to” indicates that in exercise of its jurisdiction in the manner indicated by the second part, it can call in aid only any of the powers of an appellate court, but cannot invoke a power other than that conferred on an appellate court.

The limitationon thesecond part implied in the expression “subject”, must 586 be confined to the area of the procedural powers conferred on a appellate court. If that be the construction, the questionarises, howto reconcile the provisions of s. 423 (2) with those of s. 307 of the Code? Under sub-s. (2) of s.

423:

“Nothing hereincontained shall authorise the Court to alter or reverse the verdict ofa jury, unless it is of opinion that suchverdict is erroneous owing toa misdirection bythe Judge, or toa misunderstanding on the part of the jury of the law as laid down by him.” It maybe argued that, as an appellate court cannot alter or reverse the verdict of a jury unless such a verdictis erroneous owing toa misdirection by the Judge, orto a misunderstanding on the part of the jury of the law aslaid down byhim, the HighCourt,in exercise of its jurisdiction under s. 307 of the Code, likewise could not do so except for the said reasons. Sub-section (2) of s. 423 of the Code does not confer any power ofthe High Court; it only restatesthescopeof the limited jurisdiction conferredon thecould under s. 418 of theCode,and that Could nothave any application tothe special jurisdiction conferred on theHigh Court under s. 307. Thatapart,a perusal of the provisions of s. 423 (1) indicates that there are powersconferred on an appellate court which cannot possibly be exercised by courts disposing of reference under s. 307 of the Code, namely, the power to order commitment etc. Further s. 423(1) (a) and (b) speak of conviction, acquittal, finding and sentence, which are wholly inappropriate to verdict of a jury. Therefore, a reasonable constructionwill be thatthe High Court can exercise-any of the powers conferred on an appellate court under s. 423 or under either sections of the Code which are appropriate to the disposal of a, reference under s. 307. The object is to prevent miscarriage of the justice by the jurors returning erroneous 587 or preverse verdict. The opposite construction defeatsthispurpose, forit equates the jurisdiction conferredunder s. 307 with that of an appellatecourt in a jury trial. That construction would enable the HighCourtto correct an erroneous verdict of a jury only in a case ofmisdirection by the Judge but not in a case affair and good charge. This result effaces the distinction between thetwotypesof jurisdiction. Indeed,learnedcounsel for the appellant has taken a contrary position. He would say that the High Court under s. 307 (3) could not interfere withthe verdict of the jury on the ground that there were misdirections in the charge to the jury. This argument is builtupon the hypothesis that under theCode of criminal Procedure there is a clear demarcation of the functions of the juryand theJudge,the jury dealing with facts andthe Judge with the and therefore the High Court could set aside a verdict on theground of misdirection only when an appeal comes to it under s. 418 and could only interfere with the verdict of the juryfor the endsof justice, as interpreted by the Privy Council, when the matter comes to it under 8. 307 (3). If this interpretationbe accepted, wewouldbe attributing tothe Legislaturean intentionto introduce a circuitous method and confusion in the disposal of criminalcases. Thefollowing illustration will demonstrate the illogical result of theargument. The jury brings in a verdict of “guilty” on the basisof a charge replete with misdirections;the Judge disagreeswith that verdict and states the case to the High court; the High Court holds thatthe said verdict is not erroneous on the basisof thecharge, but is of the opinion that the verdict is erroneous because of themisdirections in the charge; even so, it shall hold that the verdict of the jury is good and reject the reference thereafter, the Judge his to accept the verdict and acquit the accused; the prosecution then will have 588 to prefer an appeal under s.417 of the Code on the ground that the verdict was induced by the misdirections in the charge. This could not have been the intention of the Legislature. Take the converse case.On similar facts, the jury brings in a verdict of guilty”; the Judge disagrees with the jury and makes a reference to the High Court;

even though it finds misdirections in the charge to thejury, the High Court cannot set aside the conviction butmust reject the reference; and after the conviction, the accused mayprefer an appeal to the High Court. This procedure will introduce confusion in jurytrials,introduce multiplicity of proceedings, andattribute ineptitude to the Legislature. What is more, this construction is not supported by the express provisions of s. 307 (3) of the Code. The said sub-section enables the High Court to consider the entireevidence, togive due weight to the opinions of the Sessions Judge and the jury, and to acquit or convict the accused. The key words in the sub-sectionare “giving due weight to the opinions of the Sessions Judge and the jury”. The High Court shall give weight to the verdict of the jury; but the weight to be given to a verdict depends upon many circumstances-it may be one that no reasonable body ofpersons could come to; it may bea perverse verdict; itmay bea divided verdict and may not carry the same weight as the unitedone does; itmaybe vitiatedby misdirections or non-directions. How can a Judge give any weight to a verdict if it is induced and vitiated by grave misdirections in the charge ? That apart, the High Court has to give due weight to theopinion of the Sessions Judge. The reasons for the opinion ofthe SessionsJudge are disclosed in the case submitted by him to the High Court. If the case stated bythe sessions Judge disclosed thatthere must have been misdirections the charge, how. can the High Court ignore them in giving due weight to his 589 opinion ? What is more, the jurisdiction of the High Court is couched in very wide terms in sub-s.

(3) ofs. 307of theCode: it canacquitor convictan accused.It shall take into consideration the entire evidence in the case; it shall give due weight to the opinions of the Judge and thejury; it combines in itself the functions of theJudge and jury; and it is entitled to come to itsindependent opinion. The phraseology used does not admit ofan expressed or implied limitation on the jurisdiction of the High Court.

Itappears to us that the Legislature designedly conferred a largerpower on the High Court under s.307(3)of the codethan that conferred unders. 418thereof, as in the former case the Sessions Judge differs fromthe jury while in the latter he agrees with the jury.

The decisions cited at the Bar do not in any way sustain in narrowconstruction sought to be placed by learned counsel on s. 307 of the code.

In Ramanugrah Singh’s case (1), whichhave been referred to earlier,the JudicialCommittee described the wide amplitude of the power of the High Court in the following terms:

“The Court must consider the whole case and give due weight to the opinions of the Sessions Judge and jury,and than acquit or convict the accused.” The Judicial Committee took care to observe:

“…. the test of reasonableness on the part of the jurymay notbe conclusivein every case. It is possible to suppose a case in which the verdict was justified on the evidence placed before the jury, but in the light of further evidenceplaced before the High Courtthe verdict is shown to be wrong.

In such case the ends of justice would 590 require the verdict to be set aside though the jury had not acted unreasonably.” This passage indicates that the Judicial Committee did notpurport to lay down exhaustively the circumstances under which theHigh Court could interfere underthe said sub-sectionwith the verdict of thejury.This Court inAkhlakali Hayatalli v. The State of Bombay accepted the view of theJudicial Committee on the construction of s. 307of theCode ofCriminal Procedure, and applied it to the facts of that case. But the following passage of this Court indicates that it also does not consider the test of reasonableness as theonly guide in interfering with the verdict of the jury:

“The charge was not attacked before the High courtnor before us as containing any misdirections or non-directions to the jury such as to vitiate the verdict.” This passagerecognizes thepossibilityof interference by the High Court with the verdict of the jury under the said sub-section if the verdict is vitiated by misdirections or non-directions. So too the decision of this court in Ratan Rai v.

State of Bihar assumesthat such an interference is permissibleif theverdict of thejury was vitiated by misdirections. In thatcase, the appellants werecharged underss. 435 and 436 of the Indian Penal Code and were tried by a jury, who returned a majority verdict of “guilty”. The Assistant Sessions Judge disagreed with the said verdict and made a reference to the High Court. At the hearing of the reference to counsel for the appellants contended that thecharge to the jury was defective,and did notplace the entire evidence beforethe Judges. The learned Judges of the High Court considered the objections as such and nothing more, and found the appellants guilty and convicted them. This Court, observing that it was incumbent on the High 591 Court to consider theentireevidence and the charge as framed and placed before the jury and to come toits own conclusion whether the evidence was such that could properly support the verdict of guilty against theappellants, allowed the appeal and remanded the matter to the High Court for disposal in accordance with the provisions of s. 307of theCode ofCriminal Procedure. This decision also assumes that aHigh Court could under s. 307 (3) of the Code of Criminal Procedure interfere withthe verdict of the Jury, if there are misdirections in the charge and holds that in such acase itis incumbenton thecourtto consider the entire evidence and to come to its own conclusion,after giving due weight to the opinions of the Sessions Judge, and the verdict of the jury. This Court again in Sashi Mohan Debnath v. TheState of West Bengal, held that where the Sessions Judge disagreed withthe verdict of the jury and was of the opinion that the case should be submitted to the High Court, he should submit the whole case and not a part of it. There, the jury returned a verdict of “guilty” in respect of some charges and “not guilty” in respectof others.But the Sessions Judge recorded his judgment of acquittal in respect of the latter charges in agreement with the jury and referred the case to the High Court only in respect of the former. This Court held that the said procedure violated sub-s.(2) ofs. 307of the Codeof Criminal Procedure and also had theeffectof preventing theHigh Court from considering the entire evidence against the accused and exercising its jurisdiction under sub-s. (3) of s. 307 of the said Code. Imam, J., observed that the reference in thatcase was incompetent and that the High Court could not proceed to exercise any of the powers conferred upon it under sub-s.(3) of s.

307 ofthe Code, because thevery foundation of the exercise of thatpowerwas lacking, the reference being incompetent. This 592 Court held that the reference was incompetent because the Sessions Judge contravened the express provisions of sub-s. (2) of s. 307 of the Code, for under that sub-sectionwhenever a Judge submits a case under that section, he shall not record judgmentof acquittal or of conviction on any ofthe charges on which such accused has been tried, but he may either remand such accused to custody or admit him to bail. As in that case the reference was made in contravention of the express provisions of sub-s. (2) of s. 307 of the Code and therefore the use of the word’incompetent’ may not bein appropriate. The decision of a division bench of the Patna High Court in Emperorv.

Ramadhar Kurmimay usefully be referred to as it throws some light on the question whether the High Court can interfere with the verdict of the jury when itis vitiated by serious misdirections and non-directions. Das, J., observed:

“Where, however, there is misdirection, the principle embodied in s. 537 would apply and if the verdict is erroneous owing to the misdirection, it can haveno weight ona reference under s. 307 as on an appeal.

It is not necessary to multiply decisions. The foregoing discussion may be summarized in the form of thefollowing propositions: (1) The competency of a reference made by a Sessions Judge depends upon the existence of two conditions, namely, (i) that he disagrees with the verdict of the jurors, and (ii) that he is clearly of the opinion that the verdict is one which no reasonable body of men could have reached on the evidence, after reaching that opinion, in the case submitted by himhe shall record the grounds of his opinion. (2) If the case submitted shows that the conditions have not been complied with or that the reasons for the opinion are not recorded, the HighCourt may reject the reference as incompetent : the 593 High Court can also reject itif the Sessions Judge has contravened sub-s. (2) of s. 307. (3) If the case submitted shows that the Sessions Judge has disagreed with theverdict of the jury and that he is clearlyof theopinion thatno reasonable bodyof mencouldhave reached the conclusion arrived at by the jury, andhe discloses his reasons for the opinion, sub-s. (3) of s. 307 ofthe Code comes intoplay, and thereafter theHigh Court has an obligationto discharge its duty imposed thereunder. (4) Under sub-s. (3) of s. 307 of the Code, the High Court has toconsider the entire evidence and, after giving due weight to the opinions of the Sessions Judge and the jury, acquit or convict the accused.

(5) TheHigh Court may deal with the reference in two ways, namely, (i)if there are misdirections vitiating the verdict, it may, aftergoing into the entire evidence, disregard the verdict of the jury and come to its own conclusion, and (ii) even if there are no misdirections, the High court can interfere with the verdict of the jury if it finds the verdict “perversein the sense of being unreasonable”, “manifestly wrong”, or “against the wight of evidence”, or, in other words, if the verdict is such that no reasonable body of men could have reached onthe evidence. (6) In the disposal of the said reference, the High Court can exercise any of the procedural powers appropriate to theoccasion, suchas, issuing of notice, calling for records, remanding the case, ordering a retrial, etc. We therefore, rejectthe first contention of learned counsel for the appellant.

The next question is whether the High Court was right in holding that there were misdirections in thechargeto the jury. Misdirectionsis something whicha judge in his charge tells the jury and is wrong or in a wrong manner tending to mislead them. Even an omission to mention matters which are essential tothe prosecution or the defence case in order to help the jury to come to a correct 594 verdict may also in certain circumstances amount to a misdirection. But, in either case, every misdirection ornon-direction is notin itself sufficient to set aside a verdict, but it must be such that it has occasioned a failure of justice.

In MushtakHussein v. The Stateof Bombay, this Court laid down:

“Unless therefore it is established in a case thattherehasbeen a serious misdirection by the judgein charging the jury which hasoccasioned a failureof justice and has misled the jury in giving its verdict, the verdict of the jurycannot be set aside.” This view has been restated by this Court in a recent decision, viz., Smt. Nagindra Bala Mitra v.

Sunil Chandra Roy.

The High Court in its judgment referred to as many assix misdirections in the charge to the jury which in its view vitiated the verdict, and it also stated thatthere were many others.

Learned counselfor the appellant had taken each of the said alleged misdirections and attempted to demonstrate that they were either no misdirections at all,or even if they were, they did not in any way affect the correctness of the verdict.

We shall now takethe first and the third misdirections pointed out by Shelat, J., as they are intimately connected with each other. They are reallyomissions. Thefirstomission is that throughout the entire charge there is no reference to s. 105 of the Evidence Act or to the statutory presumption laid down in that section. The second omission is that the SessionsJudge failedto explain to the jury the legal ingredients of s. 80 of theIndian Penal Code, and alsofailedto direct them that in law the said section was not applicable to the facts of the case. To appreciate the scope of the alleged 595 omissions, it is necessary to read the relevant provisions.

Section 80 of the Indian Penal Code.

“Nothing is an offence which is done by accident or misfortune,and without any criminal intentionor knowledge in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution.” Evidence Act.

Section 103:”The burden of proof as to any particular fact lieson that person who wishes the Court to believe in its existence, unless itis provided by any law that the proof ofthat fact shall lie on any particular person.” Section 105:”When aperson is accused of any offence, the burden of proving the existence of circumstances bringing the case within anyof theGeneral Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other partof thesame Code, or in any law defining the offence, isupon him, and the Court shall presume theabsence of such circumstances.” Section 3: “In thisAct thefollowing words andexpressions are used in the following senses, unless a contrary intention appears from the context:- A fact is said to be disproved when, after consideringthe matters before it, the Court either believes that it does not exist, or considers its non-existence so probable that a prudentman ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.” 596 Section 4: …..”Whenever it is directed by this Act thatthe Court shall presume a fact, it shall regard such factas proved unless and until it is disproved.” The legal impact of the said provisions on the question of burden of proof may be stated thus: In India, as it is in England, there is a presumption of innocence in favour of the accused as a general rule, and it is the duty of the prosecution to prove the guilty of the accused; to put itin other words,the accused is presumed tobe innocent untilhis guilt is established by the prosecution. But when an accused relies upon the General Exceptions in the Indian Penal Code or on any special exception or proviso contained in any other part of the Penal Code, or in any law defining an offence, s. 105 of the Evidence Act raises a presumption against the accused and also throwsa burden onhim to rebutthe said presumption. Under that section the Court shall presume the absence of circumstances bringing the case within any of the exceptions, that is, the Court shall regard the non-existence of such circumstances as proved till they are disproved.

An illustrationbased on the facts of the present case may bring out the meaning ofthe said provision. Theprosecution allegesthat the accused intentionally shot thedeceased; but the accused pleadsthat, though the shots emanated from his revolver and hit the deceased, it was by accident, that is, the shots went off the revolver in thecourse of a struggle in the circumstances mentioned in s. 80 of the Indian Penal Code and hit the deceased resulting in his death. The Court then shall presume theabsence of circumstances bringing the case within the provisions of s. 80 of theIndianPenal Code, that is,it shall presume that the shooting was not by accident, and that the other circumstances bringingthe case within the exception did notexist;but this presumption maybe rebutted by the accusedby adducing evidence to 597 support his plea of accident in the circumstances mentioned therein. This presumption may alsobe rebutted by admissions madeor circumstances elicited by the evidence led by the prosecution or by the combined effectof such circumstances and the evidence adduced by theaccused. But the section does not in any way affect the burden that lies on theprosecution to proveall the ingredients ofthe offence with which the accused is charged: that burden never shifts. The alleged conflict between the general burden which lies on the prosecutionand the special burden imposed on the accused under s. 105 of the Evidence Act is more imaginarythan real. Indeed, there isno conflict at all. Theremay arise three different situations: (1)A statute may throw the burden of proof of all or some of the ingredients ofan offence on the accused: (see ss. 4 and 5 of the Prevention of Corruption Act).(2) The special burdenmay not touchthe ingredients of the offence, but only theprotection given on the assumption of the proof of the said ingredients:

(see ss. 77,78,79,81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception if proved affecting the proof of all or some of the ingredients of the offence: (see s. 80 of theIndian Penal Code). In the first case the burden of proving theingredients or some of the ingredients ofthe offence, as the case may be, lies onthe accused. In the secondcase, the burden of bringing thecase under the exception lies on the accused. In the third case, though the burden lies on the accused to bringhis case within the exception, the facts proved may not discharge the said burden, but may affect the proof of theingredients ofthe offence.An illustration may bring outthe meaning. The prosecution hasto prove that the accused shot dead the deceased intentionally and thereby committed the offence of murder within the meaning of s. 300 of the Indian 598 Penal Code; the prosecution has toprove the ingredients ofmurder, and one of the ingredients of that offence is that the accused intentionally shot the deceased; the accused pleads that he shot at thedeceased by accident without any intention or knowledge in the doing ofa lawful act in a lawful manner by lawful means with proper care and caution; the accused against whom a presumption is drawn under s. 105 of the Evidence Act that the shooting was not by accident in the circumstances mentioned in s. 80 of the Indian Penal Code, may adduce evidenceto rebut that presumption. That evidence may not be sufficient to prove all the ingredients of s. 80 of the Indian Penal Code, but may prove that the shooting was by accidentor inadvertence, i.e., it wasdone without any intention or requisite state of mind, which is the essence of the offence, within the meaning of s.

300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder.In that event though the accused failedto bring his case within the terms of s. 80 of the Indian Penal Code, the Court may hold that the ingredients of the offence have not been established or that the prosecution has not made out the case against the accused. In this view itmight be said that the general burden to prove the ingredients of the offence, unless there is a specific statuteto the contrary, is always on theprosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused. Thefailure on the part of the accusedto establishall the circumstances bringing his case under the exceptiondoes not absolve the prosecution to prove the ingredients of theoffence; indeed, theevidence, though insufficient toestablish theexception, maybe sufficient tonegative oneor more of the ingredients of the offence.

599 The English decisions relied upon by Mr.

Pathak, learnedcounsel for the accused, may not be of much help in construing the provisions of s.

105 ofthe IndianEvidence Act.We would, therefore, prefer not to refer to them, except to one ofthe leading decisions on the subject, namely, Woolmington v.The Directorof Public Prosecutions. The headnote in that decision gives its gist, and it read:

“In atrial for murder theCrown must prove death as the result of a voluntary act of the prisoner and malice of the prisoner.

When evidence of death and malice has been given, theprisoner is entitled to show by evidenceor by examination of the circumstances adduced by the Crown that the act on his part which caused death was either unintentional or provoked. If the jury are either satisfied with his explanation or, upon a review ofall the evidence, are left in reasonable doubt whether, even if his explanation be not accepted, the act was unintentional or provoked, the prisoneris entitled to be acquitted.” In thecourse of the judgment Viscount Sankey, L.

C., speaking for the House, made thefollowing observations:

“But while the prosecution must prove the guiltof theprisoner, there is no such burden laid on the prisoner toprove his innocence and it is sufficient for himto raise a doubt asto hisguilt; he is not bound to satisfy the juryof his innocence…… Throughoutthe web of the English Criminal Law onegoldenthread is always tobe seen that it is the duty of the prosecution to prove theprisoner’s guilt subject to what I have already said as to the defence ofinsanity and subject also to any statutory exception. If, 600 at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given by either the prosecution or the prisoner, asto whether the prisoner killed the deceased with amalicious intention, the prosecution has not made out the case and theprisoner is entitled to an acquittal.” These passages are not in conflictwith the opinion expressed by us earlier. As in England so in India, the prosecution must prove the guilt of the accused, i.e., it must establish all the ingredients ofthe offence with which heis charged. As in Englandso also in India, the general burdenof proof is upon the prosecution;

and if,on thebasis of the evidence adduced by the prosecutionor bythe accused, there isa reasonable doubt whether the accused committed the offence, he is entitled to the benefit of doubt.

In India if an accused pleads an exemption within the meaning of s. 80 of the Indian Penal Code, there is a presumption against him and the burden to rebut that presumption lies on him. In England there is no provisionsimilar to s. 80 of the Indian Penal Code, butViscount Sankey, L. C., makes it clear that such a burden lies upon the accused if his defence is one of insanity and in a case where there is a statutory exception to the general rule of burden of proof. Such an exception we findin s.105 ofthe Indian Evidence Act.

Reliance is placed bylearnedcounsel for the accused on the decision of the Privy Council in Attygalle v. Emperor in support of the contention that notwithstanding s. 105 of the Evidence Act, the burden of establishing the absence of accident within the meaning ofs. 80 of the Indian Penal Code ison theprosecution. In thatcase, two persons were prosecuted, one for performing an illegal operation and the other for abetting him in that crime. Under s. 106 of the Ordinance 14 of 601 1895 inthe Ceylon Code, which corresponds to s.

106 ofthe Indian Evidence Act, it was enacted that when anyfact was especially within the knowledge of any person, the burden of proving that fact was upon him. Relying upon that section, the Judge in his charge to the jury said:

“Miss Maye-that is the person upon whom the operation was alleged tohave been performed-was unconscious and what took place in that room thatthree-quarters of an hour that she was under chloroform is a fact specially within the knowledge of these two accused who were there. The burden of proving that fact,the law says, is upon him, namely that no criminal operation tookplace but what tookplace was this and this speculum examination.” The Judicial Committee pointed out:

“It is not the law of Ceylon that the burden iscast upon an accusedpersonof proving that no crime has been committed. The jury might well have thought from the passage just quoted that that was in fact a burden which theaccused personhad todischarge.

The summing-up goes onto explain the presumption of innocence in favour of accused persons, but it again reiteratesthat the burden ofproving that no criminal operation took placeis onthe twoaccused who were there.” The said observations do not support the contention of learnedcounsel. Section 106of Ordinance 14 of 1895 of the Ceylon Code did not cast upon the accuseda burden to prove that he had not committed any crime; nor did it deal with any exception similar to that provided under s. 80 of the Indian Penal Code. It has no hearing on the construction ofs.105 of the Indian Evidence Act.

The 602 decisions of this Court in The State of Madras v.

A. VaidyanathaIyer (1), which deals with s. 4 of the Prevention of Corruption Act, 1947, and C.S.D.

Swami v. The State(2),which considers the scope of s. 5(3) ofthe said Act, are examples ofa statute throwing the burden of proving and even of establishing the absence of someof the ingredients ofthe offence on the accused; and this Court held that notwithstanding the general burden on the prosecution to prove the offence, the burden of proving the absence of the ingredients of theoffence under certain circumstances was ontheaccused. Further citations are unnecessary as,in ourview, the terms of s.105 of the Evidence Act are clear and unambiguous.

Mr. Pathakcontends that the accused did not rely upon any exception within the meaning of s.80 of theIndian Penal Code and that his plea all through has been onlythat the prosecution has failed to establish intentional killing on his part. Alternatively, he argues that as the entire evidence has been adduced both by the prosecution and bythe accused, the burden of proof became only academic and thejury was in a position to come toone conclusionor other on the evidence irrespective ofthe burden of proof.Before the Sessions Judgethe accused certainly relied upon s. 80 of the Indian Penal Code, and the Sessions Judge dealt with the defence case in the charge to the jury. In paragraph 6 ofthe charge, the learned Sessions Judge stated:

“Before I proceed further I haveto point outanother sectionwhich is section

80. You know by now that the defence of the accused isthat the firing of the revolver was a matter of accident duringa struggle for possession of the revolver. A struggle or a fight by itselfdoes not exempt a person.

It is the accident which exemptsa person from criminal liability 603 because there may be a fight, there may be a struggle and in the fight and in the struggle the assailant may over-power the victim and kill the deceased so that a struggle ora fight by itself does not exempt an assailant.

It is only an accident, whetherit isin struggle or a fight or otherwisewhich can exempt anassailant. It is only an accident, whether itis ina struggle or a fight or otherwise which can exempt a prisoner from criminal liability. I shall draw your attention to section 80 which says:……..

(section 80 read). You know thatthere are several provisionswhich are to be satisfied before thebenefit of this exception can be claimed by an accused person and it should be that the act itself must be an accident or misfortune, thereshould be no criminal intention or knowledge inthe doing of that act, that act itself must be done in a lawful manner andit must be done by lawful means and further in the doing of it, you must do it with proper care andcaution. In this connection, therefore, even while considering the caseof accident, you will haveto consider all the factors, which might emerge from the evident before you, whether it was proper care and caution to takea loaded revolver withouta safety catch to the residence of the person with whom you were going to talk andit you do not getan honourable answeryou was repaired to thrash him. You have also to consider this further circumstance whether it is an act with proper care and cautionto keep thatloaded revolver in the hand and thereafter put it aside, whether that is taking proper care and caution. This is again a question of fact and you have to determine asJudgesof fact, whether the act of the accused in this case can be said to be an act which was lawfully 604 done in a lawful manner and with proper care and caution. If it is so, then and only then can you call it accident or misfortune. This is a section which you will bear in mind when you consider the evidence in this case.” In this paragraph the learned Sessions Judge mixed up theingredients ofthe offence with those of the exception.He didnot place before the jury the distinctionin thematter of burden of proof between the ingredients of the offence and those of theexception. He did nottell the jury that where the accused relied upon theexception embodied in s. 80 of the Indian Penal Code, there was a statutory presumption against him and the burdenof proof wason him to rebut that presumption. What is more, he told the jury that it wasfor them to decide whether the act of the accused in the case could besaid tobe an act which was lawfully done in alawful manner with propercare and caution. This wasin effect abdicating hisfuntions in favour of the jury. He should have explained to them the implications of the terms “lawful act”, “lawful manner”, “lawful means” and “with proper careand caution” and pointed out to them the application of the said legal terminology to the facts of the case.On such acharge as in the present case, it was not possible for the jury,who were laymen, to know the exact scope of the defence andalso the circumstances under which the plea under s. 80 of the Indian Penal Code was made out. They would not have also known that if s. 80 of the Indian Penal Code applied, there was a presumption against the accused and the burdenof proof torebut the presumption wason him. In such circumstances, we cannot predicate thatthe jury understood the legal implications of s. 80 of the Indian Penal Code and the scope of the burden of proof under s.

105 ofthe Evidence Act, andgave their verdict correctly. Nor can we say that the jury understood the distinctionbetween the ingredients of the offence 605 and thecircumstances that attract s.80 of the Indian Penal Code andthe impact of the proof of some of the said circumstances on the proof of the ingredients ofthe offence. The saidomissions therefore are very grave omissions which certainly vitiated the verdict of the jury.

The next misdirection relates to the question of grave and sudden provocation. On this question, Shelat, J., made the following remarks:

“Thus the question whether a confession of adultery by the wife of accused to him amounts tograve and sudden provocationor not was a question of law. In my view, the learned Session Judge was in error in telling the jury that the entire question was one of fact for them todecide.It was for the learned Judge to decide as a question of law whether the sudden confession by the wife of the accused amounted tograve and sudden provocation as against the deceased Ahuja which onthe authorities referredto hereinabove it was not. He was therefore in error in placing this alternative case to the jury fortheirdetermination insteadof deciding it himself.” The misdirection according tothe learned Judge was that the Sessions Judge in his charge did not tell the jury that the sudden confession of the wife tothe accused did not in law amountto sudden and grave provocation by the deceased, and instead he left the entire question to be decided by the jury. The learned judge relied upon certain English decisions and textbooks in support of his conclusion thatthe said question was one of law and that it was for the Judge to express his view thereon. Mr. Pathak contends that there isan essential difference between the law of England and that of India in the matter of the charge to the jury inrespectof grave and sudden provocation. The House of Lords 606 in Holmes v. Directorof Public Prosecution (1) laid down the law in England thus:

“If there isno sufficientmaterial, even ona viewof the evidence most favourable to the accused, for a jury (which means a reasonable jury)to formthe view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death it is the duty of the judge as matter of law to directthe jury that the evidence does not support a verdict of manslaughter.

If, on the otherhand, the case is one in which the view might fairly be taken (a) that a reasonable person, in consequence of the provocation received, might be so rendered subject topassion or loss of control as to be led to usethe violence with fatal results, and (b) that the accused was in fact acting under the stress of such provocation, then it is for the jury to determine whether on its view of the facts manslaughter or murder is the appropriate verdict.” Viscount Simon brought out the distinction between the respectiveduties of the judge and the jury succinctly by formulating the following questions:

“The distinction, therefore, is between asking ‘Could the evidence support the view that the provocation was sufficient to lead a reasonable personto do what the accused did ?’ (whichis forthe judge to rule), and, assuming that the judge’s ruling isin affirmative, asking thejury:’Do you consider that, on the facts as you find them from the evidence, the provocation wasin fact enough to lead a reasonable person to do what the 607 accused did ?’ and, if so, ‘Did the accused act under the stress of such provocation’ ?” So far as England is concerned the judgment of the House of Lords is the last word on the subject till itis statutorily changed or modified by the House of Lords. It is not, therefore, necessary to consider the opinions of learned authors on the subject cited before us to show thatthe said observations did not receive their approval.

But Mr. Pathak contends that whatever might be the law in England, in India we are governed by the statutoryprovisions, and thatunder the explanation to Exception I to s. 300 of the Indian Penal Code, the question “whether the provocation was grave and sudden enough to prevent the offence from amountingto murder is one of fact”, and therefore, unlike in England,in India both the aforesaid questions fall entirely within the scope of thejury and they are for them to decide. To put it in other words, whether a reasonable person in thecircumstancesof aparticular case committed the offence under provocation which was grave and sudden is a question of fact for the jury todecide. Thereis force in this argument, but itis notnecessary to expressour final opinion thereon, as the learned Attorney-General has conceded that there was no misdirectionin regard to this matter.

The fourthmisdirection found bythe High Court is that the learned Sessions Judge told the jury that the prosecution reliedon the circumstantial evidenceand asked them to apply the stringent rule ofburden of proof applicable to suchcases, whereasin fact there was direct evidence of Puransingh in theshapeof extra- judicial confession. In paragraph 8 of the charge the Sessions Judge said:

“In this case the prosecution relies on what is called circumstantial evidence that is 608 to say there is no witness who can say that he saw the accused actually shooting and killing deceased.Thereare no direct witnesses,directwitnesses asthey are called, of the event in question. Prosecution relies oncertain circumstances from which they ask you to deduce an inference that it must be the accused and only the accused who must have committed this crime. Thatis called circumstantial evidence. It is not that prosecution cannot rely on circumstantial evidence because it is not always thecase or generally thecase that people whogo out to commit crime will also take witnesses with them.So that it may be that in some cases the prosecution may have to rely on circumstantial evidence. Now when you are dealing with circumstantial evidence you will bear inmind certain principles, namely, that the factson which the prosecution relies must be fully established.

They mustbe fully and firmly established.

These facts must lead to one conclusion and one only namely the guilt of the accused and lastly itmustexclude allreasonable hypothesis consistent with the innocence of the accused, all reasonablehypothesis consistent with the innocence of the accused should beexcluded. In other words you must come to the conclusion by allthe human probability, it must be the accused and the accused only who must have committed this crime. That is the standard of proof ina case resting on circumstantial evidence.” Again in paragraph 11the learned Sessions Judge observed thatthe jury were dealing with circumstantial evidence and graphically stated:

“It is like this, take a word, split it upintoletters, the letters, may individually meannothing but when they are combined 609 they willform a word pregnant with meaning.

That is the way how you have to consider the circumstantial evidence. You have to take all the circumstancestogether andjudge for yourselfwhethertheprosecution have established their case,” In paragraph 18 ofthe charge, the learned Sessions Judgedealt with the evidence of Puran singh separately and told the jury that if his evidence was believed, it was one ofthe best forms of evidence against the man who made the admission and that if they accepted that evidence, then the story of the defencethat it wasan accident wouldbecome untenable. Finallyhe summarized allthe circumstances onwhich the prosecution relied in paragraph 34 and one of the circumstances mentioned was the extra-judicial confession made to Puransingh.In that paragraph the learned Sessions Judge observed as follows:

“I will now summarize the circumstances on which the prosecution relies in this case.

Consider whetherthe circumstances are established beyondall reasonabledoubt. In this case you are dealing with circumstantial evidence and therefore consider whether they are fully and firmly established and consider whether they lead to one conclusion and only one conclusion that it is the accused alone who must have shot the deceased and further consider that itleavesno room for any reasonable hypothesis consistentwith the innocence of the accused regard being had to all the circumstances inthe case and the conclusion that you have to come to should be of this nature and by all human probability it must be the accused and the accused alone who must have committed this crime”.

610 Finally the learned Sessions Judge told them:

“If on the other hand you think that the circumstances on which the prosecution relies are fullyand firmly established, that they lead to one and the only conclusion and one only, of the guilt of the accused and that they exclude all reasonable hypothesis of the innocence of the accusedthen and in that case it will be your duty which you are bound by the oath to bring verdict accordingly without any fear or any favour and without regard being had to any consequence that this verdict might lead to.” Mr. Pathak contends that thelearned Sessions Judge dealt with the evidence in two parts, in one part heexplained to the jury the well settled rule of approach tocircumstantialevidence, whereas in another part he clearly and definitely pointed to the jury the great evidentially value of theextra-judicial confession of guilt by the accused made to Puransingh, if that was believed by them. He therefore,argues that there was no scope for any confusion in the minds of the jurors in regard to their approach to the evidence or in regard to the evidentially value of the extra- judicial confession. The argument proceeds that even ifthere was a misdirection, it was not such as to vitiate the verdict of the jury. It is not possible to accept this argument. We have got to look atthe question from thestandpoint of the possible effectof thesaid misdirection in the charge on the jury, who are laymen. In more than one place the learned Sessions Judge pointed out that the case depended upon circumstantial evidence and that thejury should apply the rule of circumstantial evidence settled by decisions.

Though at one place he emphasized upon evidentiary value of a confessionhe later on included that confession alsoas oneof thecircumstances and again directedthe jury to apply the ruleof circumstantial evidence. It is 611 not disputed that the extra-judicialconfession made to Puransingh is direct piece of evidence and that the stringentruleof approachto circumstantial evidencedoes not apply to it. If that confessionwas true, it cannot be disputed that the approach of the juryto the evidence would be different from that if that was excluded.

It is not possible to predicate that the jury did not accept that confession and therefore applied the rule of circumstantial evidence. It may well have been that the jury accepted it and still were guided by the rule of circumstantial evidence as pointed out by the learned SessionsJudge.In these circumstances we must hold, agreeing with the High Court, that this is a grave misdirection affecting the correctness of the verdict.

The next misdirection relied upon by the High Court is the circumstance that the three letters written by Sylvia were not read to the jury by the learned Sessions Judge in his charge and that the jury were not toldof their effect on the credibility ofthe evidenceof Sylvia and Nanavati. Shelat, J., observedin regard to this circumstance thus:

“It cannotbe gainsaid that these letters were important documentsdisclosing the stateof mindof Mrs. Nanavati and the deceased to a certainextent.If these letters had been read injuxtapositionof Mrs. Nanavati’s evidencethey would have shown thather statementthat she felt that Ahuja hadasked her not to see him fora month forthe purpose of backing out of the intended marriagewas notcorrect and that they had agreed not to see each other for the purpose ofgiving her and also to himan opportunity tocoollythinkout the implications of such a marriage and then to make up her own mind on her own. The letters would alsoshow that when the accused asked her, as he said in his 612 evidence, whetherAhuja would marry her, it was not probable that she wouldfence that question. On the other hand, shewould, in all probability, have told him that they had already decided to marry.In myview, the omission to refer even once to these letters in the charge especiallyin view of Mrs.

nanavati’sevidence wasa nondirection amounting to misdirection.” Mr. Pathak contends that these letters were read to thejury by counsel on both sides anda reference was also made to hem in the evidence of Sylivia and, therefore the jury clearly knew the contents of the letters, and that in the circumstances the non-mention of the contents of the letters bythe SessionsJudge was nota misdirection and even if it was it did not affect the verdict of the jury. In this context reliance is placed upon two English decisions, namely, R.

v. Roberts (1) and R. v. Attfield (2). In the former case the appellant was prosecuted for the murder of a girl by shooting her with a service rifle and he pleaded accident as his defence. The Judge in his summing-up, among other defects, omitted to refer tothe evidence of certain witnesses; the jury returned a verdict of “guilty” on the charge of murder and it was accepted by the judge, it was contended that the omission to refer to theevidence ofcertainwitnesses wasa misdirection. Rejecting that plea, Humphreys, J., observed:

“Thejury had thestatements before them. Theyhad the wholeof the evidence before them, and they had, just before the summing up, comments upon those matters from counsel for the defence, and from counsel for the prosecution. It is incredible that they could haveforgotten them or that they could have misunderstood the matter in any 613 way, or thought, by reason of the fact that the judge did not think it necessary to refer to them, that they were not to pay attention to them. We do not think there is anything in that point at all. A judge, in summing-up, is not obliged to refer to every witness in the case, unless he thinks it necessary to do so.

In sayingthis, the court is byno means saying that it might not havebeen more satisfactory if the judge had referred to the evidence of the two witnesses, seeing that he did not think itnecessary to refer to some of the statements made by the accused after the occurrence. No doubtit would have been more satisfactoryfrom the point of view of the accused. All we are saying is that we are satisfied that there was no misdirection in law on the part of judgein omitting those statements, andit was within his discretion.” This passage does snotlay down as a proposition of law that however important certain documents or pieces of evidence maybe from the standpoint of the accused or the prosecution, the judge need not refer to or explain them in his summing-up to the jury, and, if he did not, it would not amount to misdirection under any circumstances. In that case some statements madeby witnesseswere not specifically brought to the notice of the jury and the Court held in the circumstances of that case that there was no misdirection. In the latter case the facts were simple and the evidence was short;

the judge summed up the case directing the jury as to thelaw butdid not deal with evidence except in regard to the appellant’s character. The jury convicted the appellant. Thecourt held that, “although in a complicated and lengthy case it was incumbent on the courtto deal with the evidence in summing-up,yet where, as in the present case, the issues could be simply and clearly stated, it was 614 not fatal defect forthe evidence not tobe reviewed in the summing-up.”This is alsoa decision on the facts of that case. That apart, we are not concerned with a simple case here but with a complicated one. This decision does not help us in deciding the point raised. Whether a particular omission by a judge to placebeforethe jury certain evidence amounts to a misdirection or not falls to be decided on the facts of cash case.

These letters show the exact positionof Sylvia in the contextof herintended marriage with Ahuja, and help to test the truthfulness or otherwise of some of the assertions made by her to Nanavati. A perusal of theselettersindicates that Sylvia and Ahuja were on intimate terms, that Ahuja was willing to marry her, that they had made up their minds to marry, but agreed to keep apart for a month to consider coolly whether they really wantedto marry inviewof the serious consequences involved in taking such a step. Both Nanavati andSylviagave evidencegivingan impression thatAhujawas backing out of his promise to marry Sylvia and that wasthe main reason for Nanavati going to Ahuja’s flat for an explanation. Ifthe Judge had read these letters in his charge and explained the implication of the contents thereof in relation to the evidence given by Nanavati and Sylvia, it would not have been possible to predicate whether the jury would have believed the evidence of Nanavati and Sylvia. If the marriage between them was a settled affair and if theonly obstruction in the way was Nanavati, and ifNanavati had expressed his willingness to be outof the way and even to help them to marry, their evidencethat Sylvia did not answer the direct questionabout the intentions of Ahuja to marry her, and the evidence of Nanavati that it became necessary for him to go to Ahuja’s flat to ascertain the latter’s intentions might not have been believed 615 by thejury. It is noanswer to say that the letters were read to the jury at different stages of thetrial or that they might haveread the letters themselves for in a jury trial, especially where innumerable documents are filed, itis difficult fora layjury,unlessproperly directed, to realise the relative importanceof specified documents in the context ofdifferent aspects of a case. That iswhy the Codeof Criminal Procedure, under s. 297 thereof, imposes a dutyon theSessions Judgeto charge the jury after the entire evidence isgiven,and after counsel appearing forthe accused and counsel appearing for the prosecution have addressed them.

The object of the charge to the jury by the Judge is clearly to enable him to explain the law and also to place before themthe facts and circumstances of the case both for and against the prosecution in order to help them in arriving at a right decision.The fact that the letters were read tothe jury by prosecution or by the counsel for the defence is not of much relevance, for they would place the evidence before the jury from different angles to induce them to accept their respective versions. That factin itself cannot absolve the Judge fromhis clear duty to put the contents of the letters before the jury from the correct perspective. We are in agreement with the High Court that this was a clear misdirection which might have affected the verdict of the jury.

The next defect pointed out by the High Court is that the Sessions Judge allowed the counsel for the accused to elicitfrom the police officer, Phansalkar, what Puransingh isalleged to have stated to him orally, in order to contradict the evidence of Puransingh in the court, and the Judge also dealt with theevidence so elicitedin paragraph 18 of his charge to the jury. This contention cannot be fully appreciated unless some relevant facts are stated. Puransingh was examined for the prosecution as P. W. 12. he was a 616 watchman of ‘Jivan Jyot.” He deposed that when the accused was leaving the compound ofthe said building, he asked himwhy hehad killed Ahuja, and theaccused told him thathe hada quarrel with Ahuja as the latter had”connections” with his wife and therefore he killed him. At about 5-5 P. M. on April27, 1959, this witness reported this incident to Gamdevi Police Station. On that day Phansalkar(P. W.13) wasthe Station House Duty Officer at that station from 2 to 8 P.M. On the basis ofthe statement of Puransingh, Phansalkar wentin a jeep with Puransingh to the place of the alleged offence. Puransingh said in his evidence that he told Phansalkar in the jeep what the accused had told him when he was leaving the compound of “JivanJyot.” After reaching the place of the alleged offence, Phansalkar learnt from a doctor that Ahuja was dead and he also made enquiries fromMiss Mammie, the sister of the deceased. He did not record the statement made by Puransingh. Butlatter on between 10 and 10-30 P.

M. on the same day, Phansalkar made a statement to Inspector Mokashi what Puransingh had told him and that statementwas recorded by Mokashi. In the statement takenby Mokashi it was not recorded that Puransinghtold Phansalkar that the accused told him why he had killed Ahuja. When Phansalkar was in the witness-box to a question put to him in cross-examination he answered that Puransingh did not tell him that he had asked Nanavati why he killed Ahuja and that the accused replied that he had a quarrel with the deceased as the latter had “connections” with his wife and that he had killed him. The learned Sessions Judge not only allowed the evidence to go in but also, in paragraph 18 of his charge to thejury, referredto that statement. After giving thesummary of the evidence given by Puransingh, the learned Sessions Judge proceededto state in his charge to the jury:

617 “Now the conversation between him and Phansalkar(Sub-Inspector) was broughton record inwhich what the chowkidar told Sub- Inspector Phansalkar was, the servants of the flat of Miss Ahuja had informedhim that a Naval Officer was going away in the car. He and the servants had tried to stop him but the said officer drove away in the car saying that he was going to the Police Station and to Sub-Inspector Phansalkar he did not state about theadmission made by Mr. Nanavati to him thathe killed thedeceased as the deceased had connections with his wife. The chowkidar said that he had told this also to sub-Inspector Phansalkar. Sub-Inspector Phansalkar said that Puransingh had not made this statement to him. You will remember that this chowkidar went to the police station at Gamdevi togive information about this crime and whilecomingback he waswith Sub- InspectorPhansalkar and Sub-Inspector Phansalkarin his ownstatement to Mr.

Mokashi has referred tothe conversation which he had between him and this witness Puransinghand that hadbeen broughton record as a contradiction.” The learned Sessions Judge then proceeded to state other circumstances and observed,”Consider whether you will accept the evidence of Puransingh or not.” It ismanifest from the summing-up that the learned Sessions Judge not only read to the jury the evidence of Phansalkar wherein he stated that Puransinghdid not tell him that the accused told him why he killed Ahuja but also did not tell the jury that the evidence of Phansalkar was not admissible to contradict the evidenceof Puransingh. Itis notpossible to predicate what was the effect of the alleged contradiction on the mind of the jury and whether they had not rejected the evidence of Puransingh 618 becauseof that contradiction. If the said evidence was not admissible, the placing of that evidence beforethe jury was certainly a grave misdirection which must have affected their verdict. The question is whether such evidence is legallyadmissible. The alleged omission was brought on record inthe cross-examinationof Phansalkar, and, after havingbrought it in, it was sought to be used to contradict the evidence of Puransingh.Learned Attorney-General contends that the statement made by Phansalkar to Inspector Mokashi could be usedonly to contradict the evidence of Phansalkar and not that of Puransingh under s. 162 of the Code of Criminal Procedure;

and the statement made by Puransinghto Phansalkar, it not having been recorded, could not be usedat allto contradict the evidenceof Puransingh under the said section. He further argues that the alleged omission not beinga contradiction, it could in no event be usedto contradict Puransingh.Learnedcounsel for the accused, on the otherhand, contendsthat the alleged statement was made to a police officer before the investigation commenced and, therefore, it wasnot hitby s. 162 of the Code of Criminal Procedure, andit could be used to contradict the evidence of Puransingh. Section 162 of the Code of Criminal Procedure reads:

“(1) No statement made by any person to aPoliceofficer in the course ofan investigation under this Chapter shall,if reduced into writing be signed by the person making it;nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record,be used for any purpose, save as hereinafter provided, at any inquiry or trial in respect of any offence under investigation at the time when such statement was made:

619 “Provided that when any witnessis called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by section 145 of the Indian Evidence Act, 1872 (1 of 1872), and when any partof such statement isso used, anypart thereof may alsobe used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.” The preliminary condition forthe application of s. 162of theCode isthat the statement should have been made to a police-officer in the course of an investigation under Chapter XIV of the Code.

If itwas not madein the course of such investigation, the admissibility of such statement would not be governedby s. 162 of the Code. The question, therefore, is whether Puransingh made the statement to Phansalkar in thecourseof investigation. Section154 ofthe Code says that every information relating tothe commissionof cognizable offence if given orally to an officer in charge of a police-station shall be reduced to writing by him or under his direction; and section 156(1) is to the effect that any officer in charge of a police-station may, without theorder of a Magistrate, investigateany cognizable case which a court having jurisdiction over thelocal area within the limits of such station would have power to inquire into or try underthe provisions of Chapter XIV relating to the place of inquiry or trial.The evidencein the case clearly establishes that Phansalkar, being the Station House Duty officer atGamdevi Police-stationon April 27, 1959, from 2 to 8 P. M. was an officer in charge of the 620 Police-station within the meaning ofthe said sections. Puransingh in his evidence says that he went to Gamdevi Police-station andgave the information ofthe shootingincident to the Gamdevi Police.Phansalkar inhis evidence says that on the basis of the information he went along with Puransingh to the place of the alleged offence. His evidence also discloses that he had questioned Puransingh,the doctor and also Miss Mammie in regard to the saidincident. On this uncontradicted evidencethere cannot be any doubt that the investigation ofthe offence had commenced and Puransingh made the statement to the policeofficerin the course ofthe said investigation.But it is said that, as the information given by Puransingh was not recorded by Police Officer Phansalkar as he should do under s. 154of theCode of Criminal Procedure,no investigation in law could have commenced with the meaning of s.156 ofthe Code. The question whether investigation had commenced or not is a question of fact and it does not depend upon any irregularity committedin the matter of recording the first information reportby theconcerned police officer.If so,s. 162of the Codeis immediately attracted.Under s. 162(1) of the Code, no statement made by any person to Police- officer in the courseof an investigation can be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement made. But the proviso lifts the ban and says that when any witness is called for the prosecution insuch inquiryor trial whose statement has been reduced into writing, any part ofhis statement, if duly proved, may be used by the accused to contradict such witness. The proviso cannot be invokedto bring in the statement madeby Phansalkarto Inspector Mokashi inthe cross-examinationof Phansalkar, forthe statement made by him was not used to contradict the evidence of Phansalkar. The proviso cannot obviously apply to the oral 621 statement madeby Puransingh to Phansalkar, for the said statement ofPuransingh hasnot been reducedintowriting. The faint argumentof learnedcounsel for theaccusedthat the statement of Phansalkar recorded byInspector Mokashi can be treated as a recorded statement of Puransingh himself is to be stated only tobe rejected, for it isimpossible to treat the recorded statement of Phansalkar as the recorded statement of Puransingh by a police-officer.If so, thequestion whether the alleged omission of what the accused toldPuransingh in Puransingh’s oral statementto Phansalkar could be used to contradict Puransingh,in view of the decision of this Court in Tahsildar Singh’s case(1), does not arise for consideration. Weare,therefore, clearly of the opinionthat not only the learned Sessions Judgeacted illegallyin admitting the alleged omission in evidence to contradict the evidence ofPuransingh, but also clearly misdirected himself in placingthe said evidence before the jury for their consideration.

In addition to the misdirections pointed out by theHigh Court, the learned Attorney-General relied upon another alleged misdirection by the learned Sessions Judge in his charge. In paragraph 28 of the charge, the learned Sessions Judge stated thus:

“No one challenges the marksmanship of the accused but CommodoreNanda had come to tell you that heis a good shot and Mr.

Kandalawala said that here was a man and good marksman, would have shothim, riddled him with bullets perpendicularly and not that way and he further said that as it is not done in this case it shows that the accused is a good marksman and a good shot and he would not have done this thing, this is the argument.” The learned Attorney-General points out that the learned Sessions Judge was wrong in saying that 622 no one challenged the marksmanship of the accused, for Commodore Nanda was examined at length on the competency of the accused as a marksman. Though this isa misdirection, we do not think that the said passage,havingregardto the other circumstances of the case, could have in any way affected theverdictof the jury. It is, therefore, clear that there were grave misdirections in this case, affecting the verdict of the jury, and the High Court wascertainly within its rights to consider the evidence and come to its own conclusion thereon.

The learned Attorney-General contends that if he was right in his contention that the High Court could consider the evidence afresh and come to its own conclusion,in view of the said misdirection, this Court should not, inexercise of its discretionary jurisdiction under Art.136 of the Constitutions interferewith the findings of the High Court. There is force in this argument. But, as we have heard counsel atgreat length,we propose to discuss the evidence.

We shall now proceed to consider the evidence in thecase. The evidence canbe divided into three parts, namely, (i) evidence relating to the conductof the accused before the shooting incident, (ii)evidence in regard to the conduct of theaccused afterthe incident,and (iii) evidence in regard tothe actual shooting in the bed-room of Ahuja.

We may start with the evidence of the accused wherein he gives the circumstances under which he came toknow of the illicit intimacy of his wife Sylvia with the deceased Ahuja, and the reasons for which he went to the flat of Ahuja in the evening of April 27, 1959. After his brother and his brother’s wife, who stayed with him for a few days, had left, hefound his wife behaving strangely andwithout affection towards him.

Though on that ground he was unhappy and worried, he did not 623 suspect of herunfaithfulnessto him. On the morning of April 27, 1959, heand his wife took out their sick dog to the Parel Animal Hospital.

On their way back, they stopped atthe Metro Cinema and his wife bought some tickets for the 3- 30 show. After cominghome, they were sitting in the room for the lunch to be served when he put his arm around his wife affectionately and she seemed to go tense and was very unresponsive.

After lunch, when hiswife was reading in the sitting room, he told her “Look, we must get these things straight” or something like that, and “Do you still love me?” As she did not answer,he asked her “Are you in love with some one else?”, but she gave no answer. At that time he remembered that she had not been to a party given by his brother when he was away on the sea and when asked why shedid not go, she told him that she had a previous dinner engagement with Miss Ahuja. On the basis of this incident, he asked her “Is it Ahuja ?” andshe said “Yes” When he asked her “Have you been faithful to me ?”, she shook her headto indicate “No.” Sylvi in her evidence, as D. W. 10, broadly supported this version. It appears to us that this is clearly a made-up conversation and an unnatural one too. Is it likely that Nanavati, who says in his evidence that prior to April 27, 1959, he didnot think that his wife was unfaithful to him, would have suddenly thought thatshe had a lover on the basis of a trivial circumstance of her being unresponsive when he put his arm around her affectionately ? Her coldness towards him might have been due to many reasons. Unless he had a suspicion earlier orwas informed by somebody that she was unfaithful to him, this conduct of Nanavati in suspecting his wife on the basis of the said circumstance does not appearto be the natural reaction of a husband. The recollection of her preferenceto attend the dinner given by Miss Mammie to that of his brother, in the absence 624 of an earlier suspicion or information, could not have flashed on his mind the image of Ahuja as a possible loverof hiswife. There was nothing extraordinary in hiswife keeping a previous engagement withMiss Mammie and particularly when she could rely upon her closerelations notto misunderstand her. The circumstances under which the confessionof unfaithfulness is allegedto have been made do not appear to be natural. This inference is also reinforced by the fact that soon after the confession, which is alleged to have upset him so much, he is said to have driven his wife and children to the cinema. If the confession of illicit intimacy between Sylvia and Ahuja was made sosuddenly at lunch time, even if she had purchased the tickets, it is not likely that he would have taken her and thechildren to the cinema. Nanavati thenproceeds to say in his evidence : onhis wife admitting her illicit intimacy with Ahuja, he was absolutely stunned; he then got up and said that he must go and settle the matter with the swine; he asked her what were the intentionsof Ahuja and whetherAhuja was prepared to marry her and look after the children;

he wanted anexplanation from Ahuja for his caddishconduct. Inthe cross-examinationhe further elaborated on his intentions thus :He thought of having the matters settled with Ahuja;

he would find out from him whether he would take an honourable way outof thesituation; andhe would thrash him if he refused to do so. The honourable course which heexpected of the deceased was to marry his wife and look after the children. He made it clear further that when he went tosee Ahuja the main thing in his mind was to findout what Ahuja’s intentions were towards his wife andchildren andto find out the explanation for hisconduct. Sylvia in her evidence saysthat when she confessed her unfaithfulness to Nanavati the latter suddenly got up rather excitedly and said that he wanted to go 625 to Ahuja’s flat and square up the things. Briefly stated,Nanavati, accordingto him, wentto Ahuja’sflatto ask for an explanation for seducing his wife and to find out whether he would marry Sylvia and take care of the children. Is it likely that a person,situated as anavati was, would have reacted in the manner stated by him? It is true thatdifferent persons react, under similar circumstance, differently. A husbandto whom his wife confessed of infidelity may kill his wife, another may killhis wife as well as her paramour, the third, who is more sentimental. may commit suicide, and the more sophisticated one may give divorce to her and marry another. But it is most improbable, even impossible, that a husband who has beendeceived byhis wife would voluntarily go to the house of his wife’s paramour to ascertain his intentions, and, what is more, to ask himto take charge of his children. What was the explanationNanavati wanted to get from Ahuja ? His wife confessed that she had illicit intimacy with Ahuja. She is not a young girl, but a woman with three children. There was no questionof Ahuja seducing an innocent girl, butboth Ahuja and Sylvia must have been willing parties to the illicit intimacy between them.That apart, it is clear from the evidence that Ahuja and Sylvia had decidedto marry and, therefore, no further elucidation ofthe intention of Ahuja by Nanavati was necessary at all.It is true that Nanavati says inhis evidencethat when he asked her whether Ahuja was prepared to marry her and look after the children, she did not give any proper reply; and Sylvia alsoin her evidence says that when her husband asked her whetherAhuja was willing to marry her and look after the children she avoided answering that question as she was too ashamed to admit that Ahuja was trying to back out from the promise to marry her. That this version is not true isamply borne out by the letters written by Sylvia to 626 Ahuja. The first letter written by Sylvia is dated May 24,1958, but that was sent to him only on March 19, 1959, along with another letter. In that letter dated May 24, 1958, she stated:

“Last night when youspoke about your need to marry and about the various girls you may marry,something inside me snapped and I know thatI couldnot bear the thoughtof your loving or being close to someone else.” Reliance is placed upon these words by learned counselfor the accused in support of his contention thatAhuja intendedto marry another girl. But this letteris of May 1958 and by that time it doesnot appear that there was any arrangement between Sylvia and Ahuja to marry. It may well have been that Ahuja was telling Sylvia about his intentions to marry another girl to make her jealous and to fall in for him. But as days passedby, the relationshipbetweenthem had become very intimate and they began to love each other. In the letter dated March 19, 1959, she said : “Take a chance on our happiness, my love. I will do my best to make you happy; I love you, I want you so much that everything is bound to work out well.” The last sentence indicates that they had planned to marry. Whatever ambiguity there may be in these words, the letterdatedApril 17, 1959, written ten days priorto the shooting incident, dispels it; therein she writes “In any case nothing is going to stop my coming toyou. Mydecision is made and I do not change my mind. I am taking this month so that we may afterwards say we gave ourselves every chance and we know what we are doing. I am torturing myself in every possible way as you asked, so that, there will be no surprise afterwards”.

627 This letter clearly demonstrates that she agreed not tosee Ahuja for a month, not because that Ahuja refused to marry her, but because it was settled that they should marry, and that in view of the far-reaching effects of the separation from her husband on her future life and that of her children, the lovers wanted to live separately to judge for themselves whether they really loved each other so much as to marry. In the cross- examination shetried to wriggle outof these letters and sought toexplain them away; but the clear phraseology of the last letterspeaks for itself, and her oral evidence, contrary to the contents of the letters, must be rejected. We have no doubt that her evidence, not only in regard to the question of marriage but also in regardto other matters,indicates thathavinglost her lover, out of necessity or out of deep penitence for herpast misbehavior, she is out to help he husband in his defence. This correspondence belies the entire story thatSylvia did notreplyto Nanavati when the latter asked her whether Ahuja was willing to marry her and that was the reason why Nanavati wanted tovisit Ahuja to ask him about him intentions. We cannot visualize Nanavati as a romantic lover determined to immolate himself to giveopportunity tohis unfaithful wifeto start anew life of happinessand love with her paramour afterconvincing him thatthe only honourable course open to him was to marry her and take over his children. Nanavati was not ignorant of the ways oflife or so gullible as to expect any chivalry or honour in a man like Ahuja. He is an experienced Naval Officer and not a sentimental hero of a novel. The reason therefore for Nanavati going to Ahuja’s flat must be something other than asking him for an explanation and to ascertain his intention aboutmarrying hiswife and looking after the children.

628 Then, according to Nanavati, hedrove his wife and children to cinema, and promising them to come and pick them up at the end of the show at about 6p. m.,he drove straight to his ship. He would say that he went to his ship to get medicine for his seek dog. Though ordinarily this statement would be insignificant, in the context of the conduct of Nanavati, it acquires significance. In the beginning of his evidence, he says that on the morning of the day of the incident he and his wife took out theirsick dog tothe Parel Animal Hospital. It is not his evidence that after going to thehospital he want tohis ship before returning home.It isnot even suggested that in the ship there was a dispensary catering medicine for animals. This statement, therefore, is not true and he did not go to the ship for getting medicine for his dog but for some other purpose, and that purpose is clear from hissubsequent evidence. He met Captain Kolhi and asked for his permission to draw arevolver and six rounds because he was going to driveto Ahmednagarby night. Captain Kolhi gave him the revolver and six rounds, he immediately loadedthe revolver with all thesix rounds and put the revolver inside an envelope whichwas lying in his cabin. It is not the case of the accused that he really wanted to go to Ahmednagar and he wanted the revolver for his safety. Then why did he take therevolver? According to him he wanted to shoot himself after driving far away from his children. But he did not shoot himself either before or afterAhuja was shot dead. The takingof therevolver on false pretextand loadingit with sixcartridges indicate the intention on his part to shoot somebody with it.

Then the accused proceeded to state that he put theenvelope containing the revolver in his car andfound himselfdriving to Ahuja’s office.

At Ahuja’s office he went in keeping the revolver in the car, and asked Talaja, the Sales Manager of 629 Universal Motors of which Ahuja was the proprietor whether Ahuja was inside. He was told that Ahuja was notthere. Before leaving Ahuja’s office, the accused lookedfor Ahuja in the Show Room, but Ahuja was not there. In the cross examination no question was put to Nanavati in regard to his statement thathe kept the revolver in the car when heentered Ahuja’s office. On the basis of this statement,it iscontended that if Nanavati had intended to shootAhuja he would have taken the revolver inside Ahuja’s office.From this circumstance it is not possible tosay that Nanavati’s intention was not to shoot Ahuja. Even if hisstatement weretrue, it might well have been that he would have gone to Ahuja’s office not to shoot him there but to ascertain whether he had left the office for his flat. Whatever it may be, from Ahuja’s office hestraightway drove to the flat of Ahuja. Hisconductat the flatis particularly significant. His versionis that he parked his car in the house compoundnear the steps, went up the steps, but remembered that his wife had told him that Ahuja might shoot him and so he went back to his car, took the envelope containing the revolver, and went up to the flat.

He rangthe doorbell;when aservant opened the door, he asked him whether Ahuja was in. Having ascertained that Ahuja was in the house, he walked to hisbedroom, opened the door and wentin shutting the door behind him. This conduct is only consistent withhis intentionto shoot Ahuja. A person,who wants toseek an interview with another in order to get an explanation for his conduct or to ascertain his intentions in regard to hiswife and children, would go and sit in the drawing-room and ask the servant to inform his master that he had come to see him. He would not have gone straight into the bed- room of another with a loaded revolver in hand and closed the door behind. This was the conduct of an enraged man who had gone to wreak vengeance on a person who did him a 630 grievous wrong.But itis said that he had taken the loaded revolver with him as his wife had told him that Ahuja might shoot him. Earlier in his cross-examination he said thatwhen he told her that hemust go and settle the matter with the “swine” she put her hand uponhis arm and said, No, No,you must not go there, don’t go there, he may shoot you.” Sylvia in herevidence corroborates his evidence in this respect: But Sylvia has been cross-examined and she said that she knew that Ahuja had a gun and she had seen it in Ashoka Hotel in New Delhi and that she had not seen any revolver at the residence of Ahuja at any time. It is also in evidencethat Ahuja had no licence for revolver and no revolver of his was found in his bed-room.In thecircumstances, we must say that Sylvia was only attempting to help Nanavati in his defence. We thinkthat the evidence of Nanavati supportedby that of Sylvia was a collusive attempt on their part to explain away the otherwise serious implication of Nanavati carrying the loaded revolver into the bed-room of Ahuja. That part of the version of the accused in regard to the manner of his entry into the bed- room ofAhuja, was also supported by the evidence of Anjani (P.W. 8), the bearer, and Deepak, the Cook. Anjani opened the doorof the flatto Nanavati at about 4-20 p. m. He served tea to his master at about 4-15 P. M. Ahuja then telephoned to ascertain the correct time and then went to his bed-room. About fiveminutes thereafter this witness went to the bed-room of hismasterto bring back the tea-tray from there, and at that time his master went into thebath-room for his bath. Thereafter, Anjani wentto the kitchen and was preparing tea when he heard the door-bell. He then opened the door to Nanavati. This evidence shows that at about 4-20 P.M. Ahuja was taking his bath inthe bath-roomand immediately thereafter Nanavati entered the bed-room. Deepak, the cook of Ahuja, also heard the ringing of the 631 door-bell. He saw the accused opening the door of the bed-room with a brown envelope in his hand and calling the accused byhis name “Prem”; he also saw hismatter havinga towel wrapped around his waist and combing hishair standing before the dressing-table, when the accused entered the room and closed the doorbehind him.These two witnesses are natural witnesses and they have been examined by the police on the same day and nothing has been elicited against them to discredit their evidence. Thesmalldiscrepanciesin their evidence do not in any way affect their credibility. A few seconds thereafter, Mammie, the sister of the deceased, heard the crack of the windowpane.The time that elapsed between Nanavati entering the bed-room of Ahuja and her hearing the noise was about 15 to 20 seconds. She describes the time that elapsed between the two events as the time taken by her to take up her saree from the door of her dressing-room and her coming to thebed-room door.Nanavati in his evidence says that he was in the bed-room of Ahuja for about 30 to 60 seconds. Whether it was20 seconds, as Miss Mammie says, or 30 to 60 seconds, as Nanavati deposes, the entire incidentof shooting took place in a few seconds.

Immediately afterthe sounds were heard, Anjani and Miss Mammieentered the bed-room and saw the accused.

The evidence discussedso fardiscloses clearly that Sylvia confessedto Nanavati of her illicit intimacy with Ahuja; that Nanavati went to his ship at about 3.30 P.M. and took a revolver and sixrounds on a false pretext and loaded the revolver with six rounds; that thereafter he went to theoffice of Ahuja to ascertain his whereabouts, but was told that Ahuja had left for his house; that the accused then went to the flat of thedeceased at about 4-20 P.M.; thathe enteredtheflat and then thebed-room unceremoniously with the loaded revolver, closed the door behind him and a few 632 secondsthereafter sounds were heard by Miss Mammie, the sister ofthe deceased, and Anjani, servant; that when Miss Mammie and Anjani entered the bed-room,they saw theaccusedwith the revolver in his hand and found Ahuja lying on the floor of thebath-room. This conduct of the accused to say the least, is very damaging for the defence and indeed in itself ordinarily sufficient to implicate him in the murder of Ahuja.

Now we shall scrutinizethe evidenceto ascertain the conduct of the accused from the time he wasfound in the bed-room of Ahuja tillhe surrendered himself tothe police. Immediately after the shooting, Anjani and Miss Mammie went into the bed-room of the deceased. Anjani says in his evidence that he saw theaccused facing the direction of his master who was lying in the bath- room; that at that time the accused was having “pistol” in his hand;that when he opened the door, the accused turned his face towards this witness and saying that nobody should come in his way or else he would shoot at them, he brought his “pistol” near the chest of the witness; and that in themeantime Miss Mammie came there, and said that the accused had killed her brother.

Miss Mammie in her evidence says thaton hearing the sounds, she went into the bed-room of her brother, and there she saw the accused nearer to theradiogram thanto thedoor with a gun in his hand; that she asked theaccused”whatis this?” but she did not hear the accused saying anything.

It is pointed outthat there are material contradictions betweenwhat was stated by Miss Mammie and what was stated byAnjani. We do not see any material contradictions. Miss Mammie might not have heard whatthe accused said either because she came thereafter the aforesaid words were uttered or because in her anxiety and worry she did not hear the words. The different versions 633 given by the two witness in regard to what Miss Mammiesaid to theaccused is not of any importance as the import of what both of them said is practicallythe same. Anjani opened he door to admit Nanavati into the flat and when he heard the noise he must have entered the room. Nanavati himself admitted that he saw a servant in the room, though he did not know him by name; he also saw Miss Mammie inthe room. These small discrepancies, therefore, do not really affect their credibility. In effect any substance both saw Nanavati with a fire-arm in his hand-though one said pistol and the other gun-going away from the room without explaining to Miss Mammie his conduct and even threatening Anjani. This could only bethe conduct of a person who had committed a deliberate murder and not of one who had shot the deceased by accident. If the accused had shot the diseased by accident, he would have been in a depressed and apologetic mood and would have tried to explain his conductto Miss Mammie or would have phoned for a doctor or asked her to send for one orat anyrate hewould not have been in a belligerent mood and threatened Anjani with his revolver. Learned counsel forthe accused argues that in the circumstances in which the accused was placed soon after the accidental shooting he could not have convinced Miss Mammie with any amount of explanation andtherefore there was no point in seeking to explain his conduct to her. But whether Miss Mammie would have beenconvinced by his explanation ornot, if Nanavati hadshot the deceased by accident, he would certainly have told her particularly when he knew her before and when she happened to be the sister of the man shot at.

Assuming that the suddenness of theaccidental shooting had so benumbed his senses that he failed to explain the circumstances of the shooting to her, the same cannot be said when he met others at the gate. After the accused had come out of the flat of Ahuja, 634 he gotinto his car and took a turn in the compound. Hewas stopped near the gateby Puransingh, P.W. 12, the watchman of the building.

As Anjani had told him that the accused had killed Ahuja the watchman asked him why he had killed his master. The accused told him that he had a quarrel with Ahuja as the latter had”connections” with his wife and therefore he killed him. The watchman told the accused thathe should not go away from the place before thepolicearrived, but the accused told him thathe was going to the police and that if he wanted he could also come with him in thecar. Atthat time Anjani was standing in front of the car and Deepak was a few feet away.

Nanavati says in his evidence that it was not true that hetold Puransingh that he had killed the deceased as the latterhad “connection” with his wife and that the whole ideawas quite absurd.

Puransingh is not shaken in his cross-examination.

He is an independent witness;thoughhe isa watchman of Jivan Jyot, he was not an employee of the deceased. After the accused leftthe place, this witness, at the instance of Miss Mammie, went to Gamdevi Police Stationand reported the incident to the police officer Phansalkar, who was in charge of the police station at that time, at about 5-5 P.M.and came along withthe said police-officer in the jeep to Jivan Jyot at about 7 P.M.he wentalong with the police-officer to the police station where his statement was recorded by Inspector Mokashilate in the night.

It is suggested that this witness had conspired with Deepak and Anjaniand that he was giving false evidence.We donot seeany force in this contention. Hisstatement wasregarded on the night of the incident itself. It is impossible to conceive that Miss Mammie, who must have hada shock, would have been in a position to coach him up to give a false statement. Indeed, her evidence discloses thatshe was drugged to sleep that night. Can it be said that these two illiterate 635 witnesses, Anjani and Deepak, would have persuaded him tomake afalse statement that night. Though both of themwerepresentwhenPuransingh questioned theaccused, they deposedthat they were at a distance and therefore they did not hear what the accused told Puransingh. If they had all colluded together and were prepared to speak to a false case, they could haveeasilysupported Puransingh by stating that they alsoheard what the accused told Puransingh. We also do not think that the two witnessesare sointelligent as to visualize the possible defenceand before hand coached Puransingh to make a false statement on the very night of the incident. Nor do we find any inherent improbabilityin hisevidence if really Nanavati had committed the murder. Having shot Ahuja he was going to surrender himself to the police; he knew that he had committed a crime; he was nota hardened criminal and must have had a moral conviction that he was justified in doing what hedid. It was quite natural, therefore, for him to confess his guilt andjustify his act to the watchman who stopped him and asked him to wait there till the policecame. In the mood in which Nanavati was soon after the shooting, artificial standards of status orposition wouldnot have weighed in his mind if he was going to confess and surrender to the police. We have gone through the evidence of Puransingh and wedo not see any justification to reject his evidence.

Leaving Jivan Jyot the accused drove his car and came to Raj Bhavan Gate. There he met a police constable and asked him for the location of the nearest police station. The direction given by the police constable were not clear and,therefore, the accused requested him to go along with him to the police station, but the constabletold him that ashe wason duty, he could not follow him.

This 636 is a small incident in itself, but it only shows that the accused was anxious to surrender himself to thepolice.This would not havebeen the conduct of the accused, if he had shot another by accident, for in that event he would have approached a lawyer or a friend for advice before reporting the incidentto the police. As the police constable was not able to give him clear directions inregardto thelocation of the nearest policestation, the accused went to the house of Commander Samuel, the Naval Provost Marshal. What happened betweenthe accused the Samuel is stated by Samuel in his evidence as P.W.

10. According to his evidence, on April 27, 1959, at about 4.45 P.M., he was standing at the window of hisstudy in his flat on the ground floor at New Queen’s Road. His windowopens out on the road near the band stand. The accused came up to the window and he was in a dazed condition. The witness asked him what had happened, and the accusedtold him “Ido notquite know what happened, but I thinkI have shot aman.” The witness asked him how it happened, and the accused told him that the man had seduced his wife and he would not stand it. When the witness asked him to comeinside and explain everything calmly, the accused said “No, thank you, I must go”, “please tell mewhere I should go and report”. Though he asked him again to come in, the accused did not go inside and, therefore, this witness instructed him to go to the C.I.D. Office and report to the Deputy Commissioner Lobo. The accused asked him to phone to Lobo and he telephoned to Lobo and told him that an officer by name Commander Nanavati was involved in an affairand that he was on the way to report tohim. Nanavatiin his evidence practically corroborates the evidenceof Samuel.

Nanavati’s version in regard to this incident is as follows:

“I told him that something terrible had happened, that I did not know quite what 637 had happened but I thought I had shot a man.

He asked me wherethis had happened. I told him at Nepean Sea Road. He asked me Why I had been there. I told him I went there because a fellow there had seduced my wife and I would not standfor it.He asked me many times to go insidehis room. But I was not willing to do so, I was anxious togo to the police station. Itold CommanderSamuel that there had been a fightover a revolver. Commander Samuel asked to report to Deputy Commissioner Lobo.” The difference between the two versions lies in the fact that while Nanavati said that he told Samuelthat something terrible hadhappened, Samuel did not say that; while Nanavati said that he toldSamuel that there had been a fight over a revolver, Samuel did notsay that. But substantially both of them say that though Samuel asked Nanavatimore than once to get inside the house and explain to him everything calmly, Nanavati did not do so; both of them also deposed that the accused told Samuel, “I do not quite know what happened but I think I have shot a man.” It may bementioned that Samuel is a Provost Marshal of theIndian navy, and he and the accused are of the same rank though the accused isseniorto Samuel as Commander. As Provost Marshal, Samuel discharges police duties inthe navy. Isit probable thatif the deceased was shotby accident, the accused would not have stated that fact tothis witness?Is it likely that he would not have stepped into his house, particularly when he requested him morethan once to come in and explain to him how the accident had taken place ? Would he not have taken his advice as a colleague before he proceeded to the police stationto surrender himself ? The only explanation for this unusual conducton thepart of the accusedis that, having committed the murder, hewanted to surrender himself to 638 the police and tomake acleanbreastof everything. What is more, when hewas asked directly that had happened he told him “I do not quite know what happened but I think I have shot a man”. When he was further asked how it happened, that is, how he shot the man he said that the man had seduced his wife and that he would not stand for it.In thecontext, twoanswers read along with the questions put to him by Samuel only mean that, as the deceased had seduced his wife, the accused shot him as he would not stand for it. If really the accused shot the deceased by accident, why didhe notsay that fact to his colleague, particularly when it wouldnot only be his defence, if prosecuted, butit would puta different complexion to his act in the eyes of his colleague. Butstrong relianceis Placed on what this Witness stated in the cross-examination viz., “I heard the word fight fromthe accused”, “I heard some other wordsfrom the accused butI could not make out a sense out of these words”.

Learned counsel for the accused contends that this statement showsthat the accused mentionedto Samuel that the shooting of tho deceased was in a fight. It is not possible tobuildupon such slender foundation that the accused explained to Samuel that he shot the deceased by accident in a struggle. The statement in the cross-examination appears to us to be an attempt on the part of this witness to help his colleague by saying something which may fit in the scheme of his defence, though at thesame time heis not willing to lie deliberately inthe witness-box, for he clearly says that he could not make out the sense of the words spoken along with the word “fight”. This vaguestatement ofthiswitness, without particulars, cannot detract from the clear evidence given by him in the examination-in-chief.

What Nanavati said to the question put by the Sessions Judgeunders. 342of the Codeof Criminal Procedure supports Samuel’s version. The 639 following question was put to him by the learned Sessions Judge :

Q.-Itis alleged againstyou that thereafter as aforesaid you went to Commander Samuel atabout 4-45 P.M. and told him that, something terriblehad happened and that you did not quite know but you thought that you shot a man as he had seduced your wife which you could not stand and that on the advice of Commander Samuel you then went to Deputy Commissioner Lobo atthe Head Crime Investigation Department office. Do you wish to say anything about this? A.-This is correct.

Here Nanavati admits that he told Commander Samuel that heshot the man as he had seduced his wife.

Learned counselfor the accused contends that the question framed wasrather involved and, therefore, Nanavati might not have understood its implication. But it appears from thestatement that, after the question were answered, Nanavati read his answers andadmitted thatthey were correctly recorded. The answer is also consistent with what Samuel saidin his evidence as to what Nanavati told him. This corroborates the evidence of Samuel that Nanavati told him that, as the man had seduced his wife, he thought that he had shot him. Anyhow, the accused did not tell the Court that he told Samuel that he shot the deceased in a fight.

Then the accused, leaving Samuel, went to the office of the Deputy Commissioner Lobo. There, he made astatement toLobo. At that time, Superintendent Korde and Inspector Mokashi were also present. On the information given by him, Lobo directed Inspector Mokashi totake the accused into custody and to take charges of the articles and to investigate the case.

640 Lobo says in his evidence that he receiveda telephone call from Commander Samuel to the effect that he haddirected Commander Nanavatito surrender himself to him as he had stated that J he had shot a, man. This evidence obviously cannot be usedto corroborate what Nanavati told Samuel, but itwould only bea corroboration of the evidence of Samuel that he telephoned to Lobo to that effect. It is not denied that the accused set up thedefence of accident for the first time in the Sessions Court. This conduct of the accused from the time of the shootingof Ahuja to the moment he surrendered himselfto thepoliceis inconsistent with the defencethat the deceased was shot by accident. Though tho accused had many opportunities to explain himself, he did not do so; andhe exhibited the attitude of a man who wreaked out his vengeance in the manner planned by him and was only anxious to make a clean breast of everything to the police.

Now we will consider what had happened in the bed-room and bath-roomof the deceased. But before considering the evidence on this question, we shall try to describe the scene of the incident and other relevant particulars regarding the things found therein.

The building “Jivan Jyot” is situatein Setalvad Road,Bombay.Ahuja was staying on the first floor of that building. As one goes up the stairs, there is a door leading into the hall; as one enters the hall and walks a few feet towards the north he reaches a door leading into bed-room of Ahuja. In the bed-room, abutting the southern wall there is a radiogram; just after the radiogram thereis a door onthe southern wall leading to the bath-room, on the eastern side of the door abutting thewall there is a cupboard with amirror thereon; in the bath-room, which is of thedimensions 9 feet x 6 feet, there isa commode in the front along the 641 wall, above the commode there is a window with glass panes overlooking the chowk, on the east of the commode there is a bath-tub, on the western side ofthe bathroom there is a door leading into the hall; on the southern side of the said door there is a wash-basin adjacent to the wall.

After theincident the corpse ofAhuja was found in the bath-room; the head of the deceased was towards the bed-room and his legs were towards the commode. He was lying with his head on his right hand. This is the evidence of Miss Mammie, and she has not been cross-examined on it. It is also not contradicted by anywitness. The top glass pane of the window in the bath-room was broken. Pieces of glass were found on the floor of the bath-room between the commode andthe wash- basin. Between the bath-tub and the commode a pair of spectacles was lying on the floor and there were also two spent bullets. One chappal was found between the commode and the wash basin, and the other was found in the bedroom. A towel was found wrapped aroundthe waist of the deceased. The floor of the bath room was blood stained. There was white handkerchief and bath towel, which was blood stained lying on the floor. The western wall was found to be blood stained and drops of blood were tricklingdown.The handle ofthe door leading to the bath-room from the bed-room and a portion of the door adjacent to the handle were bloodstained from the inner side. The blood on the wall was little a over three feet from the floor.

On thefloor of the bed-roomthere was an empty brown envelope with the words “Lt. Commander K. M.

Nanavati” written on it. There was no mark showing that the bullets had hit anysurface. (See the evidence of Rashmikant, P.W. 16) On the dead-body the following injuries were found :

(1) Apunctured wound 1/4″X 1/4″X chest cavity deep just below and inside the inner 642 end of the right collar bone with an abrasion collar on the right side of the wound.

(2) Alacerated punctured wound in the web between the ring finger andthe little finger ofthe left hand 1/4″ X 1/4″ communicating witha punctured wound 1/4X 1/4″ on the palmer aspect of the left hand at knuckle level between the left little and the ring finger. Both the wounds were communicating.

(3) Alacerated ellipsoid wound oblique in the left parietal region with dimensions 1 1/3″ X 1/4″ X skull deep.

(4)A laceratedabrasion with carbonaceous tatooing 1/4″ X 1/6″ at the distal endof theproximal interphalangeal joint of the left index finger dorsal aspect.

That meansat thefirst joint of the crease of the index finger on its dorsal aspect, i.e., back aspect.

(5)A laceratedabrasion with carbonaceous tatooing 1/4″ X 1/6″ at the joint level of the left middle finger dorsal aspect.

(6) Verticalabrasion insidethe right shoulder blade 3″X 1″just outside the spine.

On internal examination the following wounds were found by Dr. Jhala, who performed the autopsy on the dead-body. Under the first injury there was:

“A small ellipsoid wound oblique in the front ofthe piece ofthe breast bone (Sternum) upper portion right side centre with dimensions 1/4″ x 1/3″ and at the back of the bone there was a lacerated wound accompanied by irregular chipfracture corresponding to external injuryNo. 1,i, e., the punctured wound chest cavity deep.

Same wound continued in the contusion in area 3″ x 1 1/4″ in the right lung upper lobe front border middle portion front and back.

Extensive clots were seen 643 in the middle compartmentupperand front part surrounding the laceration impregnated pieces of fractured bone. There was extensive echymosis and contusion around the root of the rightlungin the diameter of2″ involving also the inner surface of the upper lobe. There were extensive clotsof blood around theaorta. The left lung was markedly pale and showed athrough and through wound in the lower lobebeginning at the inner surface just above the root opening out in the lacerated ground in the back region outer aspect atthe level between 6th and 7th ribs left sidenot injuring the rib and injuring the spacebetween the 6th and 7th rib left side 2″ outside the junction ofthe spine obliquely downwardand outward. Bullet was recoveredfrom tissues behindthe left shoulder blade. The woundwas laceratedin the wholetractand was Surroundedby contusion of softer tissues.” The doctor says that the bullet, after entering “the inner end, went backward, downward and then to the left” and therefore he described the ground an ellipsoid and oblique”. Ho also points out that the abrasion collar was missing on the left side.

Corresponding to the externalinjury No. 3, the doctor found on internal examinationthat the skull showed a haematoma under the scalp, i.e., on the left parietal region ; the dimension was 2″ X 2″. Theskull cap showed a gutter fracture of the outer table and a fracture of the inner table. The brain showed sub-arachnoid haemorrhageover the left parieto-occipitalregionaccompanying the fracture of the vault of the skull.

A description ofthe revolver with which Ahuja was shot and the manner of its working would be necessary to appreciate the relevant evidence in that regard. Bhanagay, the Government 644 Criminologist,who was examined as P.W.4, describes the revolverand the manner of its working. The revolver is a semi-automatic one and it is six-chambered. To load the revolver one has to release the chamber; when the chamberis released, it comes outon the leftside. Six cartridges canbe inserted in the holes of tho chamber and then the chamber is pressed to the revolver. Afterthe revolver is thus loaded, for the purpose of firing one has to pull the trigger of therevolver; whenthe trigger is pulled the cartridge gets cocked and the revolver being semi- automatic the hammer strikes the percussion cap of the cartridge and the cartridge explodes and the bullet goes off. For firing the second shot, the trigger has tobe pulled again andthe same process will have to be repeated each time it is fired. As it is not an automatic revolver, each time it is fired, the trigger has to be pulled and released. Ifthe trigger is pulled but not released, the second round will not come in its position of firing. Pulling of the trigger has a double action-one is the rotating of the chamber and cocking, and theother,releasing of the hammer. Becauseof this double action, the pull must befairly strong.A pressure ofabout20 pounds is required for pulling the trigger. There is controversy on the question of pressure, and we shall deal with this at the appropriate place.

Of the three bullets fired fromthe said revolver, two bullets were found in the bath-room, and thethird was extracted from the back of the left shoulder blade. Exs. F-2 and F-2a are the bullets found in the bath-room. These two bullets are flattened and the copper jacket of one of the bullets, Ex. F-2a, hasbeen turn off. The third bullet is marked as EX. F-3.

With thisbackground let US now consider the evidence to ascertain whetherthe shooting was intentional, as the prosecution avers, or only 645 accidental, asthe defence suggests.Excepting Nanavati, the accused, and Ahuja, the deceased, no other person was present in the letter’s bed-room when the shooting took place. Hencethe only person who can speak to the said incident is the accused Nanavati. The versionof Nanavati,as given in his evidencemay bestatedthus:He walked into Ahuja’s bed-room, shutting the door behind him. Ahuja wasstanding in front of the dressing-table. The accused walked towards Ahuja and said, “You are a filthy swine”, and asked him, “Are you going to marry Sylvia and look after the kids?” Ahuja became enraged and said in a nasty manner, “Do I have to marry every woman that I sleep with ?” Then the deceased said, “Get the hell out of here, otherwise,I willhave you thrown out.” The accused became angry, but the packet containing the revolverdown on a cabinet which was near him and told him, “ByGod Iam going to thrash you for this.” The accused had his hands up to fight the deceased, but the latter made asudden grab towards the packet containing the revolver. The accused grappled the revolver himself and prevented the deceases from getting it. Hethen whipped out the revolver and told the deceased to get back. The deceased was very close to him and suddenly caught with his right hand the right hand of the accused at the wrist and tried to twist it and take the revolver off it. The accused “banged” the deceased towards the door of the bath-room,but Ahuja would not let go of his grip and tried to kick the accused with his knee in thegroin. The accused pushed Ahuja again into the bath-room, trying at the same time desperately to freehis hand from the grip of the accused by jerking it around. The deceased had a very strong grip and he did not let go the grip. During the struggle, the accused thought that two shots went off: one went first and within a few seconds another. At the first shot the deceased just kept 646 hangingon tothe hand ofthe accused, but suddenly he let go his hand and slumped down. When the deceased slumped down, the accused immediately came out of the bath-room and walked downto report to the police.

By this description theaccusedseeksto raise the image that he and the deceased were face to facestruggling for the possession of the revolver, the accused trying to keepit and the deceased trying to snatch it, the deceased catching hold of the wrist ofthe right hand of the accused and twisting it,and the accused desperately trying to free his hand from his grip;

and inthe struggletwoshotswent off accidentally-he does not knowaboutthe third shot-and hit the deceased and causedhis death.

But inthe cross-examinationhe gave negative answers to most of the relevant questions put to him totest the truthfulness of his version. The following answers illustrate his helpful attitude in the court:

(1) I do not remember whether the deceased had the towel on him till I left the place.

(2) Ihad noidea where the shots went because we were shuffling during the struggle in the tiny bath-room.

(3) Ihave no impression from where and how the shots were fired.

(4) Ido notknow anythingabout the rebound of shots or how the shots went off.

(5) Ido not evenknow whether the spectacles of the deceased fell off.

(6) Ido notknow whether I heard the third shot. My impression is that I heard two shots.

(7) I do not remember the details of the struggle.

(8) Ido notgive any thought whether the shooting was an accident or not, because 647 I wished to go to the police and report to the police.

(9) Igave no thought to this matter. I thought that something serious had happened.

(10) I cannot say how close we were to each other, we might be very close andwe might be at arm’s length during the struggle.

(11) I cannot say how the deceased bad his grip on my wrist.

(12) I do not remember feeling any blows from the deceased by his free hand during the struggle; but be may have hit me.

He gives only a vagueoutline of the alleged struggle between him and thedeceased. Broadly lookedat, the version given by the accused appears to be highly improbable. Admittedly he bad enteredthe bedroom ofthedeceased unceremoniously with a fullyloadedrevolver;

within half a minute he cameout ofthe room leaving Ahuja dead with bullet wounds. The story of his keeping the revolver on the cabinet is very unnatural. Evenif hehad kept it there, how did Ahuja come to know that it was a revolver for admittedly it was putin an envelope. Assuming that Ahuja hadsuspected that it might bea revolver, how could hehave caught the wrist of Nanavati who had by that time the revolver in his hand with his finger on the trigger? Even if he was able to doso, how did Nanavatiaccidental pull the trigger three times and release it three times when already Ahuja was holding his wrist and when hewas jerking his handto release it from the grip of Ahuja ? It also appears to be rather curious that both the combatants did not use their left hands in the struggle. If, as he has said, there was a struggle between them and he pushed Ahuja into the bath-room, how was itthat the towel wrapped around the waist of Ahuja was intact ? So too, if there was a struggle, why there was no bruise on the body of the accused? Though Nanavati says that 648 there were some “roughings” on his wrist, he had not mentioned that fact till he gave his evidence in thecourt,nor is thereany evidenceto indicate such “roughings”. It is notsuggested that the Clothes worn by the accused were torn or even soiled. Though there was blood up to three feet on the wall of the bath-room, there was not a drop ofblood on theclothesof the accused.

Anotherimprobabilityin the version of the accused is, while he says that in the struggle two shots went off, we find three spent bullets-two of them were found in the bathroom and the other in the body of the deceased. What is more, how could Ahuja have continued to struggle after he had received eitherthe chest injury orthe head injury, for both of them were serious ones. After the deceased received either the first or the third injury there wasno possibility of further struggling or pulling of the triggerby reflex action. Dr. Jhala says that the injury on the head of thevictim was such that the victim could not have been able to keep standing and would have dropped unconscious immediately and that injury No. 1 was also so serious that he could not stand for more than one or two minutes. Even Dr. Baliga admits that the deceased would have slumped down after the infliction of injury No. 1 or injury No.

3 and that either of them individually would be sufficient to cause the victim to slump down. It is, therefore, impossible that after either of the said two injuries wasinflicted, the deceased could have still kepton strugglingwith the accused. Indeed, Nanavati saysin his evidence that atthe first shot the deceased just kept on hanging to his hand, but suddenly he let go his grip and slumped down.

The only circumstance that could be relied upon toindicate a struggle is that one of the chappals of the deceased was found in the bed-room while the other was in the bath-room. But that is consistent withboth intentional andaccidental shooting, for in his anxiety to escape from, the line of 649 firing the deceased might have in hurry left his one chappal in the bed-room and fledwith the other to the bath-room. The situation of the spectacles nearthe commode is moreconsistent with intentional shooting than withaccidental shootings, for if there had been a struggle it was more likely that the spectacles would have fallen off andbroken insteadof their being intact by the side of the dead-body. The condition of the bed-room as well as of the bath-room, as described by Rashmikant,the police-officer whomade the inquiry, does not show any indication of struggle or fight in that place. The version of the accused, therefore,isbrimming with improbabilities and is not such that any court can reasonably accept it.

It is said that if the accused went to the bedroom of Ahuja to shoot himhe would not have addressed him by his first names “Prem” as deposed by Deepak. But Nanavati says in his evidence that he would be the last person to address the deceased as Prem. This must havebeenan embellishment on the part of Deepak. Assuming he said it, it does not indicateand sentimentof affection orgoodwill towards the deceased- admittedly he had nonetowards him-but onlyan involuntary and habitual expression.

It is argued thatNanavati is a good shot- Nanda, D.W. 6, a Commodore inthe Indian Navy, certifies that he is a good shot in regard to both moving and stationary targets-and therefore if he had intended to shootAhuja, he would have shot him perpendiculary hitting the chest and not in a haphazard way as the injuries indicate. Assuming that accused is a good shot, this argument ignores that hewas not shooting at an inanimate target for practice but was shooting to commit murder;

and italso ignores the desperate attempts the deceased must have made to escape. The first shot might have been fired and aimed at the chest as 650 soon asthe accused entered the room, and the other two presumably when the deceased was trying to escape to or through the bathroom.

Now on the question whether three shots would have gone off the revolver accidentally, there is the evidence of Bhanagay, P.W. 4,who isa Government Criminologist. The Deputy Commissioner of Police, Bombay, through InspectorRangnekar sent to him the revolver, three empty cartridge cases, three bullets and three live rounds for his inspection. Hehas examined the revolver and the bullets which are marked as Exs. F-2, F-2a and F-

3. He is of the opinion that the said three empties were fired from the said revolver.He speaks to the fact that for pulling the trigger a pressure of 28 poundsis required and that for each shot the triggerhas to be pulled and for another shot to be fired it must be released and pulled again. He alsosays that the charring around the wound couldoccur with the weapon of the type we are now concerned within about 2 to 3 inchesof themuzzleof the weapon and the blackening around the wound describedas carbonaceous tattooing could be caused from such a revolver up to about 6 to 8inchesfrom the muzzle. In the cross examination he says that the flattening of the twodamaged bullets, Exs. F-2 and F-2a, could have been caused by their hitting a flathard surface, and that the tearing of the copper jacket of one of the bullets could have been caused by a heavy impact, such as hitting against a hard surface; it may havealso been caused, according to him, bya human boneof sufficient strength provided the bullet hits the bone tangentlyand passes of without obstruction.

These answers,if accepted-wedo not see any reason why we should not accept them-prove that the bullets, Exs. F-2and F-2a, could have been damaged by their coming into contactwith some hard substance such asa boneHe says in the cross-examination thatone’struggling’ will not cause three automatic firings and tha 651 even if the struggle continues he would not expect three rounds to go off, buthe qualifies his statement by adding that this may happen if the person holding the revolver “co-operates so far as the reflex of his finger is concerned”, to pull the trigger. He further elaborates the same idea by saying that a certain kind of reflex co- operation is required for pulling the trigger and that this reflex pull could be either conscious or unconscious. This answer is strongly relied upon by learned counsel forthe accused in support of his contentionof accidental firing.He argues that byunconscious reflex pull of the trigger three times by the accuses three shots could have gone off the revolver.But the possibilityof three rounds going off by three separate reflexes of the finger of the person holding the trigger is only atheoretical possibility, and that too only on theassumption of a fairly long struggle. Such unconscious reflex pull of the finger by the accused three times within aspaceof a few seconds duringthe struggle as described by the accused is highly improbable,if not impossible.

We shall consider the evidence of this witness on the question of ricocheting of bullets whenwe deal with individual injuries found on the body of the deceased.

This witness is not a doctor but has received training Forensic Ballistic Identification of Fire Arms) amongst other things in London and possesses certificates ofcompetency from histutorsin London duly endorsed by the covering letter from the EducationDepartment, high commissioner’s office, and he is a Government Criminologist and has been doing this work for the last 22 years; he says that hehas also gained experienceby conducting experimentsby firing on mutton legs.

He stood the test of cross-examination exceedingly well and there is no reason to reject his evidence. He makes the following points: (1) Three used bullets, Ers. F-2, F-2a and F-3, were shot from the revolver Ex.B. (2) The revolver can be fired only by 652 Pulling the trigger; and for shootingthrice, a person Shootingwill have to give a deep pull to the trigger thrice andrelease it thrice. (3) A pressure of 28 pounds is required topull the trigger. (4) one “struggling” will not cause three automatic firings. (5) If the struggle continues and ifthe person who pullsthe trigger co- operates by pulling the trigger three times, three shots may go off. (6) The bullet may be damaged by hitting a hard surfaceor a bone. As we have pointed out the fifth point is only a theoretical possibility based upon two hypothesis, namely, (i) the struggle continues for a considerable time, and (ii) thepersonholdingthe trigger Go- operates by pulling itthrice by reflex action.

This evidence,therefore, establishesthat the bullets went off therevolver brought by the accused-indeed this is not disputed and that in the course of the struggle ofa fewseconds as described by the accused, it is not possible that the trigger could havebeen accidentally pulled three times in quick succession so as to discharge three bullets.

As regardsthe pressure required to pull the trigger of Ex. B, Trilok singh who is the Matter Armorer in the Army, deposing as D.W. 11, does not accept the figure given by the Bhanagay and he would put it at 11to 14 pounds. we does not know the science of ballistics and he is only a mechanic whorepairs the arms. He has not examined the revolver in question. He admits that a double-action revolver requires more pressure on the trigger than single-actionone. While major Burrard in his book on Identification of Fires and Forensic Ballistics says thatthe normal trigger pull in double-action revolvers isabout 20 pounds, this witness reducesit to11 to14 pounds; while Major Brrard says in his book that in allcompetitions notest other than a dead weight is accepted, this witness doesnot agree with him. His opinion is based on the experiments performed 653 with spring balance. We would prefer to accept the opinion of Bhanagay to that of this witness. But, on thebasis of the opinion of Major Burrard, we shall assume for the purpose of this case that about 20 pounds of pressure would be required`to pull the trigger of the revolver Ex. B.

Before considering the injuries in detail, it may beconvenient to ascertain from the relevant text-books someof theindications that will be found in the case of injuries caused by shooting.

The followingpassagefrom authoritative text books may be consulted:

Snyder’s Homicide Investigation, P. 117:

“Beyond the distance of about 18 inches or 24 at the most evidence of smudging and tattooing are seldom present.” Merkeley on Investigation of Death, P. 82:

“At a distance of approximately over 18″ the powder grains are no longer carried forward and therefore the only effect produced on the skin surface is that of the bullet.” Legal MedicinePathology and Toxicologyby Gonzales, 2nd Fdn., 1956:

“The powder grains may travel 18 to 24 inches ormore dependingon thelengthof barrel, calibre and typeof weapon and the type of ammunition.” Smith and Glaister, 1939 Edn., P. 17:

“In general with all types of smokeless powder some traces of blackening are to be been butit isnot always possibleto recognize unburntgrains of powder evenat ranges of one and a half feet.” Glaister in his book on Medical Jurisprudence and Toxicology, 1957 Edn.J makes a statement that at 8 range of about 12 inches and over as a rule there will not be marks of carbonaceous tattooing or 654 powder marks. But thesame author in an earlier book from which we have already quoted puts it at 18 inches. In the book “Recent Advancesin Forensic Medicine” 2nd Edn., p. 11, it is stated:

“At range beyond 2 to 3 feet little or no trace of the powder can be observed.” Dr. Taylor’s book, Vol. 1, 11th edn., p. 373, contains the following statement:

“In revolver and automatic pistol wounds nothing but the grace ring is likely to be found beyond about two feet.” Bhanagay, P.W.4, saysthat charringaround the wound could occur with the weapon of the type Ex.B within about 2 to 3 inches from the muzzle of the weapon, and the blackening round about the wound could be caused from such a weapon up to about 6 to 8 inches from the muzzle. Dr. Jhala, P.W. 18, ways that carbonaceous tattooing would not appear if the body was beyond 18 inches from the mouth of the muzzle.

Dr. Baliga, D.W. 2, accepts the correctness of thestatement formed inGlaister’s book, namely, when the rangereaches about6 inches there is usually an absence of burning although there will probably be some evidence of bruising and ofpowder mark, at a range of about 12 inches and over the skin around the wound does not as a rule show evidence of powder marks.” In the cross- examinations witness says that he does not see any conflict in the authorities cited, and tries to reconcile the various authorities by stating that all theauthorities show that there would not be powder marks beyond the range of 12 to 18 inches.

He alsoways that in the matter oftattooing, there is no differencebetween thatcausedby smokeless powder used in the cartridgein question, and black powder used in other bullets, though in the case of the former there maybe greater difficulty to find 655 out whether tho marksare present are not in a, wound.

Having regard tothe aforesaidimpressive array of authorities on Medical Jurisprudence, we hold, agreeingwith Dr. Jhala, that carbonaceous tattooing wouldnot befound beyond range of 18 inches from the mouth of the muzzle of the weapon.

We alsohold that charring around the wound would occur when it is caused by a revolerlike Ex.

within about 2 or 3 inches from the muzzle of the revolver.

The presence andnatureof the abrasion collar around the injury indicates the direction and also the velocityof thebullet. Abrasion collar is formed by the gyration of the bullet caused by the riflingof the barrel. If a bullet hits the body perpendicularly, the wound would be circular and the abrasion collar would be all around. But if the hit is not perpendicular, the abrasion collarwill not be around the entire wound(See theevidence of Dr. Jhala and Dr.

Baliga).

As regardsthe injuries found onthe dead body, two doctors were examined, Dr. Jhala, P. W.

18, onthe side of the prosecution, and Dr.

Baliga, D. W. 2, on the side of the defence. Dr.

Jhala is the Polio Surgeon, Bombay, for the last three years. Prior to that he was a Police Surgeon in Ahmedabad for six years. Ee is M.R. C.P.

(Edin.), D.T. M. and H. (Lond.). He conducted the postmortem on the dead body of Ahuja and examined both external and internal injuries on the body.

He is therefore, competent to speak with authority on thewounds found on the dead-body not only by his qualifications andexperience but alsoby reason of having performed the autopsy on the dead-body. Dr.Baliga is an F. R. C. S. (England) and has been practising as a medical surgeon since 1933. His qualifications and antecedents show that he is not onlyon experience surgeon but abo has been taking 656 interest in extra-surgical activities, social, political and educational. He says that he has studiedmedical literatureregarding bullet injuries and that he is familiar with medico-legal aspect of wound including bullet wounds. He was a Causality J. Medical officer in theK. E.M.

Hospital in 1928. Thehad seen bullet injuries both asCausality Medical officer and later on as a surgeon. In the cross-examination he says:

“I have never fired a revolver, nor any other fire-arm. I have not given evidence in a single case ofbullet injuries priorto this occasion though I have treated and I am familiar with bullet injuries. The last that I gave evidence in Medico-legal case ina murder case was in 1949 or 1950or there about. Prior tothat Imust have given evidence in a medical-legal casein about 1939. I cannot off hand tell how many cases of bulletinjuries I have treated till now, must havebeen over a dozen. Ihave not treated any bullet injuries case for the last 7 or 8 years. It was over 8 or 9 years ago that I have treated bullet injuries on the chest andthe head. Outof allthese12 bullet injuries cases which I have treated up to now there might be 4or 5 which were bullet injuries on the head. Out of these 4 or 5 cases probably there were three cases in which there were injuriesboth on the chest as well as on the head……. I must have performed about half a dozen postmortems in all my career.” He further says that he was consulted about a week before he gave evidence by Mr. Khandalawala and Mr. Rajani Patel on behalf of the accused and was shown the post-mortem report of the injuries; that he didnot have before him either the bullets or the skull; that he gave his opinion in about 20 minutes on the basis of the post-mortem 657 report of the injuriesthat the said injuries could have been causedin n struggle between the accused and the deceased. This witness has come to the Court to support his opinion based on scanty material. We are not required in this caseto decideupon the cooperativequalificationor merits of these two doctors of their relative competency as surgeons, but we must have that so far asthe wounds on the legal-body of the deceased are concerned, Dr. Jhala, who has made the post-mortem examination,is ina better position to help us to ascertain whether shooting was byaccident, or by intention than Dr. Baliga, who gave his opinion on the basis ofthe post- mortem report.

Now we shall take injury No.1. This injury is a punctured one of dimensions1/4″ x 1/4″ chest cavity deep just below and inside the inner end of the right collar bonewith an abrasion collar on the right side of tho wound. The internal examination showed that the bullet, after causing the punctured wound inthe chest just below the inner end of the right collarbone, struck the sternumand after strikingit, it slightly deflected init course andcame behind the shoulder bone.In thecourse of its journey the bulletenteredthe chest, impactedthe soft tissues of the lung tho aorta and tho left lung, and ultimatelydamagedthe left lung and got lodged behind the seapula. Dr. Jhala describes the wound as ellipsoid and oblique and says that the abrasion collaris missing on the left side. On tho injury there isneither charring nor carbonaceous tattooing. The prosecution version is that this wound wascaused by intentional shooting, whilethe defence suggestion is that it was caused when accused and deceased were struggling forthe possession of the revolver.Dr.

Jhala, after describing injury No. 1, says that it could not has been received by the victim during a struggle in which both the victim and the assailant wereus eachothor’s grip.Ho gives reasons 658 for his opinion, namely, as there wasno carbonaceous tattooing on the injury, it must have been fcaused by the revolver being fired from a distance ra of over 18 inches from the tip of the mouth of themuzzle. We have earlier noticed that, on the basis of the authoritative text- books and the evidence, there would notbe carbonaceous tattooing if the target was beyond 18 inchesfrom the mouth of the muzzle. Itis suggested to him in the cross examination that the absence of tattooing may be due to the fact that the bullet might have first hit the fingers of the left palm causing all or any of injuries Nos. 2, 4 and 5, presumably whenthe deceased placed his left palm against theline of the bullet causing carbonaceous tattooingon thesaid fingers and thereafter hitting the chest.Dr. Jhala does not admit the possibility of the suggestion. He rules out this possibility because if the bullet first had animpacton the fingers, itwould get deflected, loseits directionand would notbe able tocause later injury No. 1 with abrasion collar. He further explains that an impact with a solid substancelike bones of fingerswill make the bullet lose itsgyratory movement and thereafter it could not cause any abrasion collar to thewound. He adds, “assuming that the bullet first hit and caused the injury to the web between the little finger and the ring finger, and further assuming that it had not lost its gyrating action, it would not have caused the injury No. 1, i e, on the chest which is accompanied by internal damage and the depth to which it had gone.” Now let us see what Dr. Baliga, D. W.. 2 says about injury No. 1. The opinion expressed by Dr.

Jhala is put to this witness, namely, that injury No. 1 on the chest could not have been caused during the course of a struggle when the victim and theassailant werein each other’s grip, and this witness does not agree with that opinion. He further ways that it is possible that even 659 if the bullet first caused injury in the web, that is injury No. 2, and thereafter caused injury No.

1 in the chest, there would be an abrasion collar such asseen in injury No. 1. Excepting this of this suggestion possibility, hehas not controverted the reasons givenby Dr.Jhala why inch an abrasion collar could not be caused if the bullet had hitthe finger before hitting the chest.We will presently show in considering injuries Nos. 2, 4 and 5 that the said injuries were due to the hit by one bullet. If that be so, a bullet, which had caused the said three injuries and then took a turn throughthe little and the ring finger, could nothave retainedsufficient velocity to cause theabrasion collar in the chest. Nor has Dr. Baliga controverted the reasons given by Dr Jhala that even if after causing the injury in the web the bulletcould cause injury No. ],it could not have caused the internal damage discovered in the post-mortem examination.

We haveno hesitation,therefore, toaccept the well reasoned view ofDr. Jhala in preference to the possibilityenvisaged by Dr. Baliga and hold that injury No. 1 could not have been caused when the accused and the deceased were in close trip, but only by a shot fired from a distance beyond 18 inches from the mouth of the muzzle.

The thirdinjury is a laceratedellipsoid wound oblique in the left parietal region with dimensions andskulldeep. Dr. Jhala in his evidence says that the skull had a gutter fracture of theouter table and a fracture ofthe inner tableand the brain showed subarachnoid haemorrhage over the left parieto-oocipital region accompanying the fracture of the vault of the skull. The injury waseffect ed in a”glancing way”, that is, at a tangent, and the injury went upward and to the front. He is of the opinion that the said injury to the head must have been caused by firing of a bullet from a 660 distance of over 18 inches from the mouth of the muzzle and must have been caused with the back of the head of the victim towards the assailant. When it wassuggested to him that the said wound could have been caused bya ricocheted bullet,he answered that though aricocheted bullet coming from the same line of direction could have caused the said injury, it could not havecaused the intracranial haemorrhage and also could not have cause the fracture oftho inner table of the skull. He is definite that injury No. 3 could not have been inflicted from “front to back” as the slope of the gutter fracture was from the back to the front in the direction of the “grazing” of the bullet. He gives a further reasons on that as a rule the fracture wound be broader in the skull where the bullet has the first impact and narrower where it emerges out, whishes the casein respect of injury No 3. He also relies upon the depth of the fracture it the two points and its slope to indicate the direction in which the bullet grazed.

He further says that it is common knowledge that the fracture of both the tables accompaniedby haemorrhage inthe skull requires great force and a ricocheted bullet cannot cause such an injury.

He opinion that, though aricocheted bullet emanating froma powerful fire-arm from a close range can cause injury to a heavybone,it cannot be caused by revolver of the type Ex. B.

Another suggestionmade to him is that the bullet might have hit the glass pane of the window in thebathroom first andthen ricocheting causing the injury onthe head. Dr. Jhala in his evidence says that ifthe bullet had hit glass pane ,first ,it wouldhave caused ahole and fallen on theother side ofthe window, for ricocheting isnot possible in the case ofa bullet directlyhitting the glass. But on the other hand, if the bullet first hit a hard substances and then the glass pane, it would act like a pebble and crack the glass and would 661 not go to the other side. In the present case, the bullet must have hit the skull first and then the glass pane after having lost its velocity, and fallen down like a pebble inside thebath-room itself. If, as the defence suggests,the bullet had directly hit the glass pane, it would have passed through it to the other side, in which case four bulletsmust have been firedfrom the revolver Ex. B, which is nobody’s case.

The evidence, of Dr. Jhala is corroborated by the evidence of the ballistics expertBhanagay, P.W. 4,when he says that if a bullet hits a hard substance and gets flattened and damaged like the bullets Exs. F-2 and F-2a, itmay not enter the body and that even if it enters thebody, the penetration will be shallow and the injury caused thereby will be much less ascompared to the injury caused by a direct hit of the bullet. Dr.

Baliga, on the other hand, says that injury No. 3 could be caused both ways, that is, from “front backward” as well as from “back forward”. He also contradicts Dr.Jhala and says “back that in the type ofthe gutter fracture caused in the present case the wound is likely to be narrower at the entry than at the exit. He furthersays that assuming that the gutter fracture wound was caused by a ricocheted bulletand assuming further that there was enough force leftafter rebound,a ricocheted bullet could causea fracture of even the inner table and give riseto intra-cranial haemorrhage. Heasserts that a bullet that can cause agutter fracture of the outertableis capable of fracturing the inner tablealso.In short,he contradicts everystatement of Dr.

Jhala; to quote his own words, “I donot agree that injury No. 3, i.e., thegutterfracture, cannot be inflicted from front to back for the reason that the slopeof the gutter fracture was behind forwarddirection of the grazing of the bullet; I also do not agree with the proposition that if it would have been from the front then the slope of the gutter wound would have been from the front backward;

662 I havenot heard of such a rule and that at the near end of the impact of a bullet the gutter fracture is deeper than where it flies off; I do not agree that the depth of the fracture at two points is more important factor in arriving at the conclusion of the point of impact of the bullet.” He alsocontradicts the opinion of Dr. Jhala that injury No. 3 could not be caused in a struggle between the victim andthe assailant. Dr. Baliga has been cross- examined at great length. It is elicited from him thathe isnot aballistics expert and that his experience in the matter of direction of bullet injuries is comparatively less than his experience inother fields. His opinion that the gutter fracture injury could be and was more likely to be caused from an injury glancing front backwardsis based upon a comparison of the photograph of the skull shown to himwith the figure 15 in the book “Recent Advances in Forensic Medicine ” by Smith and Glaister, p. 21. The said figure is marked as Ex. Z in the case. The witness says that the figure shows that the narrower part of the gutter is on the rear and the wider part is in front. In the cross-examination he further says that the widest part of the gutter in figure Ex. Z is neither at the front and nor at the rear end, but therear end is pointed and tailed. It is put to this witness that figure Ex. Z does not support his evidence and that he deliberately refused to see at it correctly, but he denies it. The learned Judgesof the High Court,after seeing the photograph Ex.Z with a magnifying glass, expressed the view that what Dr. Baliga called the pointed and tailed part of the gutter was a crack in theskull and not a part of the gutter. This observation hasnot been shown to us to be wrong.

When asked on what scientific principle he would support his opinion, Dr. Baliga could not give any such principle,but only said that it was likely- he putsemphasis on the word”likely”-that the striking end was likely to be 663 narrower and little broader at the far end.He agrees that when a conical bullet hits a hard bone it means that the hard bone is protruding in the path of the projectile and also agrees that after the initial impact thebullet adjustsitself in the newdirection of flight and that the damage caused at the initial point of the impact would be more than at any subsequent point. Having agreed so far, he would not agreeon the admitted hypothesis thatat theinitial point of contract the wound should be wider than at the exit. But he admits that he has no authority to support his submission. Finally, he admits that generally the breadth and the depth of thegutter wound would indicate the extensive natureof thedamage. On this aspect of the case, therefore, the witness has broken down and his assertion is not based on any principle or on sufficient data.

The next statement he makes is that he does not agree that the fracture of the inner table shows that the initial impact was from behind; but he admits that the fracture of the inner table is exactly below the backside of the gutter, though he adds that there is a more extensive crack in front of the anterior end of the gutter. He admits that in the case of a gutter on the skull the bone material whichdissociates from the rest of the skull is carried in the direction in which the bullet flies but saysthat hewas not furnished with any information in that regard when he gave his opinion.

Coming to the question of the ricocheting, he says that aricocheting bullet can produce depressed fracture of the skull. Butwhen asked whether in his experience he has come across any bullet hittinga hard objectlike awall and rebounding andcausing a fracture of a hard bone or whether he has any text-book to support his statement, hesays that hecannotquote any instance nor 664 an authority. But he says that it is so mentioned in several books. Then hegives curious definitions ofthe expressions”likely to cause death”, “necessarily fatal ” etc. He would go to the extent of saying that inthe case of injury No. 3,the chance of recoveryis upto 80 per cent.; but finally hemodifies that statement by sayingthat he made the statement on the assumption that the haemorrhagein the subarachnoid region is localised, but if the haemorrhage isextensive his answer does not hold good. Though he asserts that at a range of about 12 inches the wound does notshow as a rule evidence of powder mark, he admits that he has no practical experience that beyond a distance of 12 inches no powder mark can be discovered as a rule.

Though text-books and authorities are cited to the contrary, he still sticks tohis opinion; but finally he admits thathe isnot aballistics expert and has no experience in that line. When he is asked if after injury No. 3, the victim could have continued the struggle, he says that he could have, though he adds that itwas unlikely after the victim had received both injuries Nos. 1 and

3. He admits that the said injury can be caused both ways, that is, by a bullet hitting either on the front of the head or at the back of the head.

But hisreasons for saying that the bullet might have hit the victim on the front of the head are neither supported by principle nor by the nature of thegutter wound found inthe skull. Ex.Z relied upon by him does notsupporthim. His theory of a ricocheted bullet hitting the skull is highly imaginary and cannot be sustained on the material available to us: firstly, there isno mark found in the bath-room wall or elsewhere indicating that the bullet struck a hard substance before ricocheting andhitting the skull, and secondly, it does notappear to be likely that such aricocheted bullet ejected from Ex. B could have caused such an extensive injury to the head of the deceased as found in this case.

665 Mr. Pathak finally argues that the bullet Ex.

F-2a has a “process”,i.e., aprojection which exactly fits in the denture found in the skull and, therefore,the projection couldhave been caused only by the bullet coming into contact with some hard substance before it hit the head of the deceased. Thissuggestion wasnot made to any of the experts.It isnot possible for usto speculate as to the manner in whichthe said projection was caused.

We, therefore, accept, the evidence of the ballistics expert, P. W. 4, and that of Dr. Jhala, P. W. 18, in preference to that of Dr. Baliga.

Now coming to injuries Nos 2, 4 and 5, injury No. 4 is found on the first joint of the crease of the index finger on the back side of the left palm and injury No. 5 at the joint level of the left middle finger dorsal aspect, and injury No. 2 is a punctured wound in the web between the ring finger and the little finger ofthe left hand communicating with a punctured wound on the palmer aspect of the left knukle level between the left little and the ring finger. Dr. Jhala says that all thesaid injuries are on the back of the left palm and all have corbonaceous tattooing and that the injuries should have been caused when his left hand was between 6 and 18 inches from the muzzle of therevolver. He further says that all the three injuriescould have been caused by one bullet, for, as the postmortem discloses, the three injuriesare in a straightline and therefore it can clearly be inferredthat they were caused by one bullet which passed through the wound on the palmar aspect. His theory is that one bullet, after causing injuries Nos. 4 and 5 passed between the little and ring finger and caused the punctured wound on thepalmar aspect of the left hand. He is also definitely of the view that these wounds could not have been received by the victim during a struggle in which both of them were in each other’s grip. It 666 is not disputed that injury No. 1 and injury No. 3 should have been caused by different bullets. If injuries Nos. 2, 4 and 5 were caused by different bullets, thereshould have been morethan three bullets fired, which is not the case of either the prosecution orthe defence. In the circumstances, the said wounds must have been caused only by one bullet, and there is noting improbable in a bullet touching three fingers on the back of the palm and taking a turn and passing through the web between the little and ring finger. Dr. Baliga contradicts Dr. Jhala even in regard to these wounds. He says that these injuries,alongwith the others, indicate the probability of a struggle between the victim and the assailant over the weapon; but he does not give any reasons forhis opinion.He assertsthatone single bullet cannot cause injuries Nos. 2, 4 and 5 on the left hand fingers, as it is a circuitous course for a bullet to take and itcannot do so without meetingwith some severe resistance. He suggests that a bullet which had grazed and caused injuries Nos. 4 and 5 could then have inflicted injury No. 3 without causing carbonaceous tattooing on the head injury. We have already pointedout that thehead injury was caused from the back, and we do not see any scope for onebullet hitting the fingers and thereafter causing the head injury. If the twotheories, namely, that either injury No. 1 or injury No. 3 could have been causedby thesame bullets that might have caused injury No. 2 and injuries Nos. 4 and 5 were tobe rejected, for the aforesaid reasons, Dr. Baliga’s view that injuries Nos. 2,4 and 5 must have been caused by different bullets should also be rejected, for to accept it,we would require more than three bulletsemanating from the revolver, whereas it is the common case that more than three bullets were not fired from the revolver. That apart in the cross-examination this witness accepts 667 that the injury on the first phalangeal joint of the index finger and the injury in the knuckle of the middle finger andthe injury in the web between the little andthe ring finger, but not taking into account the injury on the palmar aspect would be in a straightline. The witness admits that there can be a deflection even against a soft tissue, but adds that the soft tissue being not ofmuchthickness between thesaid two fingers, the amount ofdeflection is negligible.

But heconcludes by saying that he is not saying this as an expert in ballistics. If so, the bullet could have deflectedafter striking the web betweenthe little and thering finger. We, therefore, accept the evidenceof Dr. Jhala that one bullet must have caused these three injuries.

Strong reliance is placed upon the nature of injury No. 6 found on the back of the deceased viz, avertical abrasion in the right shoulder blade of dimensions 3″x1″ just outside the spine, and itis saidthat the injury musthave been causedwhen the accused pushed the deceased towards the door of the bath room. Nanavati in his evidence says that he”banged” him towards the door ofthe bath-room, and after some struggle he again pushed the deceased into the bath-room. It is suggested that when the accused “banged” the deceased towards the door of the bath-room or when he pushed himagain into the bath-room, this injury might have beencaused by his back having come into contact withthe frame of the door. It is suggested to Dr. Jhala that injury No. 6 could be caused by the man’s back brushing againsta hard substancelike the edge of the door, and he admits that it could be so. But the suggestion of the prosecutioncase is that the injury must have been caused when Ahuja fell down in the bath-room in front of the commode and,when falling, his back may have caught the edgeof the commode or the bath-tub or the edge of the door of the bath- room 668 which opens inside thebath-room to the left of the bath-tub. Shelat, J., says in his judgment:

“If the abrasion wascausedwhen the deceased was said to have been banged against the bath-room door or its frame, it would seem thatthe injury would be more likely to be caused,as thedeceased would be ina standing position, on the shoulder blade and not insidethe right shoulder. It is thus more probable that the injury was caused when the deceased’s back came into contact either with the edge of the door or the edge of the bathtub or the commode when he slumped.” It is not possible to say definitelyhow this injury was caused, butit could have been caused when the deceased fell down in the bath-room.

The injuries found on the dead-body of Ahuja are certainlyconsistent with the accused intentionally shooting him after entering the bed- room ofthe deceased;but injuries Nos. 1 and 3 are wholly inconsistent with the accused accidentally shooting him in the course of their struggle for the revolver.

From the consideration of the entire evidence the following facts emerge: The deceased seduced the wife of the accused. She had confessed to him of herillicit intimacy with the deceased. It was naturalthat the accused was enraged at the conduct of the deceased and had,therefore, sufficient motive to do away with the deceased. He deliberately secured the revolver on a false pretext from the ship, drove to the flat of Ahuja, entered his bed-room unceremoniously with a loaded revolver in hand andin about a few seconds thereafter came out with the revolver in his hand.

The deceased was found dead in his bath-room with bullet injurieson hisbody. It is not disputed that the bullets thatcaused injuriesto Ahuja emanated from the revolver that was in the hand of the accused. After the shooting, till his 669 trial in the SessionsCourt,he didnot tell anybody that he shot the deceased byaccident.

Indeed, he confessed his guilt to the Chowkidar Puransingh andpractically admitted the sameto his colleagueSamuel.His description of the struggle in the bath-room is highly artificial and is devoid ofall necessaryparticulars. The injuries foundon thebody ofthe deceased are consistent withthe intentional shooting and the main injuriesare wholly inconsistent with accidental shooting when the victim and the assailant werein close grips. The other circumstances brought out in the evidence also establish that there could not have been any fight or struggle between the accused and the deceased.

We, therefore, unhesitatingly hold. agreeing with the High Court, that the prosecution has provedbeyondany reasonable doubtthat the accused has intentionally shotthe deceased and killed him.

In this view it is not necessary to consider the question whether the accused haddischarged the burden laid on him under s. 80 of the Indian Penal Code, especially aslearned counsel appearing for the accused here and in the High Court did not rely upon the defence based upon that section.

That apart, we agree with the High Court that, on the evidenceadduced in this case,no reasonable bodyof persons could have come to the conclusion which the jury reached inthis case.

For that reason also the verdict ofthe jury cannot stand.

Even so, it is contended by Mr. Pathak that the accused shot the deceased while deprived of the power of self-control bysuddenand grave provocation and, therefore, the offence would fall under Exception1 to s. 300 of the Indian Penal Code. The said Exception reads:

“Culpable homicide is not murder if the offender, whilst deprived of the power of 670 self-control by grave and sudden provocation, causes thedeath of the person who gave the provocation or causes the death of any other person by mistake or accident”.

Homicide is the killing of a humanbeingby another. Underthis exception,culpable homicide is notmurder if thefollowing conditions are complied with : (1) The deceased must have given provocation tothe accused. (2) The provocation must be grave. (3) The provocation must be sudden.

(4) The offender, by reason ofthe said provocation, shall have been deprived of his power of self-control. (5) He should have killed the deceased during the continuance of the deprivation of thepower of self-control. (6) The offender must have caused the death of the person who gave the provocationor that of any other personby mistake or accident.

The firstquestion raisedis whether Ahuja gave provocation to Nanawati within the meaning of the exception and whether the provocation,if given by him, was grave and sudden.

Learned Attorney-General argues, that though a confession of adultery by a wife may in certain circumstances be provocation by the paramour himself, underdifferent circumstancesit has to be considered from thestandpoint ofthe person who conveys it rather than from the standpoint of the person who gives it. He further contends that even ifthe provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave, it could not be sudden, for the provocationgiven by Ahuja was only in the past.

On the other hand, Mr. Pathak contends that the act of Ahuja, namely, the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia and that for the ascertainment of the suddenness 671 of theprovocation itis notthe mind of the person who provokes that matters but that of the personprovoked thatis decisive. It is not necessary to express our opinion on the said question, for we are satisfied that,for other reasons, the case is not covered by Exception 1 to s. 300 of the Indian Penal Code.

The question that the Court has to consider is whether a reasonable person placed in the same position as the accused was, would have reacted to the confessionof adultery by his wife in the manner in which the accused did. In Manciniv.

Director of Public Prosecutions (1), Viscount Simon, L. C., states the scope of the doctrine of provocation thus:

“It is not all provocationthat will reduce thecrime of murder to manslaughter.

Provocation, to have thatresult, mustbe such astemporarily deprives the person provoked of the power of self-control as the result ofwhich he commits the unlawful act which causes death……… The test tobe applied is thatof the effect of the provocation on a reasonable man, as was laid down by the Courtof Criminal Appeal in Rex v. Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did. In applying the text,it is of particular importance to (a) consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and (b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is avery different thing from making useof a deadly instrument likea concealed dagger. In short, 672 the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.” Viscount Simonagain in Holmes v. Directorof Public Prosecutions elaboratesfurther on this theme. There, the appellant had entertained some suspicions of his wife’s conduct withregard to other men in the village. Ona Saturday night there was a quarrel between them when she said, “Well, if it will ease your mind, Ihave been untrue to you”, and she wenton, “I know I have done wrong, but I have no proof that you haven’t- at Mrs. X.’s”. With this appellant lost his temper and picked up the hammerhead and struck her with the same on the side of the head. As he did not like tosee her lie there and suffer, he just put both hands round herneck until she stopped breathing. The question arose in that case whether there was such provocation as to reduce the offence of murder to manslaughter. Viscount Simon, after referring to Mancini’s case(2), proceeded to state thus :

“Thewholedoctrine relatingto provocation depends on the fact thatit causes, ormay cause, a sudden and temporary loss of self-control, whereby malice, which is the formation of an intention to kill or toinflict grievous bodilyharm,is negatived.Consequently, where the provocation inspires an actual intention to kill (suchas Holmes admitted in the present case), orto inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies.” Goddard, C. J., Duffy’s case defines provocation thus “Provocation is some act, or series of acts, done by the dead man to the accused 673 which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind………… What matters is whether this girl (theaccused) had the timeto say:

`Whatever I have suffered, whatever I have endured, Iknow that Thou shallnot kill.’ Thatiswhatmatters.

Similarly,………….circumstances which induce a desire for revenge, ora sudden passion ofanger, are not enough. Indeed, circumstances which induce a desire for revenge are inconsistentwith provocation, since theconscious formulation of a desire for revenge means that the person has had time to think, toreflect, and that would negative asudden temporary lossof self- control which is ofthe essenceof provocation. Provocation being,,………….as Ihave defined it, there aretwo things, in considering it, to which thelaw attaches great importance. The first of them is,whether there was what is sometimes called time forcooling, that is, for passion to cool and for reason to regain dominionoverthe mind…………….Secondly in considering whether provocation has or has not been made out, you must consider the retaliationin provocation-that is to say, whether the mode ofresentment bears some proper and reasonablerelationshipto thesortof provocation that has been given.” A passage from the address of Baron Parke to the jury inR. v.Thomas (1) extracted in Russell on Crime, 11th ed., Vol. I at p. 593, may usefully be quoted :

674 “But the law requires two things : first that thereshould be that provocation; and secondly,that the fatal blowshouldbe clearly traced to the influence of passion arising from that provocation.” The passages extracted above laydown the following principles: (1) Except in circumstances of mostextreme and exceptional character, a mere confession of adultery is not enough to reduce the offence of murder to manslaughter. (2) The act of provocation which reduced the offence of murder to manslaughter must be such as to cause a sudden and temporary lossof self-control; and it mustbe distinguished from a provocation which inspires an actual intention to kill. (3) The act should have been done during the continuance of that state of mind, that is, beforethere was time for passion to cool and for reason to regain dominion over the mind. (4) The fatal blow should be clearly traced to theinfluence of passionarisingfrom the provocation.

Onthe other hand, inIndia,the first principle has never been followed. That principle has hadits origin in the English doctrine that mere words and gestures would not be in point of law sufficientto reduce murder to manslaughter.

But theauthors of the Indian Penal Code did not accept the distinction. They observed :

“It is an indisputable fact, that gross insults byword or gesture haveas great tendency to movemany persons to violent passion asdangerous or painfulbodilyin juries ; nor does it appear to us that passion excited by insult is entitled to less indulgence than passion excited by pain. On the contrary, the circumstance that a man resents an insult morethan awoundis anything but 675 a proof that he is a man of peculiarly bad heart.” Indian courts have not maintained the distinction between words and actsin the application of the doctrine of provocation in agivencase. The Indian law on the subject may be considered from two aspects, namely, (1) whether words or gestures unaccompanied by acts can amount to provocation and (2) what is the effect of the time lag between the actof provocationand the commission of the offence. In Empress v.Khogayi, a division bench of theMadras HighCourtheld,in the circumstances of that case, that abusive language used would be a provocation sufficient to deprive the accused of self-control. The learned Judges observed :

“What is required isthat it should be of a character to deprive the offender of his self-control. In determining whether it was so, it is admissible to take into account the condition of mind in which the offender was atthe time ofthe provocation. In the present case the abusive language used was of the foulest kind and was addressed to man already enraged by the conduct of deceased’s son.” It will be seen in this case that abusive language of the foulest kind was held to be sufficient in the case of man who was already enraged by the conduct of deceased’s son. The same learned Judge in a later decision in Boya Munigadu v. The Queen upheld plea of grave and sudden provocation in the following circumstances: Theaccused saw the deceased when she had cohabitation with his bitter enemy; that night he had no meals; next morning he went tothe ryots to get his wages from them, and at thattime he saw his wife eatingfood along with her paramour; hekilled the paramour with a bill-hook. The learned 676 Judgesheld that the accused hadsufficient provocation tobring the case within the first exception to s. 300 of the Indian Penal Code. The learned Judges observed :

“…………If having witnessed the act of adultery, he connected thissubsequent conduct ashe could not fail to connect it, with thatact, itwouldbe conduct ofa characterhighlyexasperatingto him, implying as it must, that all concealment of their criminal relations and all regard for his feelings were abandoned andthat they purposedcontinuing their courseof misconduct in hishouse.This,we think, amounted to provocation, grave enough and sudden enough to deprivehim ofhis self- control, and reduced the offence from murder toculpable homicide not amountingto murder.” The case illustrates that the state of mind of the accused, havingregard to the earlier conduct of the deceased, may be taken into consideration in considering whether the subsequent act would be a sufficient provocation to bring the case within the exception.Another division bench of the Madras High Court in In re Murugian held that, where the deceased not only committed adultery but later on swore openlyin the face of the husband that she would persistin such adultery and also abused the husband for remonstrating against such conduct, thecase was covered bythe first exception to s. 300 of the Indian Penal Code. The judgement of the Andhra Pradesh High Court in In re C. Narayan adopted the same reasoning in a case where the accused, a young man, who had a lurking suspicion of the conduct of his wife, who newly joined him, was confronted with the confession of illicit intimacy with, and consequent pregnancy by another, strangled his wife to death, and 677 held that the case was covered by Exception 1 to s. 300of the Indian PenalCode.These two decisions indicate that the mental state created by an earlier act may be taken into consideration in ascertaining whether a subsequent act was sufficient to make the assailant to lose his self- control.

Where thedeceased led an immoral life and her husband, the accused, upbraided her and the deceased instead of being repentant said that she would again do such acts, and the accused, being enraged struckher and, when she struggled and beat him, killed her, the Court held the immediate provocation coming on top of all that had gone before was sufficient to bring the case within the first exceptionto s. 300 ofthe Indian Penal Code. So too, wherea woman wasleadinga notoriously immoral life, andon the previous night mysteriously disappeared from the bedside of her husband and the husband protested against her conduct, she vulgarly abused him, whereupon the husband lost his self-control,picked up a rough stick, which happened to be close by and struck her resulting in her death, the Lahore High Court, in Jan Muhammad v. Emperor, held that the case was governed by the saidexception. Thefollowing observations ofthe court were relied upon in the present case :

“In the present case my view is that, in judging the conduct of the accused, one must not confine himself to the actual moment when the blow, which ultimately proved to be fatal was struck, that is to say, one must not take into consideration only the event which took place immediatelybefore the fatal blow was struck. Wemust take into consideration the previousconductofthe woman………………….

………………………………………

…… As stated above, the whole unfortunate affair 678 should be looked at as one prolonged agony on the part of the husband which must have been preying upon his mind and led to the assault upon the woman, resulting in her death.” A division bench of the Allahabad High Court in Emperor v. Balku invoked the exception in a case where the accused andthe deceased, who was his wife’s sister’s husband, were sleeping on the same cot, and in the night the accused saw the deceased getting up from the cot, and going to another room and having sexual intercourse with his (accused’s) wife, and the accused allowed the deceasedto return to the cot, but afterthe deceased fell asleep, he stabbed him to death. The learned Judges held :

“When Budhu (the deceased)came into intimate contact with theaccused by lying beside himon thecharpai this must have worked further on the mind of the accused and he must have reflected that `this man now lying beside me had been dishonouring me a few minutes ago’. Under these circumstances we think that theprovocation would be both grave and sudden.” The Allahabad High Court in arecentdecision, viz., Babu Lal v. State applied the exception to a case where the husbandwho saw his wife ina compromising position with the deceased killed the latter subsequently when the deceased came, in his absence, to his house in another village to which he had moved. The learned Judges observed :

“The appellant when he came to reside in the Government House Orchard felt that he had removed his wife from the influence of the deceased and there was no more any contact between them. He had lulled himself into a false security. This belief was shattered 679 when he found the deceased at his hut when he was absent. This could certainly give him a mental jolt and as this knowledge will come all of a sudden it should be deemed to have given him a grave and sudden provocation. The fact thathe had suspected this illicit intimacy on an earlier occasion also will not alter thenature of the provocation and make it any the less sudden.” All the said four decisions dealt with a case of a husband killinghis wife when his peace of mind had already been disturbed by an earlier discovery of the wife’s infidelity and the subsequent act of her operated as a grave and sudden provocation on his disturbed mind.

Is there any standard of a reasonable man for the applicationof thedoctrine of “grave and sudden” provocation ?No abstract standardof reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way oflife, traditional values etc.; in short,the cultural,social and emotional background of the society to which an accused belongs. In our vast countrythere are social groups rangingfrom the lowest to the higheststateof civilization. It is neither possible nor desirable to lay down any standard with precision: it is for the court to decide in each case, having regard to therelevant circumstances. It is not necessary in this case to ascertain whether a reasonableman placed in the position of the accused would have lost his self- control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

The Indian law,relevant to the present enquiry, may be statedthus :(1) The testof “grave 680 and sudden” provocation is whether areasonable man, belonging to the same class of society as the accused, placedin thesituation inwhich the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accusedso asto bring his act within the first Exception to s. 300 of theIndian PenalCode.(3) The mental background created by the previous act of the victimmay be takenintoconsideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.

Bearing these principles in mind, let us look at thefacts of this case. When Sylvia confessed to herhusband that she had illicit intimacy with Ahuja, the latter was not present. We will assume that he had momentarily lost his self-control. But if his version is true-for the purpose of this argument we shall accept that what he has said is true-it shows that hewas only thinking of the future of his wife and children and also of asking for anexplanation from Ahuja for his conduct.

This attitude of the accusedclearlyindicates that hehad not only regainedhis self-control, but onthe other hand, was planning for the future. Then he drovehis wife and children to a cinema, left them there, went to his ship, took a revolver on a false pretext, loaded it with six rounds, did some official business there, and drove his car to the office of Ahuja and then to his flat, went straight to the bed-room of Ahuja and shot him dead. Between 1-30 P.M., when he left his house, and 4-20 P.M., when the murder took place, three hours had elapsed, andtherefore there was sufficient time for him to 681 regain his self-control, even if he had not regained it earlier.On theotherhand, his conductclearly showsthat the murder wasa deliberate andcalculated one. Even if any conversation took place between the accused and the deceased in themannerdescribed by the accused-though we do not believe that-it does not affect the question, for the accused entered the bed-room of the deceased to shoot him. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusivereplycouldnot conceivably bea provocation forthe murder. We, therefore, hold that the facts of the case do not attract the provisions of Exception 1 to s. 300 of the Indian Penal Code.

In the result, conviction of the accused under s. 302 of the Indian Penal Code and sentence of imprisonment for life passed on him by the High Court are correct, andthere are absolutelyno groundsfor interference. The appeal stands dismissed.

Appeal dismissed.

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