A. V. VENKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY versus RAMCHAND SOBHRAJ WADHWANI AND ANOTHER

I S.C.R. SUPREME COURT REPORTS A. V. VNNKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY

v. RAMOHAND SOBHRAJ WADHW ANI AND ANOTHER

(P. B. GAJENDRAGADKAR, A. K. SARKAR,

K. N. WANOHOO, K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, JJ.)

Customs Duties-Fountain pens with nibs and caps plated with gold-Rate of duty-Indian Tariff Act, I934 (32 of r934), Sch. I, Items 45(3), 6r(8).

Writ-Principles governing issue of-Alternative remedy time-barred-Application for writ, if lies-Constitution of India, Art. 226.

Under licence granted for the import of fouutain pens at not less than Rs. 25 C.l.F. value, the respondent imported She-affer pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition. The im-ported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for duty of 78! per cent. ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent. ad valorem. Section 191 of the Sea Customs Act, 1878, enabled any person aggrieved by an order ·of the Collector of Customs to file revision to the Central Government, but the respondent, without resorting to this remedy filed writ appli-cation in the High Court of Bombay under Art. 226 of the Con-stitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent. The Single Judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the con-text of the items in the Tariff Schedule, it was not reasonably possible for any person to take contrary view. Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent. On appeal, the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that, tho.ugh it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the

April 4.

Central Government had become time-barred bv the date of hearing of the appeal, it would not interfere with" the order of the Single Judge.

Venkateswaran, Held, that the High Court was in error in its vie\v that Collector [0]1 though the respondent had failed to exercise his statutory Customs, Bombay remedy, the fact that it had become time-barred at the date of v. the hearing of the appeal against the order in the petition under Ramchand Sobhraj Art. 226, was good ground for the Court to exercise its dis-Wadhwani cretion in granting the relief prayed for by the respondent in his petition.

Held, further (Sarkar, J., dissenting): (1) that the consign-ment imported by the respondent was liable only to duty of 30 per cent. under item45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction.

(2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and the Central Board of Revenue had issued ruling to the effect that fountain pens with nibs or caps which were gold-plated fell with entry 6r(8), it could not be said that the High Court had exercised its dis-cretion improperly in entertaining the writ· application so as to justify interference in an appeal under Art. 136 of the Con-stitution.

Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala Ayyangar, JJ.-The rule that·a party who applies for the issue of high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the Court to enter-tain the petition or to deal with it, but is rather rule which courts have laid down for the exercise of their discretion.

Union of India v. T. R. Varma, [1958] S.C.R. 499 and The State of Uttar Pradesh v. Mohammad Nooh, [1958] S.C.R. 595, relied on.

Per Sarkar, ].-Item 6I(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating. Such view would harmonise the different items in the Tariff Schedule and carry out the intention of the legis-lature. The customs authorities were correct in assessing gold plated fountain pens under entry 6I(8).

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 388of1956.

Appeal by special leave from the judgment and order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53of1955.

1 S.C.R. SUPREME COURT REPORTS

C. K. Daphtary, Solicitor-General of India, K. R. Chaudhuri and R.H. Dhebar, for the appellant. N. 8. Bindra and R. 8. Narula, for respondent No. 1.

A. V. Venkateswaran, Collector of Customs, Bombay v. Ra~nchand Sobhraj Wadhwimi

R. H. Dhebar, for respondent No. 2.

1961. Apnl , 4. The Judgment of P. B. GaJendra-, gadkar, K. N. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyan-gar, J. A. K. Sarkar, J., delivered separate judg-ment.·

AYYANGAR, J.-.This appeal by special leave 1s

Ayyangar J.

against the judgment and order of Division Bench of the Bombay High Court by which writ of manda-mus or certiorari granted to the respondent was con-firmed on appeal preferred by the appellant now before us.

few facts are necessary to be stated to under-stand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, licence under the Imports and Exports (Control) Act, 1947, for the import of fountain-pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to defined amount. He placed an order for the im-port of Sheaffer pens from Australia and consign-ment of these was received by ~ir in Bombay in Octo-ber 1954. The fountain-pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these im-ported pens. The Schedule to the Indian Tariff Act, 1934, has au item numbered 45(3) in relation to the article described as "fountain pens complete'', the rate of duty being 30 per cent. ad valorem. It was the case of the respondent that the imported goods fell within this item. and were liable to be charged with duty at that rate. The Custom authorities, how-ever; considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 78! per cent.

r96r The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respon-v,n;!;es:~ran, dent having filed an appeal to the Collector of Cus-Collector of toms, the levy was upheld by order dated February Customs, Bombay 22, 1955. v. Section 191 of the Sea Customs Act enables any Ram,hund Sob.hrnj person aggrieved by an order of the Collector of Cus-Wadhwan• toms to file revision to the Central Government. Ayyangar J. The respondent, without resorting to this remedy, filed writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the releaE:e of the goods on payment of duty at 30 per cent. (mandamus). The application was resisted by the Collector of Customs, who raised substantially two points: (1) that.on the merits the goods imported were "gold-plated articles" notwithstanding their being fountain.pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file revision to the Central Government and that he was, therefore, disentitled to move the High Court under Art. 226 of the Constitution before availing himself of the remedy specially provided by statute. The writ petition came on for hearing before Justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain-pens did not cease to be fountain-pens because they contained parts which were plated with silver or gold and that so long as they were "fountain-pens complete", subject to any exceptional eases of which this was not one, only duty at 30 per cent. under item 45(3) could be levied. The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for .any person to take contrary view": In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse.

1 S.C.R. SUPREME COURT REPORTS

The objection to the writ petition based upon the z96z petitioner before him not having exhausted the statu-tory remedies available to him was repelled by the venk~;es~~ran. learned Judge on the ground that on the facts the coueetor of decision to levy duty at 78£ per cent. was without Customs, Bombay jurisdiction. The petition was, therefore, allowed and v. the Customs authorities were, by order of Court, res- Ramchand Sobhra1 · r · t t · Wadhwani trame rom en1orcmg paymen o any u y rg er than 30 per cent. . Ayyangar J.

v. . Wadhwani Ayyangar J.

. The Collector of Customs filed an appeal against this order which was disposed of by judgment deli-vered on behalf of the Bench, by Chagla, C. J. The · learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act, hold that the consignment of fountain-pens could fall under any item other than 45(3) or be charged duty other than the 30 per cent. provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revi-sion to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Hevision to the Central Government had become time-barred by the date of the hearing of the appeal and that on that ground he would not interfere with the order of the learned Single Judge. The appeal was, therefore, dis-missed. The Collector of Customs having obtained special leave from this Court has brought this appeal before us. .

The learned Solicitor-General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in

i96r the Schedule to the Tariff Act the consignment im-ported by the respondent could have been liable only Venk~;es:~rnn, to du.ty of 30 per cent. under item 45(3).was correct. Collect°' of We might add that even apart from this concession customs, Bombay for the purpose of argument, we entirely agree with v. the learned Judges that the tariff items in the Sche-Ramchand Sobhraj dule are not reasonably capable of any other construe. TV adhwani tion. Ayyaugar ;. In reaching this conclusion we have taken into

In reaching this conclusion we have taken into account the fact that "fountain-pens complete" were taken out of the general item 45 'Stationery etc.' · under which they were originally included, by an amendment effected in 1949 in pursuance of an inter-national agreement and that though the duty on sta-tionery was thereafter increased from 30 to 37! per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent. fixed on fountain-pens re-mained unchanged. This at least showed that they were treated as specialized class of stationery which required separate treatment. The only ques-tion therefore is whether fountain-pen in which cer-tain of its essential parts are gold or silver-plated falls outside the category of "fountain-pens complete". It cannot be gainsaid that nib, cap and clip are essen-tial parts of fountain-pen and not mere accessories, and that without them there would be no question of having "fountain-pen complete". Next it is well. known and recognized fact that most fountain. pens in ordinary use have nibs which are gold-plated. In this connection it should not be overlooked that gold, apart from being 'store of value, is metal which has industrial uses by its malleability and its resis-tance to oxidation on conta.ct with acids and chemicals which enter into the composition of ink. The use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25 each C.I.F. value, presum-ably with view to protect the market for cheaper pens of indigenous manufacture. Most pens of the

value specified in the licence, it need hardly be added, r96r would ha.ve gold-plated nibs. It could certainly not be that it was the intention of the authorities that Venk~t~s:;ran notwithstanding Entry 45(3) reading "fountain-pens Collector 0[/ ]complete" there could practically be no import of pens c,,,,,,ms, Bombay under that item, because with the limit of value pres-v. cribed in the licence the permitted pens would mostly Ramchand Sobhraj D'ff t 'd t' . ht Wadhwani ave go ld -pate 1 m ['b' ]s. 1 eren cons1 era 10ns m1g arise when gold or gold plating is used not for pur-Ayyangar J. poses essential for the utility of the pen as such, but merely as an addition to its value. Trrese cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that the learned Solicitor-General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court.

The only point, therefore, requiring to be consider-ed is whether the High CourL should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed. The con-tention of the learned Solicitor-General was that the existence of an alternative remedy was bar to the entertainment of petition under Art. 226 of the Constitution unless (1) there was complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est. In all other cases, he sub-mitted, Courts should not entertain petitions under Art. 226, or in any event not grant any relief to such petitioners. In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudi-cate regarding the item under which the article im-ported fell and the duty Ieviable thereon. Nor was there any complaint in this case that the order had been passed without an opportunity to the importer

t96r to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General ques-v Collect°' '""• ['At. ]eswaran, [v. ]of tioned the correctness Ch. ie J ustice m con onmg t conduct . . of . the reasoning of of the respon-the learned Customs. Bombay dent in not moving the Government in revision by v. . taking into account the time that had elapsed bet-Ramchand Sobh>aJ ween the date of the impugned order and that on Wadhwam which the appeal was heard. The submission was that Ayyangar J. if this were proper test, the rule as to petitioner under Art. 226 having to exhaust his remedies before he approached the Court would be practically dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.

We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entert!tin the peti-tion or to deal with it, but is rather rule which Courts have laid down for the exercise of their discre-tion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases: In Union of India v. T. R. Varma ([1]), Venkatarama Ayyar, J., speaking for the Court said:"It is well-settled that when an alternative and equally efficacious remedy is open to :1 litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue prerogative writ. It is true that the exis-tence of another remedy does not affect the juris-diction of the Court to issue writ; but, as observ-ed by this Court in Rashid Ahmed v_ ¥unicipal Board, Kairana ('a), 'the existence of an adequate legal remedy is thing to be taken into considera-tion in the matter of granting writE1'. Vide also

(I I [1958] S.C.R. 499, 503, 504. (rn) [1950] s.c.R. 566,

1 S.C.R. SUPREME COURT REPORTS

K. S. Rashid and Son v. The Income-tax Investiga-tion Commission ([1]). And where such remedy A. V. exists, it will bo sound exercise of discretion to v, nkateswaran, nkateswaran, refuse to interfere in petition under Art. 226, un-Collect°' of less there are good grounds therefor." Cu<toms,

A. V. v, nkateswaran, nkateswaran, Collect°' of Cu<toms, Bombay Ra1ncha•;d Sobhrnj wadhwani

There is no difference between tho above and the for- Ra1ncha•;d Sobhrnj · mulation by Das, C. J., in The State of Uttar Pradesh wadhwani v. Mohammad Noah ([2]), where he observed:

" ............ It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well establish-ed that, provided the requisite grounds exist, cer-tiorari will lie although right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at conclusion as to whether it should, in exercise of its discretion, issue writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remsdies before the writ will be granted is rule of policy, convenience and discretion rather than rule of law and instances are numerous where writ of certiorari has been issued in spite of the fact that the aggrieved party had other ade-quate legal remedies."

Ayyangar ].

After referring to few cases in which the existence of an alternative remedy had been held not to bar the issue of prerogative writ, the learned Chief Justice added:

"It has also been held that litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in proper case obtain review by certiorari."

In the result · this Court held that the existence of other legal remedies was not per se bar to the issue (1) ['95~] S.C.R. 738. (2) [1958] S.C.R. 595, 605-607, 96

Collector of The passages m the Judgments of this Court we Customs, Bombay have extracted would indicate (1) that the two excep-v. tions which the learned Solicitor-General formulated Ramchand Sobhrajto the normal rule as to the effect of the existence of Wadhwani t lt t' an equa erna 1ve reme y were y no means Ayyangar ]. exhaustive, and (2) that even beyond them discre. • tion vested in the High Court to have entertained the petition and granted the petitioner relief notwith. standing the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.

The question that we have now to consider is has the discretion which undoubtedly vested in the Court been so improperly exercised as "to call for our inter-ference with that order. We might premise this dis-cussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C. J. that the order of the Assistant Collector of Customs in asse:ising duty at 78! per cent. or of the Collector of Customs in con-firming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of placing the resulting order beyond their jurisdiction. Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to

I S.C.R. SUPREME COURT REPORTS

exhaust his statutory remedies before invoking the '9[6]' jurisdiction of the High Court under Art. 226 of the Constitution. If petitioner has disabled himself from venh~;,;,;aran, availing himself of the statutory remedy by his own Collector of fault in not doing so within the prescribed time, he Customs. Bombay cannot certainly be permitted to urge that as ground . . v. for the Court dealing with his petition under Art. 226 Ramchand Sobhra; Wadhwani to exercise its discretion in his favour. Indeed, the second passage extracted from the judgment of the Ayyrngar ]. learnedC.J. in Mohammad Noah's case(') with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule.

venh~;,;,;aran, Collector of Customs. Bombay . . v. . Ramchand Sobhra; Wadhwani

The q1~estion, however, still remains whether in the circumstances of this case wo should interfere with the decision of the High Court. In considering this, we cannot lose sight of three matters: (I) that the levy of the duty at 78! per cent. was manifestly erro-neous .d cannot be supported on any reasonable con-struction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to .the High Court under the Letters Patent, as also in the state-ment of Oil.Se before us, that the Central Board of Revenue had issued ruling to the effect that foun-tain-pens with nibs or Citps which were gold-plated fell within item 61(8). This might be some indication that the adjudication by the Assistant Collector of Customs aud by the Customs Collector on appeal was in pursuance of settled policy of the entire heirarchy of the department. Without going so far as to say that Revision to the Central Government might in the circumstances be mere futility, we consider that this" is not matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us. After all, the basis of the rule by which Courts insist upon person exhausting his remedies before making application for the issue of prerogative writ is that the Court's jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned (I) [1958] S.C.R. 595, 605-607.

'9[6]' Solicitor-General does not dispute the correctness of A. v. the principle I oflaw as enunciated by Chagla, C. J., his Vrnkateswarnn, comp aint is that the law as laid down by the learned Collect"' of Chief J usticc has not been properly applied to the cu,trn,;, Bombay facts of the case before him. If the challenge to the , v. . judgment of the High Court were oft.he former type, J.am:i:a;': Sobh•aJ this Court might have to interfere to lay down the law wam correctly lest error creep into the administration of Ayyangar ]. justice. But where the error is only in the applica-tion of the law correctly understood to the facts of particular case, we should be persuaded that there has been miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor-General has not succeeded in doing. It would be remembered that the question is not w he-ther if the respondent's application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court hav-ing in their discretion which they admittedly possess-ed made an order, there is justification for our interfering with it. The two matters set out ear-lier shouM suffice to show that no interference could be called for in this appeal.

We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no case for interference by us in an appeal under Art. 136 of the Constitution has been made out. The appeal fails and is dismissed with costs.

Sarkar J. SARKAR, J.-In this case the respondent had im-ported certain number of fountain-pens plated with gold. The goods were assessed to import duty by an assessing officer of the Indian Customs under item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery :tnd surgical instruments, plated with gold or silver" and provided for duty of 78! per cent. ad valorem. The respon-dent appealed from this assessment to the Collector of Customs under s. 188 of the Sea Customs Act, 1878, on the ground that the assessment should have been

1 S.C.R. SUPREME COURT REPORTS

under item 45(3) of that schedule which dealt with I96r "Fountain-pens, complete" and provided for duty of 30 per cent. ad valorem. He did not dispute that Venk~;es~~ran, the fountain-pens imported by him were gold plated. collector of His appeal was dismissed. The respondent then Customs, !Joinbay moved the High Court at Bombay for writ to quash v. the order of assessment under item 61(8). The llamchand Sol>hra; Sol>hra; application was allowed by Tendolkar, J., who issued Wadhwani writ of mandamus directing the Collector of Customs Sarkar J. to release the goods upon payment of the duty speci-fied in item 45(3). The appeal by the Collector of Customs from the order of Tendolkar, J., to an appel-late bench of the High Court was dismissed. The Collector has therefore filed the present appeal.

collector of then Customs, !Joinbay v. . The llamchand Sol>hra; Sol>hra; Wadhwani Sarkar J.

The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under s. 191 of the Sea Customs Act to revise the order of the Collector. Tendolkar, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction. This was clearly wrong. The Collector haci ample jurisdiction to decide under which item in the schedule the foun-tain-pens had to be assessed to duty, and if he made mistake in his decision that did not make his order one without jurisdiction: cp. Gulabdas & Go. v. Assistant Collector of Customs (1). The lea,rned Judges of the appellate bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is, in my view, plainly erroneous for party who by his own conduct deprives himself of the remedy available to him, cannot have better right to writ than party who has not so deprived himself. :Normally-and the present has not been shown to be other than normal case-a writ of mandamus 'is not issued if other remedies are available. There would be stronger reason for following this rule where the obligation

(1) A.LR. 1957 S.C. 733·

z96z sought to be enforced by the writ is created by statute and that statute itself provides the remedy for v enk~;es~~ran, its breach, It should be the duty of the courts to see Collector of that the statutory provisions are observed and, there. the statutory provisions are observed and, there. statutory provisions are observed and, there. provisions are observed and, there. Customs, Bombay fore, that the statutory authorities are given the v. . opportunity to decide opportunity to decide to decide the question which the statute the statute statute Ramchand Sob.hraJ Sob.hraJ requires them to decide. to decide. Wadhwani The fact that the Central Government had on Sarkar 1. prior occasion decided, ·as appears in this case to have happened, that fountain-pens of the kind which the respondent had imported, were liable to duty under item 61(8) cannot furnish any reason justifying departure from the normal rule or the issue of writ without that government having been moved under s. 191. This prior decision of the Central Government could be reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect. I cannot imagine that court can ever make such presump-tion. Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him vr hich he had not pursued. On tho present occasion, however, I do not wish to decide the case on that ground.

Next, I feel the gravest doubt if the case is one for the issue of writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for writ of certiorari. writ of mandamus issues in respect of ministerial duty imposed by statute; it cannot issue where the duty to be performed is of judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, decision should be given on the question raised. In John Shortt's book on Informa-mations, Mandamus and Prohibilion it is stated at

p. 256:

"If tho duty be of judicial character manda-mus will be granted only where there ir. refusal to perform it in any way; not where it is done in ono way rather than another, erroneously instead of properly. In other words, the Court will only

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insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be.

r9[6]r A. V. Venkateswaran. Collect°' of Cnstoms. Bombay v. llamchand Sobhraj w dh · wani Sarkar J.

If, however, the public act to be performed is of

purely ministerial kind, the Court will by manda- Cnstoms. mus compel the specific act to be done in the man-ner w h10 [. ][t ]o 1 ['t ]seems 1 wf u . I ,, w ,

It does not seem to me that the duty whrnh , the Sea Customs Act created and the performance of which was sought to be enforced by writ in the present case, can properly be said to be ministerial duty. That duty was to decide which item in the Customs Tariff was applicable to the respon-dent's goods and to realise the customs duty speci-fied in that item. In so far as the statute required the officer to realise the Customs levy, I find it diffi-cult to see how it can be said to be public duty to the performance of which the respondent had legal right and without this right he was not entitled to the mandamus: see Ex parte Napier ([1]). In so far again, as the Act required the Customs Officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of quasi-judicial nature. The observation of Das, J., in Province of Bombay v. K. S. Advani ('), which I am about to read, fully fits this case: "If statutory authority h11s 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 is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet hfl quasi-judical act provided the authority is required by the statute to act judicially." Now the Sea Customs Act empowers the Customs authorities to impose certain duty on goods imported and this no doubt prejudicially affects the importer. The Act further clearly requires the authorities to proceed judicially in imposing that duty when dispute arises, t_hat is, after giving hearing to the party affected: see ss. 29, 31 and 32 of the Act. In this case hearing (1) (1852) 18 Q.B. 692. (2) [1950] S.C.R. 621, 725.

1961 · was in fact given to the respondent. This taken with the provisions as to right of appeal from the decision v '~10/; [~;,;;:,•;,7· ]v. of [the ]the [government ]first assessing officer [in ][revision from ]and as to [the ]the [decision ]right to move [in ][the ]Customs, Bombay appeal, would clearly indicate that the authorities v. have to act judicially. In Gulabdas & Co. v. Assistant Ramchand Sobhraj Collector(') this Court proceeded on the basis that the Wadhwani duty of assessing the customs levy was of judicial 5[.,-;;; ][J. ]nature. Therefore I feel the gravest doubt, if the present is case where mandamus could at all issue.

No doubt if mandamus could not issue because the act which the statute required to be performed was not ministerial one but judicial in its character, the case might be fit one for the issue of writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face. In issuing certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see Satya-narayan Laxminarayan Ii egde v. M allikarjun Bhava-nappa Tirumale ('). t do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our bar. I proceed on the basis that it was case where an application for mandamus lay.The respondent, in substance, asked for and obtain-ed writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent. ad valorem as prescribed by item 45(3). This was on the basis that the duty should have been levied under that item and not under item 61(8) as the Customs authorities had done.

The question then is, was there clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain-pens, complete" and not to do so under item 61(8) dealing with "Arti-cles, other than cutlery and surgical instruments, . plated with gold". All the learned Judges of the High Court agreed that this clear duty had to be establish-ed before the respondent could be held entitled to mandamus and they found that the Act created such (1) A.LR. 1957 S.C. 733. (2) [1960] r. S.C.R 890, 901. 890, 901.

(2) [1960] r. S.C.R 890, 901. 890, 901.

1 S.C.R. SUPREME COURT REPORTS

dll:t:y. They said that item 45(3) was specific '96' prov1s10n and therefore it had to be applied in pre-ference to item 61(8) which was general provision. v A. v. . th" . eukateswarnn, I am una bl to agree wit IS view. Collector of What, apparently, the learned Judges had in mind Customs, Bombay and applied, was the rule of construction of statutes v. that when two provisions in an Act are inconsistent Ramchand Sobhraj with each other, if one is specific and the other w adhwani general, the specific provision prevails over the general. Sar7:a~ J. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature, are inconsistent and one cannot operate at all if the other is given full effect, question arises as to what the legislature intended. Clearly, it could not have intended that provision that it enacted should have no operation at all. There-fore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule under discussion gives effect to this presumed intention of the legislature. In order to give effect to this intention, the rule provides that the provision with narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the opera-tion of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether. This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming dead letter. This aspect of the rule would, I believe, appear clearly from statement of it by Sir John Romilly in Pretty

v. Solly(') which I now set out:

"The rule is, that wherever there is particular enactment and general enactment in the same statute, and the latter, taken in its most compre-hensive sense, would overrule the former, the parti-cular enactment must be operative, and the general

(r} (r859) 26 Beav. 606; 53 R.R. 1032.

enactment must be taken to affect only the other parts of the statute to which it may properly 1 ,, pp pp y' . . .

A. v. 1 ,, Venkateswaran, pp pp y' . . . collector of The test of the appltcab1hty test of the appltcab1hty of the appltcab1hty the appltcab1hty appltcab1hty of the rule, therefore, the rule, therefore, customs, Bombay is that one enactment must overrule the other. The that one enactment must overrule the other. The one enactment must overrule the other. The v. one overruled is called specific only in comparison RamchandSobhraj with the other which is in the the same way only, called Wadhwani general. There need be nothing inherent in the nature in the nature the nature nature Sarkar J. of the enactments which, the enactments which, enactments which, apart from consideration

The test of the appltcab1hty test of the appltcab1hty of the appltcab1hty the appltcab1hty appltcab1hty . . . of the rule, therefore, the rule, therefore, is that one enactment must overrule the other. The that one enactment must overrule the other. The one enactment must overrule the other. The one overruled is called specific only in comparison with the other which is in the the same way only, called general. There need be nothing inherent in the nature in the nature the nature nature of the enactments which, the enactments which, enactments which, apart from consideration of their comparative scopes, mark one out as specific and the other as general. When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other. If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise.

I should suppose, when Sir John R.omilly talked of one enactment overruling the other, he meant completely overruling. That would make the rule sensible for, then it would clearly be guide to the intention of the legislature which is tha.t, all the provi-sions are intended to have effect. This reason to support the rule would not exist if it was applied to case where the provisions only partially affected each other for, then, both the provisions would have at least some operation. It would further be impossible to say from comparison of the degrees of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two pro-visions partially affect each other, without one com-pletely overruling the other, tho legislature intended the one less affected should yield to the other or even the other way about. To such ca.se the rule would, in my view, have no application.

The present is case of that kind. I now confine myself only to items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold plated fountain-pens were assessed under item 61(8), there would still be plenty of scope left for item 45(3) to operate upon, for, there would

1 S.C.R. SUPREME COURT REPORTS

be many kinds of complete fountain-pens without gold z96z plating. Likewise also if gold plated fountain-pens were assessed under item 45(3), there might be many venkA;es:~ran other gold plated articles for being assessed under Col;ector of ' item 61(8). Item 61(8) cannot be said to overrule item customs, Bombay Bombay 45(3) completely. Item 61(8) cannot be said to be v. general provision and item 45(3) specific one. There Ramchand SobMaJ is no scope here of applying the rule giving effect to Wadhwam specific enactment in preference to the general. Sarkar J.

Col;ector of ' customs, Bombay Bombay v. . Ramchand SobMaJ Wadhwam Sarkar J.

What then should be done? Under which item should the gold plated fountain-pens then be assessed to duty? In my view, they were properly assessed under item 61(8). The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments. There is no reason' why this intention should not be given effect to. The Customs Tariff Schedule no doubt makes separate provisions for various individual articles. fountain. pen is one of such articles. If gold plated fountain-pen is for the reason that foun-tain-pens are separately provided for, to be taken out of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold. The result of that would be that item 61(8) would apply to those articles which are not separately provided, and as Customs Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied. It does not seem to me that this could have been intended.

Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments. proper construction of this item must give effect to this intention. Item 45(3) applies to fountain-pens. Now it is not necessary for fountain-pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that foun-tain pen does not cease to be fountain pen because it is plated with gold. It is, however, equally true that gold plated fountain-pen is an article plated with gold. fountain-pen may or may not be

I think, therefore, that the assessment in the pre-sent case under item 61(8) was proper. I would hence allow the appeal.

BY COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs.

Appeal dismissed.

GHAUitUL HASAN AND OTHERS

April 5. v. THE STATE OF RAJ ASTHAN

(B. P. SINHA, c. J., s. K. DAS, A. K. SARKAR,

K. C. DAS GUPTA and

N. RAJAGOPALA AYYANGAR, JJ.)

Citizenship-Order of registration by Collector-Cancellation of such order by him-Validity of cancellation-Citizenship Act, z955 (57 of 1955), ss. 5(r)(a), ro(2)(a).

The petitioners were granted certificates of registration as Indian Citizens under s. 5(1)(a) of the Citizenship Act, 1955, by the Collector of Nagaur. Later the Collector passed orders cancelling the certificates. The power to cancel was based on