1'.lft '. """·. 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 a 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 a 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 a revision to the Central Government, but the respondent, without resorting to this remedy filed a 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 a 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 r961
April 4. StJl>REM:E COURT RE:POR't'S [1962] z96z Central Government had become time-barred bv the date of hearing of the appeal, it would not interfere with" the order of A. V. the Single Judge.
Venkateswaran, Held, that the High Court was in error in its vie\v that Collector 01 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 a 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 a 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 a 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 a 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 a 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 a 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.
i> .J 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 R. H. Dhebar, for respondent No. 2. v. Ra~nchand Sobhraj 1961. Apnl 4. The Judgment of P. B. GaJendra- Wadhwimi gadkar, K. N. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyan-
gar, J. A. K. Sarkar, J., delivered a separate judg- ment.· AYYANGAR, J.-.This appeal by special leave 1s Ayyangar J. against the judgment and order of a Division Bench of the Bombay High Court by which a writ of manda-
mus or certiorari granted to the respondent was con- firmed on appeal preferred by the appellant now before us. A 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, a 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 a defined amount. He placed an order for the im- port of Sheaffer pens from Australia and a 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. ·1 [1962] 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 a revision to the Central Government. Ayyangar J. The respondent, without resorting to this remedy,
filed a 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 a 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 a 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. 4, ……… 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 · d f
r t f d t h · h Wadhwani trame rom en1orcmg paymen o any u y rg er than 30 per cent. Ayyangar J. The Collector of Customs filed an appeal against this order which was disposed of by a 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 a 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 a 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 [1962] i96r the Schedule to the Tariff Act the consignment im- ported by the respondent could have been liable only
Venk~;es:~rnn, to a 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
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 a specialized class of stationery which required separate treatment. The only ques- tion therefore is whether a 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 a nib, cap and clip are essen- tial parts of a fountain-pen and not mere accessories,
and that without them there would be no question of having a "fountain-pen complete". Next it is a 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 a 'store of value, is a 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 a 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 a view to protect the market for cheaper
pens of indigenous manufacture. Most pens of the f- 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 h
ld 1 d 'b' D'ff t 'd t' . ht Wadhwani ave go -pate m 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 a bar to the entertainment of a petition under Art. 226 of the
Constitution unless (1) there was a 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
[1962) t96r to be heard, so as to be in violation of the principles of natural justice. The learned Solicitor-General ques- v 'At. v. tioned the correctness of the reasoning of the learned
'""• eswaran, Ch. f J d h Collect°' of ie ustice m con onmg t e conduct of the respon- 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 a proper test, the rule as to a petitioner
under Art. 226 having to exhaust his remedies before he approached the Court would be practically a 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 a 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 a 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 a prerogative writ. It is true that the exis- tence of another remedy does not affect the juris-
diction of the Court to issue a writ; but, as observ- ed by this Court in Rashid Ahmed v_ ¥unicipal Board, Kairana ('a), 'the existence of an adequate legal remedy is a 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, K. S. Rashid and Son v. The Income-tax Investiga- tion Commission (1). And where such remedy
A. V. exists, it will bo a sound exercise of discretion to v, nkateswaran, refuse to interfere in a petition under Art. 226, un- Collect°' of less there are good grounds therefor."
Cu<toms, Bombay 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 Ayyangar ]. 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 a 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 a conclusion as to whether it should, in exercise of its discretion, issue a 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 a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite
of the fact that the aggrieved party had other ade- quate legal remedies." After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief
Justice added: "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari."
In the result · this Court held that the existence of other legal remedies was not per se a bar to the issue (1) ['95~] S.C.R. 738. (2) [1958] S.C.R. 595, 605-607, [1962) r96z of a writ of certiorari and that the Court was not
bound to relegate the petitioner to the other legal re- Venk~;,:,;aran, medies available. to him', 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 d t lt t' d b an a equa e a erna 1ve reme y were
y no means exhaustive, and (2) that even beyond them a discre. Ayyangar ]. 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 a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a 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. exhaust his statutory remedies before invoking the '96' jurisdiction of the High Court under Art. 226 of the Constitution. If a 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 a 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. 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 a .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 a 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 a settled policy of the entire heirarchy
of the department. Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this" is not a 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 a person exhausting his remedies before making application for the issue of a
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. [1962] '96' Solicitor-General does not dispute the correctness of the principle oflaw as enunciated by Chagla, C. J., his A. v.
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 a 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 a particular case, we should be persuaded that there has been a 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 a 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 a 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 under item 45(3) of that schedule which dealt with I96r "Fountain-pens, complete" and provided for a 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 a writ to quash v. the order of assessment under item 61(8). The llamchand Sol>hra; application was allowed by Tendolkar, J., who issued
Wadhwani a 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. 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 a 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 a party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a
party who has not so deprived himself. :Normally- and the present has not been shown to be other than a 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· [1962] z96z sought to be enforced by the writ is created by a 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. Customs, Bombay fore, that the statutory authorities are given the v.
. opportunity to decide the question which the statute Ramchand Sob.hraJ requires them to decide. Wadhwani The fact that the Central Government had on a 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 a departure from the normal rule or the issue of a writ
without that government having been moved under s. 191. This prior decision of the Central Government could be a 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 a court can ever make such a 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 a writ of mandamus. It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari. writ of mandamus issues in respect of a ministerial
duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a 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 a judicial character a manda- mus will be granted only where there ir. a 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 1 S.C.R. insist that the person who is the judge shall act as
r96r such; but it will not dictate in any way what his A. V. judgment should be. Venkateswaran. If, however, the public act to be performed is of Collect°' of a purely ministerial kind, the Court will by manda- Cnstoms. Bombay
mus compel the specific act to be done in the man- v. h. h t 't 1 wf I ,, llamchand Sobhraj ner w 10 o 1 seems a u . w dh a wani It does not seem to me that the duty whrnh the Sea Customs Act created and the performance of
Sarkar J. which was sought to be enforced by a writ in the present case, can properly be said to be a 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 a public duty to
the performance of which the respondent had a 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 a 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 a 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 a 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 a 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 a dispute arises, t_hat is, after giving a hearing to the party affected: see ss. 29, 31 and 32 of the Act. In this case a hearing
(1) (1852) 18 Q.B. 692. (2) [1950] S.C.R. 621, 725. [1962) · was in fact given to the respondent. This taken with the provisions as to a right of appeal from the decision v /; v. of the first assessing officer and as to the right to move 0~;,;;:,•;,7· the government in revision from the decision 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 a judicial
5.,-;;; J. nature. Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue. No doubt if a mandamus could not issue because the act which the statute required to be performed was
not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari. But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on
their face. In issuing a 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 a case where an
application for a mandamus lay. The respondent, in substance, asked for and obtain- ed a 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 a 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 a
mandamus and they found that the Act created such (1) A.LR. 1957 S.C. 733. (2) [1960] r. S.C.R 890, 901. "' .. •' .. I a dll:t:y. They said that item 45(3) was a specific '96' prov1s10n and therefore it had to be applied in pre-
ference to item 61(8) which was a general provision. v A. v. bl . h th" eukateswarnn, am una e 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, a question arises as to what the legislature intended. Clearly, it could not have intended that a 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 a 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 a dead letter. This aspect of the rule would, I believe, appear clearly
from a statement of it by Sir John Romilly in Pretty v. Solly(') which I now set out: "The rule is, that wherever there is a particular enactment and a 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.
[1962] r96r enactment must be taken to affect only the other parts of the statute to which it may properly A. v. 1 ,, Venkateswaran, a pp y' collector of The test of the appltcab1hty of the rule, therefore,
customs, Bombay is that one enactment must overrule the other. The v. one overruled is called specific only in comparison RamchandSobhraj with the other which is in the same way only, called Wadhwani
general. There need be nothing inherent in the nature Sarkar J. of the enactments which, apart from a 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 a 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 a 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 a 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 a ca.se the rule would,
in my view, have no application. The present is a 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 l 'I 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 45(3) completely. Item 61(8) cannot be said to be a v. general provision and item 45(3) a specific one. There Ramchand SobMaJ is no scope here of applying the rule giving effect to
Wadhwam a specific enactment in preference to the general. 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. A fountain. pen is one of such articles. If a 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. A proper construction of this item must give effect to this intention. Item 45(3) applies to fountain-pens. Now it is not necessary for a fountain-
pen to be gold plated at all. Indeed the large majority of them are not gold plated. It is true that a foun- tain pen does not cease to be a fountain pen because it is plated with gold. It is, however, equally true
that a gold plated fountain-pen is an article plated with gold. A fountain-pen may or may not be [1962] I96I gold plated but a gold plated article can only be a gold plated article.
Therefore, it seems to me Venk~;es:~rnn, that item 45(3) was int~nded to apply to fountain· Collector of pens simpliciter, that 1s, without gold plating or Customs, Bombay other embellishments which might properly bring
v. them under another item in the schedule. This, in Ramchand Sobhraj my view, would best harmonise the different items Wadhwani in the Tariff schedule and carry out the intention
50,,,., J. of the legislature. This can be illustrated by an example. ·Suppose a fountain-p-en was studded with diamonds. Could it then be said that the legislature April 5. intended to impose on them a duty of 30 per cent. ad
valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty. I do not think that a possible view to take. ·
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 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