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PETITIONER: PIONEER TRADERS AND OTHERS

       Vs.

RESPONDENT: CHIEF CONTROLLER OF IMPORTS ANDEXPORTS PONDICHERRY

DATE OF JUDGMENT: 27/09/1962

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

CITATION:  1963 AIR  734            1963 SCR  Supl. (1) 349

ACT: French   Establishments--Administrative   integration   with India-Confiscation  of  goods  imported  and  imposition  of penalty  in  the  alternative--Petition  in  enforcement  of fundamental  rights-Maintainability--Constitution of  India, Arts.  19 (1) (f), 32-French Establishments (Application  of Laws) Order  , 1954, S.  R. O. 3315, para 6-Sea Customs Act, 1878 (8 of 1878), s.     67    (8)-Imports    and    Exports (Control) Act, 1947 (18 of 1947), s. 3 (2).

HEADNOTE: The  petitioners, on patentes issued to them by  the  French Administration,  imported  goods to  Pondicherry  after  its administration had been taken over by the Union of India  on November 1, 1954.  They had placed orders for the imports in England  before  August 15, 1954,  after  acquiring  foreign exchange  by  modes approved by the  French  Administration. Before  the goods arrived in Pondicherry, the Government  of India  had  issued S. R. O. 3315 under s. 4 of  the  Foreign jurisdiction  Act,  1947.   By  this  notification  the  Sea Customs  Act, 1878, the Imports and Exports  (Control)  Act, 1947, and various other Acts mentioned in the schedule  were extended  to French Establishments.  By a  press  communique issued  by the Government of India,  French  license-holders were asked to apply to the Controller of Imports and Exports for  validation  of their licences before  the  shipping  of goods.   As  it  was too late for the  petitioners  to  stop shipment, they applied to the Controller for the  validation of  their authorisation but this was refused and  the  goods arrived  after November 1, 1954.  The Collector  confiscated them under s. 167 (8) of the Sea Customs Act, 1878 read with s. 3(2) of the Imports and Exports (Control) Act, 1947,  and imposed penalties in the alternative for clearing them.  The petitioners  preferred  appeals  to  the  Central  Board  of Revenue  on  the basis of para 6 of S. R. O.  3315  but  the Board   dismissed  the  appeals  reducing   the   penalties. Revision petitions made to the Government of India were also rejected.   Relying on the decision of this Court in  Messrs Universal Imports Agency v. The Chief Controller of  Imports

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and  Exports that para 6 of S. R. O. 3315 had the effect  of protecting the imports 350 made in similar circumstances such as in the present  cases, the  petitioners came up to this Court under Art. 32 of  the Constitution  for  enforcement of their  fundamental  rights under Art. 19 (1)   (f).   A  preliminary objection  to  the maintainability of the writ petitions was taken on behalf of the Union of India on basis of the decision of this Court in Smt.  Ujjambai v. The State of Uttar Pradesh. Held  (per Sinha, C. J., Gajendragadkar, Wanchoo  and  Shah, JJ.),  that  the decision of this Court in  Ujjambai’s  case applied  and  the petitions under Art. 32  must  fail.   The questions  that  were raised in Ujjambai’s case  not  having been  raised in the case of Messrs Universal Imports  Agency this  Court had no occasion to consider in the  latter  case whether  the  quasi-judicial  authority  in  that  case  had jurisdiction  to decide the matter.  The  petitioners  could not,  therefore, get out of the decision in Ujjambai’s  case on the ground that the tax authorities in the present  cases had no inherent jurisdiction to do so. The observations of Das, J., and Kapurj., in Ujjambai’s case with  regard to Messrs Universal Agency’s case must be  held to be per incuriam. M/s.   Universal Imports Agency v. The Chief  Controller  of Imports and Exports, [1961] 1 S. C. R. 305, discussed. Smt.   Ujjambai  v.  The State of Uttar  Pradesh,  [1963]  1 S.C.R. 778, explained and applied. Kailash  Nath v. State of U. P., A. 1. R. (1957) S. C.  790, referred to. Paragraph  6 of S. R. O. 3315, properly construed,  must  be deemed  to have been inserted in each one of the  Acts  men- tioned  in the Schedule and in the Sea Customs Act  to  have taken  the  place of original s. 2 of that Act.   There  was therefore  no scope for the contention that Ujjambai’s  case had  no  application inasmuch as no misconstruction  of  any provisions of the Sea Customs Act was involved. Held,  further,  that  the  order  of  a  Customs  authority imposing  confiscation and penalty under s. 167 (8)  of  the Sea  Customs Act, 1878, was a quasi-judicial order  and  the Customs  authorities  had  the duty  to  act  judicially  in deciding questions of confiscation and penalty. Leo Roy Frey v. The Superintendent District Jail,  Amritsar, [1958] S. C. R. 822, referred to. Per Das Gupta, J.--If the importations in the present  cases were made on the basis of contracts concluded before 351 November  1.  1954,  the  Sea  Customs  Act  would  have  no application  because  of  para    6 of  S.  R.  O.  3315  as construed  by this Court in M/s Universal  Agency’s  me  and the customs authorities who derived their jurisdiction  from that Act would have no jurisdiction to make the orders  they did,  and  so  the present petitions under Art.  32  of  the Constitution would be maintainable. An  inferior tribunal could not give itself jurisdiction  by wrongly deciding a collateral fact. Universal Imports Agency v. The Chief Controller of Import’s JUDGMENT: State  of  U. P., [1963] 1 S. C. R. 778, The  State  Trading Corporation of India v. The State of Mysore, [1963] 3 S.  C. R. 792 and Rex v. Shoreditch Assessment Committee, [1910]  2 K. B. 859, relied on. Where  a judicial or quasi-judicial authority had in law  no jurisdiction,  the  omission of the party to  canvass  that question  before  the  authority  could  not  also  give  it

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jurisdiction.

& ORIGINAL JURISDICTION : Petitions Nos. 314 to 342 of 1961. Petition under Art. 32 of the Constitution of India    for enforcement of Fundamental Rights. N.   C.    Chatterjee,   R.   Ganapathy   Iyer,    and    G. Gopalakrishnan, for the petitioners. C.   K. Daphtary, Solicitor General of India, B.  R.      L. Iyengar and R.H. Dhebar, for the respondents. 1962.   September  27.   The  judgment  of  Sinha,  C.   J., Gajendragadkar,  Wanchoo  and Shah, JJ.,  was  delivered  by Wanchoo, J., Das Gupta, J., delivered a separate Judgment. WANCHOO, J.-These twenty-nine petitions under Art. 32 of the Constitution  raise common questions and will be dealt  with together.   They have been filed by two firms who  obtained patentes  to carry on business in Pondicherry in  September, 1954, for the first time.  As the facts in all the petitions are  similar,  we  shall only give the  facts  generally  to understand the questions raised before us.  The two firms, 352 it  may  be  mentioned, did not carry  on  any  business  in Pondicherry before September, 1954, when they got a  patente each and the proprietor of one of them is a resident of  New Delhi  while  the proprietor of the other is a  resident  of Bombay. The  administration  of Pondicherry was taken  over  by  the Union   of  India  from  November  1,  1954.   Before   that Pondicherry  was under the administration of the  Government of France and was a free port.  Import into Pondicherry  was thus  not subject to any restriction, except with regard  to certain  goods  with  which we are  not  concerned.  in  the present  petitions.   Any  merchant  desiring  to  carry  on business  in  the territory of Pondicherry  had  however  to obtain a patente before he could do so.  These patentes were of  five  kinds one of which was a patente  authorising  the trader  to  carry on the business of import of  goods  other than  those  which  were  under  restriction.   Though   the importers  were entitled by virtue of the patente to  import goods subject to certain restrictions, this right could only be exercised by securing foreign exchange which was  subject to certain limitations and was controlled by the  Department of Economic Affairs at Pondicherry.  There were two ways  in which foreign exchange could be acquired, namely, (i) at the official rate through the Department of Economic Affairs, or (ii) in the open market at such rate as might be  available; and both these ways were considered valid before November 1, 1954.   Further  there  used to be  authorisations  for  the purpose of import and the authorisations indicated the limit within  which foreign exchange could be acquired  either  at the official rate or through the open market. The  petitioners’  case  is that though  the  patentes  were secured  in September, 1954, orders for import  were  placed before August 15, 1954.  Thereafter after authorisations had been obtained from the French authorities, foreign  exchange was acquired in the open market for the purpose of financing the 353 import.   There were in all twenty-nine transactions by  the two firms, which are the subject-matter of these  petitions; and  in certain cases advances were paid, the balance  being payable  by means of bills of exchange drawn  on  ’documents against  payment" basis.  But though the orders were  placed

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before  August 15, 1954, and necessary foreign exchange  had also been secured in the open market later, shipments  could not be made because of an unexpected dock strike in  England and  on the Continent and also for want of  shipping  space, and  therefore most of the consignments on the basis of  the twenty-nine orders were shipped after November 1, 1954,  and only three consignments out of twenty-nine could be  shipped in  October,  1954, that is, before  the  administration  of Pondicherry was taken over by the Government of India.   The goods  in  all  these cases  arrived  at  Pondicherry  after November  1, 1954.  In the meantime, the  administration  of Pondicherry  was taken over by the Government of India  from November  1, 1954, in pursuance of an agreement between  the Government  of India and the Government of France,  and  two notifications  were  issued  by  the  Government  of  India, namely,  S. R. O.s. Nos. 3314 and 3315.  By S. R.  O.  3315, which was made under s,4 of the Foreign jurisdiction Act, No XLVII  of 1947, the Sea Customs Act, 1878, the Reserve  Bank of  India Act, 1934, the Imports and Exports (Control)  Act, 1947,  the  Foreign Exchange Regulation Act, 1947,  and  the Indian Tariff Act, 1934, were extended to Pondicherry.  This S.R.O. contained a saving clause which laid down that--               "’Unless  otherwise specially provided in  the               schedule,  all  laws in force  in  the  French               Establishments    immediately    before    the               commencement of this Order., which  correspond               to  the enactments specified in the  Schedule,               shall  cease to have effect, save as  respects               things done or omitted to be done before  such               commencement." 354 As a consequence of these two S. R. O.s. a press  communique was  issued by the Government of India on November 1,  1954, explaining  the effect of these notifications, in  which  it was  stated  that imports into and exports from  the  French Establishments  would  be regulated in accordance  with  the provisions  of the Imports and Exports (Control) Act,  1947. It was further stated that as regards orders placed  outside the Establishments  and finalized through grant of a licence by competent French authorities in accordance with the  laws and regulations in force prior to November 1, 1954, licence- holders  were advised to apply to the Controller of  Imports and  Exports  for  validation  of  licences  held  by  them. Licence-holders  were  further advised not  to  arrange  for shipment  of goods until the licences held by them had  been validated by the Controller of Imports and Exports.  In view of  this  press communique, the petitioners  tried  to  stop shipment   until  the  authorisations  held  by  them   were validated  by the Chief Controller of Imports  and  Exports, Pondicherry.  But their suppliers told them that this  could not  be done,, as the goods were in the course  of  shipment and  it was too late to stop the shipment.  The  petitioners then  applied for validation of the authorisations, but  the Chief Controller of Imports and Exports, Pondicherry refused to  validate  them.   The petitioners’  case  is  that  this refusal  was arbitrary.  Eventually, when the goods  arrived at  Pondicherry  after  November 1,  1954,  the  petitioners approached the Collector of Customs at Pondicherry to permit clearance of the goods.  They were not, however, allowed  to clear  them, and notices were issued to them to  show  cause why the goods should not be forfeited on the ground that the import  had  been made in contravention of the  Imports  and Exports  (Control) Act, 1947 and the Sea Customs Act,  1878. The  petitioners thereupon showed cause and their  case  was that orders had been placed before August 15, 1954, and  the

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imports had been made strictly in accordance with the law in force in, 355 Pondicherry before November 1, 1954, and therefore could not be  said  to  be unauthorised.   The  Collector  of  Customs however  refused  to  accept this  explanation  and  ordered confiscation  of the goods, and in the  alternative  imposed penalties  for clearing them.  These penalties  amounted  to over  Rs. 64,000/- in the case of one of the firms and  over Rs. 96,000/- in the case of the other firm, There were  then appeals  by  the  petitioners before the  Central  Board  of Revenue  against  the  orders  imposing  penalties.    These appeals  were dismissed, though the penalty was  reduced  to over Rs.35,000/- in the case of one firm and Rs. 60,000/- in the  case  of  other firm.  The  petitioners  then  went  in revision to the Government of India but their revisions were rejected   on  January  23,  1957.   It  appears  that   the petitioners  paid  the penalty though the date is not  clear from  the petitions and cleared the goods.  The  petitioners were  apparently  satisfied with the orders  passed  against them  for  they  took  no steps to go  to  Court  after  the revisions  had been dismissed by the Government of India  in January,  1957, though they say that they have  been  making representations  to the Government of India in  that  behalf without any effect and that the last communication from  the Government of India was received by them in this  connection in August, 1961. In  the  meantime, certain impotrers  of  Pondicherry  filed petitions  in  this Court in 1959 challenging the  order  of confiscation and the alternative order imposing penalties on them  by the Collector of Customs, Pondicherry, in  somewhat similar  circumstances  : (see  Messrs.   Universal  Imports Agency v. The Chief Controller of Imports and Exports  (1)). Those  petitions  were decided on August 23, 1960  and  this Court held that in view of para. 6 of S. R. O. 3315, already referred to, which saved the effect of all laws in force  in the    French   Establishments   immediately   before    the commencement  of  the  order even  though  those  laws  were repealed  by  the  order, with respect  to  things  done  or omitted to be (1)  [1961] 1 S.C.R. 305. 356 done before such commencement, the authorisations granted by the  French authorities before November 1, 1954, for  import were  sufficient to protect the goods imported on the  basis of  those  authorisations whether the exchange  was  secured officially  or from the open market, from the  operation  of the  Imports  and  Exports (Control) Act,  1947,  and  other provisions  to the same effect.  This view was taken on  the ground  that para. 6 saved "things done" before November  1, 1954  and  as  firm  contracts had  been  entered  into  and authorisations   granted  before  November  1,   1954,   the subsequent arrival of goods in Pondicherry after November 1, 1954,   as  the  consequence  of  the  contracts   and   the authorisations  was a "thing done" under para. 6  of  S.R.O. 3315.   It  was held that the words "’things done"  must  be reasonably  interpreted and if so interpreted they not  only meant  things  done but also the legal  consequence  flowing therefrom.   Consequently,  it was held  that  the  imported goods  in those cases were not liable to confiscation  under the Imports and Exports (Control) Act and similar provisions of  any  other law, as firm contracts had been  made  before November  1,  1954  and exchange had  been  arranged  either officially or through the open marketin  full or in  part under authorisations granted by the French Government  and

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the   subsequent  import  after  November  1,  1954  was   a consequence of these things which had   been  done   before November  1, 1954 an was therefore protected by para. 6.  In the result the penalty collected was ordered to be refunded. This  decision was given in August 1960, and it  seems  that after this decision, the petitioners wrote to the Government of  India  in September, 1960, for refund  of  penalties  in their cases also; they were informed in February, 1961, that no  refund  could  be made.  The petitioners  seem  to  have written again to the Government of India in June, 1961,  and to this the Government of India gave a final reply in  357 August,  1961.  Thereafter the present writ  petitions  were filed  in  October,  1961.   The  petitioners  rely  on  the decision of this Court in Messrs. Universal Imports  Agency (1) and contend that they are entitled to refund of  penalty as  their cases are exactly similar to the case  of  Messrs. Universal Imports Agency. (1) They pray for a writ, order or direction  in the nature of certiorari quashing  the  orders resulting  in the imposition of penalty beginning  with  the orders of the Collector of Customs.  Pondicherry, and ending with  those of the Government of India in revision and  also for  a direction requiring the respondents to refund to  the petitioners the sum realised as penalty. The  petitions have been opposed on behalf of the Union of India on a number of grounds.  It is however unnecessary for us  to detail all the grounds raised on behalf of the  Union of India in view of an objection that has been taken to  the maintainability of these petitions based on the decision  of this  Court  in  Smt.   Ujjambai  v.  The  State  of   Uttar Pradesh.(2)  We shall therefore refer only to such parts  of the counter affidavit filed on behalf of the Union of  India as will suffice to explain the preliminary objection  raised on its behalf. The Union’s case is that the talks for the de facto transfer of  the  French-Indian Establishments to the  Government  of India  were resumed in August 1954, and that as a result  of these  talks, an agreement dated October 20,  1954,  between the Government of India and the Government of France for the settlement  of  the  question of the future  of  the  French Establishments  in India was arrived at.  Pursuant  to  this agreement,  the administration of the French  Establishments (including Pondicherry) was transferred to the Government of India from November 1, 1954.  In consequence, the Government of India promulgated two orders, namely, S. R. O’s 3314  and 3315  on October 30, 1954, to come into force from  November 1, 1954.  The first of these orders was known as the (1) [1961] 1 S.C.R. 305. (2) [1963] 1 S. C. R. 770, 358 French  Establishments  (Administration)  Order  while   the second   order  was  known  as  the  French   Establishments (Applications of laws) Order, 1954, by which the Sea Customs Act, 1878, and the Imports and Exports (Control) Act,  1947, and  certain  other Acts were made applicable  to  the  said settlements.   Some persons, including the petitioners,  who had  no business in Pondicherry from before mala  fide  with intent to defeat the laws in force in the Indian Union which were  legally  to be extended to the  French  Establishments when  their administration was taken over by the  Government of  India, managed to procure some colourable  documents  on the strength of which they claimed that they had placed firm orders  with  foreign firms for import of goods  which  were restricted  under  the Indian  Import  Control  Regulations. After the Government of India had applied S. R. O’s 3314 and

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3315  to  the  French Establishments and  taken  over  their administration from November 1, 1954, a press communique was issued  on November 1, 1954, that orders placed outside  the French  Establishments  and  finalised through  a  grant  of licence  by the competent French authorities  in  accordance with the laws and regulations in force prior to November  1, 1954  should be got validated by the Controller  of  Imports and   Exports  appointed  for  Pondicherry.   Further,   the licence-holders were advised not to arrange for shipments of goods until the licences held by them were validated.  Later on January 5, 1955, the Union of India issued another  press communique  in view of certain representations  received  on the  basis of Art. 17 of the Indo-French Agreement  and  the public was informed that import of goods against open market transactions  after  November 1, 1954, would be  treated  as unauthorised.   But having regard to the hardship likely  to be  caused  to genuine importers who had  placed  orders  in pursuance  of their normal trading operations against  which goods  were  in the normal course shipped by  the  suppliers prior-to the date of merger, the Collector of Customs,  359 Pondicherry   was   being  authorised  to   accord   certain concessions  to genuine importers.  One of these  concession was that goods shipped before November 1, 1954, but  ordered before  August  15, 1954, would be cleared  without  penalty irrespective of origin and value.  The petitioners tried  to take  advantage  of this concession and therefore  tried  to show before the Collector of Customs, Pondicherry that  they had  placed  firm  orders before  August  15,  1954,  though shipments could only be made in three cases before  November 1,  1954, and were delayed in others because of dock  strike in  England  and in Continental countries.   This  case  was scrutinised  by the Collector of Customs and he pointed  out in his order that though the orders for these goods are said to  have been placed before August 15, 1954, the  two  firms could  only start functioning in Pondicherry from the  month of  September  in which month they had obtained  patent  for conducting  business  there  legally.   The  Collector  also pointed  out  that  in  the  ordinary  course  of  business, commitments   were   not   made   without   entering    into correspondence  with  the suppliers  regarding  the  prices, terms  of payment etc., but in these cases, the  petitioners produced no such correspondence.  It was also found that the petitioners  had not done any business of this kind even  in the Indian Union before this.  The Collector therefore  held that it had not been proved that the goods had in fact  been ordered before August 15, 1954, and therefore ordered  their confiscation and imposed penalty in lieu thereof The appeals of  the Petitioners to the Central Board of  Revenue  failed except  to  the extent that the penalty  was  reduced.   The Board’s order was silent on the point whether the goods  had in fact been ordered before August 15, 1954.  But the  Board held  that as the goods were imported without licence  at  a time  when  a  licence was required for  their  import,  the appeal must fail.  The petitioners then went in revision  to the Government of India but failed there also. 360 The  preliminary  objection  is  that  the  orders  imposing penalty  are  quasi-judicial orders passed  by  a  competent authority having jurisdiction under a taxing statute.  It is not the case of the petitioners that the statute under which the orders had been made read with S.R.O. 3315 of 1954 is in any  way ultra vires.  The sole basis of these petitions  is that  para. 6 of S. R. O. 3315 has been misconstrued by  the authorities  concerned  and thus a penalty has  been  levied

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which  could  not  be  levied  if  para.  6  had  not   been misconstrued.    The  petitioners  therefore  question   the validity  of  the  order imposing penalty based  on  a  mis- construction of para. 6 of S.R.O. 3315 of 1954 and this they cannot do by petition under Art. 32, whatever other remedies they  might  have  against such an order,  in  view  of  the decision  of  this  Court  in  Ujjambai’s  case.(1)  It   is therefore  contended  on behalf of the Union of  India  that these  petitions under Art. 32 of the Constitution  are  not maintainable and should be dismissed on this ground alone. In reply, it is submitted on behalf of the petitioners  that Ujjambai’s  case.(1) does not apply in the circumstances  of these  petitions.   It is not seriously  disputed  that  the orders  imposing penalty were quasi-judicial orders; but  it is urged that these orders were passed without  jurisdiction and infringe the fundamental right of the petitioners  under Art. 19 (1) (f) and Art. 19 (1) (g), and would be liable  to challenge by petition under Art. 32 and the actual  decision in Ujjambai’s case(1) will not be applicable. It  is  therefore necessary to consider the  effect  of  the decision  in  Ujjambai’s case.(1) That case was heard  by  a Bench  of seven learned judges of this Court, and the  final decision  was by a majority of five to two.   The  following two questions came up for decision in that case               "1.   Is  an order of assessment  made  by  an               authority under a taxing statute which is               (1)   [1963] 1 S. C. R. 778.                361               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?" As  was  pointed out by Das, J., in  that  case,  the  two questions were inter-connected and substantially related  to one  matter, namely, "is the validity of an order made  with jurisdiction under an Act which is intra vires and good  law in   all  respects,  or  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  was  not disputed in that case 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.  Further, it was not disputed that when the assessing authority sought to tax a  transaction  the  taxation  of  which  came  within   the constitutional  prohibition,  the violation  of  fundamental right must be taken to have been established and such  cases were  treated  as  on  a par  with  those  cases  where  the provision itself was ultra vires.  It was also not  disputed that where the statute was intra vires but the action  taken under it was without inherent jurisdiction, a petition under Art.  32  would lie.  Finally, it was also not  disputed  in that case that where the action taken is procedurally  ultra vires, the case is assimilated to a case of an action  taken without inherent jurisdiction and would be open to challenge by a petition under Art. 32, 362

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The controversy was ""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  was  in  that connection where the authority has inherent jurisdiction  to decide  the  matter and the law under which it  proceeds  is intra vires that the question arose whether the decision  of such  an authority could be challenged by a  petition  under Art.  32  on  the  sole  ground  that  it  was  based  on  a misconstruction   of  the  provision  of  law  or   of   the notification  properly  issued  thereunder.   Five  of   the learned  judges  composing  the  Bench  answered  both   the questions  raised  in that case in the negative.   Das,  J., held as follows :-               "’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."               Kapur, J., held as follows               "’If the statute and its constitutionality  is               not  challenged  then  every  part  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,                363               An  order  of assessment passed  by  a  quasi-               judicial  tribunal  under a statute  which  is               ultra   vires  cannot  be  equated   with   an               assessment order passed by that tribunal under               an intra vires statute even though  erroneous.               The  former being without authority of law  is               wholly  unauthorised and has no  existence  in               law and therefore the order is an infringement               of  fundamental rights under Art. 19  (1)  (f)               and  (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."               Sarkar, J., agreed with Das and Kapur, JJ.               Hidayatullah, J., held as follows:-               "But  where  the law is 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

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             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.   Art.  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 is               364               not destroyed.  There is only one exception to               this,  and  it lies  within  extremely  narrow               limits.    That  exception  also  bears   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, then a  petition               under Art. 32 may lie."               Mudholkar,  J., summarised his conclusions  as               below:-               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               consequently no question of enforcing a funda-               mental  right arises where a tax  is  assessed               and levied bona fled 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                365               or  of any other provisions of  the  Constitu-               tion.               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 top pay a tax that person  cannot

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             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." Mudholkar,  J., therefore, agreed with Das, J., and  was  of the  view  that the two questions must be  answered  in  the negative. The  other two learned judges, Subha Rao and Ayyangar,  JJ., took  the contrary view.  They were of the view  that  there could be no valid distinction between an order passed by  an authority  without  jurisdiction,  in  the  sense  that  the authority  is not duly constituted under the Act or that  it has inherent want of jurisdiction, and a wrong order  passed by the authority on a misconstruction of the relevant provi- sions  of  the Act; in either case if the  order  affects  a fundamental  right it will be open to challenge by  petition under Art. 32 on the ground that by a wrong construction,  a fundamental right either under Art. 19 (1) (f) or under Art. 19 (1) (g) is violated. It  will be seen from the above summary of the views of  the learned Judges who constituted the majority that, though the reasons given for coming to 366 their  conclusion  were  slightly different  they  were  all agreed  that  where  an order of assessment is  made  by  an authority with jurisdiction under a taxing statute which  is intra  vires,  it is not 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 and the validity of such ail order  cannot be questioned in a petition under Art.  32  of the Constitution, though it may be open to question such  an order on appeal or in revision in case’ the statute provides for that remedy or by a petition under Arts. 226 and 227  in appropriate cases. The contention on behalf of the Union is that the orders  in the   present   case  are  orders  of  an   authority   with jurisdiction  acting quasi-judicially and even if  they  are based  on a misconstruction of para. 6 of S.R.O.  3315  they will  not be open to challenge by petition under Art. 32  of the  Constitution, whatever other remedies  the  petitioners might  have  against them.  It is urged  that  in  principle there is no difference between an order of assessment  under a  taxing  statute  and an order of  confiscation,  with  an alternative penalty, for both are orders of a quasi-judicial authority  under a taxing statute which is intra vires;  and if  orders are passed with jurisdiction in either case  they will  not  be open to challenge under Art. 32  on  the  sole ground  that  they  are passed on  a  misconstruction  of  a provision of an Act or a notification issued thereunder. It  has  not  been  disputed that the  order  of  a  customs authority  imposing confiscation and penalties under s.  167 (8) of the Sea Customs Act (No. 8 of 1878) is quasi-judicial and the customs authority has the duty to act judicially  in deciding the question of confiscation and penalty: (see  Leo Roy  Frey v. The Superintendent District Jail,  Amritsar(1). But it is urged on behalf of the petitioners that the orders in this case were passed without inherent jurisdiction and (1)  [1958] S. C. R. 822.  367 would  thus  be  open to challenge and  in  this  connection reliance  was  placed on the observations of Kapur,  J.,  in Ujjambai’s  case()  in connection with the decision  in  the

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case  of  Messrs.  Universal Imports Agency.(2)  Kapur,  J., observed  with  respect to this decision that "in  any  case this  is  an  instance  of  want  of  jurisdiction  to   tax transactions  which the law excludes from the taxing  powers of  the  authority levying the tax", though he  pointed  out further that the question of the applicability of Art. 32 to quasi-judicial  determinations was not raised in that  case. With respect, it may be pointed out that as the question  of the  applicability  of Art. 32  to  quasi-judicial  determi- nations  was  not  raised  at all in  the  case  of  Messrs. Universal  Imports  Agency(), the Court had no  occasion  to consider the question whether the authority in that case had inherent  jurisdiction to decide the matter.   The  majority judgment   on  which  the  petitioners  rely   has   nowhere considered  the question whether the authority in that  case suffered from inherent lack of jurisdiction when it  decided to  confiscate the goods imported and levy penalties in  the alternative.    All  that  the  learned  counsel   for   the petitioners  could draw our attention to was a  sentence  in the majority judgment to the following effect :               "We would, therefore, hold that paragraph 6 of               the Order saves the transactions entered  into               by  the petitioners and that  the  respondents               had no right to confiscate their goods on  the               ground   that  they  were   imported   without               licence." It is urged that when the majority said that the authorities had no right to confiscate the goods, it was meant that they had  no  inherent  jurisdiction to do so.  As  we  read  the majority  judgment, however, we do not find any warrant  for coming  to the conclusion that it was decided in  that  case that   the  authorities  in  that  case  had   no   inherent jurisdiction to confiscate the goods or impose penalties  in lieu  thereof.  It is true that it was said in the  majority judgment that (1) [1963] 1 S. C. R. 778. (2) [1961] 1 S. C. R. 305. 368 the  respondents  had no right to confiscate the  goods  but that  was because just before in that very sentence  it  was held  that  para.  6 of the Order  saved  the  transactions. Therefore,  when  the majority in that case  said  that  the authorities  had no right to confiscate the goods, all  that was meant was that the authorities had misconstrued para.  6 and  so  confiscated  the  goods,  but  that  on  a  correct construction  of  para. 6 they could not do so.   It  cannot therefore  he said that the majority decision in  that  case was based on lack of inherent jurisdiction.  The petitioners therefore  cannot  get  out of the  decision  in  Ujjambai’s case(1)  on the ground that the authorities who  confiscated the  goods  and levied penalties in the alternative  in  the present cases had no inherent jurisdiction to do so. As we have just indicated, the decision of this Court in the case  of Messrs.  Universal Imports Agency(2) was not  based on the ground that the appropriate authority who confiscated the  goods  lacked  inherent jurisdiction  to  do  so.   The decision,  in  substance, proceeded on the  ground  that  in exercising   the  said  jurisdiction,  the   authority   had misconstrued S.R.O. 3315.  The question as to whether a writ petition under Art. 32 can lie on that ground was not raised before the Court and has not been considered.  Therefore, it seems  to  us, with respect, that the  observation  made  by Kapur J. in the case of Ujjambai(1) that the decision in the case  of  Messrs. (universal Imports  Agency(2)  affords  an instance  of want of jurisdiction to tax transactions  which

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the  law  excludes from the taxing powers of  the  authority levying the tax, is not very accurate.  Similarly, it may be added that the inclusion of the said decision ’˜m the Est of judgments  cited  by  ˜Das,  J.,  which,  in  his   opinion, illustrated categories of cases where executive  authorities have  acted  without jurisdiction, is  also  not  justified. Since  the point about the competence of the  writ  petition was  not  raised  or  considered  in  the  case  of  Messrs. Universal Imports Agency,(2) it would (1) [1963] 1 S. C. R. 778. (2) [1961] 1 S. C. R. 30.  369 not be accurate or correct to hold that that decision turned on the absence of jurisdiction of the appropriate authority. It is well known that after the decision of the Court in the case  of  Kailash  Nath  v. State of  U.  P.,(1)  some  writ petitions   were   entertained  on  the  ground   that   the jurisdiction  of the Court under Art. 32 could  be  invoked even  if a tribunal exercising quasi-judicial authority  had misconstrued  the  law  under which  it  purported  to  act. Having  regard to the decision of the Special Bench  in  the case  of Ujjambai(2), these precedents have now  lost  their validity. Then  we  come  to the question whether this is  a  case  of misconstruction  of  a provision of the law which  is  intra vires by an authority acting under a taxing statute.  It  is contended  on  behalf  of the petitioners  that  the  taxing statute  in  this  case was the Sea a Customs  Act  and  the misconstruction,  if  any, would be of para. 6 of S.  R.  O. 3315.  This in our opinion is not correct.  The Sea  Customs Act was applied to Pondicherry by S. R. O. 3315.  This  S.R. O.  has six paragraphs.  The first paragraph gives the  name of  the S. R. O. and the date from which it will  come  into force.   The  second  paragraph  defines  what  are  "French Establishments"  to which the S. R. O. was applicable.   The third paragraph lays down that certain Acts mentioned in the Schedule  which are twenty-two in number would apply to  the French  Establishments subject to certain  conditions  which are not material.  Sub-paragraph (2) of para. 3 applies  all rules  under the various enactments in the Sehedule  to  the French Establishments.  Paragraph 4 lays down how references in  any enactment, notification, rule, order  or  regulation applied  to the French Establishments have to be  construed. Paragraph 5 gives power to any Court, tribunal or  authority required   or   empowered   to   enforce   in   the   French Establishments  any enactment specified in the  schedule  to construe enactment with such alterations, not affecting the (1) A. 1. R. (1957) S. C. 790.  (2) [1963] 1 S. C. R. 778. 370 substance, as may be necessary or proper.  Then comes  para. 6 which we have already set out.  It will be seen  therefore that  S. R. O. 3315 applied the Sea Customs Act and  certain other   Acts   to  the  French   Establishments,   including Pondicherry,  and  para.  6 in particular is  similar  to  a repealing  and saving provision to be found in an Act  which repeals  and  reenacts  an  earlier  enactment.   It   would therefore  be  not  improper to read para. 6 as  if  it  was incorporated  in each one of the twenty-two Acts which  were extended to the French Establishments by S. R. O. 3315.  The construction therefore of para. 6 of the S. R. O. which must be  deemed  to have been inserted in each one  of  the  Acts mentioned in the Schedule would be a construction of the Sea Customs  Act itself.  Original s. 2 in the Sea  Customs  Act provided  for repeal of earlier enactments and  for  saving, (though it no longer exists in the Act as it was repealed by

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the  Repealing  Act No. 1 of 1938).  In  effect,  therefore, para. 6 of the S. R. O. would take the place of original  s. 2  of the Sea Customs Act.  Therefore, an interpretation  of para.  6 of the S. R. O. which must be deemed to  have  been inserted  in the Sea Customs Act in place of original  s.  2 would  be an interpretation of the Sea Customs Act.  So  the contention that Ujjambai’s case(1) does not apply, for there has been no misconstruction of any of the provisions of  the Sea  Customs Act, has no force.  It may be added that it  is not disputed in this case that the Collector of Customs  had inherent jurisdiction to deal with this matter and the  only attack  on his order aid on the subsequent orders passed  in appeal  and revision is that they misconstrue the  provision of para. 6 of the S. R. O. Finally,   it   is  urged  that  there  was   in   fact   no misconstruction of the provisions of para. 6 of S.R.O.  3315 in  these  cases and Ujjambai’s case(1) will  not  apply  to these  petitions.  Literally speaking, it masbe  correct  to say that there was no actual miscoyn (1)  [1963] 1 S. O. R. 778.  371 truction  of para. 6 of S. R. O. 3315 in these cases by  the Collector  of  Customs.  What had happened was, as  we  have already indicated, that the petitioners tried to bring their case before him within the terms of the press communique  of January 5, 1955, by which certain concessions were  extended to  genuine importers.  They therefore tried to  prove  that they had placed firm orders before August 15, 1954, and  had also  provided for foreign exchange to the extent  necessary after  receiving  authorisations  and  that  three  of   the consignments  had  been shipped before the 1st  of  November while the other twenty-six could not be shipped before  that date for reasons beyond their control.  The petitioners thus wanted  to  take advantage of the concessions in  the  press communique.   They  do not seem to have  raised  before  the Collector of Customs the question that even if they had  not placed  the  orders before August 15, they  would  still  be entitled to the benefit of para. 6 of S. R. O. 3315 if  they had  placed  the  orders before November  1,  1954  and  had received  authorisations from the French authorities  before November  1, 1954, and had made arrangements to  the  extent necessary  for  foreign  exchange  either  through  official channels  or through open market.  The Collector  considered the  case put forward by the petitioners namely,  that  they had placed firm orders before August 15, 1954, and held, for reasons which we have already indicated, that that could not be  true.   The  Collector therefore  refused  to  give  the petitioners  the  benefit of the press communique.   In  the circumstances  the  Collector could not proceed  further  to consider  that even if the orders were placed  after  August 15,  the petitioners would be protected by para. 6 of S.  R. O. 3315. The  Board  in appeal however did not rest its  decision  on this.   It  held that as-the goods  were  actually  imported after  November  1, 1954, when  licence’  restrictions  were actually in force, the goods would be liable to confiscation as imported,without licence. 372 This  decision,  in effect, refused to give the  benefit  of para.  6  of S. R. O. 3315 to the petitioners. and  to  that extent the paragraph can by implication be said to have been misconstrued by the Board. This  matter can therefore be looked at in two ways.  If  it is  held that the petitioners rested their case on only  the ground  that  they had placed the orders for  import  before

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August  15, 1954, and were thus entitled to the  benefit  of the  press communique, the finding of the Collector  to  the effect  that  he was not prepared to believe that  case  for three  reasons  given  by him cannot be said  to  justify  a prayer  for  a writ because it is a finding of fact;  and  a writ  cannot  issue even if the said finding  is  erroneous. If,  there.  fore,  that  was all that  was  raised  by  the petitioners  before  the  authorities  concerned,  and   the authorities concerned have found against the petitioners  on the  main  question of fact involved  in  their  contentions before  them,  it cannot be said that the  authorities  were wrong  in the view they took for the reasons given  by  them and there would therefore be no question of any interference under Art. 32.  Further, if a petition under Art. 32 is  not maintainable  when  a provision of law is  misconstrued,  it would  be much less maintainable when there is a mistake  of fact though as we have indicated already, it cannot be  said in this case that the Collector was wrong in his  conclusion on the facts. The  petitioners’  case, as put forward in, this  Court,  is that even if firm orders were not placed be. fore August 15, 1954,  they were entitled to take advantage of the  judgment of this Court in Messrs. Universal Imports Agency’s(1)  case if  they had placed orders after obtaining the  patentes  in September  and had received authorisations and had  arranged for foreign exchange to the extent necessary before November 1,  1954.  If this is the case of the petitioners  now,  and they want to succeed on it, it must (1)[1961] 1 S. C. R. 305.  373 be  held  that  the Board by  implication  negatived  it  in appeal.   This  could only be done by a  misconstruction  of para.  6 of S. R. O . 3315, for if that paragraph  had  been rightly  construed,  as  held  by  this  Court  in   Messrs. Universal  Imports  Agency’s case, (1) the goods  would  not have been confiscated. Therefore  the  position is this.  If the  petitioners  only raise the claim based on the press communique that they  had placed  firm orders before August 15, 1954, their claim  has been negatived on facts and we see no reason to differ  from the conclusion of the Collector on the facts.  On the  other hand, if the petitioners seem to have raised the case  which they  are  now  raising before us on the  basis  of  Messrs. Universal  Imports Agency’s case (1) before the  Board,  the Board must be deemed to have turned down that claim and that could only be on the basis of the misconstruction of para  6 of  S.  R. O. 3315.  The case, therefore, that  is  now  put forward  on  behalf of the petitioners before  us  would  be absolutely  analogous to the position in Ujjambai’s  case(2) In   that   case  the  assessing   authority   acting   with jurisdiction upon a. misconstruction of a statute which  was intra  vires  or a notification properly  issued  thereunder assessed  the  tax and it was held that such  an  assessment cannot  be impugned as repugnant to Art. 19 (1) (f) and  (g) on the sole ground that it was based on a misconstruction of a  provision  of the Act and the validity of such  an  order cannot  be questioned in a petition under Art. 32.   In  the present case, a similar quasi-judicial authority i. e.,  the Board  acting  judicially within its  jurisdiction  must  be deemed  to  have turned down by implication  the  contention raised  on  the  basis  of para 6  of  S.R.O.  3315  by  the petitioners  before  it and this could only be done  on  the misconstruction of that paragraph in view of the decision in Messrs.    Universal   Imports  Aqency’s  case   (1).    The petitioners  however cannot question the validity  of  those

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orders  by petition under Art. 32 of the  Constitution,  for the Act under (1) [ 1661] 1 S, C.  R. 305. (2) [1963] 1 S. C. R, 778 374 which  the orders were passed read with S.R.O. 3315  is  not assailed  as ultra, vires and the only ground on   which  it is said that a fundamental right has been    violated     is that  there  has been by implication  a  misconstruction  of para.  6  of S. R. O. 3315 by the Board.  In that  view  the decision  in Ujjambai’s case (1) will apply with full  force to  the  present  petitions.  We  therefore  hold  that  the validity.  of the orders impugned cannot be questioned in  a petition  under Art. 32 of the Constitution.  The  petitions are hereby dismissed with costs-one set of hearing costs. DASs  GUPTA, J.--In sixteen petitions under Art. 32  of  the Constitution the petitioner, a merchant carrying on business under   the  name  and  style,  Messrs.   Eastern   Overseas (Pondicherry), seeks relief against the orders by which  the Collector  of Customs purporting to act under s. 167 (8)  of the  Sea  Customs Act read with s. 3 (2) of the  Import  and Export  Control  Act, 1947 directed  confiscation  of  goods which  he  had imported into Pondicherry, at the  same  time giving  him  option to pay in lieu  of  confiscation,  fines aggregating  in all 16 cases to Rs. 96,400/-.   The  appeals against  these- orders to the Central Board of Revenue  were unsuccessful  except  that the penalty of fine  payable  was reduced to a total sum of Rs. 60,235/-.  The petitioner then moved  the Government of India for revision of these  orders but the revision applications were rejected. Shortly  stated,  the petitioner’s case is that in  all  the sixteen cases he had concluded before November 1, 1954, firm contracts  with foreign suppliers for supply of these  goods by  shipment  to Pondicherry and it was on  these  contracts that  the  goods in question were imported by him.   By  the date the goods reached Pondicherry, the Sea Customs Act  had become  applicable  to Pondicherry as a result of  an  order made by the Government of India on October 30, 1954, the S.. R.  O.  No.  3315.  This order was made under s.  4  of  the Foreign Jurisdiction (1)  [1963] 1.S. C. R. 778, 375 Act,  1947,in pursuance of the Indo-French  Agreement  under which the administration of Pondicherry was vested with  the Government  of India from November 1, 1954.  Paragraph 6  of that order however contained a saving clause.  By reason  of that  the Sea Customs Act did not apply to the imports  made by him.  That paragraph is in these words :- "Unless otherwise specifically provided in the Schedule, all laws  in  force  in the  French  Establishments  immediately before  the commencement of the order, which  correspond  to enactments  specified in the Schedule, shall cease  to  have effect,  save as respect things done, or omitted to be  done before such commencement." It was held by this Court in Universal Imports Agency v. The Chief Controller of Imports & Exports (1) that  importations of goods into Pondicherry after November 1, 1954, would have the benefit of this saving clause, if the importation is  in pursuance of a contract concluded prior to November 1, 1954. The Court petitioner bases his case on the law as settled by this Court in the case mentioned above and contends that  as the  Sea Customs Act was not applicable to the  importations of the goods, in these sixteen cases, the importations being in pursuance of contracts concluded before November 1, 1954, the orders of confiscation of his property and the orders of

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penalty made upon him were illegal.  There has thus been  by these  orders  an invasion of the  petitioner’s  fundamental right under Art. 19 (1) (f) of the Constitution and for the protection of that right these petitions have been made. The  respondent contends that the basis of the  petitioner’s case  that the importations were in pursuance of a  contract concluded before November 1, 1954, has not been established. Apart  from this defence on merits, a preliminary  objection is raised at the hearing on the authority of the decision of this (1)..[1961] 1 S. C. R. 305, 376 Court  in  Smt.  Ujjam Bai v. The State of U.P.  ()  that  a petition  under Art. 32 does not lie.  The argument is  that the  order of confiscation and penalty has been made  by  an authority  under a statute which is intra vires and  in  the undoubted  exercise  of its jurisdiction.  The  validity  of such  an order cannot therefore be called in question  in  a petition  under Art. 32 of the Constitution even though  the authority may have misconstrued the provisions of Para. 6 of S.R.O. 3315. In resisting the preliminary objection, Mr. N.C.  Chatterjee has  argued  on behalf of the petitioner that all  these  16 cases are cases of a quasi-judicial authority acting without Jurisdiction  and so, the decision in Ujjam Bai’s Case  (1), far from creating any difficulty in the way of the issue  of a writ, definitely helps the petitioner.  It is not disputed that in deciding the preliminary objection the Court has  to proceed on the basis that the petitioner’s allegations about the importations having been made on the basis of  contracts concluded  before  November  1,  1954,  are  correct.    The necessary consequence of this fact it is argued, is that the Sea   Customs  Act  would  not  apply  to  these  cases   of importations  and consequently the Collector of Customs,  an officer,  who derives his jurisdiction from the Sea  Customs Act,  would  have  no jurisdiction to  make  any,  order  in respect of them.  In my opinion, there is considerable force in  the  argument and the preliminary  objection  raised  on behalf of the respondent should fail. The  majority  decision  in Ujjam Bai’s case  (1)  is  clear authority for the proposition, that an order of confiscation or penalty made by an authority under a statutory  provision which  is  intra vires cannot be questioned  in  a  petition under Art. 32 of the Constitution on the ground that it  has been passed under a misconstruction of the provision of law, provided  the order is made "’in the undoubted  exercise  of its (1)  [1963] 1 S. C. R. 778,  377 jurisdiction."  Ujjam Bai’s case also appears however to  be equally  clear  authority for the proposition  that  "’if  a quasi-judicial   authority  acts  without  jurisdiction   or wrongly assumes jurisdiction by committing an error as to  a collateral  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." This proposition has been recently reiterated by a Bench  of five  judges of this Court in The State Trading  Corporation of India v. The State of Mysore (Writ Petitions Nos. 65  and 66  of 1960.) In that case also an objection was  raised  on the authority of Ujjam Bai’s Case to the maintainability  of writ   petitions  under  Art.  32  of   the   Constitution’. Repelling the objection, Sarkar, J., speaking for the Court, observed :-. "It was however said that the petitions were incompetent  in

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view of our decision in Ujjam Bai v. State of Uttar  Pradesh (1)  in as much as the Taxing Officer under the Mysore  Acts had  jurisdiction to decide whether particular sale  was  an inter-State sale or not and any error committed by them as a quasi-judicial  tribunals in exercise of  such  jurisdiction did  not  offend any fundamental right.  But we  think  that case is clearly distinguishable.  Das, J., there stated that "’if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to  a collateral  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." He also said that where a statute is intra vires but the action taken is without jurisdiction, then a petition under Art. 32 would  be  competent.  That is the case here.  There  is  no dispute  that the taxing officer had no jurisdiction to  tax inter-State sales, there being a constitutional  prohibition against  a  State taxing them.  He could  not  give  himself jurisdiction to do so by deciding a collateral fact wrongly. That is what he seems to (1)..[1963] 1 S. C. R. 778. 378 have  done  here.,  Therefore,  we  think  the  decision  in Ujjambai’s  case is not applicable to the present  case  and the petitions are fully competent." It is hardly necessary to cite any further authority for the proposition that an inferior tribunal cannot give to  itself jurisdiction  by  deciding a collateral  fact  wrongly.   I; shall  only  refer  to the decision  in  Rex  v.  Shoreditch Assessment  Committee (1) where the matter was discussed  in picturesque  language  thus  :  "No  tribunal  of   inferior jurisdiction  can by its own decision finally decide on  the question  of  the existence or extent of  such  jurisdiction ;...............     ..................   a    Court    with jurisdiction  confined to the city of London  cannot  extend such  jurisdiction  by  finding as a  fact  that  Piccadilly Circus is in the ward of Chepe." What  has  happened in the cases now before us is  that  the Collector  who has jurisdiction only in cases  coming  under the  Sea  Customs Act has assumed jurisdiction, on  a  wrong finding  that  the Sea Customs Act applies to  these  cases, even though in law it does not. There is no escape from the conclusion that on the authority of  this  Court’s  decision in  Messrs.   Universal  Imports Agency  v. The Chief Controller of Imports and Exports  (2), the  Sea Customs Act will not apply and the law formerly  in force  in  the  French  Establishments,  immediately  before November   1,   1954,  would  apply,  in  respect   of   all importations into Pondicherry made on the basis of contracts concluded before November 1, 1954.  On the assumption which, as   already  stated,  must  be  made  in  considering   the preliminary objection, that the importations in these  cases were  made  on  the  basis  of  contracts  concluded  before November  1, 1954, the irresistible conclusion is  that  the Sea  Customs  Act  had no application to  these  cases.   It necessarily  follows that the Collector of Customs had,,  on the (1) [1910] 2 K. B. 859. (2) [1961] 1 S. C. R. 305.  379 above assumption of facts, no jurisdiction to make any order in respect of these.  The fact that the Collector of Customs thought,  in  exercising his functions as  a  quasi-judicial authority,  that  the  Sea  Customs  Act  did  apply  cannot possibly affect this question.

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It appears that before the Collector the petitioner did  not seek to make the case which he now wants to make, viz., that the  contract for supply of the goods was made in all  these cases  before  November 1, 1954.  Before the  Collector  the petitioner’s  case was that the contracts in all  the  cases had  been concluded before August 15, 1954.   The  collector came  to  the  conclusion that this  case,  viz.,  that  the contracts had been concluded before August 15, 1954, had not been  established.   It was in that view that  he  made  the orders  of  confiscation  with  an  option  to  pay  penalty instead.   It seems probable that in the appeals before  the Central  Board  of Revenue and the  revisional  applications before  the Government of India also the  petitioner’s  case was that the contracts had been concluded before August  15, 1954, and the case that the contracts were concluded  before November  1,  1954, was not pleaded.   The  Member,  Central Board  of Revenue, in disposing of the appeals recorded  his view  that  it was not in doubt that the goods  in  question were imported into Pondicherry at a time when a licence  was required  for  their import and that the appellant  did  not have  such  a  licence.   In  that  view  he  affirmed   the Collector’s orders with a modification that the fine in lieu of  confiscation be reduced.  The Government of  India  also found  no reason to interfere with the orders passed by  the Central Board of Revenue. These  facts can however make no difference to the  position in  law  that if in fact the importations were made  on  the basis  of contracts concluded before November 1,  1954,  the Sea Customs Act would not 380 apply  and  the Collector or the Central  Board  of  Revenue would have no jurisdiction to make any order of confiscation or  penalty.  Where an authority whether judicial or  quasi- judicial  has  in law no jurisdiction to make an  order  the omission  by  a  party to raise  before  the  authority  the relevant  facts for deciding that question cannot clothe  it with jurisdiction. The  substance of the matter is that the  Collector  assumed jurisdiction on the view that the Sea Customs Act applied to these  cases,  if  the importations were  on  the  basis  of contracts  concluded  before  November 1,  1954-as  we  have assumed,-the Sea Customs Act does not however apply to these cases.  Therefore, the Collector acted without  jurisdiction and  the fact that the assumption of jurisdiction was  based on  the  Collector’s wrong decision, does  not  change  that position.    The   writ   petitions   would   therefore   be maintainable,  if the petitioner can satisfy the Court  that the  importations  were  made  on  the  basis  of  contracts concluded before November 1, 1954.  I would therefore reject the preliminary objection. When  the Universal Imports Agency Case was decided by  this Court,  no  objection  to the maintainability  of  the  writ petition was raised; and consequently, the Court had not  to consider  the  question  whether the  action  taken  by  the Collector  of Customs was with or without jurisdiction.   So long  as  however  the  law as laid  down  by  the  majority judgment  in that case remains good law, we must  hold  that the  Sea  Customs Act would not apply to  imports  in  these cases  also  if  they were made on the  basis  of  contracts concluded  before November 1, 1954; and as explained  above, that in my opinion compels the conclusion that the Collector of  Customs acted without jurisdiction, if the imports  were on the basis of contracts concluded before November 1, 1954. It may be mentioned here in this connection that S.    K. Das, J., in his judgment in Ujjam Bai’s Case (2)

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(1) [1962] 1 S. C. R. 305. (2) [1963] 1 S. C. R. 778  381 referred to the decision of this Court in Universal  Imports Agency  v. Chief Controller of Imports and Exports (1) as  a case  where  a quasi-judicial authority  has  acted  without jurisdiction.  Kapur, J., has also referred to this case and said   in  any  case,  this  is  an  instance  of  want   of jurisdiction to tax transactions which the law excludes from the taxing powers of the authority levying the tax." Coming now to the merits of the petitions, I need only state that the materials that have been produced by the petitioner are  by no means sufficient to establish the case  that  the contracts  in  these  several cases  were  concluded  before November 1, 1954.  Mr. Chatterjee prayed to the Court for an opportunity  to  adduce  further  documentary  evidence   to convince  us of the truth of the petitioner’s case  on  this point.   I  might perhaps have been inclined to  grant  this prayer.   No  useful purpose will however be  served  by  my discussing  Chat question, or the materials already  on  the record, as my learned brethren,. having come to a conclusion that  the  preliminary objection should  succeed,  have  not considered the merits of the petition. The  position  is  exactly similar  in  the  other  thirteen petitions  filed by M/s.  Pioneer Traders which  were  heard along with the petitions already discussed and my conclusion in regard to those petitions is also the same. BY  COURT : In accordance with the judgment of the  majority of the Court, the petitions are dismissed with costs.  There will be one set of hearing costs. Petitions dismissed. (1) [1961] 1 S. C. R. 305. 382