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PETITIONER: SMT.  UJJAM BAI

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 28/04/1961

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

CITATION:  1962 AIR 1621            1963 SCR  (1) 778  CITATOR INFO :  R          1963 SC 104  (10)  F          1963 SC 416  (6)  D          1963 SC 548  (12)  APL        1963 SC 734  (6,8,9,10,14,15,16,17,21,25,27  D          1963 SC 928  (21)  F          1963 SC 996  (6)  RF         1965 SC  40  (5,8,9,ETC.,)  R          1965 SC1942  (22,24)  RF         1967 SC   1  (54,55,58,68,69,71,78,79,80,81  RF         1967 SC1643  (22)  F          1967 SC1857  (6)  MV         1971 SC 530  (387)  R          1971 SC 870  (9,11,15,16)  RF         1973 SC1461  (648)  F          1974 SC 994  (104)  D          1974 SC1105  (12)  R          1974 SC1539  (6,10)  R          1975 SC1039  (6)  RF         1975 SC1208  (16,28)  R          1976 SC2037  (11)  RF         1979 SC 777  (10,21,31)  RF         1981 SC2198  (21)  R          1986 SC 180  (31)  RF         1988 SC 469  (6)  RF         1988 SC1531  (56)  R          1988 SC2267  (34)  RF         1990 SC 820  (19)  F          1991 SC 764  (B,9,11,12)  RF         1991 SC1070  (3)

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

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HEADNOTE: The  petitioner was a partner in a firm that carried on  the business  of  manufacture and sale of hand-made  bidis.   On December   14,   1957,  the  State   Government   issued   a notification  under s. 4(1)(b) of the U. P. Sales  Tax  Act, 1948.   Section  4(1)  of the U. P.  Sales  Tax  Act,  1948, provides as follows :- "No tax shall be payable on- (a)The  sale  of water, milk, salt, newspapers  and  motor spirit as defined in the U. P. State Motor Spirit (Taxation) Act, 1939, and of any other goods which the State Government may by notification in the Official Gazette, exempt. (b)The  sale  of  any goods by  the  All  India  Spinners’ Association of Gandhi Ashram, Meerut, and their branches  or such  other  persons  or  class  of  persons  as  the  State Government  may from time to time exempt on such  conditions and  on  payment of such fees, if any, not  exceeding  eight thousand rupees annually as may be specified by notification in the Official Gazette." The notification dated December 14, 1957, issued under s.   4(1)(b) was as follows:- "In  partial  modification of notifications  No.  ST  905/X, dated  March 31, 1956 and ST 418/X 902(9) 52, dated  January 31, 1957, and in exercise of the powers conferred by  clause (b)  of sub-section (1) of section 4 of the U.P.  Sales  Tax Act,  1948(U.P. Act No. XV of 1948), as amended up to  date, the  Governor of Uttar Pradesh is pleased to order  that  no tax  shall  be payable under the aforesaid Act  with  effect from December 14, 1957, by the dealers in respect of the                             779 following  classes  of goods provided  that  the  Additional Central  Excise Duties leviable thereon from the closing  of business on December 13, 1957, have been paid on such  goods and   that  the  dealers  thereof  furnish  proof   to   the satisfaction  of  the assessing authority that  such  duties have been paid. 1.   .................. 2.   ................... 3.Cigars,  cigarettes, biris and tobacco, that is to  say any  form of tobacco, whether cured or uncured  and  whether manufactured or not and includes the leaf, stalks and  stems of tobacco plant but does not include any part of a  tobacco plant while still attached to the earth." 1958  By  a subsequent notification issued on  November  25, hand-made and machine-made bides were unconditional exempted from payment of sales tax from July 1, 1958. The  Sales  Tax Officer sent a notice to the  firm  for  the assessment  of  tax on sale of bidis during  the  assessment period  April 1, 1958, to june 30, 1958.  The  firm  claimed that the notification dated December 14, 1957, had  exempted bidis from payment of sales tax and that, therefore, it  was not  liable  to pay sales tax on the sale  of  bidis.   This position  was  not  accepted by the Sales  Tax  Officer  who passed the following order on December 20, 1958,- "The  exemption  envisaged in this notification  applies  to dealers  in  respect  of sales of biris  provided  that  the additional  Central Excise duties leviable thereon from  the closing  of business on 13. 12. 1957 have been paid on  such goods.  The assessees paid no such excise duties.  Sales  of biris by the assessees are therefore liable to sales tax". The  firm  appealed  under  s. 9 of the  Act  to  the  judge Appeals)  Sales Tax, but that was dismissed on May 1,  1959. The firm had however moved the High Court under Art. 226  of the  Constitution before that date.  The High Court took  he view that the firm had another remedy under the Act and  hat

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the  Sales Tax Officer had not committed any apparent  error in  interpreting the notification of December 14, 1957.   An appeal against the order of the High Court on a  certificate under  Art. 133 (1)(a) was dismissed by this Court for  non- prosecution   and   the  firm  filed  an   application   for restoration of the appeal and condonation of delay.   During the  pendency of that appeal the present petition was  filed by the petitioner under Art. 32 of the constitution for  the enforcement  of her fundamental right under Arts. 19(1)  (g) and 31 of the constitutions.  Before the Constitution Bench 780 which heard the matter a preliminary objection    was raised against   the  maintainability  of  the  petition  and   the correctness of the decision of this Court in Kailash Nath v. State  of  U.  P. A, I.R. 1957 S.C. 7  relied  upon  by  the petitioner was challenged.  That Ben referred the  following questions for decision by a larger Bench,- "1.  Is an order of assessment made by an authority under  a taxing  statute  which is intra vires open to  challenge  as repugnant to Art. 19 (1) (g), on the sole ground that it  is based on a misconstruction of a provision of the Act or of a notification issued thereunder ?" 2.Can  the validity of such an order be questioned  in  a petition under Art. 32 of the Constitution ?" Held,  (per Das, Kapur, Sarkar, Hidayatullah and  Mudholkar, jj.) that in the case under consideration the answer to  the questions must be in the negative.  The case of Kailash Nath was   not  correctly  decided  and  the  decision   is   not sustainable on the authorities on which it was based. Kailash  Nath  v. State of U. P., A. 1. R. 195 7 S.  C.  790 disapproved. Bengal  Immunity Co. Ltd. v. State of Bihar, (1955) 2 S.  C. R. 603. and Bidi Supply Co. v. Union of India, (1956) S.   C. R. 267, explained. Per  S.  K.  Das,  J.-The  right  to  move  this  Court   by appropriate  proceedings for the enforcement of  fundamental rights conferred by Part III of the Constitution is itself a guaranteed fundamental right and this Court is not trammeled by procedural technicalities in making an order or issuing a writ for the enforcement of such rights. There  is no disagreement that in the following the  classes of  cases  a question of the enforcement  of  a  fundamental right  may arise and if it does arise, an application  under Art. 32 will lie, namely, (1) where action is taken under  a statute which is ultra vires the Constitution; (2) where the statute  is  intra  vires but the action  taken  is  without jurisdiction; and (3) where the action taken is procedurally ultra  vires  as where a quasi-judicial authority  under  an obligation  to act. judicially passes an order in  violation of the principle of natural justice. Where, however, a quasi-judicial authority makes an order in the undoubted exercise of its jurisdiction in pursuance 781 of a provision of law which is intra vires, an error of  law or  fact  committed by that authority  cannot  be  impeached otherwise than on appeal, unless the erroneous determination relates  to a matter on which the jurisdiction of that  body depends.   A  tribunal  may  lack  jurisdiction  if  it   is improperly  constituted, or if it fails to  observe  certain essential  preliminaries  to the inquiry; but  it  does  not exceed  its  jurisdiction  by basing its  decision  upon  an incorrect determination of any question that it is empowered or required (i. e. has jurisdiction) to determine.  In  such a  case, the characteristic attribute of a judicial  act  or decision  is that it binds, whether right or wrong,  and  no

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question of the enforcement of a fundamental right can arise on an application under Art. 32. Therefore, an order of assessment made by an authority under a  taxing statute which is intra vires and in the  undoubted exercise  of  its jurisdiction cannot be challenged  on  the sole  ground  that it is passed on a  misconstruction  of  a provision of the Act or of a notification issued thereunder. The  validity  of such an order cannot be questioned  on  an application under Art. 32.  The proper remedy for correcting such an error is to proceed by way of appeal or if the error is  an error apparent on the face of the record, then by  an application under Art. 226 of the Constitution. Malkarjun  v.  Narhari, (1900) 5 L.R. 27 I.A.  216,  Aniyoth Eunhamina Umma v. Ministry of Rahabilitation,(1962)1  S.C.R. 505,  Gulabdas  &  Co. v. Assistant  Collector  of  Customs, A.I.R.  1957  S. C. 733, Bhatnagar & Co. Ltd.  v.  Union  of India, (1957) S.    C.  R. 701, and Parbhani  Transport  Co- operaiive Society Ltd. v.     Regional Transport  Authority, (1960) 3 S. C. R. 177, referred to. Case law reviewed. Per  Kapur, J.-Since the statute was constitutionally  valid every  part  of it must be so and the determination  by  the Sales Tax Officer, acting within his jurisdiction under  the Act, even though erroneous, was valid and legal. An order of assessment under a statute that was ultra  vires could not be equated with one passed under another that  was intra  vires, even though erroneous.  Unlike the former  the latter  was  a constitutional and legal Act  and  could  not violate a fundamental right and or be impugned under Art. 32 of the Constitution. If the Sales Tax Officer, acting quasi-judicially,  miscons- trued  the  notification,  which  it  had  jurisdiction   to construe, and imposed a tax, there could be no  infringement of Art. 19 (1)  (g) of the Constitution.                             782 Case law discussed. Per Subha Rao, J.-The Constitution is the paramount law.  As the  Constitution declares the fundamental rights  and  also prescribes the restrictions that may be imposed thereon,  no institution  can overstep the limits directly or  indirectly by encroaching upon the said rights.  This Court has no more important function to perform than to preserve the fundamen- tal  rights  of  the  people, and has  been  given  all  the institutional   conditions   necessary   to   exercise   its jurisdiction without fear or favour.  It is settled law that Art. 32 confers a wide jurisdiction on this Court to enforce the  fundamental  rights,  that  the  right  to  enforce   a fundamental right is itself a fundamental right, and that it is the duty of this Court to entertain an application and to decide  it  on  merits  whenever  a  party  approaches   it, irrespective  of  whether  the question  raised  involves  a question   of  jurisdiction,  Law  or  fact.    Though   the Legislature can make a law imposing reasonable  restrictions on  a fundamental right in the interest of the  public,  the Constitution  does  not empower the Legislature to  make  an order  of an executive authority final so as to deprive  the Supreme  Court  of  its jurisdiction under Art.  32  of  the Constitution. The  principles  and  procedure evolved  by  the  courts  in England  in regard to the issue of prerogative writs  cannot circumscribe  the wide power of the Supreme Court  to  issue orders  and  directions for the enforcement  of  fundamental rights.   The  issuance of such writs can  be  regulated  by evolving appropriate procedure to meet different situations. What.  ever  may  be  the  stage  at  which  this  Court  is

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approached this Court may in is discretion, if the  question involved  is  one  of jurisdiction or a  construction  of  a provision, decide the question and enforce the right without waiting till the procedure prescribed by a law is exhausted; but if it finds that questions of fact or mixed questions of fact  and law are involved, it may give an  opportunity.  to the  party, if he agrees, to renew the application after  he has exhausted his remedies under the Act, or, if he does not agree,  to adjourn the petition till after the remedies  are exhausted.   If  the  fundamental right  of  the  petitioner depends  upon  the  findings  of  fact  arrived  at  by  the administrative tribunals in exercise of the powers conferred on  them  under the Act, this Court may  in  its  discretion ordinarily   accept   the  findings  and  dispose   of   the application on the basis of those findings. The  principle  of res judicata accepted by  this  court  in Daryao  v. State of U. P. cannot be involved in the case  of orders of administrative tribunals, That apart, when a  783 petitioner  seeks  to  quash the order  of  a  tribunal,  no question  of res judicata arises, as that  doctrine  implies that there should be two proceedings and that in the  former proceeding  an  issue  has  been  decided  inter-partes  and therefore  the  same cannot be reagitated  in  a  subsequent proceeding. Daryao v. State of U. P. (1962) 1 S. C. R. 564. considered. Whether relief can be given under Art. 32 against the  order of a court or not, it is clear that administrative tribunals are  only the limbs of the Executive, though  they  exercise quasi-judicial   functions,   and  therefore   are   clearly comprehended  by the expression "other authorities" in  Art. 12 of the Constitution and in appropriate cases writs can be issued against them. On a plain reading of the impugned notification it is  clear that  hand-made bidis are exempted from sales tax under  the Act and therefore the Sales-tax Authorities have no power to impose sales tax thereon. The  decision of this Court in the case of Kailash  Nath  v. State  of  U. P., was not incorrect or based  on  irrelevant decisions. Kailash  Nath  v. State of U. P., A. I. R. 1957 S.  C.  790, followed. Gulabodas & Co. v. Assistant Collector of Customs, A. 1.  R. 1957  S.  C. 733, Bhatnagara & Co. Ltd. v. Union  of  India, (1957)  S.  C. R. 701 and  Pharbani  Transport  Co-operative Society  v. Begional Transport Authority, (1960) 3 S. C.  R. 177, considered. M/s.  Ram Narain Sons Ltd. v. Asstt.  Commissioner of  Sales Tax,  (1955)  2 S. C. R. 483, J. V. Gokal &  Co.  v.  Asstt. Collector  of  Sales Tax, (1960) 2 S. C. R. 852  and  M.  L. Arora  v.  Excise and Taxation Officer, (1962) 1 S.  C.  R., 823, referred to. Case-law discussed. Per Hidayatullah, J.-Article 32 contains a guaranteed  right to  move  the Supreme Court for enforcement  of  fundamental rights  and  any person whose fundamental rights  have  been invaded has a guaranteed right to seek relief from the Court without  having  to seek to enforce his  remedies  elsewhere first.   But the right which he can claim is not  a  general right  of appeal against decisions of courts and  tribunals. The Supreme Court in examining such petitions would  examine them 784 from  the  narrow  stand point of a  breach  of  fundamental rights.   If a petitioner fails to establish that,  he  will

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fail outright. Taxing  laws  may  suffer from many defects :  they  may  be opposed  to  the fundamental rights, they may be made  by  a legislature beyond its own competence, or without  observing the formalities laid down by the Constitution.  If a  taxing law is opposedto  fundamental rights it can  be  challenged under Art. 32. It  is not necessary to resort  only  to Art.265 because Art. 32stands  in no need of support  from Art.265. The taxing authorities are instrumentalities of  Government. They  are a part of the executive even though  in  assessing and  levying  the  tax they act  as  quasi-judicial  bodies. Their actions in demanding the tax in the ultimate  analysis are executive actions.  If that action is not backed by  law or is beyond their jurisdiction an aggrieved person can have recourse to Art. 32 of the Constitution.  Where, however, no question of vires of the law or jurisdiction is involved the Supreme  Court would ordinarily not interfere in a  petition under Art. 32 even though the interpretation be erroneous as the matter can be set right by recourse to, such appeals  or revisions  as the law permits.  This is based upon the  well accepted  rule that a court having jurisdiction  may  decide wrongly  as  well  as rightly.  If there  is  an  error  not involving  jurisdiction that error can be corrected  by  the ordinary means of appeals and revisions including an  appeal by  special leave to the Supreme Court.  But if the  law  is unconstitutional or the interpretation is about jurisdiction which is erroneous a writ under Art. 32 can be claimed.  The Supreme Court will keep its two roles separate, namely,  (a) as  the Supreme Appellate Tribunal against the decisions  of all  courts  and tribunals and (b) as  Court  of  guaranteed resort  for enforcement of fundamental rights.  It will  not act as the latter when the case is only for exercise of  its power as the former.  It will, however, interfere if a clear case of breach of fundamental rights is made out even though there  may be other remedies open including an  approach  to the Supreme Court in its appellate jurisdiction. Per   Ayyangar,  J.-From  the  fact  that  a   statute   was competently enacted and did not violate fundamental  rights, it   did   not  necessarily   follow   that   quasi-judicial authorities  created  by it could  not  violate  fundamental rights.  Legislative competence covered only such action  as could  on  a proper interpretation of the statute  be  taken under it.  If a law did riot create a liability an authority acting  under it could not do so by a  misinterpretation  of it, for Legislative backing for  785 the imposition of such a liability would be plainly lacking. The  answer  to the question should, therefore, be  that  an action  of  a  quasi-judicial  authority  would  violate   a fundamental   right   where   by   a   plain   and    patent misconstruction  of  the statue such an  authority  affected fundamental rights.  This would constitute another  category besides  the three others in respect of which  violation  of such  rights  was not in doubt, namely,  where  the  statute itself was invalid or unconstitutional, where the  authority exceeded  its  jurisdiction  under  the  Act  and  where  it contravened mandatory procedure prescribed by the statute or violated the principles of natural justice.  The exercise of the judicial power of the State might also equally with  the Legislative  and  Executive part involve  the  violation  of fundamental   rights   guaranteed  by  Part   III   of   the Constitution. Since  in  the instant case the construction  put  upon  the notification  by  the  Sales  Tax  Officer  was   reasonable

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possible,  it  was  a case of mere error of law  and  not  a patent error or an error apparent on the face of the  record which could justify the issue of a writ of certiorari. Per   Mudholkar,  J.-The  question  of  enforcement   of   a fundamental right could arise if a tax was assessed under  a law which was (1) void under Art. 13 or, (2) was ultra vires the   Constitution   or,  (3)  where  it   was   subordinate legislation,  it was ultra vires the law under which it  was made or inconsistent with any other law in force. A Similar question would arise if the tax was assessed by an authority  (1) other than the one empowered to do  so  under the  taxing  law  or  (2)  in  violation  of  the  procedure prescribed  by  law or, (3) in colourable  exercise  of  the powers conferred by the law.’ Where a tax was assessed bona fide by a competent  authority under  a valid law and under the procedure laid down by  it, no  question of infringement of any fundamental right  could arise,   even  though  it  was  based  upon   an   erroneous construction  of law unless the tax imposed was  beyond  the competence  of  the  Legislature  or  violated  any  of  the fundamental   rights   or  any  other  provisions   of   the Constitution. A mere misconstruction of a provision of law did not  render the  decision  of a ’quasi-judicial tribunal void  as  being beyond jurisdiction.  It stood till it was corrected in  the appropriate manner and if such a decision a person was  held liable  to  pay tax he could not treat it as a  nullity  and contend  that it was not- authorised by law.   The  position would be 786 the same even though upon a proper construction, the law did not authorise the levy.

JUDGMENT: ORIGINAL JURISDICTION : Petition No. 79 of 1959. Petition  under  Art. 32 of the Constitution  of  India  for enforcement of Fundamental Rights.                             WITH Civil Miscellaneous Petition No. 1349 of 1961. Application for restoration of Civil Appeal No. 172 of  1960 M/s.  Mohan Lal Hargovind Das v.   The-Sales  Tax   Officer, Allahabad. M.C. Setalvad, Attorney-General of India, C. K. Daphtury, Solicitor-General of India, G. S. Pathak, S.   C. Khare, S. N. Andley, Rameshwar Nath and P. L. Vohra, for the petitioner. H.  N. Sanyal, Additional Solicitor-General of India, M.  V. Goswami and C. P. Lal, for the respondents,  N.A.  Palkhivala, B. Parthasarathi, J. B. Dadachanji,  O. C.  Mathur,  and  Ravinder  Narain,  for  Intervener   (Tata Engineering and Locomotive Co., Ltd., Bombay) A.S.  R.  Chari, D. P. Singh and M.  K.  Ramamurthi,  for Intervener (State of Bihar). H.N. Sanyal, Additional Solicitor-General of India, B. R. L. Iyengar and T.M. Sen, for Intervener (State of Mysore). S.N. Andley, Rameshwar Nath and Vohra, for the petitioner (in C. M. P. No. 1349 of 1961). H.  N. Sanyal, Additional Solicitor-General of India, G.  C. Mathur, M. V. Goswami for C. P. Lal, for the respondent  (in C. M. P. No. 1349 of 1961) 787 1961.   April 28.  The above petition coming up for  hearing in  the  first  instance  before  the,  Constitution   Bench

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consisting of S. K. Das, J. L. Kapur, M. Hidayatallah,  J.C. Shah  and  T.  L.  Venkataram Ayyar,  JJ.,  the  matter  was referred  to  the Chief Justice under O. V-A, r. 2  of  the. Supreme  Court  Rules,  1950,  as  amended,  by  a  Judgment delivered by VENKATARAMA AIYAR, J.-The petitioner is a partner in a  firm called  -Messrs.  Mohan Lal Hargovind Das, which carries  on business  in the manufacture and sale of biris in number  of States,  and is dealer registered under the U.P.  Sales  Tax Act  15 of 1948 with its head office at Allahabad.   In  the present  petition filed under Art. 32 of  the  Constitution, the  petitioner impugns the validity of a levy of sales  tax made by the Sales Tax Officer, Allahabad, by his order dated December 20,1958. On December 14, 1957, the Government of Uttar Pradesh issued a  notification under s. 4(1) (b) of the Act exempting  from tax,  sales of certain goods including biris, provided  that the  additional Central Excise duties leviable  thereon  had been  paid.  In partial modification of  this  notification, the  Government issued another notification on November  25, 1958,  exempting  from tax unconditionally sales  of  biris, both  machinemade  and handmade, with effect  from  July  1, 1958,  The effect of the two notifications  aforesaid  taken together is that while for the period, December 14, 1957, to June  30, 1958, the exemption of biris from tax was  subject to the proviso contained in the notification dated  December 14,  1957, for the period commencing from July 1,  1958,  it was unconditional and absolute. The  petitioner’s  firm  filed its return  for  the  quarter ending June, 1958, disclosing a gross turn- 788 over  of  Rs. 75,44,633/- and a net turnover  of  Rs.  111/- representing  the  sale  proceeds  of  empty  packages,  and deposited a sum of Rs. 3.51 n.P. as sales tax on the latter. On  November  28, 1958, the sales Tax  O.fficer,  Allahabad, sent a notice to the petitioners firm for assessment of  tax on  the sale of biris during the period, April 1,  1958,  to June 30, 1958, and on the date of enquiry which was held  on December  10, 1958, the petitioner filed a petition  stating that   by  reason  of  the  exemption  granted   under   the notification No. ST-4485/X dated .December 14, 1957, no  tax was  payable  on  the sale of biris.   By  his  order  dated December  20,  1958,  the Sale  Tax   fficer  rejected  this contention.  He observed:               "The exemption envisaged in this  notification               applies  to  dealers  in  respect  of   Biris,               provided  that the additional  Central  Excise               duties  leviable thereon from the  closing  of               business on December 13, 1957, have been  paid               on  such  goods.  The assessee  paid  no  such               Excise duties.  Sales of Biris by the assessee               are, therefore, liable to sales tax." Against  this order, there was an appeal (Appeal No. 441  of 1959)  to  the  Courts of the Judge  (Appeals),  Sales  Tax, Allahabad,  who, by his order dated May 1,  1959,  dismissed the  same  on the ground that the exemption  from  sale  tax under  the  notification related "to such classes  of  goods only  on  which  the  Additional  Central  Excise  Duty  was leviable." Under s. 10 of the Act, a person aggrieved by  an order  in  appeal might take it up on  revision  before  the Revising  Authority,  and under s. 11, the  assessee  has  a right to require that any question of law arising out of the order  of assessment be referred to the opinion of the  High Court.   The Petitioner did not take any  proceedings  under the  Act against the order in appeal dated May 1, 1959,  and

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that has become final.  789 While  Appeal  No. 441 of 1959 was pending,  the  petitioner also filed under Art. 226 of the Constitution a petition  in the  High Court of Allahabad, ’for a writ of  certiorari  to quash  the assessment order dated December 20,  1958.   That was dismissed on January 27, 1959, by the learned Judges  on the ground that, as the assessee could contest the  validity of the order in appropriate proceedings  under the Act,  and as,  in fact, an appeal had been filed, there was no  ground for  exercising  the extraordinary jurisdiction  under  Art. 226.   In this view, the learned Judges did not  decide  the case  on the merits, but observed that the "language of  the notification  might  well  be  read  as  meaning  that   the notification  ’is to apply only to those goods on  which  an additional  Central excise duty had been levied  and  paid." The  petitioner then field an application under Art. 133  of the  Constitution for certificate for appeal to this  Courts against the above order, and that was granted.  But  instead of  pursuing that remedy, the petitioner has chosen to  file the  present  application  under  Art.  32  challenging  the validity of the order of assessment dated December 20, 1958. It  is alleged in the petition that the imposition and  levy of  tax  aforesaid  ,,amounts to  the  infringement  of  the fundamental  rights of the Petitioner to carry on trade  and business guaranteed by Art. 19 (1) (g) of the Constitution," and that it is further "an illegal confiscation of  property without compensation and contravenes the provisions of  Art. 31 of the Constitution." The prayer in the petition is  that this Courts might be ",pleased to issue- (a)a  writ of certiorari or other order in the  nature  of certiorari  quashing  the order of the  Sales  Tax  Officer, Allahabad, dated 20th December 1958; (b)a  writ of Mandamus directing the opposite parties  not to realise any sales tax from the petitioner on the basis of the said order dated 20th December, 1958." 700 No argument has been addressed to us that the impugned order of  assessment  is  in contravention of  Art.  31.   Such  a contention would be wholly untenable in view of the decision of  this  Court in Ramjilal v. Income-tax O.fficer  (1)  and Laxmanappa Hanumantappa v. Union of India (2), where it  has been held that when tax is authorised by law as required  by Art.  265, the levy is not open to attack under Art.  31  of the  Constitution.  The whole of the argument on  behalf  of the   petitioner   is   that   the   assessment   order   is unconstitutional   as  infringing  Art.  19(1)(g).   It   is contended  in support of this position that, the  Sales  Tax O.fficer  has misconstrued the notification  dated  December 14,  1957,  in holding that exemption of tax  thereunder  is limited  to biris on which additional excise duty  had  been levied, that as result of such misconstruction tax has  been imposed  which  is  unauthorised, and  that  constitutes  an interference  with the eight of the petitioner to  carry  on business  guaranteed  by  Art. 19(1)(g).  That  is  how  the jurisdiction of this Court under Art. 32 is invoked. To this, the answer of the respondents is that the Sales Tax O.fficer   had  correctly  construed  the  notification   in limiting  the exemption to goods on which additional  excise duty   had  been  paid  The  respondents  further  raise   a preliminary   objection  to  the  maintainability  of   this petition  on  the  ground that laws of  taxation  which  are protected  by Art. 265 fall outside the purview of Part  III of the Constitution, and are not open to attack as  infring- ing fundamental rights guaranteed therein, and that even  if

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they  are subject to the restrictions in Part III, an  order of  assessment made by a tribunal acting judicially under  a statute  which  is intra vires such as  the  impugned  order dated December 20 1958, does not infringe Art. 19(1)(g), and that, further, a petition under Art.32 is not maintainable (1) [1951] S.C.R. 127, 136, 137. (2) (1-55) 1 S.C.R. 769, 772. 791 for challenging it, even if it is erroneous on the merits. On these contentions, the points that arise for decision are whether taxation laws are subject to the limitations imposed by Part III ;whether the order of assessment dated  December 20, 1958, is in contravention of Art. 19(1)(g); and  whether it  can  be  impugned in a petition under  Art.  32  of  the Constitution.    The  first  question  -that  falls  to   be considered  is whether the restrictions imposed in Part  ITT of the Constitution have application to taxation laws.   The contention of the respondent.,; is that taxation is a  topic which   is  dealt  with  separately  in  Part  XII  of   the Constitution, that the governing provision is Art.265, which enacts  that no tax shall be levied or collected  except  by authority  of law, that when there is a law authorising  the imposition  of tax and that does not contravene any  of  the inhibitions in Part XII, then the levy thereunder cannot  be attacked  as  infringing  any  of  the  fundamental   rights declared  in Part III.  In support of this  contention,  the following observations in Ramjilal’s case were relied on:               ""Reference has next to be made to article 265               which is in Part XII, Chapter 1, dealing  with               "Finance".   That  article provides  that  tax               shall   be  levied  or  collected  except   by               authority  of  law.   There  was  no   similar               provision in the corresponding chapter of  the               Government of India Act, 1935.  If  collection               of  taxes amounts to deprivation  of  property               within the meaning of Art. 3 1 (1), then there               was  no point in making a  separate  provision               again  as has been made in article  265.   It,               therefore, follows that clause (1) of  Article               31   must  be  regarded  as   concerned   with               deprivation of property otherwise than by  the               imposition or collection of tax, for otherwise               article 265 becomes               (1)   (1951) S.C.R. 127,136, 137.               792               wholly redundant.  In the United States     of               America  the power of taxation is regarded  as               distinct from the exercise               "  of  police power or  eminent  domain.   Our               Constitution evidently has also treated  taxa-               tion  as distinct from compulsory do  question               of property and has made independent provision               giving  protection  against taxation  save  by               authority of law......... In our opinion,  the               protection  against imposition and  collection               of  taxes  save by authority of  law  directly               comes from article 265, and is not secured  by               clause  (1)  of Article 31.  Article  265  not               being in Chapter III of the Constitution,  its               protection  is not a fundamental  right  which               can  be  enforced by an  application  to  this               court under article 32.  It is not our purpose               to  say that the right secured by article  265               may  not  be enforced.  It  may  certainly  be               enforced by adopting proper proceedings.   All

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             that we wish to state is that this application               in  so  far as it purports to  be  founded  on               article  32 read with article 31 (1)  to  this               court is misconceived and must fail." A  similar decision was given in Laxmanappa Hanumantappa  v. Union  ’of India (1).  Where an order of assessment made  in November, 1953, was attacked in a petition under Art. 32  on the  ground that the Act under which it was made, viz.,  the Taxation  on  Income (Investigation Commission) Act  (30  of 1947) was void under Art. 14 of the Constitution.  Rejecting this contention, Mahajan, C.  J., delivering the Judgment of the Court, observed :               "The  assessment orders under  the  Income-tax               Act itself were made against the petitioner in               November, 1953.  In these circumstances                ( 1) [1955] 1 S.C.R. 769, 772.                793               we  are of the opinion that he is entitled  to               no  relief under the provisions of article  32               of  the  Constitution.  It was  held  by  this               Court  in  Ramjilal  v.  Income-tax   officer,               Mohindergarh(1)  ,that As there is  a  special               provision  in article 265 of-the  Constitution               that  no  tax  shall be  levied  or  collected               accept  by  authority of law,  clause  (1)  of               article  31  must  therefore  be  regarded  as               concerned   with   deprivation   of   property               otherwise than by the imposition or collection               of tax, and in as much as the right  conferred               by  article  265 is not a right  conferred  by               Part III of the Constitution, it could not  be               enforced under article 32." The argument of the respondents based on the above decisions is  that  a  law  imposing a tax  enacted  by’  a  competent legislature  is not open to attack under the  provisions  of Part III.  The  contention  of the petitioner, on the other  hand,  is that  a law of taxation is also subject to  the  limitations prescribed  in Part III of the Constitution, and the  recent decision of this Court in K. T. Moopil Nair. v. The State of Kerala  (2)  is  relied on in support  of  it.   There,  the question was whether the provisions of the Travancore-Cochin Land Tax Act 15 of 1955, as amended by the  Travancorecochin Land  Tax (Amendment) Act 10 of 1957 contravened Art. 14  of the  Constitution.  The Court was of the opinion  that  they did.   Then the contention was raised that in view  of  Art. 265  the  legislation  was not open  to  attack  under,  the provisions  of Part III.  In repelling this contention,  the Court observed :               "Article  265  imposes  a  limitation  on  the               taxing.  power’ of the State in so ’far as  it               provides  that,  the State shall not  levy  or               collect  a tax, except by, authority  of  law,               that               (1) (1951) S.C.R. 127,136, 137.               (2) (1961) 3 S.C.R. 77.               794               is to say, a tax cannot be levied or collected               by  a mere executive flat.  It has to be  done               by  authority  of law, which must  mean  valid               law.  In order that the law ’May be valid  the               tax  proposed to be levied must be within  the               legislative  competence  of  the   Legislature               imposing a tax and authorising the  collection               thereof and, secondly, the tax must be subject

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             to  the conditions laid down in Art.13 of  the               Constitution.  One of such conditions  envisa-               ged  by  Art. 13(2) is  that  the  legislature               shall  not  make any law which takes  away  or               acrid  ages  the equality clause in  Art.  14,               which  enjoins  the State not to deny  to  any               person  equality before the law or  the  equal               protection  of  the laws of  the  country.  it               cannot  be disputed that if the Act  infringes               the provisions of Art. 14 of the Constitution,               it must be struck down as unconstitutional." In  the result, the impugned legislation was struck down  as unconstitutional. It  might  appear at first sight that this  decision  is  in conflict  with  the  decisions  in  Ramjilal’s  case(1)  and Laxmanapp’s  case  (1).   But when  the  matter  is  closely examined,  it will be seen that it is not so  In  Ramjilal’s case  (1) and in Laxmnappa’s case (2) the  contention  urged was  that  the  tax  which  is  duly  authorised  by   valid legislation as required by Art. 265 will still be bad  under Art.  31(1) as amounting to deprivation of  property.   This was  negatived  and  it  was held that  Art.  31(1)  had  no application  to  a  law, which  was  within  the  protection afforded  by Art. 265.  There are observations in the  above decisions which might be read as meaning that taxation  laws are  altogether outside the operation of Part Ill.  But,  in the context, they have reference to the application of  Art. 31(1).  In (1) ( 1951) S.C.R. 127, 136, 137. (2 (1955) 1 S.C.R. 769,772 795 Moopil  Nair’s case (1), the contention urged was that  even though a taxing law might be discriminatory, it was not open to  attach  under  Art.  14  by  reason  of  Art.  265.   In negativing this contention, this Court held that a Yaw which authorised the imposition of a tax under Art. 265 was also a law  within Art. 13, and that, therefore, if it  contravened Art.  14 it was liable to be struck down.  This decision  is clearly an authority for the position that laws of  taxation must  also  pass the test of the limitations  prescribed  in Part  III of the Constitution.  But it is not  an  authority for  the position that all the provisions contained in  Part III  are necessarily applicable to those laws.  It  did  not decide  contrary  to Ramjilal’s case  (2)  and  Laxmanappa’s case,(1)  that  Art.31 (1) would apply to  a  taxation  law, which  is  otherwise valid.  In our  judgment.  the  correct position  in  law  is  that  a  taxation  law  infringes   a fundamental right cannot be shutout on the ground that  Art. 265  grants immunity to it from attack under the  provisions of  Part III, but that whether there has  been  infringement must  be  decided  on a consideration of the  terms  of  the particular Article, which is alleged to have been infringed, It  is  on this reasoning that taxation laws  were  held  in Ramjilal’s  case  (2)  and in Laxmanappa’s case  (3)  to  be unaffected by Art. 31 (1), whereas in Moopil Nair’s case (1) they were held to be within the purview of Art. 14. In  this  view,  the question that arises  for  decision  is whether  Art.  10(1)  (g), which is  alleged  to  have  been infringed,  is applicable to a sales tax law which has  been enacted  by  a  competent  legislature  and  which  is   not otherwise  ultra vires.  Article 19(1) (g) enacts  that  all citizens  have  the right to practice any profession  or  to carry  on  any  occupation, trade or  business.   Is  a  law imposing  a tax on sale by a dealer an infringement  of  his right to carry on trade ? we must

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(1) (1961) 3 S.C 77         (2) (1951) S.C.R. 127,136,137, (3) (1955) 1 S.C.R. 769,722 796 assume  for the purpose of the presents discussion that  the sales  tax statute in question is within the  competence  of the  legislature  and is not ultra vires.  Where  a  law  is passed by a legislature which has no competence to enact  it as when a States Legislature imposes what is in substance, a tax  on  income,  a subject which is  within  the  exclusive competence  of the Centre under Entry 82,  that  legislation has no existence in the eye of law and any levy of tax under the  provisions  of  that  law Will  not  be  within  ,  the protection  afforded by Art. 265, and will, in  consequence, be hit by Art. 19(1) (g).  The same result would follow when a law though disguised as a taxation law, is, in substance a law  which is intended to destroy or even burden  trade  and not  to raise revenue.  That is colorable legislation  which cannot claim the benefit of Art. 265, and it must be held to contravene  Art. 19(1) (g) unless saved by Art. 19(6).   But where  the law in within the competence of  the  legislature and is otherwise valid and is not colourable can it be  said that  it is liable to be attacked as infringing  Art.  19(1) (g)  ? The object of the legislation is not to  prevent  the dealer  from carrying on his business.  Far from  it,  envi- sages  that the trader will carry on his business and  carry it  on a large scale so that the State might earn  the  tax. It is, therefore, difficult to conceive how a sales tax  law can  fall within the vision of Art. 19(1) (g).  Arts.  19(1) (f)  and 19(1) (g) are in the same position as Art. 31  (1). They all of them enact that the citizen shall have the right to   hold   property  or  to  carry  on   business   without interference  by  the State.  If Art. 31 (1) is as  held  in Bamjilal’8 case (1) and Laxamanappa’s case ( 2) inapplicable to taxation laws, Arts. 19(1) (f) must on the same reasoning also be held to’ be inapplicable to such laws. (1) (1951) S.C.R. 127, 136, 137. (2) (1955) 1 S.C.R. 769,772. 797 The question can also be considered from another standpoint. Art.  19(1) (g) and Art. 19 (6) from parts of one law  which has for  its object the definition of the fundamental  right of  a  citizen  to carry on  business.   Article  19(1)  (g) declared  that rights and Art. 19(6) prescribes its  limits. The  two  provisions  together  make-up  the  whole  of  the fundamental  right to carry on business.  If a taxation  law is  within Art. 19(1) (g) it must also be capable  of  being upheld  as a reasonable restriction under Art.  19(6).   But can imposition of a tax be properly said to be a restriction on the carrying on of trade within Art. 19(6)?.  It is  only if that is so that the question of reasonableness can arise. If,the  imposition  of  sales tax is a  restriction  on  the carrying  on of business then the imposition of  income  tax must  be that even to a greater degree.  Likewise  land  tax must  be held to be a restriction on the right of a  citizen to  hold property guaranteed by Art. 18(1) (g).   Indeed  it will  be  impossible to conceive of any taxation  law  which will not be a restriction under Art. 19(1) (f) or Art. 19(1) (g).   It is difficult to imagine that is the meaning  which the  word "restriction" was intended to bear in Arts.  19(5) and (6).  That this is not the correct interpretation to  be put on the word "restrictions will be clear when Art.  19(6) is  further  examined.  Under that provision,  the  question whether  a restriction is reasonable for not is one for  the determination of the Court and that determination has to  be made on an appreciation of the facts established.  If it  is

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to be held that taxation laws are within Art. 19(1) (g) then the  question  whether they are reasonable  or  not  becomes justifiable  and how is the Court to judge whether they  are so or not?  Can the Court say that the taxation is excessive and.  is unreasonable ? What are the materials on which  the matter could be decided, and what are the criteria on  which the decision thereon could                             798 be   reached   ?  It  would,  therefore,   seem   that   the reasonableness  of  taxation laws is not a matter  which  is justiciable  and  therefore they could not fall  within  the purview  of Arts. 19 (5) and (6).  If it is to be held  that taxation  laws  are within the inhibition  enacted  in  Art. 19(2)  (g),  then  all those laws must  be  struck  down  as unconstitutional,  because they could never be  saved  under Art.  19(5)  and Art. 12(6).  It should be noted  that  Art. 19(1) (g) and Art. 19(6) form parts of one scheme and for  a proper  understanding of the one, regard must be had to  the other,  Article  19(1) (g) cannot operate where  Art.  19(6) cannot  step in and the considerations. arising  under  Art. 19(6) being foreign to taxation laws Art. 19(1) (g)    can have no application to them. We  may now refer to the decisions of this Court  where  the question of applicability of Art. 19(1) (g) to taxation laws has been considered. Himmatlal Harilal Metha v. The State of Madhya  Pradesh (1) the question arose with reference  to  a sales  tax which was sought to be imposed under  explanation II to s. 2 (g) of the Central Provinces and Berar Sales  Tax Act  21  of  1947.  under which a  sale  was  defined  as  a transaction  by which property in goods which were  actually within  the  state was transferred wherever the  sale  might have  been made.  That provision was held to be ultra  vires the  State Legislature.  A dealer then filed an  application under  Art. 226 in the High Court of Nagpur questioning  the wires  of that provision’ and asking for  appropriate  writ. The  State  resisted the application on the ground  that  as there  was  a  special machinery provided  in  the  Act  for questioning the assessment a petition under Art. 226 was not maintainable.  In rejecting this contention this Court  held that,               "Explanation  II to section 2 (g) of  the  Act               having been declared ultra vires, any               (1)   [1954] S.C.R. 1122.1127.               799               imposition  of sales tax on  the appellant  in               Madhya  Pradesh is without the  ’authority  of               law,  and that being so a threat by the  State               by   using  the  coercive  machinery  of   the               impugned   Act  to  realitise  it   from   the               appellant is a sufficient infringement of  his               fundamental  ,right under Art. 19(1) (g)  and.               it  was clearly entitled to relief under  Art.               226 of the Constitution". This  decision,  is a direct authority for  the  proposition that when a provision in a taxing statute is ultra vires and void any action taken thereunder is without the authority of law,  as required under Art. 265 and that in that  situation Art. 19 (1) (g) would be attracted. This  decision was approved in The Bengal  Immunity  Company Limited v. The State of Bihar (1).  The facts of that,  case are  that the appellant-Company filed a petition under  Art. 226  in the High Court of Patina for a writ  of  prohibition restraining the Sales Tax O.fficer from making an assessment of  sales  tax  pursuant to a notice  issued  by  him.   The appellant claimed that the sales sought to be assessed  were

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made in the course of inter-State Trade that the  provisions of  the  Bihar  sales Act 19 of 1947  which  authorised  the imposition  of  tax  on such sales were  repugnant  to  Art. 286(2)  and void and that, therefore, the proceedings  taken by   the  Sales  Tax  O.fficer  should  be  quashed.    Thai application  was dismissed by the High Court on  the  ground that if the Sales Tax O.fficer made an assessment which  was erroneous  the assessee could challenge it by way of  appeal or  revision  under ss.24 & 25 of the Act and that  as.  the matter  was  within  the  jurisdiction  of  the  Sales   Tax O.fficer,  no  writ of prohibition or  certiorari  could  be issued.  There was an appeal against this (1)[1955] 2. S. C. R. 603, 619, 620. 800 order to this Court and therein a preliminary, objection was taken  that  a writ under Art. 226 was not  the  appropriate remedy  open to an assessee for challenging the legality  of the  proceedings before a Sales Tax O.fficer.  In  rejecting this contentdon this ,Court observed:               "It is however clear from article 265 that  no               tax  can  be  levied or  collected  except  by               authority  of  law which must mean  a  good  &               valid  law.   The contention  of  theappellant               company  is that the Act which authorises  the               assessment,  levying and collection  of  Sales               tax   on  inter  state  trade  contravenes   &               constitutes an infringement of Art. 286 and is               therefore ultra vires, void and unenforceable.               If however this contention be well-founded the               remedy by way of a writ must on principle  and               apthority be available to the party aggrieved" And  dealing with the contention that the petitioner  should proceed  by  way of appeal or revision under the  Act,  this Court observed-               "The answer to this plea is,short and  sumple.               The remedy under the Act cannot be said to  be               adequate  and is, indeed, nugatory,or  useless               if  the Act which provides for such remedy  is               itself ultra vires and void and the  principle               relied   upon   can,   therefore,   have    no               application where a party comes to Court  with               an  allegation that his right has been  or  is               being  threatened  to be  infringed  by  a,law               which  is  ultra  vires  the  powers  of   the               legislature which enacted it and as such  void               and prays for appropriate relief under article               223". It  will be seen that in this case the question  arose  with reference  to a provision in the taxing statute,  which  was ultra  vires,  and  the decision was only  that  any  action taken, under such a provision 801 was  without  the authority of law and  was  therefore,,  an unconstitutional  interference  with the right to  carry  on business  under Art. 19(1)(g).  There is nothing  in,  these two  decisions  which lends any support  to  the  contention that, where the provision of law, under which assessment  is made  is intra vires, the order is liable to be impugned  as contravening  Art. 19(1)(g), if the order is on the  merits, errors. Chat,, -however, was held in the decision in  Kailas Nath v., Stae of U. P. In  that case, a petition under Art. 32 of the  Constitution was  filed in this Court challenging an order of  assessment on the ground that the Sales Tam, Officer had disallowed  an exemption  on  a misconstruction of  a  notification  issued

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under  s. 4 of the U. ’P.  Sales Tax Act, and  that  thereby the right of the petitioner to carry on business under  Art. 19(1)(g) had been infringed.  An objection was takes  that,, even   if  the  Sales  Tax  Officer  had  misconstrued   the notification,  no  fundamental right of the  petitiouer  had been infringed, and that the petition was not  maintainable, Overruling this contention Govinda Menon, J. observed: "If  a tax is levied without due legal authoon any trade  or business,  then  it is’ open ,,to the citizen  aggrieved  to approach  this Court ’for a writ under Art. 32,  "since  his right  to carry on a trade is violated, or infringed by  the -imposition  and  such being the case, Art.  19(1)(g)  comes into play". In  support  of this view, the observations  in  The  Bengal Immunity  Company’s case (2) were relied on. The  Petitioner contends that, on this reasoning, Art. 1,9(1)(g)must be held to be violated not merely when an assessment is made under a statute which is ultra vires, but also when it is made on  a misconstruction of’ a statute, which is intra vires.  It is (1)  A.I.R. 1957 S.C. 790, 792, 793. (2)  (1955) 2 8 C’.R. 603,619, 620 802 incontrovertible that that is the effect of the decision  in Kailash   Nath’s  case  (1).   But  it  is  equally   jnoon. trovertible  that  the  decision  in  The,  Bengal  Immunity Company’s  case (2), which it purports to follow.. does  not support  it.  There is a fundamental distinction between  an order  of assessment made on a provi. sion, which  is  ultra vires,  and  one  made  on  a  valid  provision,  which   is misconstrued.   Where the provision is void, the  protection under Art. 265 fails, and what remains is only  unauthorised interference with property or trade by a State O.fficer, and Arts.  19(1)  (f  ) and (g) are attracted.   But  where  the provision itself is valid, Art. 265 operates, and any action taken  thereunder is protected by it.  An  authority  having jurisdic. tion to decide a matter has jurisdiction to decide wrong  as well as right, & the protection afforded  by  Art. 265  is  not  destroyed, if its decision  turns  out  to  be erroneous.  To such cases, Art. 19(1)(g) has no application. Both in Himmatlal’s case(8) and in Bengal Immunity Company’s case  (2)  the, decision of the Court that  the  proceedings constituted  an  infringement of the rights of  the  citizen under  Art. 19(1)(g) was based expressly on the ground  that Art.  265  did  not apply to those  proceedings.   But  this ground  did  not exist in Kailash Nath’s owe (6),  and  that makes  all  the  difference  in  the  legal  position.   The decision  in Kailash Nath’s case 16) which merely  purported to follow The Bengal Immunity Company’s owe (2), is open  to the criticism that it has overlooked this distinction. We  may now refer to two decision subsequent to the  one  in Kailash  Nath  case (1), which have been relied  on  by  the petitioner.   In  Pata  Iron and Steel Co., Ltd.  v.  S.  R. Sarkar  (4), the question arose under the Central Sales  Tax Act.   Under  that Act, sales in the course  of  inter-State trade are (1) AIR 1957 S.C. 790, 792, 793. (3) (1954) S.C.R. 1122, 1127, (2)(1955) 2. S.C.R. 603, 619. 620- (4)(1961) 1 S.C.R. 3 79, 389, 402. 803 liable to be taxed at a single point.  The petitioner was  I assessed  to tax on certain sales falling within Act by  the Central Sales Tax O.fficer, Bihar, and the tax was also duly paid.   Thereafter, the Central Sales Tax O.fficer  in  West Bengal  made  an order assessing to tax the  very  sales  in

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respect  of  which tax had been paid.  The  petitioner  then moved  this  Court under Art. 32 for an order  quashing  the order  of  assessment.   A  preliminary  objection  to   the maintainability  of the petition was taken on behalf of  the respondent  State  on  the ground that, under  the  Act  the petitioner  could  file  an  appeal  against  the  order  of assessment,   and  that  proceedings  under   Art.32   were, therefore,  incompetent.   In  overruling  this  contention, Shah,  J.,  referred  to  the decisions  of  this  Court  in Himmatlal’s case (1), Bengal Immunity company’s case (2) and The  State  of Bombay v. United Motors (India) Ltd  (3)  and observed;               "In these oases, in appeals from orders passed               by the High Courts in petitions under rt. 226,               this  Court held that an attempt to  levy  tax               under   a  statute  which   was   ultra,vires,               infringed   the  fundamental  right   of   the               citizens,  and recourse to the High Court  for               protection  of the fundamental right  was  not               prohibited because of the provisions contained                             in Art. 265., In the case before us, the  vire s               of  the Central Sales Tax Act, 1956,  are  not               challenged; but in Kailash Nath v. State of U.               P.,  a petition challenging the levy of a  tax               was entertained by this court even though  the               Act  under the authority of which the tax  was               sought  to be recovered was not challenged  as               ultra vires.  It is not necessary for purposes               of  this case to decide whether the  principle               of  Kaikash Nath’s case is  inconsistent  with               the view expressed by this court in Ramjilal’s               Case (1) (1954) S C.R. 1122, 1127.  (2) (1955) 2 S.C R. 603, 619, 620. (3)  (1953) S.C.R. 1069. 804 The learned Judges then proceeded to hold that, as there was under the Act a single liability and    that    had     been discharged,  proceedings for  the  assessment  of  the  same sales a second time to  tax infringed the fundamental  right of  the  petitioner to hold property.   Dealing  with  this. point, Sarkar, J., observed in the same case:               "This Court held that an illegal levy of sales               tax  on a trader under an Act the legality  of               which   was   not  challenged   violates   his               fundamental rights under Art. 19(1) (g) and  a               petition  under Art. 32 with respect  to  such               violation  lies.  The earlier case of 1951  S.               C.  R.  127  does  not  appear  to  have  been               considered.  It is contended that the decision               in     Kailash    Nath’s    case,     requires               reconsideration.   We do not  think,  however,               that the present is a fit case to go into  the               question   whether  the  two  cases  are   not               reconcilable  and to decide.  the  preliminary               question  raised.  The, point was taken  at  a               last  stage  of the,  proceedings  after  much               costs had been incurred". It  is  clear from the above observations that  the  learned Judges  were  of the opinion that the  decision  in  Kailash Nath’s case, (1) required reconsideration.  The ratio of the decision  in Tata Iron and Steel Co. Ltd. v. S.R.  Sarkar(2) would  appear to be that, as the law did not  authorise  the imposition  of tax a second time on sales, on which tax  has

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been  levied  and collected, proceedings  for  assessment  a second  time are without jurisdiction, and, therefore,  Art. 19  (1) (f) is attracted.  In the present cage, there is  no contention that the proceedings of the Sales Tax officer are without jurisdiction. The petitioner also relied on a recent decision (1)  A.T R. 1957 S C 790, 792, 793. (2)  (1961) 1 S.C. R. 379 3, 402. 805 of  this  Court  in Shri Madanlal  Arora  v.  The  Exciseand Taxation officer, Amritstir (1).  In that case, a notice for assessment  was  issued  after  the  expiry  of  the  period prescribed therefor by the Statute.  The assessee  thereupon applied  to  this  Court  under Art.  32  for  quashing  the proceedings   on   the  ground  that   they   were   without jurisdiction, and it was held that, as the taxing  authority had  no  power  under the statute to  issue  the  notice  in question, the proceedings must be quashed.  This ,gain is a. case,  in which the authority had no jurisdiction under  the Act to take proceedings for assessment of tax,, and it makes no difference that such assumption of jurisdiction was based on  a  misconstruction  of  statutory  provisions.   In  the present   case.   we   are   concerned   with   an   alleged ,misconstruction,   which  bears  on  the  merits   of   the assessment,  and  does not affect the jurisdiction  of  the, Sales  Tax O.fficer to make the assessment, and the two  are essentially  different.  And we should add that the  present question was not raised or decided in that case. It  remains to refer to the decision in Moopil  Nair’s  Case (2),  which  has been already discussed in  connection  with Art.  14.  In that case, the provisions of  the  Travancore- Cochin Land Tax Act 15 of 1955 as amended by the Travancore- Cochin Land Tax (Amendment) Act 10 of 1957, were held to  be bad  as  violative  also  of  Art.  19  (1)  (f).   As   the considerations applicable to Arts. 19 (1) (f) and 19 (1) (g) are the same, we should have to examine the’ ground on which this decision rests.  They were thus stated:                "Ordinarily,  a  taxing statute lays  down  a               regular  machinery for making ’assessment-  of               the tax proposed to be imposed by the statute.               It lays down detailed procedure as               (1)   (1962) 1 S.C. R. 923.               (2)   (1961) 3 S.C.R. 77.                                    806               to  notice  to the proposed assessee  to  make               return in respect of property proposed to be     taxed,presc ribes               the authority and the     procedure        for               hearing  any objections to the  liability  for               taxation  or  as  to the  extent  of  the  tax               proposed  to be levied, and finally, a to  the               right   to   challenge   the   regularity   of               assessment made, by recourse to proceeding  in               a  higher Civil Court The Act being silent  as               to the machinery and procedure to be  followed               in  making  the assessment leaves  it  to  the               Executive  to evolve the  requisite  machinery               and   procedure.    The  whole   ’thing   from               beginning  to end, is treated as of  a  purely               administrative character, completely  ignoring               the  Jegal position that the assessment  of  a                             tax  on  person or property is at  least  of a               quasi-judicial    character   It   is    clear               therefore,  that apart from being  discriminat

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             cry and imposing unreasonable restrictions  on               holding property, the Act is clearly confisca-               tory  in character and effect ....  For  these               reasons,  as also for the reasons.  for  which               the  provisions  of  ss. 4  and  7  have  been               declared  to be unconstitutional, in  view  of               the provisions of Art. 14 of the Constitution,               all  these  operative  sections  of  the  Act,               namely,  4, 5A and 7, must be held  to  offend               Art. 19 (1) (f) of the Constitution also." From the above observations, it will be seen that the ground on which the law was held to be in contravention of Art.  19 (1) (f) was not one which had any reference to the merits of the assessment but- to the procedure laid down for  imposing tax.   This decision if; an authority only for the  position that,  where the procedure laid down in a taxing statute  is opposed to rules of natural justice, then any imposition  of tax under such a procedure must be held to violate Art. 19 807 Reference   may  be  made  to  the  following   passage   in Willoughby’s Constitution of the United States, Second  Edn, Vol. 3, p. 17, 18 relied on for the respondents :               "It  is  established  that  the  guaranty   to               suitors of due process of law does not furnish               to  them a right to have decisions  of  courts               reviewed  upon  the  mare  ground  that   such               decisions  have  been  based  upon   erroneous               findings of fact or upon erroneous  determina-               tions  of law.  Such errors, if  committed  by               trial   courts,  can  be  corrected  only   by               ordinary appellate proceedings as provided for               by  law.   Especially has this  doctrine  been               declared in cases in which the Federal  Courts               have  been  asked to review the  decisions  of               State courts". Our attention was also invited to the decisions in Me Govern v. New York (1) and American Railway Express Co. v. Kentucky (2).  It was observed in the latter case :               "It  is  firmly  established  that  a   merely               erroneous  decision given by a State court  in               the  regular  course of  judicial  proceedings               does  not  deprive the unsuccessful  party  of               property without due process of law." The  above remarks support the contention of the  respondent that  an order of a Court or tribunal is not hit by Art.  19 (1) (g). The result of the authorities may thus be summed  up: (1)A tax will be valid only if it is authorised by a lawenacted by a competent legislature.  That is Art. 265. (1)  [1913] 229 U. S. 363, L. ed, 1228. (2)  [1927] 273 U. S. 269. 71 L. ed.. 639, 642. 808 (2)A law which is authorised as aforesaid must further  be not repugnant to any ,of the provisions of the Constitution. Thus)  a law which contravenes Art. 14 will be  bad,  Moopil Nair’s case (1). (3)A law which is made by a competent legislature and  which is  not otherwise invalid, is not open to attack under  Art. 31 (1).  Ramjilal’s case and Laxmanappa’s case 2). (4)A   law  which  is  ultra  vires  either  because   the legislature-  has no competence over it or  it  contravenes, some  constitutional inhibition has no legal existence,  and any action taken thereunder will be an infringement of  Art. 19 (1)(g)Himmatlal’s case (4) and Laxmanappa’s case (1)- The result  will be same when the law is a colourable  piece  of

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legislation. (5)Where  assessment  proceedings are  taken  without  the authority of law, or where the proceedings are repugnant  to rules  of natural justice, there is an infringement  of  the right  guaranteed under Art. 19 (1)(f) and Art.  19  (1)(g): Tata  Iron & Steel Co. Ltd. (5); Moopil Nair’s came (1)  and Shri Madan Lal Arora’s case (6). Now,  the question is, when a law is enacted by a  competent legislature  and it is not cnoonstitutional as  contravening any  prohibition  in the Constitution such as Art.  14,  and went  proceeding for assessment of tax are taken  thereunder in the manner provided therein, and there is no violation of rules  of natural justice, does Art. 19 (1)(g)  apply,  even though the taxing authority might have,, in the exercise  of its  jurisdiction, misconstrued the legal provisions  ?  The derision in Kailash Nath 8 case( 7 )would appear to  support the  contention  that it does; but for the  reasons  already given, we think (1) (1961) 3 S.C.R. 77. (2) (1951) S.C.R. 197. 13  6,137. (3) (1955 1 S.C.R. 769,792. (4) (1954) S.C.R. 1122, 1127. (5) (1961) 1 S.C.R. 379, 383, 402. (6) (1962) 1 S.C.R. 823. (7) AIR 1957 S.C. 790, 792, 793. 809 that its correctness is open to question and the point needs reconsideration.  There is another objection taken to the maintainability  of this  petition.   Art.  32, under  which  it  is  presented, confers on a person, whose fundamental right guaranteed  in. Part  III  is  infringed, a right to  move  this  Court  for appropriate write for obtaining redress.  The contention. of the  petitioner  is  that  the  order  of  assessment  dated December 20, 1958, amounts to interference with the right of the  firm  to  carry  on business  and  is,,  therefore,  in contravention of Art. 19 (1) (g)., and that relief should be granted under Art. 32.  Now, the objection that is taken  on behalf of the respondents is that the guarantee given  under Art.  19 (1) (g) is against an action of the  executive,  or legislature  of the State, that the order of assessment  now in  question is one passed in judicial proceedings and’  is, therefore,  outside the purview of Art. 19 (1) (g)  If  this contention  is  well-founded,  then Art. 32.  will  have  no application  and  the  present petition must  fail  on  this ground. The  constitutional provisions bearing on this question  are Arts. 12, 13, 19 and 32.  Article 12 enacts that               "In  this Part, unless the  context  otherwise               requires,  the State’ includes the  Government               and Parliament of India and the Government and               the Legislature of each of the States and  all               local   or   other  authorities   within   the               territory of India or under the control of the               Government of India".               Article 13 (3) (a) defines "law’ as follows               " law includes any O.rdinance, order,  byelaw,               rule,  regulation,  notification,  custom   or               usage  having in the territory of,  India  the               force of law;"               810 Article 19 (1) enacts that the citizen shall have the  seven rights  mentioned therein, and Arts. 19, (2) to 19 (6)  save laws,  whether  existing,  or  to  be  made,  which   impose reasonable  restrictions  on the exercise of  those  rights,

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subject  to the conditions laid ’down therein.   Article  32 (1)  guarantees  "the right to move the  Supreme  Court  by, appropriate  proceedings for the enforcement of  the  rights conferred by this Part".  Then we have Art. 32 (2), which is follows               "The  Supreme Court shall have power to  issue               directions or orders or writs, Including writs               in  the  nature of  habeas  corpus,  mandamus,               prohibition,  quo  Warrants  ’and  certiorari,               which   ever  may  be  appropriate,  for   the               enforcement of any of the rights conferred  by               this Part". It will be convenient now to set out the contentions of  the parties  urged  in sun-Dort of their  respective  positions. The contention of the respondents based upon Art. 12 is that the  word "State." in Part III means only the Executive  and the  Legislature, that the Judiciary is excluded  therefrom, and that, therefore, no question of a fundamental right  can arise  with  reference to an order passed  by  an  authority discharging   judicial   functions.   The  answer   of   the petitioner to this is that the word "State" comprehends  all the  three  organs, the Executive the  Legislature  and  the Judiciary,  that the express mention of the  Government  and the Legiolicture in Art. 12 cannot be construed as excluding the  Judiciary,  that the use of the word  "includes"  shows that  the enumeration which follows is not  exhaustive,  and that,  therefore, the ordinary and the wider connotation  of the word ,State’ is not out down by Art. 12. It is true that the word "includes" normally signifies  that what is enumerated as included is, not 811 exhaustive.   But the question ultimately; is, what, is  the intention of the Legislature, and that has to be gathered on a  reading:  of the enactment ’as a whole.  It  is  possible that  in some context the word "includes" might import  that the  enumeration in exhaustive. The following  ’observations of  ’Lord Watson in Dilworth v. Commissioner of  Stamps  (1) were relied upon               "The  word "’include’ is very generally.  used               in interpretation clauses in order to  enlarge               the  meaning of words or phrases’  ,,Occurring               in the body of the statute; and when it is  so               used these words or phrases must be  construed               as comprehending, not only such things as  the               signify according to their natural import, but               also  those  things which  the  interpretation               clause declares that they shall include.   But               the  word include’ is susceptible  of  another               construction, which may become. imperative, if               the  context of the Act is sufficient to  show               that  it  was  not  merely  employed  for  the               purpose of adding to the natural  significance               of  the words or expressions defined.  It  may               be  equivalent  to mean and include,’  and  in               that   case  it  may  afford   an   exhaustive               explanation  of  the meaning  which,  for  the               purposes  of  the  Act,  must  invariably   be               attached to these words or expressions." Now,  when  the Legislature wants to enlarge  the  sense  in which  an  expression is generally, used so as  to  take  in certain  other  things,  it  does  so  by  using  the   word ",includes".   Therefore,  it may be argued  that  the  word "includes"  would be appropriate only, when the  expression, the  connotation  of which is sought to be extended  by  the word  "includes", does not, in its ordinary  sense,  include

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what is sought to be "included" and that as the (1)  [1899] A. C. 99, 103,106. 812 Executive and the Legislature of a State &rib, according  to all  accepted  notions, understood as included in  the  word "State",  the use of the word "includes" with  reference  to them  would make no sense.  The Article also  provides  that the  word  "State"  is  to  include  ",all  local  or  other authorities".  with reference to them, the use of  the  word "includes" will be quite appropriate, because they would not in  the  ordinary  sense  of  the  words  "the  State",   be understood  as included therein.  A reading of the  Article, as  a  whole, would seem to show that the intention  of  the Legislature  was, on the one hand, to restrict the  accepted connotation of the word "State", and, on the other hand,  to extend it by including "local or other authorities".   There is  much  to  be- said in favour of the  contention  of  the respondents that in the context the word "includes" must  to be read as ""means and includes". In  further support of the contention that orders of  Courts and  Tribunals  are not, in general, within the  purview  of Part III, the respondents rely on the definition of "law’ in Art.  13(3).   Judgments and orders made in  the  course  of judicial proceedings do not fall within that definition.  It is  contended that the scheme of the Constitution  is  that, whenever-there is an infringement of a fundamental ,right by the Executive or the Legislature, the person aggrieved has a right of resort to this Court under Art. 32, that being  the consequence  of the definition of ’State’ under Art. 12  and of law’ under Art. 13(3); that Courts and tribunals are  not law-making  bodies in the sense in which law is  defined  in Art. 13(3), their function being to interpret law; and  that it  will, therefore, be inappropriate to bring  them  within Part III,, which enacts limitations on power to make laws. It  is  urged that the scheme of the Constitutions  does  no contemplate  judicial  orders being brought up  before  this Court in a petition under     813 Art.  32.  Whenever a fundamental right is infringed, it  is said, the party aggrieved has a right to resort to the Civil Courts either in their ordinary .jurisdiction or under  Art. 226, and the decisions of the Courts will ultimately come up to this Court on appeal under Arts. 132 to 136.  Thus,  when executive  and  legislative  action  infringes   fundamental rights,  the Supreme Court can deal with it under  Art.  32, whereas  orders of Courts and Tribunals, in which  questions of  infringement  of fundamental rights  are  decided,  will come’ up for review before the Supreme Court under Arts. 132 to 136. We  may now refer to the decisions where this  question  has been  considered  by this Court.  In Bashesher Nath  v.  The Commissioner   of   Income-tax  (1)  occur   the   following observations. relied on for the respondents:               "In the third place it is to be observed that,               by virtue of Art. 12, the State’ which is,  by               Art.  14,  forbidden to  discriminate  between               persons includes the Government and Parliament               of   India   and  the   Government   and   the               Legislature  of  each of the  States  and  all               local   or   other  authorities   within   the               territory of India or under the control of the               Government  of India.  Article 14,  therefore,               is  an injunction to both the  legislative  as               well as the executive organs of the State  and               the   other  ,subordinate   authorities.    As

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             regards  the legislative organ of  the  State,               the fundamental right is further  consolidated               and protected by the provisions of Art. 13 ...               That  apart, the very language of Art.  14  of               the  Constitution expressly directs  that  the               State’,   by  which  Art.  12   includes   the               executive organ, shall not deny to any  person               equality   before   the  law  or   the   equal               protection of the law.  Thus Art. 14 (1)  [1959] Supp. (1) S.C.R. 528 551, 552. 814               protects   us   from   both    legislation,and               executive tyranny by way of discrimination." The above remarks are based on the view that the words  "the State"  in  Art. 12 comprehend only the  Executive  and  the Legislature. A more direct decision on this point is the one in S. S. Md. Amirabbas Abbasi v. State of Madhya Bharat (1).  There,  the facts mere that one Amirabbas Abbasi applied to the Court of the  District Judge at, Ratlam for an order that he  should, be  appointed guardian of the person and properties  of  his two children.  The application was rejected by the  District Judge,  who appointed another person, Sultan Hamid Khan,  as the  guardian.   An appeal against this order  to  the  High Court  was  also dismissed.  Amirabbas Abbasi then  filed  a petition  in this Court under Art. 32 of  the  Constitution, challenging the validity of the order of the District  Court on  the ground that it was discriminative and  violative  of Art. 14 of the Constitution.  In  dismissing this  petition, this Court observed:               "The second respondent was appointed  guardian               of  the minors by order of a competent  court,               and  denial of equality before the law or  the               equal  protection of the laws can  be  claimed               against   executive  action   or   legislative               process but not against the decision of a com-               petent  tribunal.   The  remedy  of  a  person               aggrieved  by  the  decision  of  a  competent               judicial tribunal is to approach for redress a               superior tribunal, if there be one."               The following observations in Ratilal v. State               of   Bombay  are  also  relied  on   for   the               respondents:               "The second observation which must be made  is               that the protection afforded by the (1)  [1960] 3. S. C. R.. 138, 142. (2)   A.I.R.[1959] Bom. 242, 253, 815               Constitution to fundamental rights is  against               executive,  or  legislative  interference.   A               decision  of  a  regularly  constituted  Court               cannot    however   be   challenged   as    an               interference  with fundamental rights  in  the               abstract.   The  Court in the very  nature  of               things adjudicates upon conflicting claims and               declares rights and does not by the  operation               of   its  own  order  seek  to   infring   any               Fundamental rights." These observations would appear to apply with equal force to judicial  proceedings  before tribunals, as they  cannot  be regarded  as representing the executive or  the  legislative function of the State. It  is next contended for the petitioner that the Sales  Tax Officer  will  at least fall within the category  of  "other authorities"  in  Art. 12.  The meaning  of  the  expression

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"other  authorities"  was considered in  The  University  of Madras  v. Shantha Bai (1).  There, the question was  as  to whether  the  University  of Madras  was  "other  authority" within  that  Article.   In deciding that  it  was  not,  it observed   that  the  words  "other  authorities"  must   be construed  ejusdem generis with what had been enumerated  in the  Article,  namely, the Government  or  the  Legislature. This clearly supports the respondents. It is contended for the petitioner that even if Courts could not  be  held  to be  "other  authorities",  quasi  judicial tribunals   must   be  regarded  as  falling   within   that expression,  and  that Sales Tax Officers are at  best  only quasi judicial officers, and they cannot be put on the  same footing  as  regular Courts.  It is argued  that  sales  tax authorities are Officers of Government to whom is  entrusted the  work  of  levy and collection of taxes,  that  that  is primarily an executive function, that the officers have,  no doubt, to act judicially in determining the (1)  I.A.R. 1954 Mad. 67. 816 tax  payable  but  that  that  is  only  incidental  to  the discharge  of  what is essentially  an  administrative  act, that, at best, the assessment proceedings are quasi-judicial in character, and that accordingly an Officer imposing a tax must  be  held to be ,other authority’ within Art.  12.   In this view, it is urged, the assessment order dated  December 20, 1958, falls within the purview of Part III. The respondents dispute the correctness of this  contention. They concede that a Sales Tax Officer has certain  functions of   an   administrative  character,  but  urge   that   the proceedings  with  which  we  are  concerned,  are  entirely judicial.   In this connection, it will have to be borne  in mind  that it is a feature well-known,in the  Government  of this country that both executive and judicial functions  are vested  in the same Officer, and because of the  undesirable results which followed from this combination, Art. 50 of the Constitution has enacted as one of the Directive  Principles that,               "The  State shall take steps to  separate  the               judiciary  from  the executive in  the  public               services of the State". When  an  authority  is  clothed  with  two  functions,  one administrative and the other judicial, proceedings before it which  fall  under the latter category do not  cease  to  be judicial  by reason of the fact that it has got  other  non- judicial  functions What has to be seen is the  capacity  in which  the  authority acts with reference  to  the  impugned matter.   It  will, therefore, be necessary to  examine  the character  in which the Sales Tax Officer functions when  he takes  proceedings  for assessment of tax.  Under  the  pro- visions  of  the  Act, the Sales Tax Officer  has  to  issue notice  to the assessee, take evidence in the  matter,  hear him  and then decide, in accordance with the  provisions  of the  statute, whether tax is payable, and if so,  how  much. Against his order there is an 817 appeal  in  which again the parties have to be heard  and  a decision  given  in accordance with law.  The,  legality  or propriety  of an order passed in an appeal is again open  to consideration  on revision by a Revising Authority who  must be  "a person qualified under clause (2) of Art. 217 of  the Constitution  for  appointment as Judge of  a  High  Court". Section  11,  which  is on the same lines as s.  66  of  the Indian Income-Tax Act, provides that the Revising  Authority might  refer for the opinion of the High Court any  question

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of  law  arising out of its order, and under a.  11(4),  the assessee  has  a right to move the High Court for  an  order that  the  Revising Authority do refer the question  of  law arising  out  of the order, if there has been  an  erroneous refusal  to  refer,  Now the respondents  contend  that  the proceedings commencing with a notice issued by the Sales Tax Officer  and ending with a reference to the High  Court  are entirely  judicial, that it is in that view  that  petitions for  certiorari  and  prohibition  are  entertained  against orders  of assessment under Art.226 of the Constitution  and appeals  against such orders are entertained by  this  Court under  Art. 136.  It will be inconsistent, it is  urged,  to hold,  on  the  one hand, that the orders  passed  in  these assessment proceedings are open to appeal under Art. 136  on the  footing  that they are made by Tribunals, and,  on  the other,  that  they are open to attack under Art. 32  of  the footing that they are made by executive authorities. It is also contended for the petitioner that the  definition of  "State"  in Art. 12 is to govern Part  III  "unless  the context otherwise required", and that in the context of Art. 32;   "The  State"  would  include  Courts   and   Tribunals exercising  judicial  functions.   Article 32,  it  will  be noticed;  confers on the Court jurisdiction to  issue  among others,  writs of Certiorari and prohibition.  The  argument is  that ’as these writs are issued only with  reference  to judicial proceedings, the restricted 818 definition  of  "’the State" in Art. 12 as,  excluding  them must  give  way to the express language of Art. 32.   It  is accordingly  contended  that even on the  footing  that  the order  of assessment is judicial in character,  the  present petition  for issue of certiorari is within Art. 32.  It  is true argue the respondents, that certiorari and  prohibition lie only in respect of judicial and not administrative acts, and it must, therefore, be taken that Art. 32 does  envisage that  there  could  be a petition under  that  Article  with respect  to judicial proceedings.  It is also true, as  held by  this  Court,  that the right of an  aggrieved  party  to resort  to  this  court  under  that  Article  is  itself  a fundamental right under Art. 32.  But the right of resort to this  Court  under  Art.  32(1) is only  when  there  is  an infringement  of  a fundamental right which  had  been  gua- ranteed  in  Part  III, that it is Articles 14  to  31  that declare  what those, fundamental rights are, for the  breach of which remedy can be had under Art. .32(2), and that  what has  to be seen, therefore, is whether there is anything  in the  Article which is said to have been infringed, which  is repugnant  to  the  definition of "the State"  in  Art.  12. Examining, it is said, Art-19(1)(g) which is alleged to have been violated, there is nothing in it which is repugnant  to the restricted connotation of the expression "the State"  in Art.12, and judicial proceedings therefore cannot be brought within  it.  It is further argued that  Art.19(2)  to  19(6) clearly  show that it is only laws existing and to  be  made that  are within their purview, and judicial  pronouncements not  being  law  cannot  fall  within  the  ambit  of  those provisions.   In  the  result,  it  is  contended  that  the definition of "State" in Art. 12 stands and an order made by a  Court or tribunal cannot be held to infringe  Art.  19(1) (g) read along with Art. 12. If that is the true position, replies the, petitioner,  then what purpose is served by the provi- 819 sion  in  Art.  32 that this Court  might  ’issue  writs  of certiorari or prohibition ? The answer of the respondents is

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that among the substantive enactments forming Arts. 14 to  3 1,  there are some ’which. are specially,  directed  against judicial  proceedings,  and  the  writ’  of  certiorari   or prohibition  will  lie in respect of them.   One  such,  for example, is Art. 20, which is as follows-                "20. (1) No person shall be convicted of  any               offence except for violation of a law in force               at  the  time  of the commission  of  the  Act               charged  as an offence, nor be subjected to  a               penalty  greater  than that which  might  have               been  inflicted under the law in force at  the               time  of the commission of the offence.                (2)  No   person  shall  be  prosecuted   and               punished   for  the  same  offence  more  than               once.                (3)  No  person accused of Any offence  shall               be compelled to be a witness against himself." This Article clearly applies to prosecutions and convictions for  offences.   It has reference, therefore.-  to  judicial proceedings,  and  the restricted definition of  "State"  in Art.  12  is,  in the context,  excluded.   And  proceedings contemplated by Art. 20 being judicial, writs of  certiorari and   prohibition  can  issue.   In  this  connection,   the respondents  rely  upon the expression ,,"whichever  may  be appropriate" occurring in Art. 32(2).  It means, it is said, that  when once an infringement of a fundamental  rights  is established, the writ which the Court can issue must  depend upon  the nature of the right involved.  It  is  accordingly contended  that Art. 19(1)(g) is, on its terms  inapplicable to judicial proceedings, and no writ of certiorari can issue for the infringement of a right under that Article. It was also argued for  the petitioner that 820 under the American law certiorari lies against decisions  of the State Courts when they are repugnant to the provision of the  Constitution, and the decision in National  Association for  the Advancement of Colored People v. State  of  Alabama (1) was relied support of this position.  There the question related  to  the  validity of a provision in  a  statute  of Alabama  requiring foreign corporations to  disclose,  among other things, the names and addresses of their local members and  agents.  The appellant-Corporation having made  default in  complying with this provision, the State  instituted  an action  for  appropriate relief, and the Court  granted  the same.   Then the Corporation moved the Supreme Court  for  a writ  of certiorari on the ground that the provision in  the statute  was  an invasion of the right to  freely  assemble, guaranteed by the Constitution.  One of the grounds on which the  State resisted the application was that  no  certiorari will lie for quashing an order of Court.  In rejecting  this contention, the Court observed ;               It  is not of moment that the State has  there               acted  solely through its judicial branch  for               whether  legislative or judicial, it is  still               the  application of state power which  we  are               asked to scrutinize." It  is  unnecessary  to refer to other  decisions  in  which similar  views have been taken.  The principle on which  all these  decisions are based was thus stated in  Virginia,  v. Rives (2) :               "It  is  doubtless true that a State  may  act               through  different  agencies,-either  by   its               legislative,  its executive, or  its  judicial               authorities  ;  and the  prohibitions  of  the               amendment  extend to all action of  the  State

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             denying equal protection of the laws whether (1)  (1958) 2 L. ed. 2d. 1483, 1500,357 U. S. 449. (2)  (1880) 100 U.S 313, 318: 25 SI. ed. 667, 669. 821               it  be action by one of these agencies  or  by               another." These  decisions  have  no bearing on the  point  now  under consideration,  which  is not whether a writ  of  certiorari will  lie  under  the  general  law  against  decisions   of Courts---on   that,   there  could  be  and  has   been   no controversy-but whether, on the terms of Art. 12, that  will lie against an order a of Court or Tribunal. The  above  is a resume of the arguments addressed  by  both sides  in  support  of their  respective  contentions.   The question thus debated is of considerable importance on which there  has been, no direct pronouncement by this Court.   It seems  desirable that it should be authoritatively  settled. We  accordingly direct that the papers be placed before  the Chief  Justice for constituting a larger Bench for  deciding the two following question : --               1.    Is  an  order of assessment made  by  an               authority  under  a taxing  statute  which  is               intra vires, open to challenge as repugnant to               Art. 19(1) (g), on the sole ground that it  is               based  on a misconstruction of a provision  of               the Act or of a notification issued thereunder               2.    Can  the  validity of such an  order  be               questioned in a petition under Art. 32, of the               constitution ? 1962.     April  10.   The  matter was finally  heard  by  a larger  Bench  consisting of S. K. Das, J. L. Kapur,  A.  K. Sarkar,  K.  Subba  Rao,  M.  Hidayatullah,  N.   Rajagopala Ayyangar and J. R. Mudholkar, JJ. and The following Judgments were delivered S.   K DAS, J.-The facts of the case have been stated in the judgment of my learned brother 822 Kapur J., and it is not necessary for me to restate them.  I have  reached the same conclusion as has been reached by  my learned  brother.   But  in view of the  importance  of  the question raised, I, would like to state in my own words  the reasons for reaching that conclusion. The  two questions which have been referred to  this  larger Bench are:               1.    Is  an  order of assessment made  by  an               authority,  under  a taxing statute  which  is               Intra vires, open to challenge as repugnant to               Art. 19 (1) (g), on the sole ground that it is               based  on a misconstruction of a provision  of               the  Act  or of a  notification  issued  there               under?               2.    Can  the  validity of such an  order  be               questioned in a petition under Art. 32 of  the               Constitution ? These  two questions are inter-connected  and  substantially relate to one matter: is the validity of an order made  with jurisdiction under an Act which is Intra vires and good  law in  all  respects,  or of  a  notification  properly  issued thereunder, liable to be questioned in a petition under Art. 32  of  the  Constitution  on  the  sole  ground  that   the provisions  of  the Act, or the terms  of  the  notification issued thereunder, have been misconstrued ? It  is necessary, perhaps, to start with the  very  Article, namely, Art. 32, with reference to which the question has to be answered.

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             "32. (1) The right to move the.  Supreme Court               by    appropriate   proceedings    for    ’the               enforcement  of the rights conferred  by  this               Part is guaranteed.               (2)   The  Supreme Court shall have  power  to               issue directions or orders or write, 823               including  writs  in  the  nature  of   habeas               corpus,  mandamus, prohibition,  qua  warranto               and certiorari, whichever may be  appropriate,               for the enforcement of the rights conferred by               this Part.               (3)   Without   prejudice   to   the    powers               conferred on the Supreme Court by clauses  (1)               and  (2),  Parliament may by law  empower  any               other  Court  to  exercise  within  the  local               limits  of its jurisdiction all or any of  the               powers exercisable by the Supreme Court  under               clause (2).               (4)   The  right  guaranteed by  this  article               shall  not  be suspended except  as  otherwise               provided for by this Constitution." The  Article occurs in Part III of the  Constitution  headed ’Fundamental  Rights’.   It is one of a series  of  articles which  fall  under the sub-head,  "Right  to  Constitutional Remedies".  There can be no   doubt  that the right to  move the Supreme Court by     appropriate  proceedings  for   the enforcement of a  right  conferred by Part III is  itself  a guaranteed  fundamental  right.   Indeed,  cl.  (1)  of  the Article says so in express terms.  Clause (2) says that this Court  shall  have power to issue directions  or  orders  or writs,  including  writs  in the nature  of  habeas  Corpus, mandamus,   prohibition,   qao  warranto   and   certiorari, whichever may be appropriate, for the enforcement of any  of the rights conferred by Part III.  Clause (4) makes it clear that  the  right  guaranteed by the  Article  shall  not  be suspended except as otherwise provided for by the  Constitu- tion.  Article 359 of the Constitution . states that where a Proclamation of Emergency is in operation the President  may by  order declare that the right to move any court  for  the enforcement  of such of the rights conferred by Part III  as may be mentioned in the order and all proceedings pending 824 in any court for the enforcement of the rights so  mentioned shall remain suspended etc.  It is clear, therefore, that so long  as  no order is made by the President to  suspend  the enforcement  of  the  rights conferred by Part  III  of  the Constitution  every person in India, citizen  or  otherwise, has  the  guaranteed  right to move the  Supreme  Court  for enforcement  of the rights conferred on him by Part  III  of the  Constitution  and the Supreme Court has  the  power  to issue  necessary  directions, orders or writs which  may  be appropriate  for  the enforcement of such  rights.   Indeed, this Court has held in more than one decision that under the Constitution  it is the privilege and duty of this Court  to uphold  the fundamental rights, whenever a person seeks  the enforcement  of  such rights.  The oath of  office  which  a Judge  of  the Supreme Court takes on assumption  of  office contains  inter  alia  a solemn  affirmation  that  he  will "upheld the Constitution and the laws". The  controversy  before  us centres  round  the  expression "’enforcement  of the rights conferred by this Part"  which, occurs in cls. (1) and (2) of the Article.  It has not  been disputed  before  us that this Court is  not  trammelled  by technical  considerations  relating to the  issue  of  writs

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habeas   corpus.  mandamus, Prohibition,  quo  warranto  and certiorari’  This Court said in T. C. Basappa v. T.  Nagappa (1)’.               "In  view  of the express  provisions  in  our               Constitution we need not now look back to  the               early history or the procedural technicalities               of  these  write  in  English  law,  nor  feel               oppressed  by  any  difference  or  change  of               opinion  expressed  in  particular  cases   by               English Judges.  We can make an order or issue               a  writ  in the nature of certiorari,  in  all               appropriate case and in appropriate manner,  (1) [1955] 1 S.C.R. 250. 256. 825 so  long as we keep to the broad and fundamental  principles that regulate the exercise. of jurisdiction in the matter of granting such writs in English law." Therefore,    apart    altogether   from    all    technical considerations,  the  broad question before  us  is-in  what circumstances does the question of enforcement of the rights conferred  by Part III of the Constitution arise under  Art. 32  of the Constitution, remembering all the time’ that  the constitutional remedy under Art. 32 is itself a  fundamental right?   On behalf of the petitioner it has  been  submitted that whenever it is prima., facie established that there  is violation  of  a  fundamental right,  the  question  of  its enforcement  arises; for example, (a) it may arise when  the statute itself is ultra vires and some action is taken under such  statute, or (b) it may also arise when some action  is taken under an intra vires statute, but the action taken  is without jurisdiction so that the statute though intra  vires does  not  support  it;  or  (c)  it  may  again  arise   on misconstruction  of a statute which is intra vires, but  the misconstruction  is  such  that  the  action  taken  on  the misconstrued   statute  results  in  the  violation   of   a fundamental  right.   It  has been  argued  before  us  that administrative  bodies  do  not cease  to  come  within  the definition   of  the  word  "State"  in  Art.  12   of   the Constitution when they perform quasi-judicial functions  and in  view  of the true scope of Art. 32, the action  of  such bodies whenever such action violates or threatens to violate a   fundamental  right  gives  rise  to  the   question   of enforcement of such right and no distinction can be drawn in respect of the three classes of cases referred to above.  As to  the  case  before us the argument  is  that  the  taxing authorities misconstrued the terms of the notification which was  issued  by the State Government on  December  14,  1957 under  a.  4(1)(b) of the United "provinces Sales  Tax  Act. U.P.   Act,  No.  XV  of  1948  and  as  a  result  of   the misconstruction, they 826 have assessed the petitioner to sales tax on the sum of  Rs. 4,71,541.75 nP. which action, it is submitted, has  violated the  fundamental  right guaranteed to the  petitioner  under Art. 19(1)(f) and (g) and Art.31 of the Constitution. The   misconstruction,   it  is  argued,  may  lead   to   a transgression  of constitutional limits in  different  ways; for example, in a case where an inter.  State transaction of sale  is  sought  to be  taxed  despite  the  constitutional prohibition  in  Art. 286 of the Constitution  as  it  stood previously, by wrongly holding that the transaction is intra State,  there is a transgression of  constitutional  limits. Similarly, where a quasi-judicial authority commits an error as  to  a  fact or issue which the  authority  has  complete jurisdiction  to decide under the statute, but the error  is

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of such a nature that it affects a fundamental right,  there is  again  a transgression of  constitutional  limits.   The argument  is  that  there is  no  distinction  in  principle between  these classes of misconstruction of a statute,  and the real test, it is submitted, should be the  individuality of  the  error,  namely,  whether the  error  impings  on  a fundamental  right.  If it does, then the  person  aggrieved has  a right to approach this Court by means of  a  petition under Art. 32 of the Constitution. On the contrary, the contention of the respondents which  is urged  as a preliminary objection to the maintainability  of the  petition  in that on the facts stated  in  the  present petition  no question of the enforcement of any  fundamental right  arises and the petition is not maintainable.   It  is stated that the validity of the Act not being challenged  in any  manner,  every part of it is good law;  therefore,  the provision in the Act authorising the Sales-tax Officer as  a quasi-judicial  tribunal  to  assess  the  tax  is  a  valid provision and a decision made by the said tribunal  strictly acting  in exercise of the quasi-judicial power given to  it must necessarily be a fully 827 valid  and  legal act.  It is pointed out that there  is  no question   here   of  the  misconstruction  leading   to   a transgression  of  constitutional limits nor  to  any  error relating to a collateral fact. The error which is complained of,  assuming it to be an error, is, in respect of a  matter which  the assessing authority has complete jurisdiction  to decide;  that  decision  is legally  valid  irrespective  of whether  it  is correct or otherwise.  It is stated  that  a legally  valid act cannot offend any fundamental  right  and the  proper  remedy for correcting an error  of  the  nature complained  of in the present case is by means of an  appeal or  if  the error is an error apparent on the  face  of  the record,  by  means  of  a petition under  Art.  226  of  the Constitution. Before I proceed to consider these arguments it is necessary to  clear  the  ground  by  standing  that  certain   larger questions  were  also mooted before us, but  I  consider  it unnecessary to examine or decide them.  Such questions were: (1)  whether  taxation laws are subject to  the  limitations imposed  by  Part  III, particularly Art.  19  therein,  (2) whether  the  expression  "the State" in  Art.  12  includes "courts" also, and (3) whether there can be any question  of the  enforcement of fundamental rights against decisions  of courts  or  the  action of private  persons.   These  larger questions do not fall for decision in the present case and I do not consider it proper to examine or decide them here.  I should  make  it  clear that nothing I have  stated  in  the present  judgment should be taken as expressing any  opinion on  these larger questions.  It is perhaps necessary to  add also that this writ petition could have been disposed of  on the  very short ground that there was no misconstruction  of the  notification dated December 14, 1957 and the  resultant action  of  the  assessing  authority  did  not  affect  any fundamental right of the petitioner.  That is the view which we  have expressed in the connected appeal of M/s.   Chhota- bhai Jethabhai Patel & Co. v. The Sales Tax Officer, 828 Agra  and  another (Civil Appeal No. 99 of  1961)  in  which Judgment is also being delivered to-day. The  writ petition, however, has been referred to  a  larger Bench  for the decision of the two important  constitutional questions  relating  to  the scope of Art.  32,  which  have stated   earlier  in  this  judgment.   It  is,   therefore,

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necessary  and  proper  that  I  should  decide  those   two questions which undoubtedly arise as a preliminary objection to the maintainability of the writ petition. I  now  proceed  to a consideration of  the  main  arguments advanced  before us.  On some of the aspects of the  problem which has been debated before us there has been very  little disagreement.  I may first delimit the filed where there has been  agreement  between the parties and then go on  to  the controversial  area  of  disagreement.   It  has  not   been disputed  before  us that where the statute or  a  provision thereof  is ultra vires, any action taken, under such  ultra vires provision by a quasi-judicial authority which violates or  threatens to violate a fundamental right does give  rise to  a question of enforcement of that right and  a  petition under  Art.  32  of the Constitution will  lie.   There  are several  decisions of this Court which have laid this  down. It is unnecessary to cite them all and a reference need only be  made to one of the earliest decisions on this aspect  of the  case, namely, Himmatlal Harilal Mehta v. The  State  of Madhya  Pradesh A similar but not exactly the same  position arose in the Bengal Immunity Company Limited v. The State of Bihar The facts of the case were that the appellant  company filed  a petition under Art. 226 in the High Court of  Patna for a writ of prohibition restraining the Sales Tax  Officer from making an assessment of sales tax pursuant to a  notice issued by him.  The appellant claimed that the sales (1)  [1954] S.C.R. 1122. (2)  [1955] 2 S. C. R. 603, 619. 620. 829 sought to be assessed were made in the course of inter-State trade, that the provisions of the Bihar Sales Tax Act,  1947 (Bihar  Act 19 of 1947) which authorised the  imposition  of tax on such sales were’ repugnant to Art. 286 (2) and  void, and that, therefore, the proceedings taken by the Sales  Tax Officer should be quashed.  The application was dismissed by the  High Court on the ground that if the Sales Tax  Officer made  an assessment which was erroneous, the assessee  could challenge  it by way of appeal or revision under as. 24  and 25  of  that  Act, and that as the  matter  was  within  the jurisdiction   of  the  Sales  Tax’  Officer,  no  writ   of prohibition  or  certiorari could be issued.  There  was  an appeal  against  this  order to this  Court  and  therein  a preliminary  objection was taken that a writ under Art.  226 was  not  the  appropriate remedy open to  an  assessee  for challenging  the legality of the proceedings before a  Sales Tax Officer.   In  rejecting  the  contention,  this   Court observed:                  It is, however, clear from article 265 that               no  tax can be levied or collected  except  by               authority  of law which must mean a  good  and               valid  law.  The contention of  the  appellant               company  is that the Act which authorises  the               assessment,  levying and collection of  Sales.               tax  on  inter-State  trade  contravenes   and               constitutes  an infringement of Art.  286  and               is,   therefore,   ultra   vires,   void   and               unenforceable.   If, however, this  contention               by  well founded, the remedy by way of a  writ               must, on principle and authority, be available               to the party aggrieved". And  dealing with the contention that the petitioner  should proceed  by  way of appeal or revision under the  Act,  this Court observed :               "The answer to this plea is short and  simple.               The remedy under the Act cannot

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830               be  said to be adequate and is, indeed,  nuga-               tory or useless :if the Act which provides for               such remedy is itself ultra vires and void and               the principle relied upon can, therefore, have               no  application where a party comes  to  Court               with an allegation that his right has been  or               is  being threatened to be infringed by a  law               which  is  ultra  vires  the  powers  of   the               legislature which enacted it and as such  void               and prays for appropriate relief under article               226". It  will be seen that the question which arose in that  case was  with  reference to a provision in  the  taxing  statute which was ultra vires and the decision was. that any  action taken  under such a. provision was without the authority  of law  and  was, therefore, an  unconstitutional  interference with the right to carry on business under Art. 19 (1)  (f)In circumstances  somewhat  similar in nature there  have  been other decision of this Court which the   violation   of    a fundamental right was taken   to have been established  when the  assessing  authority sought to tax  a  transaction  the taxation of which came within a constitutional  prohibition. Such cases were treated as on a, par with those cases  where the provision itself was ultra vires. The  decision in Bidi Supply Co. v. The Union of  India  (1) arose  out of a somewhat different set of facts.  There  the Central  Board of Revenue transferred by means of a  general order  certain cases of the petitioner under s. 5  (7-A)  of the  Indian Income-tax Officer, District III,  Calcutta,  to the Income-tax Officer, Special Circle, Ranchi.  It was held that  an omnibus wholesale order of transfer as was made  in the  case  was  not contemplated  by  the  sub-section  and, therefore,   the  impugned  order  of  transfer  which   was expressed   in  general  terms  without  reference  to   any particular case and (1)  [1956] 2 S.C.R. 67. 831 without any limitation’ as to time was beyond the competence of the Central Board of Revenue.  It was also held that  the impugned order was discriminatory against the petitioner and violated the fundamental right guaranteed by Art. 14 of  the Constitution.  This decision really proceeded upon the basis that  an  executive body cannot, without authority  of  law, take action violative of a fundamental right and if it does, an  application  under Art. 32 will lie.  In  that  case  no question arose of the exercise of a quasi-judicial. function in the discharge of undoubted jurisdiction; on the contrary, the  ratio of the decision was that the order passed by  the Central  Board  of Revenue was  without  jurisdiction.   The decision  was considered again in Pannalal Binjraj v.  Union of India (1) after further amendments had been made in s.  5 (7-A)  of the India Income-tax Act, 1922 and it was  pointed out   that  s.  5  (7-A)  as  amended  was  a   measure   of administrative convenience and constitutionally valid and an order   passed  thereunder  could  not  be   challenged   as unconstitutional. There  are  other  decisions which proceeded  on  a  similar basis,  namely  that  if  a  quasi-judicial  authority  acts without  jurisdiction  or wrongly  assumes  jurisdiction  by committing  an  error  as  to a  collatteral  fact  and  the resultant action threatens or. violates a fundamental right, the  question  of  enforcement of that right  arises  and  a petition  under Art. 32 will lie. (See Tata Iron  and  Steel Co.  Ltd.  v. S. R. Sarkar (2); and Madan Lal Arora  v.  The

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Excise and Taxation Officer Amritsar (3).  In Tata Iron  and Steel  Co. Ltd. v. S. R. Sarkar(2) the question arose  under the  Central Sales Tax Act, 1956.  Under that Act  sales  in the course of inter-State trade are liable to be, taxed at a single point.  The petitioner was assessed to tax on certain sales (1) [1957] S.C. R.233. (2) [1961] 1 S. C. R. 379, 383, (3) [1962] 1 S. C. R. 823. 832 falling  within  the Act by the Central Sales  Tax  Officer’ Bihar,  and  the  tax was also duly  paid.   Thereafter  the Central  Sales  Tax  Officer in West Bengal  made  an  order assessing to tax the very sales in respect of which tax  had been paid.  The petitioner then moved this Court under  Art. 32  for  an order quashing the  assessment.   A  preliminary objection  to the maintainability of the petition was  taken on  behalf of the respondent State on the ground that  under the  Act  the petitioner could file an  appeal  against  the order of assessment and that proceedings under Art. 32 were, therefore, incompetent.  In overruling this contention Shah, J.,referred  to  the decisions of this  Court  in  Himmatlal Harilal  Mehta’s case (1) Bengal Immunity’s  Company’s  case (2) and The State of Bombay v. United Motors (India) Ltd.(3) and observed:               "In these cases, in appeals from orders passed               by  the  High Courts in petitions  under  Art.               226,  this Court held that an attempt to  levy               tax  under  a statute which  was  ultra  vires               infringed   the  fundamental  right   of   the               citizens  and recourse to the High  Court  for               protection  of the fundamental right  was  not               prohibited because of the provisions contained               in Art. 265.  In the case before us, the vires               of  the Central Sales Tax Act, 1956,  are  not               challenged ; but in Kailash Nath v. The  State               of  Uttar Pradesh (4) a  petition  challenging               the  levy  of a tax was  entertained  by  this               Court even though the Act under the  authority               of  which the tax was sought to  be  recovered               was not challenged as ultra vires.  It is  not               necessary for purposes of this case to  decide               whether  the principal of Kailash Nath’s  case               (4) is inconsistent with the view expressed by               this Court in Ramjilal v. Income-tax  Officer,               Mohindargarh (5)." (1)  [1954] S.C.R. 1122.   (2) [1955] 2 S.C.R.603, 619, 620. (3)  [1953] S.C.R. 1969.   (4) A.I.R. 1957 S.C. 790. (5)  [1951] S. C. R. 127, 833 The  learned Judge then proceeded to hold that as there  was under  the  Act  a  single liability and  that  s  had  been discharged, there could be no proceedings for the assessment of  the same sales a second time to tax.  The ratio  of  the decision  would  appear  to  be that  as  the  law  did  not authorise  the imposition of tax a second time on  sales  on which tax had been levied     and collected, proceedings for assessment  a  second time were  without  jurisdiction.   In Madan Lal Arora’s case(1) a notice for assessment was issued after  the expiry of the period prescribed therefore by  the statute.  The assessee thereupon applied to this Court under Art.  32 for quashing the proceedings for assessment on  the ground  that they were without jurisdiction and it was  held that as the taxing authority had no power under the  statute to issue the notice in question the proceedings were without

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jurisdiction and must be quashed.  This again was a case  in which  the  authority had no jurisdiction under the  Act  to take  proceedings  for  assessment of tax  and  it  made  no difference  that such assumption for jurisdiction was  based on a misconstruction of statutory provision. It  is necessary perhaps to refer here to another  class  of cases  which have sometimes been characterised as  cases  of procedural ultra vires.  When a statute prescribes a  manner or  from  in  which a duty is to be  performed  or  a  power exercised,  it  seldom  lays down what  will  be  the  legal consequences  of failure to observe its prescriptions.   The courts  must,  therefore, formulate their own  criteria  for determining whether the procedural rules are to be  regarded as mandatory in which case disobedience will render void  or voidable  what has been done, or as directory in which  case disobedience  will  be treated as a more’  irregularity  not affecting  the  validity of what has been  done.   A  quasi- judicial authority is under an obligation to act judicially. Suppose, it does not (1)  (1962) 1 S.C.R. 823. 834 so act and passes an order in violation of the principles of natural justice.  What is the position then?  There are some decisions, particularly with regard to customs  authorities, where  it  has been held that an order of  a  quasi-judicial authority  given in violation of the principles  of  natural justice  is really an order without jurisdiction and if  the order   threatens  or  violates  a  fundamental  right,   an application  under Art. 32 may lie. (See Sinha  Govindji  v. The  Deputy  Controller  of Imports  &  Exports,  Madras(1). These  decisions stand in a class by themselves  and  really proceed   on   the  footing  that  the  order   passed   was procedurally ultra vires and therefore without jurisdiction. So  far I have dealt with three main classes of cases as  to which there is very little disagreement: (1) where action is taken under an ultra vires statute; (2) where the statute is intra  vires, but the action taken is without  jurisdiction; and (3) where the action taken is procedurally ultra  vires. In  all these cases the question of enforcement of a  funda- mental right may arise and if it does arise, an  application under  Art.  32  will undoubtedly lie.  As  to  these  three classes  of  cases there has been very  little  disagreement between the parties before us. Now, I come to the controversial area.  What is the position with  regard to an order made by a quasi-judicial  authority in  the undoubted exercise of its jurisdiction in  pursuance of  a provision of law which is admittedly intra vires ?  It is  necessary first to clarify the concept of  jurisdiction. Jurisdiction means authority to decide.  Whenever a judicial or  quasi-judicial  tribunal  is empowered  or  required  to enquire  into a question of law or fact for the  purpose  of giving  a  decision on it, its findings  thereon  cannot  be impeached  collaterally or on an application for  certiorari but are binding until (1)  (1962) 1 S.C.R. 540. 835 reversed  on appeal.  Where a quasi-judicial  authority  has jurisdiction  to  decide  a matter, it  does  not  lose  its jurisdiction  by coming to a wrong conclusion whether it  is wrong  in law or in fact.  The question, whether a  tribunal hat;  jurisdiction depends not on the truth or falsehood  of the  facts  into  which  it has  to  enquire,  or  upon  the correctness  of its findings on these facts, but upon  their nature, and it is determinable "at the commencement, not  at the conclusion, of the enquiry". (Rex v. Bolten(1)).   Thus,

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a  tribunal empowered to determine claims  for  compensation for  loss  of  office  has  jurisdiction  to  determine  all questions  of  law  and  fact relating  to  the  measure  of compensation  and the tenure of the office, and it does  not exceed   its  jurisdiction  by  determining  any  of   those questions   incorrectly  but  it  has  no  jurisdiction   to entertain a claim for reinstatement or damages for  wrongful dismissal,  and it will exceed its jurisdiction if it  makes an  order in such terms, for it has no legal power  to  give any  decision whatsoever on those matters.  A  tribunal  may lack jurisdiction if it is improperly constituted, or if  it fails  to  observe certain essential  preliminaries  to  the inquiry.  But it does not exceed its jurisdiction by  basing its decision upon an incorrect determination of any question that  it is empowered or required, (i. e.) has  jurisdiction to  determine.  The strength of this theory of  jurisdiction lies in its logical consistency.  But there are other  oases where  Parliament when it empowers an inferior  tribunal  to enquire into certain facts intend to demarcate two areas  of enquiry,  the  tribunal’s  findings within  one  area  being conclusive  and  with in the other area  impeachable.   "The jurisdiction  of  an inferior tribunal may depend  upon  the fulfilment of some condition precedent or upon the existence of some particular fact.  Such a, fact is collateral to  the actual  matter  which  the  tribunal  has  to  try  and  the determination whether it exists (1)  [1841] 1 Q.B. 66,74. 836 or not is logically prior to the determination of the actual question  which the tribunal has to try.  The tribunal  must itself  decide  as  to  the collateral  fact  when,  at  the inception   of   an  inquiry  by  a  tribunal   of   limited jurisdiction,  a challenge is made to its jurisdiction,  the tribunal has to make up its mind whether it will act or not, and  for that purpose to arrive at some decision on  whether it  has jurisdiction or not.  There may be tribunals  which, by  virtue of legislation constituting them, have the  power to  determine  finally the preliminary facts  on  which  the further exercise of their jurisdiction depends; but, subject to  that  an inferior tribunal cannot, by a  wrong  decision with regard to a collateral fact, give itself a jurisdiction which  it would not otherwise possess." (Halsbury’s Laws  of England,  3rd  Edn.  Vol. II page 59).   The  characteristic attribute  of a judicial act or decision is that  it  binds, whether  it  be  right or wrong.  An error of  law  or  fact committed  by  a judicial or quasijudicial body  cannot,  in general,  be’ impeached otherwise than on appeal unless  the erroneous  determination  relates to a matter on  which  the jurisdiction of that body depends.  These principles  govern not  only the findings of inferior courts strito  sensu  but also the findings of administrative bodies which are held to be acting in a judicial capacity.  Such bodies are deemed to have  been invested with power to err within the  limits  of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal.  Even the doctrine of res judicata has been applied to such decisions. (See Living stone v. Westminister Corporation  (1) Re Birkenhead Corporation (2) Re 56  Denton Road Twickenham(3) Society of Medical Officers of Health  v. Hope(4).  In Burn & Co. Calcutta v. Their Employees(5) (1) [1904] 2 K.B. 109.   (2) (1952) Ch. 359, (3)  [1953] Ch. 51.      (4) [1959] 2 W.L.R. 377, 391,  396, 397, 402. (5) [1956] S.C.R. 781. 837

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this  Court said that although the rule of res  judicata  as enacted  by s. 11 of the Code of Civil Procedure did not  in terms  apply to an award made by an industrial tribunal  its underlying principle which is founded on sound public policy and  is of universal application must apply.  In  Daryao  v. The  State of U. P. (1) this Court applied the  doctrine  of res judicata in respect of application under Art. 32 of  the Constitution.  It is perhaps pertinent to observe here  that when  the Allahabad High Court was moved by  the  petitioner under  Art.  226 of the Constitution against  the  order  of assessment,  passed  on an alleged  misconstruction  of  the notification  of December 14, 1957, the High Court  rejected the  petition  on two grounds.  The first ground  given  Was that  the petitioner had the alternative remedy  of  getting the  error corrected by appeal the second ground  given  was expressed by the High Court in the following words:               "We  have, however, heard the learned  counsel               for the petitioner on merits also, but we  are               not satisfied that the interpretation put upon               this  notification  by the Sales  Tax  Officer               contains   any  obvious  error  in  it.    The               circumstances make the interpretation advanced               by  the  learned counsel  for  the  petitioner               unlikely.   It is admitted that even  handmade               biris,  have been subject to Sales  Tax  since               long  before  the dated of the  issue  of  the               above notification.  The object of passing the               Additional Duties of Excise (Goods of  Special               Importance) Central Act No. 58 of 1957, was to               levy  an  additional excise  duty  on  certain               important articles and with the concurrence of               the State Legislature to abolish Sales Tax  on               those articles.  According to the argument  of               the learned counsel for the petitioner  during               the period 14th December, 1957, to (1)  [1961] 2 S.C.A. 591. 838               30th  June,  1958, the petitioner  was  liable               neither to payment of excise duty nor to  pay-               ment  of Sales Tax.  We do not know why  there               should  have  been  such  an  exemption.   The               language  of  the notification might  well  be               read  as meaning that the notification  is  to               ’apply  only to those goods on which an  addi-               tional Central excise duty had been levied and               paid". If  the observations ’quoted above mean that the High  Court rejected  the petition also on merits, apart from the  other ground given, then the principle laid down in Daryao v.  The State of U. P. (1) will apply and the petition under Art. 32 will not be maintainable on the ground of res judicata.   It is,’  however, not necessary to pursue the question  of  res judicata  any further, because I am resting my  decision  on the  more  fundamental ground that an error of law  or  fact committed  by  a  judicial  body  cannot,  in  general,   be impeached  otherwise  than on appeal  unless  the  erroneous determination relates to a matter on which the  jurisdiction of that body depends. In Malkarjun Narhari (2) the Privy Council dealt with a case in  which  a sale took place after notice had  been  wrongly served upon a person who was not the legal representative of the  judgment. debtor’s estate, and the executing court  had erroneously  decided  that  he was to  be  treated  as  such representative.  The Privy Council said :               "In  so  doing the Court  was  exercising  its

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             jurisdiction.   It made a sad mistake,  it  is               true;  but a Court has jurisdiction to  decide               wrong as well as right.  If it decides  wrong,               the  wronged  party can only take  the  course               prescribed by law for setting matters right; (1) (1961) 2 S.C.A. 591. (2) [1950] L.R. 279, A, 216. 225. 839               and if that course is not taken the  decision,               however wrong, cannot be disturbed".               The above view finds support from a number  of               decisions-of this Court. 1.   Aniyoth  Kunhamina Umma v. Ministry  of  Rehabilitation (1).  In this case it had been held under the Administration of Evacuee Property Act, 1950, that a certain person was  an evacuee and that certain plots of land which belonged to him were,  therefore, evacuee property and vested. in  the  Cus- todian  of Evacuee Property.’ A transferee of the land  from the  evacuee  then presented a petition under  Art.  32  for restoration  of  the  lands  to her  and  complained  of  an infringement of her fundamental right, under Art. 19 (1) (f) and Art. 31 of the Constitution by the aforesaid order under the Administration of Evacuee Property Act.  The  petitioner had  been  a  party  to the  proceedings  resulting  in  the declaration  under that Act earlier-mentioned.   This  Court held  that as long as the decision under the  Administration of  Evacuee Property Act which had become final  stood,  the petitioner  could  not complain of any infringement  of  any fundamental  right.   This  Court  dismissed  the   petition observing :               "  We  are basing our decision on  the  ground               that  the competent authorities under the  Act               had come to a certain decision, which decision               has now become final the petitioner not having               moved against that decision in an. appropriate               court  by an appropriate proceeding.  As  long               as that decision stands, the petitioner cannot               complain of the. infringement of a fundamental               right, for she has no such right". 2.   Gulabdas & CO. v. Assistant Collector, of Customs  (2): In  this  case certain imported goods had been  assessed  to customs tariff.  The assessee continued in a petition  under Art. 32 that the duty (1) [1962] 1 S.C.R. 505. (2) A.LR. [1957] S.C. 733, 736. 840 should  have  been charged under a different  item  of  that tariff and that its fundamental right was violated by reason of  the assessment order charging it to duty under  a  wrong item  in  the  tariff.  This Court held that  there  was  no violation of fundamental right and observed :               "If the provisions of law under which impugned               orders have been passed are with jurisdiction,               whether they be right or wrong on fact,’ there               is  really no question of the infraction of  a               fundamental  right.  If a particular  decision               is  erroneous on facts or merits,  the  proper               remedy is by way of an appeal". 3.   Bhatnagar & Co. Ltd. v. The Union of India(1).  In this case  the Government had held that the petitioner  had  been trafficking  in  licences and in that view  confiscated  the goods  imported under a licence.  A petition had been  filed under Art. 32 challenging this action.  It was held :               "If  the  petitioner’s grievance is  that  the               view  taken  by the appropriate  authority  in

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             this matter is erroneous, that is not a matter               which  can be legitimately agitated before  us               in a petition under Art. 32". 4.   The  Parbhani Transport Co-operative Society.  Ltd.  v. Regional Transport Authority, Aurangabad (2).  In this  case it  was  contended  that  the  decision  of  the   Transport Authority in granting a permit for a motor carriage  service had  offended Art. 14 of the Constitution.  This Court  held that the decision of a quasi-judicial body, right or  wrong, could not offend Art. 14. There  are, however, two decisions which stand out and  must be;  mentioned here.  A contrary view was taken  in  Kailash Nath v. The State of U.P. (3) (1) [1957] S.C.R. 701, 702.  (2) [1960] 3 S.C.R. 177. (3)  A.I.R. (1957) S. C.790. 841 There a question precisely the same as the one now before us had  ’arisen.   A trader assessed to sales tax  had  claimed exemption under certain notification and this claim had been rejected.  Thereupon he bad moved this Court under Art.  32. It  was  contended that the right to be  exempted  from  the payment  of tax was not a fundamental right  and  therefore, the  petition under Art. 32 was not competent.   This  Court rejected  that contention basing itself on  Bengal  Immunity Company’s  case(1) and Bidi Supply Co’s case (2).   The  two cases  on  which  the’ decision was rested  had  clearly  no application  to the question decided.  I have shown  earlier that in both those cases the very statute under which action had  been taken was challenged as ultra vires.   In  Kailash Nath’s  case (3) the  question was not considered  from  the point  of view in which it has been placed before us in  the present  case  and in which it was considered  in  the  four cases  referred to above.  Therefore, I am unable  to  agree with the view taken in Kailash Nath’8 case (3). In Ramavatar Budhai Prasad v. Assistant Sales Tax Officer  ( 4)  the  question  raised  was  whether  betel  leaves  were exempted  from  sales tax under certain  provisions  of  the C.P.& Berar Sales Tax Act.  This Court agreed with the  view of the assessing authority that they were not exempted.  The question as to the maintainability of the application  under Art.  32  was  neither  raised nor  was  it  decided.   This decision  cannot,  therefore, be taken as an  authority  for holding  that an application under Art. 32  is  maintainable even  in respect of orders which are made in  the  undoubted exercise of jurisdiction by a quasi-judicial authority. Certain  other decisions were also cited before us,  namely, Thakur  Amar  Singhji  v. State of  Rajas.  than  (5);  M/s. Mohanlal Hargovind Dass v. The State (1)  (1955) 2 S.C.R. 603, 619, 620. (3)  A I.R. (1957) S.C. 790. (2)  (1956) S.C.R. 267, (4)  (1962) 1 S.C.R. 279. (5)  (1955) 2 S.C.R. 303. 842 of  Madhya Pradesh (1); Y. Mahaboob Sheriff v. Mysore  State Transport  Authority (2), J. V. Gokal & Co. (Private)  Ltd., v. The Assistant Collector of Salestax (Inspection) (3); and Universal Imports Agency v. Chief Controller of Imports  and Exports  (4).   These decisions fall under the  category  in which an executive authority acts without authority of  law, or  a  quasi-judicial authority acts in transgression  of  a constitutional  prohibition and without jurisdiction.  I  do not think that these decisions support the contention of the petitioner. In my opinion, the correct answer to the two questions which

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have  been  referred  to this larger Bench must  be  in  the negative.  An order of assessment made by an authority under a  taxing statute which is intra vires and in the  undoubted exercise  of  its jurisdiction cannot be challenged  on  the sole  ground  that it is passed on a  misconstruction  of  a provision of the Act or of a notification issued thereunder. Nor  can  the validity of such an order be questioned  in  a petition  under  Art. 32 of the  Constitution.   The  proper remedy  for  correcting  an error in such  an  order  is  to proceed  by  way  of. appeal, or if the error  is  an  error apparent  on the face of the record, then by an  application under  Art.  220 of the Constitution.  It  is  necessary  to observe here that Art. 32 of the Constitution does not  give this  Court  an appellate jurisdiction such as is  given  by Arts.  132  to 136.  Article 32 guarantees the  right  to  a constitutional remedy and relates only to the enforcement of the  rights  conferred  by Part  III  of  the  Constitution. Unless a question of the enforcement of a fundamental  right arises, Art. 32 does not apply.  There can be no question  , of  the  enforcement  of a fundamental right  if  the  order challenged  is  a  valid and legal order, in  spite  of  the allegation that it is erroneous.  I have, therefore, come to the conclusion that no question of the (1)  (1955) 2 S. C. R. 509. (3)  (1960) 2 S.C.R. 852. (2)  (1960) 2 S.C.R. 14 (4)  (1960) 1 S.C.R. 305. 843 enforcement  of a fundamental right arises in this case  and the writ petition is not maintainable. It is necessary to refer to one last point.  The petitioners firm  had  also  filed an appeal on  a  certificate  of  the Allahabad  High’  Court  against the  order  of  that  Court dismissing   their   petition   under  Art.   226   of   the Constitution.   The appeal against that order was  dismissed by this Court for non-prosecution On February 20, 1961.   In respect of that order of dismissal the petitioner’s firm has filed  an application for restoration on the ground that  it had  been advised that in view of a rule having been  issued under  Art. 32 of the Constitution, it was not necessary  to prosecute the appeal.  The petitioner’s firm has prayed  for condonation,   of  delay  in  filing  the  application   for restoration    of appeal.In my opinion no ,sufficient  cause has   been  made  out  for  allowing  the  application   for restoration.  The petitioner’s firm had deliberately allowed the appeal to be dismissed for non-prosecution and it cannot now be allowed to get the dismissal set aside on the, ground of wrong advice. Furthermore,   in  the  appeal  filed  on  behalf  of   M/s. Chhotabhai Jethabhai Patel & Co. v.. The Sales Tax  Officer, Agra  and  another  (Civil Appeal No. 99 of  1961)  we  have decided  the  question  on merits and  have  held  that  the assessing  authorities did not put a wrong  construction  on the notification in question. KAPUR, J. In this petition under Art. 32 of the Constitution which is directed against the order passed by the Sales  Tax Officer,  Allahabad, dated December 20, 1958, the prayer  is for  a  writ of certiorari or other order in the  nature  of certiorari  quashing  the  said order, a  writ  of  mandamus against the respondents to forbear from realizing the  sales tax imposed on the basis of the said 844 order and such other writ or direction as the petitioner may be entitled to. The  petitioner  is  a partner in the  firm  M/s.   Mohanlal

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Hargovind  Das which carried on the business of  manufacture and  sale  of  handmade biris, their head  office  being  in Jubbalpore in the State of Madhya Pradesh.  They also  carry on  business  in  U. P. and in that  State  their  principal place’ of business is at Allahabad. Under  s. 4 (1) of the U. P. Sales Tax Act (Act XV of  1948) hereinafter  called  the  ’Act’,  the  State  Government  is authorised by a notification to exempt unconditionally under cl. (a) and conditionally under cl. (b) any specified goods. On   December  14,  1957,  the  U.P.  Government  issued   a notification under s. 4 (1) (b) of the Act exempting cigars, cigarettes,  biris and tobacco provided that the  additional Central  Excise Duties leviable under the Additional  Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957)  had  been paid.  This notification  was  subsequently modified and on November 25, 1958, another notification  was issued  unconditionally exempting from sales tax biris  both handmade  and machine-made with effect from July 1  ,  1958. The exemption of biris from sales tax was conditional  under the  notification  dated December 14, 1957, for  the  period December  14, 1957, to June 30, 1958, but was  unconditional as from July 1, 1958. The  petitioners firm submitted its return for  the  quarter beginning  April 1, 1958, to June, 30, 1958 showing a  gross turnover of Rs. 75,44,633 and net turnover of Rs.  111.  The firm claimed that as from December 14, 1957, biris had  been exempted  from payment of sales tax which had been  replaced by  the additional central excise duty and therefore no  tax was leviable on the sale of biris.  The requisite sales  tax of Rs. 3.51 nP. on the turnover of Rs.  111 845 was  deposited as required under the law.  The  petitioner’s firm also submitted its return for the periods December  14, 1957,  to  December 31, 1957, and from January 1,  1958,  to March  31,  1958.  For the subsequent periods  returns  were made  but those are not in dispute as they fell  within  the notification of November 25, 1958.  The Sales Tax Officer on November  28, 1958, sent a notice to the  petitioner’s  firm for assessment of tax on sale of biris during the assessment period  April  1, 1958, to June 30, 1958.  On  December  10, 1958, the petitioner’s firm submitted an application to  the Sales  Tax  Officer stating that no sales tax  was  exigible under  the  Act  on  the  sale  of  biris  because  of   the notification  dated  December  14,  1957.   This  place  was rejected by the Sales Tax Officer and on December 20,  1958, he assessed the sales of the, petitioner’s firm to sales tax amounting to Rs. 4,71,541-75nP.  In his order the Sales  Tax Officer held:-               "The exemption envisaged in this  notification               applies  to  dealers in respect  of  sales  of               biris  provided  that the  additional  Central               Excise   duties  leviable  thereon  from   the               closing  of business on 13-12-1957  have  been               paid  on  such goods.  The assessees  paid  no               such  Excise  duties.  Sales of biris  by  the               assessees are therefore liable to sales tax". Against this order the firm took an appeal under s. 9 of the Act  to  the Judge (Appeals ) Sales  Tax,  Allahabad,  being Appeal No. 441 of 1959, but it was dismissed on May 1, 1959. The petitioner’s firm filed a petition under Art. 226 of the Constitution in the High Court of Allahabad challenging  the validity of the order of assessment and demand by the  Sales Tax  Officer.  This was Civil Miscellaneous Writ No. 225  of 1959  which was dismissed on January 27, 1959 on the  ground that there was another remedy open to the

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846 petitioner under the Act.  The High Court also observed:-               "We have come to the conclusion that the Sales               Tax Officer has not committed any apparent  or               obvious  error  in the interpretation  of  the               notification of 14th December 1957". Against the order of the High Court an appeal was brought to this  Court on a certificate under Art.  133(1)(a).   During the  pendency of the appeal this petition under Art. 32  was filed and rule was issued on May 20, 1959.  Subsequently the appeal which had been numbered C-A. 572/60 was dismissed  by a  Divisional Bench of this Court for  non-prosecution.   An application has been filed in this Court for restoration  of the  appeal and for condonation of delay.  That matter  will be dealt with separately. In  the petition under Art. 32 the validity of the order  of assessment  dated  December 20, 1958, is challenged  on  the ground that the levy of the tax amounts to "infringement  of the  fundamental right of the petitioner to carry  on  trade and  business guaranteed by Art. 19(1)(g)" and further  that it is an "illegal consfiscation of property without  payment of compensation and contravenes the provisions of Art. 31 of the  Constitution".  The prayers have already been  set  out above. As before the Constitution Bench which heard the petition  a preliminary   objection  against  the  competency   of   the petitioner’s  right to move this court under Art. 32 of  the Constitution, was raised and the correctness of the decision in Kailash Nath v. The State of U.P. (1) was challenged, the Constitution  Bench because of that decision and of  certain other decisions of this court and because of the  importance of the question raised made the following order: (1)  A.I.R. 1957 S. C. 790. 847               "The question thus debated is of  considerable               importance ’on which there has been no  direct               pronouncement   by  this  court.    It   seems               desirable  that it should  be  authoritatively               settled.   We  accordingly  direct  that   the               papers be placed before the Chief Justice  for               constituting  a larger Bench for deciding  the               two following questions:               1.    Is  an  order of assessment made  by  an               authority  under  a taxing  statute  which  is               intra vires open to challenge as repugnant  to               Art.  19(1)(g), on the sole ground that it  is               based  on a misconstruction of a provision  of               the   Act   or  of   a   notification   issued               thereunder?".               2.  Can  the  validity of  such  an  order  be               questioned in a petition under Art. 32 of  the               Constitution?" That is how this matter has come up before this bench. Before  examining  the  rival  contentions  raised  and  the controversy  between  the parties it is necessary  to  state that  (i)  in  the present case we are not  called  upon  to decide  whether cls. (f) and (g) of Art. 19 are  applicable. to  a  taxing statute or to express our preference  for  the view  of  this  court  as expressed  in  a  group  of  cases beginning    with    Ramjilal   v.    Income-tax    Officer, Mohindergarh(1)  over  the later view taken  in  the  second Kochunni  (2) case or K. T. Moopil Nair v. State  of  Kerala (3),  (2)  whether  the  word ,State"  in  Art.  12  of  the Constitution  Comprises judicial power exercised  by  courts and (3) the wider question whether Art. 32 is applicable  in

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the case of infringement of tights by private parties.   The controversy  in  the present case in this ;  the  petitioner contends that an erroneous order, in this (1)  (1951) S.C.R. 127,    (2) (1960) 3 S.C.R, 887. (3)  (1961) 3 S.C.R. 77 848 case, of assessment resulting from a misconstruction of a notification  issued  under a statute  by  a  quasi-judicial authority like the Sales Tax Officer even if the statute  is intra  tires is an infringement of the fundamental right  to carry  on trade under Art. 19(1) (g) on the ground that  the essence of the right under that Article is to carry on trade unfettered and that such a right can be infringed as much by an  executive  act  of an administrative tribunal  as  by  a quasi-judicial  decision  given  by such  a  tribunal.   The petitioner  mainly relies on the decision of this  Court  in Kailash Nath v.State of U.P. (1). The  submission  of  the respondent, which was  urged  as  a preliminary   objection  to  the  maintainability  of   this petition,  was that the impugned decision of the  Sales  tax Officer  does  not  violate  any  fundamental  right.    The respondent  argued that if the constitutionality of the  Act is  not challenged then all its provisions must  necessarily be constitutional and valid including the provisions for the imposition  of  the  tax and procedure  for  assessment  and appeals  against  such assessments and  revisions  therefrom would be equally valid.  A decision by the Sales tax Officer exercising quasi-judicial power and acting within his powers under  the Act and within his jurisdiction must  necessarily be  valid and legal irrespective of whether the decision  is right or wrong.  Therefore an order of the Sales tax Officer even if erroneous because of misconstruction of notification issued thereunder remains a valid and legal order and a  tax levied  thereunder cannot contravene fundamental rights  and cannot be challenged under Art. 32.  An aggrieved party must proceed  against  the  decision by way of’  appeal  etc.  as provided  under  the statute or in appropriate  cases  under Art.  226 of the Constitution and finally by appeal to  this Court under Art. 136.  For the order to 849 be  valid  and immune from challenge under Art.  32,  it  1s necessary  therefore that (1) the statute is intra vires  in all respects; (2) the authority acting under it acts  quasi- judicially ; (3) it acts within the powers given by the  Act and  within  jurisdiction; and (4) it  does  not  contravene rules of natural, justice. In Mulkarjun Bin Shidramappa Pasare v. Narhari Bin  Shivappa (1), Lord Hobhouse while dealing with an erroneous order  of a court said:               "The Code goes on to say that the Court  shall               issue  a  notice  to the  party  against  whom               execution is applied.  It did issue’ notice to               Ramlingappa.   He contended that he  was,  not               the  right  person,  but  the  Court,   having               received his protest, decided that he was  the               right  person,  and  so  proceeded  with   the               execution . It made a sad mistake it is  true;               but  a Court has jurisdiction to decide  wrong               as  well as right.  If it decided  wrong,  the               wronged   party  can  only  take  the   course               prescribed by law for setting matters right  ;               and if that course is not taken the  decision,               however wrong, cannot be disturbed." In an earlier case dealing with the revisional powers of the Court, Sir Barnes Peacock in Rajah Amir Hassan Khana v. Sheo

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Baksh Singh (2) said :-               "The  question then is, did the judges of  the               Lower Courts in this case, in the exercise  of               their  jurisdiction,  act  illegally  or  with               material irregularity.  It, appears that  they               had   perfect  jurisdiction  to   decide   the               question which was before them’ and they  did,               decide it. Whether they decided it rightly  or               wrongly  they had jurisdiction to  decide  the               case ; and even if they decided wrongly,  they               did not exercise their jurisdiction  illegally               or with material irregularity". (1) [1900] L.R. 27 I.A.216. (2)  [1884] L.R. 11 I.A. 237, 239. 850 "This principle has been accepted by this Court in cases  to which  reference  will  be  made  later  in  this  judgment. Although  these  cases were dealing with  the  decisions  of Courts  they ,are equally applicable to decisions of  quasi- judicial.   tribunals  because  in  both  cases  where   the authority  has jurisdiction to decide a matter it must  have jurisdiction  to decide that rightly or wrongly and  if  the decision  is wrong the aggrieved party can have recourse  to the  procedure  prescribed  by the Act  for  correcting  the erroneous decision. Now  Art.  32  is  a remedial  provision  and  is  itself  a fundamental right which entitles a citizen to approach  this court  by  an  original  petition  in  any  case  where  his fundamental  right  has  been  or  nay  be  infringed.   The relevant part of the Article provides:-               Art.  32  (1) "The right to move  the  Supreme               Court  by  appropriate  proceedings  for   the               enforcement  of the rights conferred  by  this               Part is guaranteed.               (2)   The  Supreme Court shall have  power  to               issue  directions  or orders or writs  in  the               nature    of    habeas    corpus,    mandamus,               prohibition,  que  warranto  and   certiorari,               whichever may be appropriate for the  enforce-               ment  of any of the rights conferred  by  this               Part". Under Art. 32 (1) a citizen can approach this Court when his fundamental   rights  guaranteed  under  Part  III  of   the Constitution are invaded the remedy for which is provided in cl.  (2) of Art. 32.  Thus the remedy under Art. 32  is  not available  unless  the fundamental rights of a  citizen  are invaded. In  my opinion the contention raised by the  respondents  is well  founded.  If the statute and it  constitutionality  is not challenged then every par_ 851 of  it  is constitutionally valid including  the  provisions authorising the levying of a tax and the mode and  procedure for  assessment  and  appeals etc.   A  determination  of  a question   by  a  Sales  tax  Officer  acting   within   his jurisdiction  must  be equally valid and legal.  In  such  a case an erroneous construction, assuming it is erroneous, is in  respect  of  a matter which the statute  has  given  the authority complete jurisdiction to decide.  The decision  is therefore a valid act irrespective of its being erroneous. An  order of assessment passed by a  quasijudicial  tribunal under a statute which is ultra vires cannot be equated  with an  assessment order passed by that tribunal under an  intra vires  statute even though erroneous, The former being  with out  authority  of, law, is wholly unauthorised and  has  no

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existence in law and therefore the order is an  infringement of fundamental rights under Art. 19(1) (f) & (g) and can  be challenged    under   Art.   32.    The   latter   is    not unconstitutional  and has the protection of law being  under the  authority  of  a valid law and therefore  it  does  not infringe any fundamental right and cannot be impugned  under Art.  32.  To say that the doing of a legal act  violates  a fundamental right would be a contradiction in terms.  It may be  pointed out that by an erroneous decision of the  quasi- judicial  authority the wronged party is not left without  a remedy.   In  the  first  place  under  the  Act  before  an assessment is made the Sales tax Officer is required to give notice  and hear objections of a taxpayer and give  decision after  proceeding  in  a  judicial  manner  that  is   after considering  the objections, and such ’evidence as  is  led. Against the order of assessment an appeal is provided by  s. 9 of the Act and against such an appellate order a  revision can be taken under s. 10.of the Act under s. 11 a  reference to the High Court on a question of law 852 is provided and if the revising authority refuses to make  a reference  then  the High Court can be moved to  direct  the revising authority to state a case and then an appeal  would lie  under Art. 136 of the Constitution of India and it  may be  added  that a petition under Art. 226 would lie  to  the High Court in appropriate cases against which an appeal will lie to this Court under Art. 136.  It may here be added that the procedure prescribed by the Act shows that the Sales tax Officer has to determine the turnover after giving the  tax- payer  a reasonable opportunity of being heard and  such  an assessment  is, a quasi-judicial act Province of  Bombay  v. Kusaldas  S. Advani (1).  If a Sales tax Officer acts  as  a quasi-judicial authority then the decision, whether right or wrong,  is a perfectly valid act which has the authority  of an  intra vires statute behind it.  Such a decision,  in  my opinion,  does  not infringe any fundamental  right  of  the petitioner  and  any  challenge  to  it  under  Art.  32  is unsustainable. Before  giving  the  reasons  for any  opinion  I  think  it necessary to refer to the constitutional provisions  dealing with  the power to tax.  This subject is dealt with in  Part XII  of  Constitution  and Art. 265  therein  which  is  the governing provision provides :-               "No tax shall be levied or collected except by               authority of law." Therefore a taxing law enacted by a legislature, which it is not competent to enact, will have no existence in the eye of law  and  will  be violative of Art. 19  (1)(g).   The  same result  will  follow  if the law is a  colourable  piece  of legislation e.g., a law disguised as a taxing law but really law  but confiscatory measure the object of which is not  to raise  revenue  but confiscation.  Similarly, if  a  tax  is assessed by an authority which has no jurisdict- (1)  [1950] 1 S.C.R. 621, 725. 853 tion to impose it will also be outside the protection of law being without authority of law.  The, same will be the  case where  an  Executive authority levies an  unauthorised  tax. Then  there  are cases like the present one where  a  quasi- judicial   tribunal   imposes  a  tax  by   interpreting   a notification  under  a taxing provision  and  the  objection taken  is that the interpretation is erroneous.   The  cases relied’ upon by counsel for the appellant and the respondent fall within one or other of these categories. As  I  have  said  above,  the  submission  of  the  learned

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Additional  Solicitor General is well founded.  It  has  the support  of  the following decisions of this Court  which  I shall now deal with.  In Gulabdas v. Assistant Collector  of Custom  (1) it was held that if the order impungned is  made under  the provisions of a statue which is intra  vires  and the order is within the jurisdiction of the authority making it then whether it is right or wrong, there is no infraction of the fundamental rights and it has to be challenged in the manner  provided in the Statute and not by a petition  under Art.  32.  In that case the petitioner was aggrieved by  the order of the Assistant Collector of Customs who assessed the goods  imported  under  a  licence  undifferent  entry   and consequently   a  higher  Excise  Duty  was  imposed.    The petitioners feeling aggrieved by the order filed a  petition under Art. 32 and objection to its maintainability was  that the   application   could  not  be  sustained   because   no fundamental right had been violated by the impugned order it having  been properly and correctly made by the  authorities competent  to make it.  The petitoner there  contained  that the  goods imported, which were called ’Lyra’ brand  Crayons were not crayons at all and therefore imposition of a higher duty  by holding them to be crayons was an  infringement  of fundamental (1)  A.I.R. 1957 S.C. 733, 736. 854 right  under  Art. 19(1) (f ) & (g).   This  contention  was repelled.   Delivering the judgment of the Court, S.K.  Das, J., observed at p. 736 :-               "What,  after  all, is the  grievance  of  the               petitioners?  They do not challenge any of the               provisions  of  the  India  Traiff  Act,  1934               (XXXII  of 1934) or any of the  provisions  of               the Sea Customs Act, 1878 (VIII of 1878).   It               is  for the Customs authorities  to  determine               under  the  provisions of the said  Acts  what               duty is payable in respect of certain imported               articles.   The Customs authorities came to  a               decision, right or wrong. and the  petitioners               pursued  their remedy by way of an  appeal  to               the Central Board of Revenue.               The  Central  Board of Revenue  dismissed  the               appeal.  Unless the provisions relating to the               imposition   of   duty   are   challenged   as               unconstitutional,  or the orders  in  question               are  challenged  as  being in  excess  of  the               powers  given to the Customs  authorities  and               therefore without jurisdiction it is difficult               to  see  how the question of  any  fundamental               right  under Art. 19(1) cls. (f) & (g) of  the               Constitution can at all arise.               If  the  provisions  of law  under  which  the               impugned  orders  have been  passed  are  good               provisions  and  the orders passed  are  with’               jurisdiction, whether they be right or  wrong.               on  facts, there is really no question of  the               infraction  of  a  fundamental  right.   If  a                             particular  decision is erroneous on  facts  o r               merits,  the  proper remedy is by  way  of  an               appeal.               All  that  is  really contended  is  that  the               orders  are erroneous on merits.  That  surely               does not give rise to the violation of any 855 fundamental right under Art. 19 of the Constitution."

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The second case is Bhatnagar Co. Ltd. v. The Union of  India (1).   In that case the Sea Customs authorities ordered  the confiscation of goods on the ground that the petitioner  had been trafficking in licenses under which the goods had  been imported.  This order was challenged under Art. 32.  It  was held  that  the order of confiscation made as  a  result  of investigation, which the Customs Authorities were  competent to make, was not open to challenge in proceedings under Art. 32  of the Constitution on the ground that  the  conclusions were not properly drawn.  It was observed               "If  the  petitioner’s grievance is  that  the               view  taken by the appropriate authorities  in               this matter is erroneous that is not a  matter               which can be legitimately agitated ’before  us               in  a petition under Art. 32.  It may  perhaps               be,   as   the   learned   Solicitor   General               suggested,  that  the  petitioner  may   halve               remedy  by  suit  for damages but  that  is  a               matter with which we are not concerned. If the               goods  have been seized, in  accordance  ’With               law  and they have been seized as a result  of               the   findings   recorded  by   the   relevant               authorities  competent to hold  enquiry  under               the  sea  Customs Act, it is not open  to  the               petitioner  to contend that we should ask  the               authorities  to exercise discretion in  favour               of  the petitioner and allow his’  licences  a               further   lease  of  life.   Essentially   the               petitioner’s   grievance   is   against    the               conclusions  of fact reached by  the  relevant               authorities." The third case is The Parbhani Transport Cooperative Society Ltd.  v.  The regional Transport Authority,  Aurangabad  (2) where the (1) (1957) S.C.R. 701, 712.  (2) [1960] 3 S.C.R. 177, 188. 856 decision  of  a  Transport Authority  in  granting  a  motor carriage permit was challenged as . a contravention of  Art. 14.   The Court held that the Regional  Transport  Authority acts  in a quasijudicial capacity in the matter of  granting permits, and if it comes to an erroneous decision the decis- ion  is not challengeable under Art. 32 of the  Constitution because the decision right or wrong could not infringe  Art. 14.  Sarkar J., said at P. 188:-               "The  decision of respondent No.  1  (Regional               Transport  Authority) may have been  right  or               wrong.........  but we are unable to see  that               the  decision  offends Art. 14  or  any  other               fundamental  right  of  the  petitioner.   The               respondent No. 1 was acting as a quasijudicial               body  and  if it has made any mistake  in  its               decision   there  are   appropriate   remedies               available  to  the  petitioner  for  obtaining               relief.   It  cannot complain of a  breach  of               Art. 14". Lastly  reliance  was placed on an unreported  judgement  of this  Court  in Aniyoth Kunhamina Umma v.  The  Ministry  of Rehabilitation,  Government  of  India, New  Delhi  (1)  The petitioner’ in that case was a representative-in-interest of her  husband  who  had  been  declared  an  evacuee  by  the Custodian  of  Evacuee property.  Her appeals first  to  the Deputy  Custodian  and then to the  Custodian  General  were unsuccessful.   She then field a petition under Art.  32  of the   Constitution.   It  was  held  that  the   appropriate authorities    of   competent   jurisdiction    under    the

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Administration   of   Evacuee  Property  Act   1950   having determined  that the husband was an evacuee within that  Act and the property was evacuee property it was not open to the petitioner to challenge the decision of the Custodian (11) [1962] 1 S.C.R. 505. 857 General  under Art. 32 of the Constitution.  S. K. Das,  J., delivering the judgment of the Court observed:-               "Where, however, on account of the decision of               an  authority  of competent  jurisdiction  the               right alleged by the petitioner has been found               not  to exist, it is difficult to see how  any               question of infringement at right can arise as               a ground for a petition under- Art. 32 of  the               Constitution unless the decision on the  right               alleged  by  the petitioner is held  to  be  a               nullity  or  can be otherwise got  rid  of  As               losing as that decision stands, the petitioner               cannot  complain  of  any  infringement  of  a               fundamental  right.  The  alleged  fundamental               right  of the petitioner is really  dependent-               on  whether  Kunhi Moosa Haji was  an  evacuee               property.  Is the decision of the  appropriate               authorities  of competent jurisdiction  cannot               be otherwise got rid of, the petitioner cannot               complain of her fundamental right under  Arts.               19(1)(f) and 31 of the Constitution". These authorities show (1) that if a statute is intra  vires than a competent order under it by an authority acting as  a quasi-judicial authority is equally intra vires (2) that the decision  whether  right or wrong is not  violative  of  any fundamental  right  and (3) that if the order  is  erroneous then it can be questioned only under the provisions of  that statute   because  I  the  order  will  not  amount  to   an infringement of a .fundamental right as long as the  statute is constitutional.  In appropriate case it may be challenged under  Art.  226 and in both cases an appeal  lies  to  this Court. I may now examine decisions of this Court relied upon by the learned Attorney General in which the operation of  taxation laws  as  violating  Art. 19(1)(g) was  considered  and  the procedure by 858 which this Court was approached.  In support of his case the Attorney  General mainly relied on Kailas Nath v.  State  of U.P.(1) and tried to buttress that decision by certain cases decided  before and subsequent to it.  He submitted  that  a misconstruction  of  a  provision of law even  by  a  quasi- judicial tribunal is equally an infringement of  fundamental rights under Art. 19(1)(f) & (g) because as a consequence of such  misconstruction the tax is an illegal imposition.   In Kailash  Nath’s case it was contended before the  Sales  tax Authorities  that cloths, on which Excise duty  had  already been  paid  and which was then processed,  hand-printed  and exported,  no sales tax was leviable as it was exempt  under the notification under s. 4 of the U. P. Sales Tax Act.  The Sales  tax  Authorities  however held the  exemption  to  be applicable  only to cloth which had not been  processed  and hand-printed and was in the original condition.  A  petition under  Art.  32  was filed against that  order  and  it  was contended  that  the  rights  of  the  assessee  under  Art. 19(1)(g)  were  infringed by the order  misinterpreting  the notification.  The Court said:-               "If   a  tax  is  levied  without  due   legal               authority on any trade or business, then it is

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             open to the citizen aggrieved to approach this               court for a writ under Art. 32 since his right               to carry on trade is violated or infringed  by               the imposition and such being the case,  Art..               19(1)(g) comes into play, The objection there taken on behalf of the State was in  the following terms:-               That the imposition of an illegal tax will not               entitle  the citizen to invoke Art. 32 but  he               must resort to remedies available under  ordi-               nary  law  or proceed under Art.  226  of  the               Constitution,  in  view of the fact  that  the               right (1)  A.I. R. 1957 S.C. 790. 859               to be exempted from the payment of tax  cannot               be said to be a fundamental right which  comes               within the purview of Art. 32". This  contention  was  repelled  because  of  the  following observations  in  the Bengal Immunity Co.  Ltd.  v.State  of Bihar (1):               "We are unable to agree the above  conclusion.               In  reaching  the conclusion  the  High  Court               appears  to have overlooked the fact that  the               main  contention of the appellant company,  as               set forth in its petition, is that the Act, in               so  far  as it purports to tax  a  nonresident               dealer  in respect of an inter-State  sale  or               purchase   of  goods,  is  ultra   vires   the               Constitution and wholly illegal..........." The  other cases referred to in that judgment were  Mohammad Yasin’s.  Town Area Committee, Jalalabad(2); State of Bombay v.  United Motors (3); Himmatlal Harilal Mehta v.  State  of Madhya  Pradesh  (4) and Bidi Supply Co. v. Union  of  India (5).  Thus the decision in that case was based on  decisions none of which supports the proposition that a misconstrution by  a  quasi-judicial tribunal of a notification  under  the provision  of a statute which is intra vires is a  violation of  Art.  19(1)(g).  On the other hand they were  all  cases where  the  imposition of tax or license  fee  or  executive action  was  sought  to  be  supported  by  an  ultra  vires provision of the law and was therefore void and violative of Art.  19 (1)(g).  As this distinction was-not kept  in  view the  remedy byway of petition under Art. 32 was held  to  be available.   The  question as now raised was not  argued  in Kailash Nath’s case. The  distinction  between a competence order  of  assessment made  under a provision of law which is intra vires even  if it is erroneous and an order made (IL) [1955] 2S.C.R.603,618. (3) [1953] S.C.R. 1069,1017. (2) [1952] S.C.R. 572. (4) [1954] S. C. R. 1122. (5) [1956] S.C.R. 257,271, 277. 860 under a provision of law which is ultra vires in fundamental in the matter of applicability of Art.32.In the former  case the provision of law being valid the order will be protected as being under the authority of a valid law and therefore it will  not be violative of Art. 19(1)(g) and Art. 32  is  not available to challenge that order.  In the latter case,  the provisions of law being void the protection of law does  not operate  and the order is an unauthorised interference  with the  rights  of  a  citizen under  Art.  19(1)(g).   It  can therefore  be  challenged under Art. 32.   This  distinction

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does  not seem to have been kept in view in  Kailash  Nath’s case (1) That case in further open to the criticism that  it is  based  of decisions which were not  cases  of  erroneous interpretations  of notifications under intra vires  statute but  were cases where an unconstitutional provision  of  law wag  sought to be used to support a tax.  For the reasons  I have given Kailash Nath’s case(1) cannot be accepted as well founded". In  yet  another  case where the remedy under  Art.  32  was sought  to  challenge the decision of Sales tax  Officer  is Ramavtar  Budhaiprasad  etc,. Assistant Sales  tax  Officer, Akola (2).  There a Sales tax Officer on a construction of a Schedule  of  the Sales tax Act had held that  betel  leaves were  subject to sales tax as they were not vegetable  which were  exempt  from  that  tax and  this  Court  upheld  that decision.   The question as to the availability of  Art.  32 was not raised. Besides Kailash Nath’s case which, I have de, with above the other case relied upon by the learned Attorney General  fall within  the  following  categories  in  none  of  which  the question as now argurarose or was considered.               (1)   Where  the tax imposed or  action  taken               under a statute which is unconstitutional. (1) A.I.R. 1957 S.C. 790. (2) [1962] 1 S.C.R. 219. 861 (2)  Where the Executive action is without authority of law. (3)  Where  the  taxing  authority imposes  a  tax  or  acts without authority of law. (4)  Where  the  quasi-judicial  authority  without   having jurisdiction determines a fact or gives a decision. I  shall  now  discuss the cases which  fall  in  the  first category i.e. where action is taken under a statute which is unconstitutional.    The   action  taken   thereunder   must necessarily be unconstitutional which is challengeable by an aggreived party under Art. 32. In  Himmatlal Harilal Mehta v. The State of  Madhya  Pradesh (1)   sales  tax  was  neither  levied  nor   demanded   but apprehending  that an illegal sales tax may be assessed  and levied a petition under Art. 226 was filed in the High Court which was dismissed and an appeal was brought to this  Court and thus it was not a, petition under Art. 32.  In that case the sales tax under explanation II to s. 2(g) of the Central Provinces  &  Berar Sales tax Act (Act 2 of 1947)  was  held ultra  vires  of the State Legislature because  it  offended Art. 286(1)(a)and its imposition or threat of imposition was held without authority of law and therefore infringement  of the  constitutional  right guaranteed  under  Art.  19(1)(g) entitling  the  petitioner to apply under Art.  226  of  the Constitution.  This  case therefore decided that a tax under an  Act which is unconstitutional, ultra vires and  void  is without   authority  of  law  under  Art.  265  and  is   an infringement  of Art. 19 (1) (g).  This case and  Ramjilal’s case  (2) received approval in The Bengal Immunity Co.  case (3).   In the Bengal Immunity case also the right  infringed was by an Act which was ultra vires (1) (1954) S.C.R. 1122.     (2) (1951) S.C.R. 127, (3) (1953) 2 S.C.R. 603, 618. 862 and  the  remedy under the Act was held  to  be  inadequate, nugatory  or useless.  The facts of that case were that  the appellant  company  filed a petition under Art. 226  in  the High  Court of Patna for a writ of  prohibition  restraining the Sales tax Officer from making an assessment of sales tax pursuant  to a notice issued by him.  The appellant  claimed

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that sales sought to be assessed were made in the course  of inter-State  trade, that the provisions of the  Bihar  Sales Tax  Act, 1947 (Bihar Act 19 of 1947) which  authorised  the imposition  of tax on such sales were repugnant to Art.  286 (2) and void, and that, therefore, the proceedings taken  by the  Sales tax Officer should be quashed.   The  application was  dismissed by the High Court on the ground that  if  the Sales  tax Officer made an assessment whiCh  was  erroneous, the assessee could challenge it by way of appeal or revision under  ss. 24 and 25 of the Act and that as the  matter  was within the jurisdiction of the Sales tax Officer, no writ of prohibition  or  certiorari could be issued.  There  was  an appeal  against  this  order ’to this Court  and  therein  a preliminary  objection was taken that a writ under Art.  226 was  not  the  appropriate remedy open to  an  assessee  for challenging  the legality of the proceedings before a  Sales tax  Officer.   In  rejecting this  contention,  this  Court observed               "It  is, however, clear from article 265  that               no  tax can be levied or collected  except  by               authority  of law which must mean a  good  and               valid  law.  The contention of  the  appellant               company  is that the Act which authorises  the               assessment,  levying and collection  of  sales               tax  on  inter-State  trade  contravenes   and               constitutes  an infringement of Art.  286  and               is,  therefore,  ultra vires, void  and  unen-               forceable.   If, however, this  contention  be               well founded,, the remedy by way of a writ 863               must, on principle and authority, be available               to the party aggrieved And dealing with the, contention that the petitioner  should proceed  by  way of appeal or revision under the  Act,  this Court observed :-               "The answer to this plea is short and  simple.               The remedy under the Act cannot be said to  be               adequate and is indeed nugatory or useless  if               the  Act  which provides for  such  remedy  is               itself ultra vires and void and the  principle               relied   upon   can,   therefore,   have    no               application  were a party comes to Court  with               an  allegation, that his right has been or  is               being  threatened  to be infringed  by  a  law               which  is  ultra  vires  the  powers  of   the               legislature which enacted it and as such  void               and prays for appropriate relief under article               226." (p. 620). It will be seen that the question which arose in that.  case was with reference to a provision in a taxing statute  which was ultra vires and the decision was only that action  taken under such a provision was without the authority of law  and was,  therefore, an unconstitutional interference  with  the right to carry on business under Art. 19(1)(g). In Mohmmad Yasin v. The Town Area Committee,, Jalalabad  (1) the  imposition of the license fee was without authority  of law and was therefore held to be challengeable under Art. 32 because such a license fee on a business not only takes away the  property  of  the  licensee but  also  operates  as  on unreasonable restriction on the right to carry on  business. In Balaji v. The Income Tax Officer, Special  Investigation, Circle, Akola (2) the Income tax Officer included, after the registration  of a firm, the income of the wife and  of  the minor children who had been admitted to partnership. (1) (1952)S.C.R. 572.

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(2) (1952) 2 S.C.R.983 864 The   assessee   attacked  the   constitutionality   of   s. 16(3)(a)(i)(ii)  of the Income tax Act.  The first  question there   raised  was  of  the  legislative   competence,   of Parliament  to  enact the law and that Parliament  was  held competent  to enact.  Socondly the constitutionality of  the provision was questioned on the ground that it violated  the doctrine  of equality. before the law under Art. 14  of  the Constitution  and that ground was also repelled and  it  was held  that the legislature had selected for the  purpose  of classification  only that group of persons who in  fact  are used as a cloak to perpetuate fraud on taxation.  The third. ground  of  attack wag based on Art. 19(1)(f) & (g)  of  the constitution.  Relying upon the case of Mohd.  Yasin v. Town Area  Committee,(1)  which was a case of  license  fees  and Himmatlal  Harilal  Mehta’s case (2) in which there  was  no determination  by any tribunal but there was a threat of  an illegal imposition, the court held that not only must a  law be valid in the sense of there being legislative competence, it must also not infrings the fundamental rights declared by the  Constitution.   This again was not a case of  a  deter- mination  of a question by a taxing authority acting  quasi- judicially  but  the  constitutionality  and  vires  of  the statute were challenged. The  second category of cases is were the  Taxing  Authority imposes  a  tax  or acts without authority of  law  and  the assessment   made  by  the  Taxing  Authority   is   without jurisdiction.  Tata Iron & Steel Co., Ltd,, v. S. R.  Sarkar (3)  was a case under the Central Sales Tax Act under  which sales in the course of inter-State trade are liable to be taxed  only once and by one State on behalf of  the  Central Government.-  The  petitioner  company  in  that  case   was assessed to tax of certain sales falling within that-Act  by the Central Sales tax Officer, Bihar, and the tax was  paid. They were again taxed by the (1) (1952) S.C.R. 572.       (2) (1954) S.C.R 1122 (3) (1961) 1 S.C.R. 379. 402. 865 Central Sales’ tax Officer, West Bengal who held that  under the statute that was the "Appropriate State" to levy the tax as  the  situs  of  sale was in West  Bengal  and  that  was assailed under Art. 32.  The objection to the maintainablity of  the  petition on the ground that an appeal  against  the order  of  assessment could be taken  and  that  proceedings under  Art. 32 were incompetent was overruled.  Shah J.,  in delivering  the  judgment of the majority  referred  to  the decision  of this Court in Himmatlal Harilal  Mehta’s  case, (1); the Bengal Immunity Co. case(2) and the State of Bombay v. United Motors India Ltd. (3) and observed as follows:-               "In these cases, in appeal from orders  passed               by  the  High Courts in petitions  under  Art.               226,  this Court held that an attempt to  levy               tax  under  a statute which  was  ultra  vires               infringed the fundamental right of the citizen               and recourse to the High Court for  protection               of  the fundamental right was  not  prohibited               because  of the provisions contained  in  Art.               265.  In the case before us, the vires of  the               Central Sales Tax Act, 1956, are not challeng-               ed; but in Kailash Nath v. The State of  Uttar               Pradesh  A.  I. R. 1957 S.C.  790  a  petition               challenging the levy of a tax was  entertained               by  this Court even though the Act  under  the               authority  of which the tax was sought  to  be

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             recovered  was not challenged as ultra  vires.               It is not necessary for purposes of this  case               to  decide  whether the principle  of  Kailash               Nath’s case is inconsistent with the view  ex-               pressed  by  this  Court  in  Ramjilal’s  case               [1951] S. C. R. 127". The  learned  Judges  also held that  the  statute  made  it impossible  to levy two taxes on the same sale and only  one tax  being  payable it could be collected on behalf  of  the Government of India by one (1)  (1954) S.C.R. 1122.       (2) (1955) 2.S.C.R. 603,648, (3)  [1953] S.C.R. 1069, 1077. 866 State only and one sale could not be taxed twice.  It having been-  collected  once the threat to recover’ it  again  was Prima facie an infringement of the fundamental right of  the petitioner.   Sarkar  J.,  who gave  the  minority  judgment observed:-               "In Kailash Nath v. The State of U. P., A.I.R.               1947  S.  C.  790, this  Court  held  that  an               illegal levy of sales tax on a trader under an               Act  the legality of which was not  challenged               violates  his  fundamental rights  under  Art.               19(1)(g)  and  a petition under Art.  32  with               respect  to such violation lies.  The  earlier               case  of  Ramjilal  v.  Income  tax   Officer,               Mohindergarh [1951] S.C.R. 127 does not appear               to  have  been considered.  ’It  is  contended               that  the  decision  in  Kailash  Nath’s  case               requires  reconsideration.   We do  not  think               however  that the present is a fit case to  go               into  the question whether the two  cases  not               reconcilable  and  to decide  the  preliminary               question raised.The point was taken as a  late               stage of proceedings after much costs had been               incurred.    The  question  arising  on   this               petition  is further of general  importance  a               decision of which is desirable in the interest               of  all concerned.  As there is at  least  one               case   supporting   the  competence   of   the               petition,  we  think  it fit  to  decide  this               petition on its merits on the footing that  it               is competent". it  cannot  be  said that this case is  an  authority  which supports  the contention of the petitioner.  Apart from  the fact I that Kailash Nath’s case (1) did not receive approval it was decided on the ground of the Central Sates tax  being a  tax, which could be collected on a sale once and  by  one State on behalf of the Government of India, and having  been imposed  and paid once could not be imposed a  second  time. In other words it was (1) A.I.R.1957 S.C. 790 867 a  tax  which was without jurisdiction  and  therefore  fell within Art. 12(1)(f). A  similar case also relied upon by the petitioner is J.  V. Gokal  &  Co. (Private) Ltd. v. The Assistant  Collector  of Sales  Tax (Inspection) (1).  The There the  petitioner  had entered into contracts, with the Government of India for the supply  of certain quantities of foreign sugar.   When  the, goods were on the high seas the petitioner delivered to  the Government  shipping documents pertaining to the  goods  and received  the  price.   On their  arrival  they  were  taken possession  of by the Government of India after  paying  the requisite customs duty.  For the assessment year 1954-55 the

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petitioner  was assessed to sales tax in  calculating  which the  price  of  the sales made to the  Government  of  India deducted.   The  Assistant Collector of Sales tax  issued  a notice  to  the  petitioner proposing  to  review  the  said assessment passed by the Sales tax Officer.  Objections were filed  but  were rejected and it was held by  the  Assistant Collector  that sales tax was payable in respect of the  two transactions.  Against this order a petition was filed under Art. 32 which was supported by the Union Government.  It was contended by the petitioner that the sales in question  were not  liable to sales tax inasmuch as they took place in  the course of import of goods into India.  This Court held  that the property in the goods passed to the Government of  India when  the shipping documents were delivered against  payment and  that  the  sales  of goods by  the  petitioner  to  the Government  took place when the goods were on the high  seas and were therefore exempt from sales tax under Art. 286  (1) (b)  of the Constitution.  This was also a case of  lack  of legislative  authority and jurisdiction to impose the  sales tax 868 Then  there are cases where the Executive action is  without authority   of  law.   One  such  case  is   Bombay   Dyeing Manufacturing Co. Ltd. v. The State of Bombay (1) which  was not a petition under Art. 32 but an appeal against can order under  Art.  226.   In that case  under  the  Bombay  Labour Welfare  Fund  Act, which authorised the constituting  of  a fund for financing labour welfare, notices were served  upon the’  appellant  company  to  remit  the  fines  and  unpaid accumulations in its custody to the Welfare Commissioner.The appellant company questioned in a petition under Art 226 the validity’ of that Act as a contravention     of Art.  31(2). The High Court held that Act intra vires  and dismissed  the petition.   On appeal against that judgment this Court  held that  the unpaid accumulations of wages and fines  were  the property of the Company and any direction for the payment of those  sums was a contravention of Art. 31(2) and  therefore invalid.It  was also held that assuming that the  money  was not property within the meaning of Art. 31(2 )and Art. 19(1) (f)  applied  that Article would also be of no help  to  the Welfare Commissioner because it could not be supported under Art.  19 (5) of the Constitution.  Moreover this was  not  a case of a determination by a quasi-judicial tribunal but was a case of executive action without authority of law. In  Bidi  Supply  Co, v. The Union of India (  2)  an  order passed   by  Central  Board  of  Revenue  transferring   the assessment  records and proceedings of the  petitioner  from Calcutta to Ranchi under s. 5 (7A) of the Income tax Act was challenged   under  Art.  32  as  an  infringement  of   the fundamental  rights  of  the  petitioner  under  Arts.   14, 19(1)(g) and 31 of the Constitution.  The impugned order  by the  Central  Board  of  Revenue ,Was  made  acting  in  its executive capacity and this (1) (1958) S.C.R. 1122. (2) (1956) S.C.R.257,271,277. 869 Court,  without  deciding  the question  whether  the  order could-   be   supported   on  the   ground   of   reasonable classification  hold  that the order  expressed  in  general terms  without  any  reference to any  particular  case  and without  any limitation. as to time was not contemplated  or sanctioned  by  sub-s.  7(A)  of  s.  5  and  therefore  the petitioner was entitled to the benefit of the provisions  of sub-ss.  1  and 2 of s. 64 of Indian Income  tax  Act.   The question  decided  therefore was that the Central  Board  of

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Revenue  acting under s. 5(7A) was not empowered to pass  an "omnibus wholesale order of transfer".  It was not a  quasi- judicial  order of an administrative tribunal acting  within its  jurisdiction but an unauthorised executive order of  an administrative   tribunal  acting  in   its   administrative capacity.  Section 5(7A) was subsequently ,amended and in  a somewhat similar case Pannalal Binjraj v. Union of India (1) it  was  held  that the amended s. 5(7A) was  a  measure  of administrative  convenience  and was constitutional  and  an order passed thereunder was equally constitutional. In  Thakur Amar Singhji v. State, of Rajasthan(2) the  State of  Rajasthan  passed orders assuming certain  jagirs  under Rajasthan Land Reforms and Resumption of Jagirs Act.  In the case of one of the jagirs it was held by this Court that the notification,  by which the resumption was made, was bad  as regards  Properties comprised in that petition  because  the properties  were  not within the impugned  Act,  and’  being dedicated for religious purposes was exempt under s. 207  of the  Act.  This again was not a case of  any  quasi-judicial decision  but it was a notification issued by the  executive Government in regard to properties not within the Act  which was challenged in that case. (1) [1957] S. C. R. 233.  (2) [1955] 2 S. C. R. 303. 870 A  case  strongly  relied upon by the  petitioner  was  M/s. Mohanalal  Hargovind  Das, Jabalpur v. The State  of  Madhya Pradesh (1).  The petitioners there were called upon to file their returns of the total purchase, of tobacco made by them out  of  Madhya  Pradesh  with a view  to  assess  and  levy purchase  tax.  The return was filed under protest  and  the Sales,  tax Authorities’ as it was required under  the  law, called upon the petitioners to deposit the purchase tax.  No quasi-judicial determination was made, no decision was given after hearing the taxpayer, but deposit was asked to be made as  that  was a requirement of the statute.  In  a  petition under  Art.  32 of the Constitution for a writ  of  mandamus restraining  the  State  of Madhya  Pradesh  from  enforcing Madhya Pradesh Act ’against the petitioners it was contended that  the  transactions were in the  course  of  inter-State trade.  The nature of the transaction was that finished  to- bacco which was supplied to the petitioners by the suppliers moved  from  the  State of Bombay to  the  State  of  Madhya Pradesh  and the transactions which were sought to be  taxed were  therefore in the course of inter-State trade and  were not liable to tax by the State.  That was not a case of mis- construction  of any statue by any quasi-judicial  authority but  that  was  a case in which  the  very  transaction  was outside the taxing powers of the State and any action  taken by the taxing authorities was one without authority of  law. The  statue  did not give jurisdiction to the  Authority  to decide  an inter State transaction was an intra-State  sale. If  it  had  so  done  the  statute  would  have  been   un- constitutional under Art. 286(1)(a). in  Madanlal Arora v. The Excise Taxation  Officer  Amritsar (2),  notices  were issued to the assesee enquiring  him  to attend with the documents and (1) [1955] 2 S. C. R. 509. (2) [1962] 1 S.C.R. 823. 871 other  evidence in support of his returns.  In the  last  of these  notices it was stated that on failure to produce  the documents  and  evidence the case will be decided  "on  beat judgment  assessment basis".  The petitioner did not  comply with the notices but. filed a petition under Art. 32 of  the Constitution challenging the right of the authority to  make

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a "best judgment assessment" on the ground that at the  date of  the last notice the sales tax authority had no right  to proceed to make any "best judgment assessment" as the  three years  within which alone such assessment could be made  had expired.  This contention was held to be well founded.   In- deed  the respondent conceded that he could not  contend  to the  contrary.   This  therefore was a case  in  which  the, taxing authority had no jurisdiction to take proceeding  for assessment of tax because of the expiry of three years which had  to  be  counted from the end of  the  each  quarter  in respect  of which the return had been filed.   The  question was  one of lack of jurisdiction and it made  no  difference that the Sales tax Officer had misconstrued the provision. Y.   Mahaboob  Sheriff v. Mysore State  Transport  Authority (1).  was  a  case  under  the  Motor  Vehicles  Act.    The petitioners’  ’application  for the renewal of  the  permits were  granted by the Regional Transport Authority  empowered to’  grant renewal for the period of one year.   A  petition under  Arts.  226  .and 227 of the  Constitution  was  filed against  the  order of renewal after the usual  appeals  had been  taken  and proved unsuccessful and  the  petition  was summarily dismissed.  Thereafter a petition under Art. 32 of the  Constitution was filed in this Court and  the  question for  determination was whether on a proper  construction  of the provision of s. 58 (1) (a) and (2) of the Motor Vehicles Act the period of renewal like in the case of original (1)  [1960] 2 S. C. R. 146. 872 permit had to be not less than three and not more than  five years.   It  was held that it had to be for that  period  as provided  in sub-s. (1) (a) of s. 58 read with sub-s.  2  of that section.  This, it was submitted, was an authority  for the proposition that where a provision is misconstrued by an authority  having  jurisdiction  to  construe  a  section  a petition  under Art. 32 is competents.  In the first  ’place the  question as to whether Art. 32 was applicable  was  not raised  and  was therefore not decided.  Secondly  what  was held was that if the authority renewed a permit the  renewal had to be for a particular period as specified, in s. 58 and could  not  be  for  a  lesser  period.   The  question  was therefore of jurisdiction. In  Universal  Imports  Agency v. The  Chief  Controller  of Imports  and Exports (1). the petitioners,  in  Pondicherry, entered  before its merger with India, into  firm  contracts with  foreign  sellers and the goods agreed to  be  imported were  shipped  before Or after the merger.  The  goods  were confiscated by the Controller of Customs on the ground  that they  were  imported without a licence but as an  option  in lieu of confiscation the goods were released on, payment  of a  fine.   On  a petition under Art. 32 it  was  held  by  a majority that under paragraph 6 of the French Establishments (Application  of  Laws)  Order  1954,  the  transactions  in question fell within the words ,,things done" in the  saving clause  and were not liable to tax.  This saving clause  was contained in the Order applying Indian laws in place of  the French laws.  The construction was not of the taxing statute but  of certain Orders by which the taxing statute had  been applied  to Pondicherry. , These Orders the  Taxing  Officer had no power to construe and there was no law to support the order of the Collector.  In any case this is an instance  of want of jurisdiction to tax transactions (1)  [1961] 1 S. C. R. 305. 873 which  the  law  excludes  from the  taxing  powers  of  the authority levying the tax.  Thera again the question of  the

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applicability of Art. 32 to quasi-judicial determination was not raised. There  is  one other class of cases of which  K.  T.  Moopil Nair’s  case (1) is an example.  That was a case  where  the tax  was  of  a confiscatory nature and  the  procedure  was contrary  to  rules of natural justice.  The  imposition  of land tax at a flat rate of Rs. 2 per acre imposed under  the provisions  of  Travancore Cochin Land Tax Act  (Act  15  of 1955)  as amended by Travancore Cochin Land Tax Act (Act  10 of  1957)  was held to be violative of Arts. 14 and  19  (1) (f).   A  taxing statute it was held by a  majority  of  the Court,  was  not immune from attack on the  ground  that  it infringes the equality clause under Art. 14, and the tax was also held to be violative of Art. 19 (1) (f), because it was silent  as to the machinery and procedure to be followed  in making the assessment leaving to the executive to evolve the requisite  machinery and procedure thus treating  the  whole thing  as  purely administrative in character  and  ignoring that  the  assessment  on a person  or  property  is  quasi- judicial in character.  It was also held’ that a lax of  Rs. 2  was unreasonable as it was confiscatory in  effect.   The main ground on which the law was held to be an  infringement of  Art.  19  (1)  (f) was the  procedure  or  the  want  of procedure for imposing taxes and therefore its being opposed to rules of natural justice.  Here again the vice was in the Act  and not in any misinterpretation of it.  No  doubt  the amount  of the tax imposed was also held to be  unreasonable because  it  was in effect confiscatory but this  is  not  a matter which is necessary in the present case to go into  as the  question whether Art. 19 (1) applies to taxing laws  or not was not debated by the parties before us.  On the main 874 contention as to the applicability of Art. 32 these were the submissions of the learned Attorney-General. A  review  of these cases shows that (1) the  law  which  is ultra  vires either because of the legislative  incompetence or its contravention of some constitutional inhibition is  a non-existing  law  and any action taken  thereunder,  quasi- judicial  or otherwise, would be a contravention of Art.  19 (1) (f) and (g) and the result will be no different if it is a colourable piece of legislation; (2) where the proceedings are  repugnant  to the rules of natural  justice  the  right guaranteed under Art. 19 (1) (f) and (g) are infringed;  (3) the  consequence is the same where assessment is made by  an authority  which has no jurisdiction to impose the  tax  and (4)  if an administrative tribunal  acting  quasi-judicially misconstrues  a  provision  which  it  has  jurisdiction  to construe and therefore imposes a tax infringement of Art. 19 (1)  (g) would result according to Kailash Nath’s  case  (1) but  there is no such infringement according to cases  which the  learned  Additional Solicitor General relied  upon  and which  have been discussed above.  The reason why the  deci- sion  in  the latter cases is correct and  the  decision  in Kailash  Nath’s case (1) is not have already been given  and it is unnecessary to repeat them. Mr. Palkhivala who intervened in C. M. P. 1496/61 in support of  the petition in the main argued the question  whether  a misconstruction   of  a  taxing  statute  can  involve   the violation of a fundamental right under Art. 19 (1) (g).  His contention  was that an erroneous construction which  result in transgression of constitutional limits would violate Art. (19) (1) (g) and that the difference between  jurisdictional and  non-jurisdictional  error  was immaterial  and  that  a misconstruction of a statute can violate the right to  trade and he relied upon

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(1)  A.I.R. 1957 S.C. 790. 875 M/s.  Mohanlal Hargovind Das v. The State of Madhya  Pradesh (1)  which  was  a case of inter-State sale  and  which  has already been discussed.  He also relied upon the decision in R.  S. Ram Jawaya St" Kapur v. The State of Punjab (2).   In that case it was held that the acts of the Executive even if deemed  to be sanctioned by the legislature can be  declared void  if they infringe any of the fundamental rights but  no question   of  judicial  determination   by   quasi-judicial tribunal  arose there.  Similarly in M/s.  Ram  Narain  Sons Ltd.  v. Asstt.  Commissioner of Sales tax (a) the  question raised  was of the meaning and scope of the proviso to  Art. 286  (2) and therefore the question was one  of  inter-State sales  which  no  statute  could  authorise  to  turn   into intrastate sale by a judicial decision. It  was  argued before us that the decision  of  a  tribunal acting quasi-judicially operates as res judicata and further that the judgment of the High Court of Allahabad when it was moved  by the petitioner under Art. 226 of the  Constitution against  the  order of assessment passed on  the  ground  of misconstruction  of  the notification of December  14,  1957 also  operates  as res judicata as the appeal  against  that order  has  been  withdrawn.  The High  Court  rejected  the petition under Art. 227 firstly on the ground that there was an alternative remedy of getting the error corrected by  way of appeal and secondly the High Court said:-               "We  have, however, heard the learned  counsel               for the petitioner on merits also, but we  are               not satisfied that the interpretation put upon               this  notification  by the Sales  Tax  Officer               contains   any  obvious  error  in  it.    The               circumstances make the interpretation advanced               by  the  learned counsel  for  the  petitioner               unlikely.  It is admitted that even  hand-made               biris  have  been subject to Sales  tax  since               long (1) [1955] 2 S.C.R. 509.  (2) [1955] 2 S.C.R. 225. (3) (1955) 2 S.C.R. 498. 876               before  the  date of the issue  of  the  above               notification.  The object of passing the Addi-               tional Duties of Excise (Goods of Special  Im-               portance)  Central Act, No. 58 of 1957 was  to               levy an additional excise duty on certain  im-               portant  articles and with the concurrence  of               the State Legislature to abolish Sales tax  on               those articles.  According to the argument  of               the learned counsel for the petitioner  during               the  period 14th December, 1957 to  June   30,               1958,  the  petitioner was liable  neither  to               payment of excise duty nor to payment of sales               tax.   We  do not know why there  should  have               been  such an exemption.  The language of  the               notification  might  well be read  as  meaning               that  the  notification is to  apply  only  to               those  goods  on which an  additional  Central               excise duty had been levied and paid." It is unnecessary to decide this question in this case. It  was next argued that the Sales tax Authorities  are  all officers of the State charged with the function of levy  and collection of taxes which is essentially administrative  and that when they act as quasi-judicial tribunals that function is Only incidental to the discharge of their  administrative function and therefore the assessment order of December  20,

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1958, was an executive order and falls within Art. 19(1)(g). Reference was made to Bidi Supply Co., v. The Union of India (1)  (at  pp. 271 and 277), a case under s.  5(7-A)  of  the Income  tax  Act.  At page 271 the definition  of  the  word "State"  is set out and at p. 277 Das, C. J., said that  the "State"  includes  its Income tax Department.  There  is  no dispute that the Sales tax Department is a department of the State  and  is  included within the  word  "State"  but  the question   is  what  is  the  nature  and  quality  of   the determination made by a Sales Tax Officer (1)  (1956) S.C.R. 257, 271, 277. 877 when he is performing judicial or quasi-judicial  functions. The  argument of the learned Attorney General comes to  this that  even  though  in  the  performance  of  qaasi-judicial functions the Taxing Officer may have many of the  trappings of  a  court  still  he is not a  court  and  therefore  the decision of the taxing authority in the present case was not entitled to the protection which an erroneous decision of  a proper  court  has;  Chaparala  Krishna  Brahman  v.  Gurura Govardhaiah  (1)  where  it was held that  tile  Income  tax Officer  is  not  a  court within s.  195  of  the  Criminal Procedure  Code was cited in support of the contention  that the  taxing authority in the present case was not  a  court. So   also  Sell  Co.  of  Australia  Ltd.  v.  The   Federal Commissioner of Taxation (2), where it was held that a Board of  Revenue  created  by the Income tax  Assessment  Act  to review  the decision of Commissioner of Income tax is not  a court  exercising the judicial powers of  the  Commonwealth. At page 298 Lord Sankey.  L. C., observed:               "An  administrative  tribunal  may  act  judi-               cially,  but  still remain  an  administrative               tribunal   as  distinguished  from  a   Court,               strictly  so  called.  Mere externals  do  not               make a direction to an administrative  officer               by  an ad hoe tribunal an exercise by a  court               of judicial power". It  was also observed in that case that there are  tribunals with  many of the trappings of a court,  which  nevertheless are  not  courts  in the strict  sense  exercising  judicial power.   There is no gain saying that Sales tax  Officer  is not a court even though he may have many of the trappings of a  court  including the power to summon  witnesses,  receive evidence on oath and making judicial determinations.  In the strict  sense  of  the term he is  not  a  court  exercising judicial power; but the (1) A.I.R. 1954 Mad. 822. (2) (1931) A. C. 275, 298. 878 question for decision in the present case is not whether  be is a Court or not but whether the determination made by  him in  regard to the exemption available to the petitioners  on the  sale of biris was a decision made by  a  quasi-judicial authority in the exercise of its statutory powers and within its jurisdiction and therefore not an administrative act. The characteristic of an administrative tribunal is that  it has no ascertainable standards.  It only follows policy  and expediency which being subjective considerations are what  a tribunal  makes them.  An administrative tribunal acting  as an administrative tribunal and acting as a judicial tribunal may be distinguished thus:               "Ordinarily ’administrative’ tribunal need not               act on legal evidence at all, but only on such                             considerations  as  they see  fit.   A  statut e

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             requiring   such  evidence  to   be   received               prevents a tribunal’s making up its mind until               it  has given this evidence a chance to  weigh               with  it.  But it is a fallacy to assume  that               the  tribunal is thereby limited to acting  on               that  evidence.  If it is an  ’administrative’               tribunal  it must still be governed by  policy               and  expendiency until it has beard  the  evi-               dence, but the evidence need not influence its               policy  any further than it sees fit.  A  con-               trary view would involve the decision’s  being               dictated  by the evidence, not by  policy  and               expediency; but if certain evidence with it  a               right to a particular decision, that  decision               would  be a decision on legal rights;  so  the               tribunal would be administering ’justice’  and               would  be exercising judicial not  administra-               tive"., ((1933) L. Q. R. 424). There are decisions of this court in which certain 879 tribunals have been held judicial bodies; Bharat Bank  Ltd., Delhi  v. Employees of the Bharat Bank Ltd. (1) Province  of Bombay v. Kusaldas S. Advani (2) where Das, J., (as he  then was) observed at p. 725:               "that if a statutory authority has power to do               any  act which will prejudicially  affect  the               subject  then,  although  there  are  not  two               parties  apart  from  the  authority  and  the               contest between the authority proposing to  do               the act and the subject opposing it, the final               determination  of the authority will yet be  a               quasi-judicial  act provided the authority  is               required by the statute to act judicially". See  also  Nagendra Nath Bora v. The Commissioner  of  Hills Division & Appeals, Assam(3). It is unnecessary again to examine in detail the  provisions of  the  Act  to determine the character of  the  Sales  tax Officer  when he takes assessment proceedings for they  have already  been referred to.  They are all characteristics  of judicial  or  quasi-judicial process and  would  clothe  the Sales tax Officer making assessment orders with judicial  or quasi-judicial  character.   Indeed, because  the  order  of assessment  was  judicial or quasi-judicial  the  petitioner filed  in  the  High Court a  petition  for  certiorari  and against that order an appeal under Art. 136   as   also    a petition for certiorari under Art. 32. Taking the nature  of the  determination by the Sales tax Officer in  the  instant case  it cannot be said that he is purely an  administrative authority or the order passed by him is an executive  order; on  the  contrary when he is determining the amount  of  tax payable  by  a  dealer, he is  acting  in  a  quasi-judicial capacity. (1) (1950) S C.R 459, 463.        (2) (1950 S.C.R. 621, 725. (3) (1958) S.C.R. 1240, 1257, 1258. 880 Mr.  Chari,  intervening on behalf of the  State  of  Bihar, submitted  that in Art. 12 the judicial branch of the  State was not included in the definition of the word "State,"  and the  words ,other bodies" there did not comprise a  tribunal having  jurisdiction to decide judicially and its  decisions could  not be challenged by way of a petition under Art.  32 of  the Constitution.  In view of my decision that a  quasi- judicial order of the Sales tax Officer is not challengeable by proceedings under Art. 32, I do not think it necessary to decide the wider question whether the definition of the word

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"State"   as  given  in  Art.  12  comprises  the   judicial department of the State or not. In  view  of  the  decision as to  the  correctness  of  the decision in Kailash Nath’s case (1). it is not necessary  in this  case  to go into the correctness or otherwise  of  the order of the Sales tax Officer.  The petition under  Article 32  therefore  fails  and is dismissed.  There  will  be  no orders as to costs.             (C.  M. P. No. 1349 of 1961) KAPUR, J.-Messrs. Mohanlal Hargovind Das, the assessee  firm bad  filed an appeal on a certificate of the Allahabad  High Court  against  the  order of  the  Court  dismissing  their petition under Art. 226 of the Constitution challenging  the imposition  of  the sales tax, on the  ground  that  another remedy  was  available.  The appeal against that  order  was dismissed by this Court for non-prosecution on February  20, 1961.  Against that order of dismissal the assessee firm has filed  an application for restoration on the ground that  it had been advised that in view of the rule having been issued under  Art. 32 of the Constitution wherein  the  contentions were  the  same as raised in the appeal  against  the  order under  Art. 226 it was unnecessary to prosecute the  appeal. It  also  prayed  for condonation of  delay  in  filing  the application for restoration. (1)  A. 1. R. (1957) S.C. 790. 881 No  sufficient  cause  has been made out  for  allowing  the application for restoration.  The assessee firm deliberately allowed  the appeal, which was pending in this Court, to  be dismissed  for nonprosecution and after deliberately  taking that  step  it cannot be allowed to get  the  dismissal  set aside  on the ground of wrong advice.  The  application  for restoration is therefore dismissed with costs. SARKAR, J. I have had the advantage of reading the judgments just  delivered  by my brothers Das and Kapur and  I  am  in agreement with them. SUBBA  RAO,  J.I have carefully gone  through  the  judgment prepared  by  my learned brother Kapur, J. I  am  unable  to agree.  The facts have been fully stated in his judgment and it  is  therefore  not necessary to cover  the  ground  over again. This  larger  Bench  has been  constituted  to  canvass  the correctness  of  the decision in Kailash Nath  v.  State  of Uttar  Pradesh  After  hearing the  elaborate  arguments  of learned  counsel, I am convinced that no case has been  made out to take a different view. Learned Attorney General seeks to sustain the correctness of the  said decision.  He broadly contends that this Court  is the  constitutional  protector  of  the  fundamental  rights enshrined  in  the  Constitution, that  every  person  whose fundamental  right  is infringed has a guaranteed  right  to approach this Court for its enforcement, and that it is  not permissible  to whittle down that jurisdiction with the  aid of  doctrines  evolved  by courts fur  other  purposes.   He argues  that  in  the present case  an  executive  authority functioning  under  the Uttar Pradesh Sales ’fax  Act,  1948 (Act XV of 1948), hereinafter called the Act, made a clearly erroneous order imposing tax on exempted goods, (1)  A.I.R. 1957 S.C. 790. 882 namely,  bidis, and that it is a clear infringement  of  the fundamental right of the petitioner to carry on business  in bidis.   Whenever  such a right is infringed,  the  argument proceeds, by a State action here we are only concerned  with State  action-it  is  the duty of this  Court  to  give  the

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appropriate  relief  and  not  to refuse to  do  so  on  any extraneous considerations. The  Additional  Solicitor General appearing for  the  State does not admit this legal position.  He says that the Act is a reasonable restriction on the petitioner’s right to  carry on  business in bidis, that thereunder a  Sales-Tax  Officer has  jurisdiction  to decide, rightly  or  wrongly,  whether bidis are exempted from sales-tax, and that, therefore,  his order  made with jurisdiction cannot possibly  infringe  the fundamental rights of the petitioner. Mr. Chari, who appears for the intervener, while  supporting the  argument  of learned Solicitor General  emphasizes  the point that the fundamental rights enshrined in Art. 19(1)(g) of  the Constitution is only against State action, that  the definition  of  "State"  in Art.  12  thereof  excludes  all authorities  exercising judicial power, that  the  sales-tax authority,  in making the assessment in exercising  judicial power,  and that, therefore, no writ can be issued  by  this Court against the said authority. Before  attempting  to answer the questions  raised,  it  is relevant and convenient to ascertain precisely the  position of  the  fundamental rights under the Constitution  and  the scope  of the jurisdiction of this Court in enforcing  those rights. Fundamental  rights  are  enshrined  in  Part  III  of   the Constitution as the paramount rights of the people.  Article 13(2)  prohibits the State from making any law  which  takes away  or abridges the rights conferred by the said Part  and declares that 883 any  law made in contravention of this clause shall, to  the extent  of the contravention, be void.  These rights may  be broadly  stated to relate to (i) right to equality-Arts.  14 to  18,  (ii) right to freedom Arts. 19 to 22,  (iii)  right against exploitation Arts. 23 and 24, (iv) right to  freedom of  religion  Arts. 25 to 28, (v) cultural  and  educational rights Arts. 29 and 30, (vi) right to property -Arts. 31 and 31A, and (vii) right to constitutional remedies Arts. 32  to 35.  These are the inalienable rights of the people of  this country-some  of  them of noncitizens  also-believed  to  be necessary  for the development of human personality  ;  they are essential for working out one’s way of life.  In  theory these rights are reserved to the people after the delegation of  the  other  rights  by  them  to  the  institutions   of Government  created  by the Constitution.,  which  expresses their will : see observations of Patanjali Sastri, J., as he then  was, in A.K. Gopalan v. State of Madras(1).  In  State of Madras v. Shrimati Champakam Dorairajan (2) the same idea was more forcibly restated thus:               "The   chapter   of  Fundamental   Rights   is               sacrosanct  and not liable to be  abridged  by               any  legislative  or Executive Act  or  order,               except  to the extent provided in the  approp-               riate  article  in Part  III.   The  directive               principles of State Policy have to conform  to               and  run  as  subsidiary  to  the  Chapter  of               Fundamental Rights." In the context of fundamental rights, an important principle should  be borne in mind, namely, that the English  idea  of legislative  supremacy is foreign to our  Constitution.   As this  Court  pointed  out in A. K. Gopalan’s  case  (1)  the Constitution   has   not  accepted  the   English   doctrine of absolute    supremacy   of  Parliament  in   matters   of legislation.   Therefore, every institution, be it the (1) (1950) S.C.R. 88.

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(2) (1951) S.C.R.525,531. 884 Executive,  the  Legislature  of  the  Judiciary,  can  only function in exercise of the powers conferred on it that  is, the Constitution is the paramount law.  As the  Constitution declares  the  fundamental rights and  also  prescribes  the restrictions that can be imposed thereon, no institution can overstep the limits, directly or indirectly, by  encroaching upon the said rights. But  a mere declaration of the fundamental rights would  not be  enough,  and it was necessary to evolve a  machinery  to enforce  them.  So our Constitution, entrusted the  duty  of enforcing  them to the Supreme Court, the  highest  judicial authority in the country.  This Court has no more  important function than to preserve the inviolable fundamental  rights of  the  people ; for, the fathers of the  Constitution,  in their fullest confidence, have entrusted them to the care of this Court and given to it all the institutional  conditions necessary  to  exercise  its  jurisdiction  in  that  regard without fear or favour.  The task is delicate and  sometimes difficult  ; but this Court has to discharge it to the  best of  its  ability and not to abdicate it  on  the  fallacious ground  of inability or inconvenience.  It must be borne  in mind that our Constitution in effect promises to usher in  a welfare  State  for  our country; and in such  a  state  the Legislature   has   necessarily   to   create    innumerable administrative tribunals, and entrust them with multifarious functions.   They will have powers to interfere  with  every aspect  of human activity.  If their existence is  necessary for the progress of our country, the abuse of power by  them may bring about an authoritarian or totalitarian state.  The existence  of  the  aforesaid power in this  Court  and  the exercise of the same effectively when the occasion arises is a necessary safeguard against the abuse of the power by  the administrative tribunals. The  scope of the power of this Court under Art. 32  of  the Constitution has been expounded by 885 this  Court  on many occasions. The decisions not only  laid down  the  amplitude  of  the power but  also  the  mode  of exercising that power to meet the different situations  that might  present themselves to  this Court.In Rameshh  Thappar v.  State of Madras (1) this Court declared that  under  the Constitution the Supreme Court constituted as the  protector guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the Court  in the  first  instance without resort to a High  Court  having concurrent jurisdiction in the matter.  This Court again  in Rashid Ahmad v. The Municipal Board, Kairana (2) pointed out that  the  powers given to this Court under Art. 32  of  the Constitution are much wider and are not confined to  issuing prerogative  writs only.  This Court further elucidated  the scope  of  the jurisdiction in T. C. Basappa v.  T.  Nagappa (3),  wherein Mukherjea, J., speaking for the Court  defined the scope of the power thus:               "In  view  of the express  provisions  in  our               Constitution we need not now look back to  the               early history or the procedural technicalities               of  these writs in English law, nor  feel  op-               pressed by any difference or change of opinion               expressed  in  particular  cases  by   English               Judges." This  Court  again elaborated the scope of its  power  under

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that  Article  in Kavalappara  Kottarathil  Kochunni  Moopil Nayar  v.  The  State  of  Madras(4).   Das,  C.  J.,  after reviewing the earlier case law on the subject observed:               "Further,  even  if  the  existence  of  other               adequate  legal remedy may be taken into  con-               sideration by the High Court in deciding (1)  (1950) S.C.R. 594. (2)  (1950) S.C.R. 566. (3)  (1955) 1 S.C.R. 250, 256. (4)  (1959) Supp. 2 S C. R. 316, 325. 337, 886               whether it should issue any of the prerogative               writs on an application under Art. 226 of  the               Constitution, as to which we say nothing  now-               this  Court  cannot,  on  a  similar   ground,               decline to entertain a petition under Art. 32,               for the right to move this Court by  appropri-               ate  proceedings  for the enforcement  of  the               rights conferred by Part III of the  Constitu-               tion is itself a guaranteed right." In that case it was pressed upon this Court to hold that  in exercise  of  its power under Art. 32 of  the  Constitution, this  Court could not embark upon an enquiry  into  disputed questions  of fact, and various inconveniences were  pointed out if it was otherwise.  After considering the cases  cited in  support  of  that, contention, this Court  came  to  the conclusion  that it would fail in its duty as the  custodian and protector of fundamental rights if it was to decline  to entertain  a  petition  under  Art.  32  simply  because  it involved  the determination of disputed questions  of  fact. When  it was pointed out that if that view was  adopted,  it might not be possible for this Court to decide questions  of fact on affidavits, the learned Chief Justice observed:               "As we have already said, it is possible  very               often  to  decide questions of fact  on  affi-               davits.  If the petitions and the  affidavites               in support thereof are not convincing and  the               court is not satisfied that the petitioner has               established  his  fundamental  right  or   any               breach  thereof,  the court  may  dismiss  the               petition on the ground that the petitioner has               not discharged the onus that lay on him.   The               court  may,  in  some  appropriate  cases,  be               inclined to give an opportunity to the parties               to establish their respective cases by  filing               further affidavits or by issuing a  commission               or  even by setting the application  down  for               trial 887               on  evidence,  as has often been done  on  the               original  sides of the High Courts  of  Bombay               and  Calcutta, or by adopting some  other  ap-               propriate  procedure.  Such occasions will  be               rare indeed and such rare cases should not, in               our  opinion, be regarded as a  cogent  reason               for  refusing to entertain the petition  under               Art. 32 on the ground that it involves  dispu-               ted questions of fact." Finally,  this Court also held that in appropriate cases  it had  the power, in its discretion, to frame writs or  orders suitable  to the exigencies created by enactments  and  that where  the occasion so required to make even  a  declaratory order  with consequential relief.  In short,  this  decision recognized  the  comprehensive jurisdiction  of  this  Court under  Art. 32 of the Constitution and gave it  full  effect

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without putting any artificial limitations thereon.  But  in Daryao  v.  State  of  U. P. (1).  this  Court  applied  the doctrine  of res judicata and held that the  petitioners  in that  case had no fundament right, as their right on  merits was denied by the High Court in a petition under Art. 226 of the Constitution and that as no appeal was filed  therefrom, it  has  become  final.  But the  learned  Judges  carefully circumscribed the limits of the doctrine in its  application to  a petition under Art. 32.   Gajendragadkar,J.,  speaking for the Court observed:               "If the petition filed in the High Court under               Art.  2 26 is dismissed not on the merits  but               because,  of the laches of the party  applying               for  the writ or because it is held  that  the               party  had an alternative remedy available  to               it,  then the dismissal of the  writ  petition               would  not  constitute a bar to  a  subsequent               petition  under Art. 32 except in cases  where               and if the facts thus found by the High  Court               may themselves be relevant even under Art. 32.               If a writ (1)  (1962) 1 S.C.R. 574. 888               petition  is dismissed in limine and an  order               is  pronounced in that behalf, whether or  not               the  dismissal  would constitute a  bar  would               depend  upon the nature of the order.  If  the               order  is on the merits it would be a bar;  if               the order shows that the dismissal was for the               reason  that  the  petitioner  was  guilty  of               laches or that he had an alternative remedy it               would  not be a bar, except in cases which  we               have  already indicated.  If the  petition  is               dismissed   in  limine,  without   passing   a               speaking  order then such dismissed cannot  be               treated as creating a bar of res judicata.  It               is true that, prima facie, dismissal in limine               even without passing a speaking order in  that               behalf  may  strongly suggest that  the  Court               took  the view that there was no substance  in               the  petition at all; but in the absence of  a               speaking order it would not be easy to  decide               what factors weighed in the mind of the  Court               and that makes it difficult and unsafe to hold               that  such a summary dismissal is a  dismissal               on merits and as such constitutes a bar of res               judicata  against  a  similar  petition  filed               under Art. 32. if the petition is dismissed as               withdrawn  it cannot be a bar to a  subsequent               petition under Art. 32, because in such a case               there  has been no decision on the  merits  by               the Court." Though  this decision applies the doctrine of res  judicayta the aforesaid observations indicate the anxiety of the Court to confine it within the specified limits and to prevent any attempt  to overstep the said limits.  Shortly stated it  is settled law that Art. 32 confers a wide jurisdiction on this Court  to enforce the fundamental rights, that the right  to enforce  a fundamental right is itself a fundamental  right, and  that  it  is the duty of this  Court  to  entertain  an application  and  to decide it on merits  whenever  a  party approaches it to decide whether he hag 899 a  fundamental right or if so whether it has been  infringed irrespective  of  the  fact  whether  the  question   raised

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involves  a  question of law or depends  upon  questions  of fact.   The doctrine of res judicata applied by  this  Court does not detract from the amplitude of the jurisdiction, but only negatives the right of a petitioner on the ground  that a competent court has given a final decision against him  in respect of the right claimed. In  this  case a further attempt is made on  behalf  of  the State  to  restrict the scope of the  Court’s  jurisdiction. Uninfluenced  by  judicial decisions, let  us  approach  the question on principle.  An illustration arising on the facts of the present case will highlight the point to be ’decided. A  citizen  of India is doing business in bidis.  He  has  a fundamental  right  to carry on that  business.   The  State Legislature  enacts the Sales Tax Act imposing a tax on  the turnover  and  on  the sales of  various  goods,  but  gives certain exemptions.  It expressly declares that no tax-shall be  levied  on  the  exempted goods.   The  said  law  is  a reasonable restriction on the petitioner’s fundamental right to  carry  on  the  business  in  bidis.   Now  on  a   true construction  of the relevant provisions of the Act, no  tax is  leviable on bidis.  But on a wrong construction  of  the relevant  provisions  of  the  Act,  the  Sales-tax  Officer imposes a tat on the turnover of the petitioner relating  to the  said bidis.  He files successive statutory  appeals  to the  hierarchy of tribunals but without sucess.  The  result is that he is asked to pay tax in respect of the business of bidies  exempted under the Act.  The imposition of the  said illegal  tax  on the turn-. over of bidis  is  certainly  an infringement  of  his fundmental right.  He  comes  to  this Court  and prays that his fundamental right may be  enforced against the Sales-tax Officer.  The Officer says, "It may be true that my order is wrong it may also be that the  Supreme Court may hold that my construction  890 of  the  section  as accepted by  the  highest  tribunal  is perverse;  still, as under the Act I have got the  power  to decide rightly or wrongly, my order though illegal  operates as a reasonable restriction on the petitioner’s  fundamental right  to carry on business." This argument in my  view,  if accepted,  would  in  effect make the wrong,  order  of  the Sales-tax Officer binding on the Supreme Court, or to  state it  differently,  a fundamental right can be defeated  by  a wrong  order of an executive officer, and this  Court  would become  a  helpless spectator abdicating  its  functions  in favour  of the subordinate officer in the Sales-tax  Depart- ment.   The  Constitution says in effect  that  neither  the Parliament  nor the Executive can infringe  the  fundamental rights of the citizens, and if they do, the person  affected has  a  guaranteed right to approach this  Court,  and  this Court has a duty to enforce it; but the Executive  authority says,  "I have a right to decide wrongly and, therefore  the Supreme Court  cannot     enforce  the  fundamental  right". There is nothing in the Constitution which permits     such an            extraordinary position.It cannot be a  correct interpretation of the provisions   of the Constitution if it enables  any  authority  to  subvert  the  paramount   power conferred on the Supreme Court. It is conceded that if the law is invalid, or if the officer acts  with inherent want of jurisdiction,  the  petitioner’s fundamental  right  can be enforced.  It is said that  if  a valid  law  confers jurisdiction on the  officer  to  decide rightly or wrongly, the petitioner has no fundamental right. What  is the basis for this principle ? None is  discernible in  the  provisions  of  the  Constitution.   There  is   no provision which enables the Legislature to make an order  of

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an  executive authority final so as to deprive  the  Supreme Court of its jurisdiction under Art, 32 of the Constitution. 891 But  the finality of the order is sought to be sustained  on the principle of res judicata.  It is argued that the Sales- tax  Tribunals are judicial tribunals in the sence they  are courts,  and, therefore their final decisions would  operate as res judicata on the principle enunciated by this Court in Daryao’s   case  (1).   Can  it  be  said   that   Sales-tax authorities  under  the Act are judicial  tribunals  in  the sense  they are courts ? In a Welfare State the  Governments is  called upon to discharge multifarious  duties  affecting every  aspect  of  human activity.  This  extension  of  the governmental  activity necessitated the entrusting  of  many executive  authorities  with  power  to  decide  rights   of parties.  They are really instrumentalities of the executive designed  to  function  in the  discharge  of  their  duties adopting,  as  far as possible, the principles  of  judicial procedure.   Nonetheless,  they are only  executive  bodies. They  may  have the trappings of a court, but  the  officers manning   the  same  have  neither  the  training  nor   the institutional  conditions of a judicial officer.  Every  Act designed to further the social and economic progress of  our country  or  to raise taxes, constituted some  tribunal  for deciding  disputes  arising thereunder, such  as  income-tax authorities,    Sale-tax    authorities,    town    planning authorities,   regional  transport  authorities,   etc.    A scrutiny  of the provisions of the U. P. Sales-tax Act  with which  we  are  now concerned, shows  that  the  authorities constituted   thereunder   are  only   such   administrative tribunals as mentioned above.  The preamble to the Act shows that  it was enacted to provide for the levy of tax  on  the sale  of goods in Uttar Pradesh.  The Act imposes a  tax  on the turnover of sales of certain commodities and provides  a machinery  for  the levy, assessment and collection  of  the said tax.  Under the Act the State Government is  authorized to  appoint certain assessing authorities.  It provides  for an  appeal against the order of the assessing authority  and for a revision in (1)  (1962) 1 S.C.R. 574. 892 some  cases  and a reference to the High Courts  in  others. The  State  Government  is  also  authorized  to  appoint  a hierarchy  of  authorities  or tribunals  for  deciding  the appeals   or  revisions.   The  assessing  authorities   are admittedly  the  officers of the  Sales-tax  Department  and there  is  nothing in the Act to indicate  that  either  the assessing authority or the appellate authority need  possess any   legal   qualification.    It  is   true   that   legal qualification is prescribed for the revising authority,  but that  does  not  make  him a  court  or  make  the  inferior tribunals  courts.   The  said authorities  have  to  follow certain  principles  of natural justice, but that  does  not make them courts.  The scheme of the Act clearly shows  that the  saletax authorities appointed under the Act,  following the principles of natural justice, ascertain the turnover of an assessee and impose the tax.  The hierarchy of  tribunals are  intended to safeguard the interest of the assessees  as well  as  the State by correcting wrong  orders.   The  fact that,  following the analogy of the Income-tax Act,  at  the instance  of the party aggrieved a reference can be made  by the  reviewing authority to the High Court on a question  of law  shows  only  that the help of the  High  Court  can  be requisitioned  only to elucidate questions of law,  but  the High Court has no power to make final orders, but on receipt

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of  the judgments of the High Court, the revising  authority shall make an order in conformity with such judgment. Now  let  us consider the decisions cited at the  Bar  which would throw some light on the nature of such tribunals.   In considering whether the Board of review created by s. 41  of the  Federal  Income-Tax  Assessment  Act,  1922-25  was   a judicial authority, the Judicial Committee in Shell  Company of  Australia Limited v. Federal Commission of Taxation  (1) observed.               "The authorities are clear to show that  there               are tribunals with many of the trappings (1)  (1930) A. C. 275,296,298. 893               of a Court which, nevertheless, are not Courts               in  the  strict sense of  exercising  judicial               power.  " The Judicial Committee further observed:               "An administrative tribunal may act judicially               but still remain an administrative tribunal as               distinguished   from   a   Court,strictly   so               called.    Mere  externals  do  not   make   a               direction to an administrative officer by  and               ad  hoc  tribunal an exercise by  a  Court  of               judicial power." The  Allahabad  High Court in Messrs Kamlapat  Moti  Lal  v. Commissioner of Income Pax, U. P. (1) held that the  Income- tax  authorities  are  not  courts  and,  therefore,   their decisions  cannot  operate as res judicata.  Malik,  C.  J., observed:               "The income-tax authorities cannot be  treated               as  Courts deciding a disputed  point,  except               for  the  purposes  mentioned in  s.  37,  and               further  there is no other party  before  them               and there are no pleadings.  As has been  said               by Lord Herschell in Boulter v. Kent  Justices               (2),"               "There  is  no truth, no lis,  no  controversy               inter partes, and no decision in favour of one               of them and against the other, unless, indeed,               the  entire public are regarded as  the  other               party".               The Income-tax authorities are mainly  concer-               ned with finding out the assessable income for               the year and not with deciding any question of               title.  But to arrive at that income they have               at  times to decide certain general  questions               which  might affect the determination  of  the               assessable  income  not only in  the  year  in               question     but    also     in     subsequent               years ......... (1)  A.I.R.1950 AII.249,251. (2)  (1897) A.C. 556 894               An  assessment  is  inherently  of  a  passing               nature  and it cannot provide an  estoppel  by               res  judicata  in later years by  reson  of  a               matter being taken in to account or not  being               taken  into account by the Income-tax  Officer               in an earlier year of assessments An instructive discussion on the question whether an Income- tax  Officer is a court within the meaning of s. 195 of  the Code  of Criminal Procedure is found in Krishna  Brahman  v. Goverdhanaiah  (1),  where  Balakrishna  Ayyar,  J.,   after considering  the case law on the subject and the  provisions of  the Income-tax Act, held that an income-tax officer  was

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not  a  "court".  The learned Judge did not think  that  the adoptation  of norms of judicial procedure or the fact  that appeals  were  provided  for, was sufficient  to  make  them courts.  The learned Judge observed:               "When exercising his  powers under Chapter  IV               of  the Act, it seems to me, that the  income-               tax  Officer  is acting in  a  purely  admini-               strative   capacity.   It  is  his   duty   to               ascertain  what the income of  the  particular               individual is and what amount of tax he should               be  required  to pay.  There is  therefore  no               ’lis’ what- ever before him." The   same  reasoning  would  equally  apply  to   sales-tax authorities.  This Court in Bidi Supply Co. v. The, Union of India(1), speaking through Das, C.J., set aside the order of an Income-tax Officer and in               "Here, ’the State  which includes its  Income-               tax Department has by an illegal order  denied               to the petitioner, as compared with other Bidi               merchants who are similarly situate,  equality               before the law or the equal protection of  the               laws  and  the  petitioner  can   legitimately               complain  of an infraction of his  fundamental               right under article 14 of the Constitution. (1)  A.I.R. 1954 med. 822, 826. 895 Though  this  cannot  be called a  direct  decision  on  the question raised in the present case, it indicates that  this Court treated the Income-tax Officer as a department of  the executive branch of St the Government.  This Court again  in Gullapalli Nageswara Rao v. State of Andhra Pradesh (1) St, pointed out the distinction between a quasi-judicial act  of an Executive authority and the judicial act of a court thus:               "The  concept of a quasi-judicial act  implies               that  the  act  is  not  wholly  judicial;  it               describes  only a duty cast on  the  executive               body  or  authority  to conform  to  norms  of               judicial procedure in performing some acts  in               exercise of its executive powers." It is, therefore, clear that administrative tribunal  cannot be  equated  with courts.  They are  designed  to  discharge functions  in  the exercise of the executive  power  of  the State, and the mere fact that the relevant statutes, with  a view of safeguard the interest of the people, direct them to dispose  of matters coming before them following  the  prin- ciples  of  natural justice and by adopting the  same  well- known  trappings of judicial procedure, does not  make  them any  the less the executive orgnas of the State.  It is  not possible  to  apply  the principle of res  judicata  to  the orders of such tribunals, for obviously s. II of the Code of Civil  Procedure  does  not apply to such  orders,  and  the general  priciple of res judicata dehors that provision  has never  been  applied to such orders.  It is true  that  some statutes  expressly  or by necessary  implication  oust  the jurisdiction  of Civil Courts in respect of certain  matters but such exclusion cannot affect the extraordinary powers of superior courts conferred under Arts. 226, 227 and 32 of the Constitution. (1)  [1959] Supp.  1 S.C.R. 319, 353-354. 896 There  is a simpler answer to the plea of res judicata.   In the present case the Sales-tax authorities decided the  case a against the petitioners.  The petitioners are seeking  the help  of  this  Court under Art.32 of  the  Constitution  to enforce their fundamental rights on the ground that he  said

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order  infringes their rights.  To put it  differently,  the petitioners  by this application question the orders of  the Sales-tax authority.  How is it possible to contend that the order which is now sought to be quashed can operate as  res- judicata   precluding  this  Court  from   questioning   its correctness ?  The principle underlying the doctrine of  res judicata  is  that no one shall be vexed twice on  the  same matter.   This implies that there should be two  proceedings and  that  in a former proceeding in a  court  of  competent jurisdiction, an issue has been finally decided inter partes and therefore the same cannot be reagitated in a  subsequent proceeding.  On the said principle the impugned order itself cannot  obviously be relied upon to sustain the plea of  res judicata. The argument ab-inconvenienti does not appeal to me.  As  it is the duty of this Court to enforce a fundamental right  of a   party  if  any  authority  has  infringed   his   right, considerations   based   upon  inconvenience  are,   of   no relevance. it is suggested that if the jurisdiction of  this Court is not restricted in the manner indicated, this  Court will be flooded with innumerable petitions.  Apart from  the fact  that  this is not a relevant circumstance,  a  liberal interpretation of Art. 32 has not had that effect during the ten  years of this Court’s existence, and I do not  see  any justification for such an apprehension in the future.  It is further said that if a wider interpretation is given namely, that if this Court has to ascertain in each case Whether  a. statutory authority has infringed a, 897 fundamental right or not, it will have to decide complicated questions of fact involving, oral and documentary  evidence, and the machinery provided under Art. 32 of the Constitution is  not adequate to discharge that duty satisfactory.   This again is an attempt to cloud the issue.  If the jurisdiction is  there and there are difficulties in the way, this  Court will  have  to  evolve  by  convention  or  otherwise   some procedure to avoid the difficulties.  A similar argument  of inconvenience was raised in Kavalappara Kottarathil Kochuani Moopil  Nayar  v. State of Madras (1) and was  negatived  by this Court.  This Court evolved a procedure to meet some  of the  difficult  situations that might  arise  in  particular cases.   That  apart, this Court also may  evolve  or  mould further  rules of practice to suit different  contingencies. If  a  party  comes  to this  Court  for  enforcement  of  a fundamental  right the existence whereof depends upon  proof of  facts and the said party has not exhausted the  remedies available to him by going through the hierarchy of  tribunal created  by  a  particular Act, this  Court,  if  the  party agrees, may allow him to withdraw the petition with  liberty to  file  it  at a later stage, or, if the  party  does  not agree,  may adjourn it Sine die till after the remedies  are exhausted.  If, on the other hand the party comes here after exhausting  his remedies and after the tribunals have  given their  finding’s of fact, this Court may  ordinarily  accept the findings of fact as is does in appeals under Art. 136 of the  Constitution.   If the party complains that  the  order made  against  him  by  a tribunal is  based  upon  a  wrong construction of the provisions of a statute, this Court  may ascertain  whether  on  a correct interpretation  of  .  the statute,   the  petitioner’s  fundamental  right  has   been violated.  There may be many other situations, but I have no doubt (1) [1959] Supp. (2) S.C.R.316 325, 337. 898

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that this Court will deal with them as and when they  arise. I would, therefore, unhesitatingly reject the argument based on inconvenience. I shall now proceed to deal with the main argument  advanced by learned counsel for the respondent.  Briefly stated,  the argument  is that the Sales-tax Officer has jurisdiction  to construe rightly or wrongly the provisions of the Act, which is a valid law, and that even if the said authority  wrongly constructed  a  provision of the Act and  imposed  the  tax, though  on  a right construction of the  said  provision  it cannot  be so imposed, the said order does not infringe  the fundamental right of the petitioner.  With respect, if I may say  so,  this argument equates the guaranteed  right  of  a citizen  under Art. 32 of the Constitution with that of  the prerogative  writs  obtaining in England, such as  writs  of certiorari, prohibition and manadamus, issued against orders of  inferior tribunals or authorities.  This  also  confuses the   fundamental  right  enshrined  in  Art.  32   of   the Constitution  with one or more of the procedural forms  this Court may adopt to suit each occasion.  The approach to  the two question is different.  The jurisdiction of the  Supreme Court under Art. 32 is couched in comprehensive  phraseology and, as pointed out earlier,, is of the widest amplitude: it is  not confined to the issue of prerogative writs, for  the Supreme  Court  has power to issue directions or  orders  to enforce  the fundamental right; even in respect  of  issuing the  said  writs,  this  Court  is  not  oppressed  by   the procedural  technicalities  of  the  prerogative  writs   in England.   While  under  Art. 32 this  Court  may,  for  the purpose  of enforcing a fundamental right, issue a  writ  of certiorari, prohibition or mandamus, in a suitable case,  it may  give the relief even in a case not reached by the  said writs.   The  limitations imposed on the  prerogative  writs cannot 899 limit  the power of the Supreme Court under Art. 32  of  the Constitution.  In order a writ of certiorari may lie against a  tribunal,  the  said tribunal  must  have  acted  without jurisdiction or in excess of jurisdiction conferred upon  it by  law or there must be some error of law apparent  on  the face  of the record.  There are similar limitations  in  the case  of writs of prohibition and mandamus.  In the  context of  the issue of the said writs, courts were called upon  to define  what  ,jurisdiction" means.   ’Jurisdiction  may  be territorial, pecuniary, or personal.  There may be  inherent want of jurisdiction or irregular exercise of  jurisdiction. A tribunal may have power to decide collateral facts for the purpose  of assuming jurisdiction; or it may have  exclusive jurisdiction  to decide even the said facts.  In  Halsbury’s Laws of England, 3rd edn., Vol.  III, the scope of the power of mandamus, prohibition and certiorari is stated thus at p. 59 :               "The  primary function of the three orders  is               to  prevent any excess of  jurisdiction  (pro-               hibition  and  certiorari; or  to  ensure  the               exercise  of  jurisdiction  (mandamus).    The               jurisdiction of inferior tribunals may  depend               upon  the fulfilment of some condition  prece-               dent (such as notice) or upon the existence of               some   particular  fact.   Such  a   fact   is               collateral  to  the actual  matter  which  the               inferior tribunal has to  try,     and     the               determination  whether  it exists  or  not  is               logically and tempo.rally prior     to     the               determination of the actual question which the

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             inferior  tribunal has to try.   The  inferior               tribunal   must  itself  decide  as   to   the               collateral fact: when, at the inception of  an               inquiry by a tribunal of limited  jurisdiction               a  challenge is made to its jurisdiction,  the               tribunal  has to make up its mind  whether  it               will  act  or  not, and for  that  purpose  to               arrive  at  some decision on  whether  it  has               jurisdiction of not." 900               "There  may be tribunals which, by  virtue  of               legislation constituting them, have the  power               to determine finally the preliminary facts  on               which   the   further   exercise   of    their               jurisdiction depends; but, subject to that, an               inferior tribunal cannot, by a wrong  decision               with regard to a collateral fact, give  itself               a  jurisdiction which it would  not  otherwise               possess  or deprive itself of  a  jurisdiction               which it otherwise would possess". It  is clear from this passage that a tribunal may  have  to decide  collateral facts to exercise its  jurisdiction,  but unless   the   relevant   statute   confers   an   exclusive jurisdiction  on that tribunal, it cannot wrongly clutch  at jurisdiction  which  it  has  not  or  refuse  to   exercise jurisdiction   which   it  possesses.    The   doctrine   of jurisdiction  with  its limitations may be relevant  in  the matter of issue of prerogative writs to quash the orders  of tribunals made without or in excess of jurisdiction, but the said  restrictions  cannot limit the power  of  the  Supreme Court in enforcing the fundamental rights, for under Art. 32 of  the  Constitution for enforcing the said rights  it  has power  to issue directions or orders uncontrol by  any  such limitations.  That apart, even within the narrow confines of the  doctrine  of jurisdiction, it is wrong to  confine  the jurisdiction  to inherent want of jurisdiction.   A  person, who  has  within the narrow confines of the doctrine  of  no authority  to function under an Act, if he purports  to  act under  that  Act,  his  order  will  be  no  doubt   without jurisdiction.  If an authority by a wrong construction of  a section purports to exercise jurisdiction under an Act which it  does  not possess at all, it may again be  described  as inherent want of jurisdiction.  But there may be many  cases on the border line between inherent want of jurisdiction and exercise of undoubted jurisdiction.  The authority may  have jurisdiction,  to decide certain disputes under an Act.  but by a 901 wrong construction of the provisions of the Act it may  make an order affecting a particular subject- s matter, which, on a  correct  interpretation, it cannot reach.   By  a  slight modification of the facts arising s in the present case, the point may illustrated thus A provision of the Sales-tax  Act says  that  the sale of bidis is not  taxable;  the  statute prohibits taxation of bidis; but the Sales-tax Officer on  a wrong  construction  of the provision holds  that  hand-made bidis are taxable; on a correct interpretation, the Act does not  confer any power on the Sales-tax Officer to  tax  such bidis.   In  such a case on a wrong  interpretation  of  the provisions  of  the Act, he has  exercised  jurisdiction  in respect  of  a  subject-matter,  which,  on  their   correct interpretation,  he  does not possess.  In a sense  he  acts without  jurisdiction in taxing goods which are not  taxable under the Act. The criterion of jurisdiction must also fail in a case where

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an  aggrieved party approaches this Court before the  Sales- tax  authority makes its order.  A Sales-tax  authority  may issue only a notice threatening to take action under the Act : at that point of time, there is no decision by the  tribu- nal.   The  person to whom notice is given  approaches  this Court  and complains that the authority under the colour  of the Act proposes to infringe his fundamental right; in  that case, if this Court is satisfied that his fundamental  right is  infringed, it has a duty to enforce it.  But it is  said that when the Sales-tax Act provides a machinery for getting the  validity of his claim tested by the tribunals, he  must only  resort  to  that  machinery.   This  argument  may  be relevant to the question whether a civil courts jurisdiction is  ousted  in view of the special machinery  created  by  a statute,  but that circumstance cannot have any  bearing  on the  question of enforcement of fundamental rights,  for  no law can exclude the jurisdiction of this Court under Art. 32 of the Constitution.  Nor is the 902 argument  that  if a citizen comes to this  Court  when  the proceeding  before  the  Sales-tax  authorities  is  in  the midstream, this Court will be permitting a citizen to short- circuit the rest of the procedure laid down by the Act,  has any relevance to the question of its jurisdiction under Art. 32.   This  may  be an argument of  inconvenience  and  this Court, as has already been indicated, may adjourn- the  case till  the  entire  proceedings come to  an  end  before  the highest Sales-tax authority.  This argument of inconvenience cannot  obviously arise when a party approaches  this  Court after availing himself of all the remedies available to  him under the Act. I would, therefore, hold that the principles evolved by  the courts  in  England  and  accept  by  the  courts  in  India governing the issue of prerogative writs cannot circumscribe the unlimited power of the Supreme Court to issue orders and directions  for the enforcement of the  fundamental  rights. Even  otherwise,  in cases similar to those covered  by  the illustration  Supra,  a prerogative writ can be  issued  for quashing the order of an inferior tribunal, and a  ,fortiori an  order  can be issued for enforcing a  fundamental  right under Art. 32 of the Constitution. Even  if the said legal position be wrong, the present  case falls  within the limited scope of the  principle  governing the issue of a writ of certiorari.  In Hari Vishnu Kamath v. Syed Ahmad Ishaque(1), the scope of that power vis-a-vis  an error of law has been stated thus: .lm15 "It  may  therefore  be  taken as settled  that  a  writ  of certiorari could be issued to correct an error of law.   But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face  of the  record.   The real difficulty with  reference  to  this matter, however, (1)  [1955] 1 S.C.R. 1104, 1123. 903               is  not so much in the statement of the  prin-               ciple as in its application to the facts of  a               particular  case.  When does an error case  to               be mere error, and become an error apparent on               the  face of the record ? Learned  counsel  on               either side were unable, to suggest any clear-               cut rule by which the boundary between the two               classes  of errors could be  demarcated.   Mr.               Pathak  for the first respondent contended  on               the   Strength  of  certain  observations   of

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             Chagla,  C.J.,  in  Batuk  K.  Vyas  v.  Surat               Municipality (1), that no error could be  said               to be apparent on the face of the record if it               was  not self-evident, and if it  required  an               examination or argument to establish it.  This               test  might  afford a satisfactory  basis  for               decision in the majority of cases.  But  there               must  be cases in which even this  test  might               break  down,  because judicial  opinions  also               differ, and an error that might be  considered               by  one Judge as self-evident might not be  so               considered by another.  The fact is that  what               is  an  error  apparent on  the  face  of  the               record,   cannot  be  defined   precisely   or               exhaustively   there  being  an   element   of               indefiniteness  inherent in its  very  nature,               and   it  must  be  left  to   be   determined               judicially on the facts of each case." Whether  there is an error of law on the face of the  record can  be determined only on the facts of each case,  and,  as this Court pointed out, an error that might be considered as self-evident  by  one  Judge may not  be  so  considered  by another.   Except  perhaps  in a rare case,,  it  is  always possible  to  argue  both ways.   I  would  not,  therefore, attempt to law down a further criterion then that which  has been accepted by this Court, namely, (1)  A.I. R. [1953] Bom. 133. 904 that  the question must be left to be determined  judicially on  the  facts  of  each case.  In  the  present  case,  the recitals in the notification clearly disclose that there  is an  error of law on the face of the order of the  tribunals. If that error is corrected, as we should do, the position is that  the  Sales-tax tribunals imposed a tax  on  the  sales transactions  of  biris which they had no power to  do.   In that event     there   is  a  clear  infringement   of   the fundamental    rights   of  the  petitioners  to  carry   on business in,   biris. Now let us look at the decisions of this Court to  ascertain ’whether  all or any of them have applied the  criterion  of jurisdiction  in  the matter of enforcement  of  fundamental right of a citizen. Where  under s. 11 of the Bihar Buildings (Lease,  Rent  and Eviction)Control   Act,  1947,  the  Controller  was   given jurisdiction  to determine whether there was non-payment  of rent  or not, as well as the jurisdiction, on  finding  that there  was  non-payment  of rent, to  order  eviction  of  a tenant, it was held by this Court in Rai Brij Raj Krishan v. S. K. Shaw and Brothers (1) that even if the Controller  had wrongly  decided  the question whether there had  been  non- payment  of rent, his order for eviction on the ground  that theme  had been non-payment of rent could not be  questioned in a civil court.  This decision has nothing to do with  the scope of this Court’s power to enforce a fundamental  right, but  it  deals only with the question of the ouster  of  the civil  court’s  jurisdiction  when  a  special  tribunal  is created  to  finally  decide specific  matters.  In  Messrs. Mohanlal Hargovind Das Biri Merchants Jabalpur v. The  State of  Madhya  Pradesh (2 ) when the  Sale-tax  authorities  of Madhya  Pradesh on a wrong view of the transactions  carried on by (1) [1951] S.C.R. 145. (2) [1955] 2 S.C.R. 509. 905 the  petitioners  therein, hold that the  said  transactions

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were intrastate transactions and on that basis required them to  file a statement of return of total purchase of  tobacco made  by  them,  this  court,  on  a  correct  view  of  the transactions  came  to the conclusion that they  related  to inter-State   trade   and,  on  that  view,   enforced   the fundamental  right of the petitioners.  Though there was  no decision of the Sales-tax authorities that the  transactions were  intra  State, the notice was on that basis ;  but  yet that  did not prevent this Court from coming to a  different conclusion  and  enforcing  the fundamental  right,  of  the petitioners.   In  Messrs.  Ram Narain Sons Ltd.  v.  Asstt. Commissioner  of  Sale-tax  (1)  the  Sales-tax  authorities determined the turnover of the petitioners including therein the  proceeds  of  sales  held  by  them  to  be  intrastate transactions.   This Court held, considering the  nature  of the transactions once again, that they were not sales inside the  State and were only sales in the course  of  interState trade  and  commerce,  and,  on  that  basis,  enforced  the fundamental  right  of the petitioners.   This  Court  again enforced the fundamental rights of the petitioners in J.  V. Gokul & Co. v. Asstt. Collector of Sale-tax (2) by reversing the finding of the Sales-tax Officer, who had held that  the sales  in  that case were intrastate and holding  that  they were made in the course of import. Ignoring  the first decision wherein there was no  order  of the Sales-tax Officer on merits, in the other two decisions, the  Sale-tax:  Officer  in  exercise  of  his  jurisdiction decided  on the facts before him that the sales were  intra- State sales, whereas this Court on a reconsideration of  the facts  hold that they were outside sales.  The criterion  of jurisdiction  breaks  in  these  cases,  for  the  Sales-tax Officer (1)  (1955) 2 S C R 483. (2)  (196O) 2 S.C.R. 852. 906 has inherent jurisdiction to decide the question whether the sales were inside sales or outside sales.  But an attempt is made  to  distinguish these cases on the ground  that  by  a wrong  view  of  the  transacting,  the  sales-tax   Officer violated the provisions of Art. 286 of the Constitution, and therefore he had no inherent jurisdiction to impose the  tax There  are  no merits in this distinction.   The  Sales  tax Officer had jurisdiction to decide under the relevant sales- tax  Act whether a transaction was inside or  outside  sale. He had the jurisdiction to decide rightly or wrongly; on the basis  of his finding, though a wrong one, the’  sales  were not exempt from taxation.  If, on the facts of the case, the Sales-tax Officer bad arrived at the correct conclusion,  he would  not  have any power to impose a  tax  on  inter-State sales  under the Act; he would also have infringed Art.  286 of the Constitution, if he had imposed a tax on such a sale. The absence of jurisdiction or want of power in one case was traceable  to a statutory injunction, and in the other to  a constitutional  prohibition;  but  that  in  itself   cannot sustain the distinction in the application of the  criterion of  jurisdiction, for in either case the said wrong  finding of fact was the root of the error. The decision of this Court in Kailash Nath v. State of U. P. (1),  which  necessitated the reference to  this  Bench,  is another  instance where this Court enforced the  fundamental right  of the petitioner by accepting an  interpretation  of the provisions of the Sales-tax Act different from that  put upon  them   by the sales-tax authority.  There, as  in  the present case, the question depended upon the  interpretation of  the  terms of a notification issued under s.  3  of  the

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Sales-tax Act exempting certain goods from taxation.  It  is said  that  the  view  of this  Court  was  based  upon  the judgments of this Court enforcing fundamental rights on  the ground that the impugned provisions whereunder tax was (1)  A.I.R. 1957 S.C. 790. 907 levied  were  ultra vires.  But the objection  taken  before this  Court  in  that case was that  the  imposition  of  an illegal tax would not entitle a citizen to invoke Art. 32 of the  Constitution,  but  he  must  resort  to  the  remedies available  under the ordinary law or proceed under Art.  226 of the Constitution.  But that argument was negatived on the basis  of  the  decisions cited before them.   The  test  of jurisdiction  now  sought  to be applied  was  not  directly raised in that Case.  It cannot therefore be said that  this Court     went  wrong by relying upon irrelevant  decisions. The discussion shows that this Court held in the  manner  it did  as it came to the conclusion that a  fundamental  right had been clearly infringed by a wrong interpretation of  the notification. Let  me now consider the decisions of this Court  which  are alleged  to  have departed from the view expressed  in  that case.  In Gulabdas & Co. v. Asstt.  Collector of Customs(1), the  petitioners  were established importers  holding  quota rights  for importing stationery articles and  having  their places  of business in Calcutta.  They had a licence  for  a period  of  12  months to import goods  known  as  "Artists’ Materials" falling under Serial No. 168(C) of Part IV of the Policy Statement.  Item No. 11 of Appendix XX annexed to the Import Trade Control Policy Book was described as "Crayons". The  petitioners,  on  the basis of  the  licence,  imported "Lyra"  brand crayons.  The Assistant Collector  of  Customs instead of assessing duty on them under item 45(A), assessed duty  under  item 45 (4) of the Indian Customs  Tariff.   On appeal  the Central Board of Revenue confirmed it.   It  was argued,  inter alia, that the Customs authorities imposed  a duty  heavier than the goods had to bear under the  relevant provisions.  This Court held that no question of fundamental right arose in that case. (1)  A.1 R. [19S7] S. C. 733, 736. 908 In that context, the following observations were made.               "If  the  provision  of law  under  which  the               impugned  orders  have been  passed  are  good               provisions  and  the orders  passed  are  with               jurisdiction,  whether they be right or  wrong               on  facts, there is really no question of  the               infraction  of  a  fundamental  right.   If  a               particular  decision is erroneous on facts  or               merits,  the  proper remedy is by  way  of  an               appeal."               "If  the  petitioners were  aggrieved  by  the               order of the Central Board of Revenue they bad               a further remedy by way of an application  for               revision         to        the         Central               Government  ............  All that  is  really               contended is that the orders are erroneous  on               merits.  That surely does not give rise to the               violation of any fundamental right under  Art.               19 of the Constitution". In  that case, on facts, the Customs authorities  held  that the petitioners were liable to pay a particular duty on  the goods, and this Court accepted that finding and,  therefore, no  question  of fundamental right arose.  But,  if  on  the other  hand  the observations meant that the  order  of  the

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Customs  authorities  was binding On this Court, I  find  it difficult to accept that view.  It is one thing to say  that this  Court ordinarily will accept the findings of  adminis- trative tribunals on questions of fact, and it is another to say  that the said finding are binding on this Court.  I  do not  think  that this Court intended to lay  down  that  the findings  of  administrative tribunals are binding  on  this Court,  however, erroneous or unjust the said  findings  may be.   This  Court again in Bhatnagars and Co.  Ltd.  v,  The Union of India (1) accepted the findings of fact recorded by the relevant Customs authorities, and observed (1)  [1957] S.C.R. 701, 712. 909               "Essentially  the  petitioner’s  grievance  is               against the conclusions of fact reached by the               relevant authorities.  If the said  conclusion               cannot be challenged before us in the  present               writ petition, the petitioner would  obviously               not  be  entitled to any relief  of  the  kind               claimed by him." The finding arrived at by the Customs authorities was  that, though  the licences were obtained by the petitioner in  his name,  he had been trafficking in those licences,  that  the consignments  had been ordered by another  individual,  that the  said individual held no licence for import of soda  ash and as such the consignments received by the said individual were  liable to be confiscated.  The finding was purely  one of  fact,  and this Court accepted: it as correct:  on  that basis,  no question of fundamental right would  arise.   The decision in The Parbhani Transport Co-operative Society Ltd. v. The Regional Transport Authority, Aurangabad (1)  related to the fundamental right of the petitioner therein to  carry on  the business of plying motor buses as  stage  carriages. The State applied for permits for all these routes under Ch. IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 1956, and the petitioner applied for renewal of its  permit. The  Regional Transport Authority rejected the  petitioner’s right  and  granted  the permit to the State.   One  of  the contentions raised was that the provisions of Art. 14 of the Constitution  had been infringed.  This Court held that  the Regional  Transport Authority, on the facts, had  held  that there was no discrimination.  Dealings with that contention, this Court observed:               "This  contention  is  in  our  view   clearly               untenable.   The decision of respondent No.  1               may  have been right or wrong and as  to  that               ,we say nothing, but we are unable to see that (1)  (1960) 3 S.C.R. 177,183. 910               that  decision  offends Art. 14 or  any  other               fundamental  right  of  the  petitioner.   The               respondent  No. 1 was acting as a  quasi-judi-               cial  body and if it has made any  mistake  in               its  decision there are  appropriate  remedies               available  to  the  petitioner  for  obtaining               relief.   It  cannot complain of a  breach  of               Art. 14." This  decision  in  effect refused  to  interfere  with  the findings of fact arrived at by the tribunal for the  reasons mentioned  therein.   If the findings stand no  question  of fundamental  right  would  arise.  The  decision  in  A.  V. Venkateswaran,  Collector  of  Customs  Bombay  v.  Ramchand Sobhraj  Vadhwani (1) is of no     assistance,  as it was  a decision under Art. 226 of    the Constitution.  In  Aniyoth Kunhamina Umma v.   The    Ministry    of    Rehabilitation,

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Government  of India, New Delhi (2) the  petitioner  therein filed  a  writ petition for enforcement of  his  fundamental right  on the ground that the property in question  was  not evacuee  property.  The authorities under the  relevant  Act decided that it was an evacuee property, and the  petitioner carried  the  matter  to  the  appellate  tribunals  without success.   This Court dismissing the petition on the  ground that  the,  petitioner  had no fundamental  right  made  the following observations:               "It  is,  indeed, true that s. 28 of  the  Act               cannot  affect  the power of  the  High  Court               under Arts. 226 and 227 of the Constitution or               of  this Court under Arts. 136 and 32  of  the               Constitution.   Where, however, on account  of               the  decision  of an  authority  of  competent               jurisdiction   the   right  alleged   by   the               petitioner has been found not to exist, it  is               difficult   to   see  how  any   question   of               infringement  of  that right can  arise  as  a               ground  for  a petition under Art. 32  of  the               Constitution,  unless  the  decision  of   the               authority of competent jurisdic- (1) (1962) 1 S C.R. 753. (2) (1962) 1 S.C.R. 505. 911               tion on the right alleged by the petitioner is               held  to be a nullity or can be otherwise  got               rid of.  As long as that decision stands.  the               petitioner cannot complain of any infringement               of   a   fundamental   right.    The   alleged               fundamental right of the petitioner is  really               dependent  on whether Kunhi Moosa Haji was  an               evacuee  and whether his property  is  evacaee               property.  If the decision of the  appropriate               authorities of competent jurisdiction on these               questions  has  become  final  and  cannot  be               treated  as a nullity or cannot  be  otherwise               got rid of, the petitioner cannot complain  of               any  infringement  of  her  fundamental  right               under   Arts.   19(1)(f)   and   31   of   the               Constitution." Concluding the judgment, it was observed:               "We are basing our decision on the ground that               the  competent authorities under the  Act  had               come to a certain decision, which decision has               now  become  final the petitioner  not  having               moved against that decision in an  appropriate               court  by an appropriate proceeding.  As  long               as that decision stands, the petitioner cannot               complain of the infringement of a  fundamental               right, for she has no such right." It  would be seen that the tribunals found, on the facts  of that  case, that the property was evacuee property,  and  if that finding was accepted, DO question of fundamental  right arose.  It is true that this Court accepted that finding  on the  ground that it had become final and the petitioner  had not questioned the correctness of that decision in a  proper court by an appropriate proceeding., As I have said earlier, this  Court  may  ordinarily accept  the  findings  of  fact arrived  at  by tribunals; but, on the other  hand,  if  the judgment meant that under no conceivable circumstances  this Court could 912 interfere  with the findings of an  administrative  tribunal even if there was a clear infringement of fundamental right,

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in  my  view,  it  would amount  to  an  abdication  of  its jurisdiction  in  favour of administrative  tribunals.   Nor does  the decision of this Court in Madan Lal Arora  v.  The Excise  &  Taxation Officer, Amritsar (1) carry  the  matter further.   There,  the petitioner was  a  dealer  registered under the Punjab General Sales Tax Act.  Notices were served on  him by the Sales tax authority, the last of  them  being that  if the relevant documents were not produced  within  a particular  date  the  case would be decided  on  the  ,best judgment  assessment basis".  It wag contended on the  basis of  a.  11 of the Punjab General Sales Tax Act that  at  the date  of the notice last mentioned the Sake Tax  authorities bad  no  right  to  proceed  to  make  any  "best  judgment" assessment  as  the  three  years  within  which  only  such assessment  could  be made had expired  before  then.   This Court   accepted  the  construction  put  forward   by   the petitioner and held that no assessment could be made on  the petitioner;  and, in that view, it enforced his  fundamental right.   There was no inherent want of jurisdiction  in  the Sales Tax authorities, for they had jurisdiction to construe the  relevant  provisions  of s. 11  and  hold  whether  the assessment  could be made within a particular time  or  not. Notwithstanding  that circumstance, this Court enforced  the petitioner’s  fundamental  right.  It is  not  necessary  to multiply  decisions.   On  a  superficial  reading  of   the aforesaid   decisions,   though  they  may  appear   to   be conflicting,  there is one golden thread which runs  through all  of  them  and,  that is, a  citizen  has  a  guaranteed procedural right under Art. 32 of the Constitution, and that a  duty  is cast upon this Court to  enforce  a  fundamental right  if  it  is  satisfied  that  the  petitioner  has   a fundamental right and that it has been (1)  (1962) 1 S.C.R. 823. 913 infringed  by  the State.  That question was  approached  by this Court from different perspectives, having regard to the facts  of  each  case.   When  a  fundamental  right  of   a petitioner  was  infringed  by  an  action  of  an   officer purporting  to exercise a power under an Act which is  ultra vires  or  unconstitutional, or without  jurisdiction,  this Court  invariably enforced the fundamental right.   So  too, this  Court  give relief under Art. 32 of  the  Constitution whenever a statutory authority infringed a fundamental right of petitioner on a wrong construction of the provisions of a statute  whereunder he purported to act.  This Court,  as  a rule  of practice, accepted the findings of fact arrived  at by  tribunals  and on that basis held  that  no  fundamental right  was infringed.  But I do not understand any of  these decisions   as  laying  down  that  the  amplitude  of   the jurisdiction  conferred on this Court under Art. 32  of  the Constitution  and  the guaranteed right given to  a  citizen under  the said article should be restricted or  limited  by some   principle  or  doctrine  not  contemplated   by   the Constitution. Mr.  Chari, appearing for one of the interveners,  raised  a wider question.  His argument is that a relief under Act. 32 cannot  be  given against an authority  exercising  judicial power  and  that the Sales-tax authorities  are  authorities exercising  judicial power of the State.  This  argument  is elaborated  thus : Under the Constitution, the  institutions created   thereunder   can  exercise   either   legislative, executive  or  judicial  functions and  sometimes  the  same institution  may  have to exercise one or more of  the  said powers;  institutions  exercising  legislative  powers  make laws,  those  exercising powers, administer  the  laws,  and

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those exercising judicial powers decide the disputes between citizens and citizens, between citizens and State and state, the said judicial powers can be conferred in the 914 manner prescribed by the Constitution on any institution  of individual officer, whether it is a court or not; with  that background if Art. 12 of the Constitution is looked at,  the argument  proceeds,  the  institutions  exercising  judicial power  are  excluded  therefrom.   Article  32  enables  the Supreme  Court to enforce a fundamental right  only  against the  State  action-. no fundamental right  can  he  enforced ,against an officer exercising judicial power as he does not come  under  the  definition  of State in  Art.  12  of  the Constitution. It  is  not  necessary  in.this  case  to  decide  the   two questions,  namely, (1) whether a person can  approach  this Court to enforce his fundamental right on the ground that it was  infringed  by  a deciSion of a court of  law,  and  (2) whether the right guaranteed by Art. 19 of the  Constitution can  be enforced under Art. 32 against the action of a  pri- vate  individual.   We are concerned only  with  the  narrow question  whether such a right can be enforced  against  the action  of an administrative tribunal.  It can certainly  be enforced  against it, if it comes under the definition of  a State  under Art. 12 of the Constitution.  We  have  already held  that an administrative tribunal is not a court but  is only  an  executive authority functioning  under  a  statute adopting   the  norms  of  judicial  procedure.   It  is   a department of the executive Government exercising  statutory functions  affecting the rights of parties.  Under Art.  12, "the  State" has been defined to include the Government  and the   Parliament  of  India  and  the  Government  and   the Legislature  of each of the States and all local  and  other authorities  within  the  territory of India  or  under  the control of the Government of India.  A Division Bench of the Madras High Court in University of Madras v. Shanta Bai  (1) construed  the  words ",’local or other  authorities"  under Art. 12 of the Constitution thus:                   "These words must be construed as (1)  A.I.R. 1954 Mad. 67,68. 915               ejusdem  generis with Government  or  Legisla.               ture  and  so construed can only  mean  autho-               rities   exercising  governmental   functions.               They  would  not include  persons  natural  or               juristic    who   cannot   be   regarded    as               instrumentalities of the Government." Applying  this  definition to Art. 12, it is  manifest  that authorities   constituted  under  the  Sales-tax   Act   for assessing  the tax would be "other authorities"  within  the meaning  of  Art.  12; for  the  said  authorities  exercise governmental functions and are the instrumentalities of  the Government.  But it is contended that if the fathers of  our Constitution   intended   to  include  in   the   definition authorities  exercising judicial functions, having  included the  Government  and  the Parliament, they  would  not  have omitted  to mention specifically the  judicial  institutions therein.   This  argument  may have some  relevance  if  the question  is whether a court of law is included  within  the definition  of  ,,-State",  but none when  the  question  is whether  an administrative tribunal is included in the  said definition.   An  administrative tribunal  is  an  executive authority and it is clearly comprehended by the words "other authorities".   If  the  argument  of  learned  counsel   be accepted,  Government,  also  shall  be  excluded  from  the

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definition where it exercises quasi-judicial functions.   So too, Parliament will have to be excluded when it exercises a quasi-judicial  function.  That would be to introduce  words which are not in the Article.  It is, therefore, clear to my mind that the definition of the word, whether it takes in  a court  or not, certainly takes in administrative  tribunals. If an administrative tribunal is a ,-State" and if any order made or action taken by it infringes a fundamental right  of a  citizen  under  Art. 19 of the Constitution,  it  can  be enforced under Art. 32 thereof.          Let me now restate the legal position as I 916 conceive it: (1) A citizen has a fundamental right to  carry on business in bidis under Art. 19 (1) of the  Constitution. (2)   The   State  may  make  a  law   imposing   reasonable restrictions  on that right: it is conceded that  the  Uttar Pradesh  Sales  Tax  Act is such a law.  (3)  The  Sales-tax authorities   constituted  under  the  Act,  purporting   to exercise their powers thereunder, may make an illegal  order infringing that right. (4) The order may be illegal  because the  authority concerned has acted without  jurisdiction  in the  sense that the authority is not duly constituted  under the  Act or that it has inherent want of  jurisdiction;  the order  may  be illegal also because the said  authority  has construed the relevant provisions of the Act wrongly and has decided  the facts wrongly or drawn the inferences from  the facts  wrongly.  (5)  The  Act  expressly  or  by  necessary implication  cannot  give  finality  to  the  order  of  the authority or authorities so as to prevent the Supreme  Court from questioning its correctness when the said order in fact affects the fundamental right of a citizen. (6) The  aggrie- ved party may approach this Court before a decision is given by the Sales-tax authority or after the decision is given by the  original authority or when an appeal is pending  before the  appellate tribunal or after all the remedies under  the Act  are exhausted. (7) Whatever may be the stage  at  which this  Court is approached this Court may in its  discretion, if  the question involved is one of jurisdiction or a  cons- truction of a provision, decide the question and enforce the right without waiting till the procedure prescribed by a law is  exhausted;  but if it finds that questions  of  fact  or mixed questions of fact and law are involved, it may give an opportunity  to  the  party,  if he  agrees,  to  renew  the application  after he has exhausted his remedies  under  the Act, or, if he does not agree, to adjourn the petition  till after  the  remedies are exhausted. (8) If  the  fundamental right  of the petitioner depends upon the findings  of  fact arrived at by the administrative tribunals in 917 exercise of the powers conferred on them under the Act, this Court  may in its discretion ordinarily accept the  findings and  dispose  of  the  application on  the  basis  of  those findings. The  following of this procedure preserves the  jurisdiction of   this  Court  as  envisaged  by  the  Constitution   and safeguards  the  guaranteed rights of the citizens  of  this country  without  at  the same  time  affecting  the  smooth working  of the administrative tribunals created  under  the Act.   If  the other view is accepted, this  Court  will  be abdicating   its   jurisdiction   and   entrusting   it   to administrative  tribunals,  who in a welfare  State  control every  conceivable  aspect of human activity and  are  in  a dominant position to infringe the fundamental rights guaran- teed  to the citizens of this country.  I would prefer  this pragmatic  approach to one based on concepts  extraneous  to

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the doctrine of fundamental rights. I  would,  therefore, hold that in the present case  if  the Sales-tax officer; by a wrong construction of the provisions of  the  Act, made an illegal order imposing a  tax  on  the petitioner’s fundamental right, it is liable to be quashed, The  next  question  is whether the  Sales-tax  officer  has wrongly construed the notification issued by the  Government under s. 4(1)(a) of the Act.  Section 4(1) of the Act  reads as follows:               "No tax shall be payable on-               (a)   The  sale of water, milk, salt,  newspa-               pers and motor spirit as defined in the U.  P.               State  Motor Spirit (Taxation) Act, 1939,  and               of any other goods which the State  Government               may  by notification in the official  Gazette,               exempt.               (b)   the sale of any goods by the All.  India               Spinners’ Association or Gandhi Ashram, 918               Meerut, and their branches or such other  per-               sons or class of persons as the State  Govern-               ment  may  from time to time  exempt  on  such               conditions  and  on payment of such  fees,  if               any,  not  exceeding  eight  thousand   rupees               annually  as may be specified by  notification               in the Official Gazette." The  following  notification  dated December  14,  1957  was issued under the said section:               "In partial modification of notifications  No.               ST-905/X,  dated March 31, 1956  and  ST-418/X               902  (9)-52,  dated January  31,1957,  and  in               exercise of the powers conferred by clause (b)               of  sub-section (1) of section 4 of  the  U.P.               Sales Tax Act, 1948 (U.  P. Act No. XV of    1948)               as amended up to date, the Governor of   Uttar               Pradesh is pleased to order that no tax  shall               be payable under the aforesaid Act with effect               from  December  14,  1957 by  the  dealers  in               respect  of  the following  classes  of  goods               provided  that the Additional  Central  Excise               Duties  leviable thereon from the  closing  of               business  on December 13, 1957 have been  paid               on  such  goods and that the  dealers  thereof               furnish  proof  of  the  satisfaction  of  the               assessing authority that such duties have been               paid.               (1)...........................               (2)...........................               (3)   Cigars,  cigarettes, biris and  tobacco,               that is to say any form of tobacco, who  their               cured  or uncured and whether manufactured  or               Dot includes the leaf, stalks and stems of the               tobacco plant but does not include any part of               a  tobacco plant while still attached  to  the               earth." 819 The  following  facts are not disputed : In  regard  to  the sales  of  certain commodities with  an  inter,state  market certain difficulties cropped up in the matter of  imposition of  sales-tax by different States.  In order to avoid  those difficulties.   the  Central  Government  and   the   States concerned  came  to  an arrangement  whereunder  the  States agreed  for the enhancement of the excise duties  under  the Central  Act in respect of certain commodities in  substitu- tion  for  the  sales-tax levied upon  them,  and  that  the

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Central  Government  agreed to collect the  enhanced  excise duty  on the said commodities and distribute the  additional income derived amongst the State Governments.  To  implement that  arrangement,  Parliament  passed Act No.  58  of  1957 called  the  Additional Duties of Excise (Goods  of  Special Importance) Act, 1957, on December 24, 1957.  The long title of  that  Act shows that it was enacted to provide  for  the levy  and  collection  of additional  duties  of  excise  on certain goods and for the distribution of a part of the  net proceeds  thereof  among  the States  in  pursuance  of  the principles of distribution formulated and the recommendation made  by  the Finance Commission.  ’Under the  Central  Act, before the amendment, there was excise duty on tobacco  used for  various  purposes, including  machine-made  bidis,  but there  was  no excise duty on hand-made  bidis.   Therefore, under  the amended Act, additional duty was payable only  on tobacco  products already taxable under criminal Act :  with the  result, enhanced tax was imposed on tobacco which  went in  to  make  hand-made bidis, but  no  additional  tax  was imposed on hand made bidis. With this background let us look at the notification  issued under  s.  4  (1) of the Act.   There  is  some  controversy whether  that  notification was issued under s.  4(1)(a)  or 4(1)(b)  of  the Act ; but that need not detain  us,  for  I shall  assume  that  the notification was  issued  under  s. 4(1)(b).  The 920 goods  specified therein were exempted  conditionally.   The goods  exempted  under  the  notification  were  bidis   and tobacco.  Bidis might be hand-made or machine-made, and  the tobacco  included  tobacco  out of which  bidis  were  made. Under the first part of the notification the said bidis  and tobacco  were exempted from the sales-tax from December  14, 1957.   The  condition  imposed for the  operation  of  that exemption was that additional central excise duties leviable thereon  from the closing of business on  December  13,1957, should  have been paid on such bidis and  tobacco.   Briefly stated,  the bidis and tobacco, among others, were  exempted from payment of sales-tax, if excise duties leviable thereon were  paid during the relevant period.  So far as the  hand- made bidis were concerned under the amending Act no tax  was leviable thereon.  The condition was applicable to bidis  as a unit.  Out of bidis, no excise duty was leviable on  hand- made  bidis,  while excise duty was leviable in  respect  of machine-made bidis.  Therefore, the condition imposed has no application to hand-made bidis, for under the said condition only tax leviable on the said bidis had to be paid, and,  as no  excise duty was leviable in respect of hand-made  bidis, they  were  clearly exempted under  the  said  notification. Assuming that the said notification applied only to goods in respect  whereof  additional excise duty was  leviable,  the payment of additional duty in respect of tobacco which  went in  making hand-made bidis was also a condition attached  to the  exemption of such bidis from taxation.  It is not  dis- puted  that additional excise duty on the said  tobacco  was paid  by  the  appellant.  I, therefore, hold,  on  a  plain reading  of  the expressed terms of the  notification,  that hand- made bidis were exempted from taxation under the Act. 921 There was also.. every justification for such exemption.  It appears from the record that the merchants doing business in band-made  bidis  were notable to compete  with  businessmen manufacturing machine-made bidis.  Indeed, before the  amen- ding  Act,  excise duty was imposed on  machine-made  bidis- mainly; though not solely,, for protecting the business  in.

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the   former  in  competition  with  the  latter.   In   the circumstances  it.  was. but reasonable to assume  that  the State  Government,  by the amending Act did not  intend  to, impose  sales-tax:  on  handmade  bidis,  though  additional excise, duty was imposed on tobacco out, of which, the  said bidis were manufactured.. The entire scheme of protection of one against unfair competition from the other would break if the  Central Government could impose additional excise  duty on  tobacco and the State could impose sales-tax,  on  bidis Made out of the @aid tobacco.  That this was the.  intention of  the  State Government was made clear by  the  subsequent notification  dated December 14, 1957, exempting hand.  made bidis  from taxation without any condition.  am,  therefore, clearly  of the opinion that, on a fair reading of the  said notification,  sales  of handmade bidis were  exempted  from taxation under the Act. In  the  result  there  will  be  an  order  directing   the respondents not to proceed to realize any sales-tax from the petitioner  on  the basis of the order  dated  December  20, 1958.  The petitioner will have her costs. Now coming to Civil Appeal No. 572 of 1960, the said  appeal was  dismissed  for non-prosecution by order of  this  Court dated  February  20, 196 1. The assessee firm has  filed  an application  for  restoration  of the said  appeal  on  ’the ground  that  it  did not press the appeal in  view  of  the decision of this Court 922 in  Kailash  Nath v. State of Uttar Pradesh but, as  I  have said  that the said decision is still good law, this  ground is not open to the said firm . In the result the application for restoration of Civil Appeal No. 572 of 1960 is dismissed with costs. HIDAYATULLAH,  J.-The facts have been set out fully  in  the order  of Venkatarama Aiyar, J., and need not be  stated  at length.   The  petitioner  is a partner in a  firm  of  bidi manufacturers  registered under the Uttar Pradesh Sales  Tax Act.   Under  a scheme by which certain  additional  Central Excise  duties are being levied under special Acts  for  the purpose  and  are  being distributed  among  the  States  in respect  of  certain classes of goods. on which  the  States have   foregone  collection  of  safes  tax   locally,   the Government of Uttar Pradesh issued notification on  December 14,  1957,  exempting bidis from sales tax under the  U.  P. Sales Tax Act, provided the additional duties of excise were paid.  This was followed by another notification on November 25,  .1958,  by which bidis, whether machine-made  or  hand- made,  where exempted without any condition from  sales  tax from  July .1, 1958.  The dispute in this petition is  about the quarter ending June 30, 1958, in which the firm  claimed the  exemption.  This claim was rejected on the ground  that the  firm had not paid any additional excise duty on  bidis. An  appeal  followed,  but was unsuccessful,  and  though  a revision lay under’ the Sales Tax Act, none was filed.   The firm  filed  instead  a  petition  under  Art.  226  of  the Constitution  in the High Court of Allahabad, but was  again unsuccessful,  mainly  because the firm had  other  remedies under the Sales Tax Act which it had not available of.   The firm,  however, obtained a certificate from the High  Court, and  filed  an appeal in this Court.   Ujjambai  filed  this petition  under  Art. 32 of the Constitution  for  the  same reliefs. (1)  A. 1. R. 1957 S. C. 790. 923 When  she obtained a rule in the petition, the firm did  not prosecute  the  appeal  and  it  was  dismissed.   In   this

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petition, she claims a writ of certiorari against the  order of  the  Sales  Tax  Officer  as  also  a  mandamus  to  the Department not to levy the tax.  As a further  precautionary measure,  lest it be held that the remedy under Art.  32  is misconceived,  the firm has also applied for the revival  of the appeal.  I shall1 deal with the application later. The  question  is  whether  the  exemption  granted  by  the notification   of   December  14,  1957,   exempting   bidis conditionally  upon  payment of additional  duty  of  excise applied to the petitioner during the quarter ending June 30, 1958.    This  question  depends  upon  the  words  of   the notification   and  the  schedule  of  articles   on   which additional  duty of excise was payable and the fact  whether such  excise  duty  was,  in fact, paid  or  not.   But  the question  which has been debated in this case is  one  which arises  at  the very threshold, and it is  this:  whether  a petition  under Art. 32 can lie if the petitioner alleges  a breach  of  fundamental  rights,  not  because  the  tax  is demanded  under  an  invalid  or  unconstitutional  law  but because  the authority is said to have misconstrued  certain provisions  of that law.  The petitioner contends  that  she has  paid  additional  excise duty on tobacco  used  in  the manufacture  of  bidis  and  the  word  "tobacco"  is   used comprehensively in the Central Excise Salt Act, 1944, and in Act No. 58 of 1957 and would include bidis in the exemption. The Sales Tax Officer rejected this claim, observing:               "The exemption envisaged in this  notification               applies  to  dealers in respect  of  sales  of               Biris,  provided that the, additional  Central               Excise   duties  leviable  thereon  from   the               closing of business on December 13, 1957, have               been paid on such goods.  The assessee paid no               such 924               Excise duties.  Sales of Biris by the assessee               are) therefore, liable to Sales Tax." Whether  there  has  been a misconstruction of  any  of  the provisions   is  a  matter   which,  of  course,  could   be considered on revision, or- in a reference to the High Court on  point of law arising out of the order finally passed  or even  ultimately  by appeal-to this Court with  its  special leave  under  Art. 136.  The petitioner,  however,  contends that she is entitled to file a petition under Art. 32 of the Constitution,, if by a wrong construction of a provision  of law, a tax is demanded which is not. due because it.  amount to  a deprivation of property without authority of  law  and also  a  restriction  upon her right to carry  on  trade  or business.   The breach of fundamental rights is thus  stated to  arise under Arts. 31 (1) and 19 (1)(g) primarily by  the wrong interpretation and secondarily by the result  thereof, namely,  the  demand of a tax which is not due.   The  other side  contends that no fundamental rights can be said to  be breached  when  the authorities act under a valid  law  even though by placing their interpretation on some provision  of law  they  may err, provided they have the  jurisdiction  to deal  with the matter and follow the principles  of  natural justice.  Any such error, according to the respondents, must be corrected by the ordinary process of appeals or revisions etc. and not by a direct approach to the Supreme Court under Art. 32 of the Constitution.  Both sides cite cases in which petitions under Art. 32, were previously filed and  disposed of by this Court, either by granting writs or by  dismissing the   petitions.   In  some  of  them,  the   question   was considered, but in some it was not, because no objection was raised.

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There,  however, appears to be some conflict on this  point. Kailash Nath v. State of U. P. (1) where the allegation  was that an exemption was (1) A.I.R. 1957 S.C. 790 925 wrongly refused on a misconstruction of a notification under s.  4  of  the  U.P. Sales Tax Act, it  was  held  that  the fundamental  rights of the taxpayer were. in  jeopardy,  and the remedy under Art. 32 was,open.  Govinda Menon, J.,  then observed               "If tax is levied without due legal  authority               on  any trade or business, then it is open  to               the  citizen aggrieved to approach this  Court               for a writ under Article 32 since his right to                             carry on a trade is violated, or infringed  by               the imposition and such being the case Article               19(1) (g) comes into play." This  proposition was rested upon the case of this  Court.in the Bengal Immunity Company (1) ; but a close examination of the  latter case shows that no such proposition  was  stated there.   In  the latter case, exemption was claimed  on  the ground  that the sales sought to be taxed were made  in  the course  of  inter-State trade and the Bihar Sales  Tax  Act, which purported to authorise such levy offended Art.  286(2) of  the  Constitution and thus was invalid.   On  the  other hand, doubts were cast on the decision in Kailash Nath’s (2) on this point, in Tata Iron & Steel Co. Ltd. v. S.R.  Sarkar (3); but the  question was left open.  The question has  now been  raised and argued before this special Bench.  In  this judgment.   I  am  only  concerned  with  the  question   of constitutional   law  raised,  since  I  agree’   with   the interpretation  placed  on the notification by  my  brother, Kapur,J. The   general   principles  underlying  Part  III   of   the Constitution have been stated so often by this Court that it is hardly necessary to refer to them, except briefly, before considering to what extent and in what circumstances actions or  orders  of judicial, quasi-judicial  and  administrative authorities (1) (1955) 2 S.C.R. 603.       (2) A.I.R. 1957 S.C. 790. (3)  (1961) 1 S.C.R 379. 926 are  open  to question under Art. 32  The  Constitution  has accepted   a   democratic  form  of  Government   with   the characteristic  division of authority of the  State  between the  Legislature,  the  Judiciary and  the  Executive.   The Constitution  being  federal  in form, there  is  a  further division  of powers between the Centre and the  States  This division  is  also  made  in  the  jurisdictions  of   three Departments  of the State.  To achieve these  purposes,  the distribution  of legislative powers is indicated in Part  XI and  of  taxes in Part XII, and certain  special  provisions regarding   trade,  commerce  and  intercourse  within   the territory of India are placed in Part XIII.  In addition  to these Parts of the Constitution, to which some reference may be  necessary hereafter, the Constitution has also in  other Parts  indicated what things can only be done by law  to  be made  by  Parliament  or  the  State  Legislatures.    These Articles  are too numerous to specify here.  But this  much, however,  is clear that *here the Constitution says  that  a certain thing can be done under authority of law, it intends to convey that no action is justified unless the legality of that  action can be supported ’by a law validly  made.   The above  is, in outline, the general pattern of  conferral  of power upon the Legislature and the Executive by the people.

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The  people,  however, regard certain rights  as  paramount, because they embrace liberty of action to the individual  in matters of private life, social intercourse and share in the government of the country and other spheres.  The people who vested  the three limps of Government with their  power  and authority,  at  the  same time kept  back  these  rights  of citizens  and also sometimes of non-citizens, and made  them inviolable except under certain conditions.  The rights thus kept back are placed in Part III of the Constitution,  which is headed ’Fundamental Rights", and the conditions under 927 which  these  rights can be abridged are also  indicated  in that Part.  Briefly stated, the conditions are that they can be  abridged  only  by a law in the public  interest  or  to achieve  a  public purpose.  These rights are not  like  the Directive Principles, which indicate the policy and  general pattern  for State action to enable India to  emerge,  after its   struggle  with  poverty,  disease,  inequalities   and prejudices, as a welfare State.  These Directive  Principles are  not justiciable, but any breach of  fundamental  rights gives a cause of action to the aggrieved person. The sum total of this is that the Constitution insists  upon the making of constitutional and otherwise valid laws as the first step towards State action.  No arbitrary or capricious action affecting the rights of citizens and others is to  be tolerated,  if it is unsupported by such law.  But even  the Legislature  cannot go beyond the limits set by the  Chapter on Fundamental Rights, because ingress upon those rights  is either forbidden absolutely or on condition that the  action is  either  in an emergency or dictated  by  the  overriding pubic   interest.   The  executive  can  never  affect   the fundamental  rights  unless a valid law enables that  to  be done.   To secure these fundamental rights, the High  Courts by  Art. 226 as part of their general jurisdiction  and  the Supreme  Court by Art. 32 have been given the power to  deal any breach complained of and to rectify matters by the issue of  directions’  orders  or  writs  including  certain  high prerogative writs.  Article 32 is included in the Chapter on Fundamental  Rights,  and provides an  expressly  guaranteed remedy  of approach to the Supreme Court in all cases  where fundamental  rights  are invaded. . This right is  the  most valuable  right  of  the citizen  against  the  State.   The Article  provides  further  that the  right  of  moving  the Supreme  Court  is also a fundamental right.  Thus,  It  was that this Court said in Romesh Thappar’s case (1) that this (1)  [1950] S.C.R. 594, 596, 597. 928 Court is the protector and guarantor of fundamental  rights, in  Rahid  Ahmed v. Municipal Board, Kairana  (1)  that  the Supreme  Court’s  powers under Art. 32 are wider  ’than  the mere  rights to issue prerogative writs, in A. K.  Gopalan’s case(2) that the fundamental rights are the residue from the power  surrendered  by the people and kept back by  them  to themselves,  and in Champakom Doraijan’s case (3)  that  the fundamental  rights  are sacrosanct and  incapable,of  being abridged  by any legislative or executive action  except  to the extent provided in the appropriate Articles in Part III. It  may, however, be stated that under certain  Articles  of the  Constitution, laws can be made without a  challenge  in Courts  notwithatanding  the Constitution (see  for  example Art. 329), and other considerations may arise in respect  of those laws.  In this judgment, therefore, I shall deal  with those  laws  and  situations  only,  which  admittedly   are affected by the Chapter on Fundamental Rights. The  invasion of fundamental rights may assume  many  forms.

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It  may proceed directly from laws which  conflict-with  the guaranteed  rights.  It ,may proceed from  executive  action unsupported  by any valid law or laws or in spite  of  them. Examples  of both kinds are to be found in the Reports.   In K.  T. Moopil Nair’s case ( ), a taxing statute was held  to be  discriminatory  and  also unreasonable  because  of  the restrictions  it created and was struck down under Arts.  14 and  19 (1) (f). of the constitution.  In Tata Iron &  Steel Co., Ltd. case(5), a threat to recover a tax twice over  was said  to  offend fundamental rights.  In both  these  kases, Art. 32 was invoked successfully.  In the first ind of oases the  law  itself fails, and if the law  fails,oso  does  any action under it.  In the second kindu,f oases, the laws  are valid but in their applicatio (1) [1950] S.C.R. 566           (2) [1950] S.C.R. 88. (3) [1961] 3 S.C.R. 525,531.    (4) [1961] 3 S.C.R. 77. (5)  [1961] 1 S.C.R. 379. 929 the executive departments make their own actions vulnerable. A Law can give protection to an action only which is  within itself,  but  it  cannot avail, if the  action  it  outside. Thus,  in  Chintaman Rao’s case(1), a  law  was  struck,down because it arbitrarily and excessively invaded a fundamental right  and  in Lachmandas Kewalram Ahuja, v.  The  State  of Bombay (2), s. .12 of the Bombay public Safety Measures Act, 1947  was declared void (after January 26, 1950) as  it  did not proceed upon any purported classification.  Of these two cases,  the  first  was a petition under  Art.  32  of  the- Constitution  and the latter, an appeal on a certificate  of the  High  Court under Art. 132 of the  Constitution.   ’The method of approach to this court was different, but it  made no  difference to the application of the provisions of  Part III.  There are other such decisions, but these two suffice.  The  inference is, therefore, quite clear that  this  Court will  interfere  under Art..32. if a breach  of  fundamental rights-  comes before it, and indeed, it was so  stated-  in Romesh Thappar’s case (3) that this Court-               "cannot, consistently with the  responsibility               so  laid upon it, refuse to  entertain  appli-               cations  seeking protection against  infringe-               ments of such rights,,, although.  such, applications are made to the Court  in  the first  instant  without  resort to a ’High  Court,  and  the American  cases about exhausting of other remedies were  not followed.  In Himmatlat’s case (4 ) this Court issued a writ prohibiting assessment of a tax under an in valid law,  even though  there  was no assessment begun or even a  threat  of one.  In K.K. Kochunni Moopil Nayar v. State of Madras(5) (1) (1950) S.C.R. 759. (2) (1952) S.C.R.710. (3) (1950) S.C.R. 593, 596, 597. (4) (1951) S.C.R. 1122. (5) (1959) Supp. 2 S.C.R. 316, 325. 930 Das,  C.  J. after considering all previous  cases  of  this Court laid down.               "Further,  even  if  the  existence  of  other               adequate  legal  remedy  may  be  taken   into               consideration  by the High Court  in  deciding               whether it should issue any of the prerogative               writ,% on an application under Art. 226 of the               Constitution,  as to which we say nothing  now               his Court cannot, on a similar ground  decline               to entertain a petition under Art. 32, for the               right  to  move  this  Court  by   appropriate

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             proceedings for the enforcement of the  rights               conferred  by Part III of the Constitution  is               itself a guaranteed right." In  that  case,  the learned Chief  Justice  said  that,  if necessary, this Court may even get a fact or facts proved by evidence. The  view expressed in the last case finds  further  support from what Gajenjndragadkar, J.,. said very   recently     in Daryao v. The State of U.P. (1)-               "If the petition field in the High Court under               Art.  226 is dismissed not on the  merits  but               because  of the laches of the  party  applying               for  the writ of because it is held  that  the               party  had an alternative remedy available  to               it,  then the dismissal of the  writ  petition               would  not  constitute a bar to  a  subsequent               petition  Under Art. 32 except in cases  where               and if the facts thus found by the High  Court               may  themselves  be relevant even  under  Art.               32." Gajendragadkar, J. then went on to consider the matter  from the  point  of view of res judicata, and held that  in  some cases, that, principle would apply if no appeal against  the order of the High Court was field, but not in others.   This must be so, (1)  [1962] 1 S.C.R. 574. 931 because  if there is a decision of the High  Court  negating fundamental rights or their breach, then the decision of the competent  Court must be removed by appeal to establish  the rights or their breach. From  these cases, it follows that what may be said about  a direct   appeal   to  this  Court  without   following   the intermediate  steps may not be said about Art.  32,  because resort to other forums for parallel reliefs is strictly  not necessary  where a party complains of breach of  fundamental rights.  Of course, when he makes an application under  Art. 32, he take the risk of either succeeding or failing on that narrow  issue,  and  a finding of the  High  Court  or  some tribunal   below  on  some  point,  if  not  set  aside   in appropriate  proceedings  may stand in his way.   The  right under  Art appeal, and cannot be used as such . 32 is not  a right of  and this Court may not be in a position to examine the case with the same amplitude as in an appeal.  But, if a party  takes the risk of coming to this court direct on  the narrow issue, he cannot be told that he has other  remedies. To take this restricted view of Art. 32 may, in some  cases, by  delay or expense involved in the other remedies,  defeat the fundamental rights before even they can be claimed.  But this is not to say that the other remedies are otiose.   The issue  to be tried under Art. 32 is a narrow one,  and  once that   issue   fails,  everything  else   must   fail.    In jurisdictions  like that under Art. 226 and/or  in.  appeals ’Under  Art.  132 or Art. 136, not only can  the  breach  of fundamental rights be considered but all other matters which the  Court may permit to be raised.  It, therefore,  follows that  if  a person chooses to invoke Art. 32, he  cannot  be told  that  he must go elsewhere first.  The right  to  move this  Court is guaranteed.  But this Court in  dealing  with the petition will deal with it from the narrow standpoint of fundamental rights and not as an appeal. 932 Though  the  area of action may be thus limited,  the  power exercisable  therein are vast.  The power to issue writs  in the  nature  of the five high prerogative  writs  of  hebeas

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corpus,  mandamus prohibition, quo warranto  and  certiorari is,  in itself, sufficient to compel obedience by the  State (as  defined  in  Art.  12)and  observance  by  it.  of  the Constitution  and  the laws in all cases where a  breach  of fundamental right or rights is established.  The   writ   of mandamus is a very flexible writ and    has   always    been called in, aid to ampliate justice and proves sufficient  in most  cases  of administrative lapses  or  excesses.   Then, there  is the writ of certiorari to get rid of orders  which affect  fundamental rights, the writ of prohibition to  stop action before it can be completed, the writ of quo  warranto to  question a, wrongful assumption of office,  and  lastly, the  writ  of  habeas corpus to secure  liberty.  Indeed  an observed  by  Lord  Atkin  (then Atkin, L.  J.)  in  Rex  v. Electricity Commissioners               "Whenever  any  body or persons  having  legal               authority to determine questions affecting the               rights of subjects and having the duty to  act               judicially  act  in  excess  of  their   legal               authority they are subject to the  controlling               jurisdiction  of  the  Kings  Bench   Division               exercised in these writs". What  was  said  of  Judicial action  and  of  the  writ  of certiorari  applies  equally to other writs and  actions  of administrative agencies, which are executive or  Ministerial ’The, powers of the Supreme Court and the.High Courts in our country  are  no  whit less than those of  the  Kings  Bench Division.  more ample by enabling these’ superior Courts  to issue  in  addition to the  Prerogative  Writs,  directions, orders  and  writs  other  than the  named  writs,  and  the concluding words of Art. 32 (2) .,whichever (1)  [1924] 1 K.B. 171, 205. 933 may be appropriate for the enforcement of any of the  rights conferred  by this Part (Part III)’ Show  the wide ambit  of the power.  As far back as Basappa v. Naggappa (1) Mukerjea, J, (as he then was) observed               "In  view  of the express  provisions  in  our               Constitution we need, not now look back to the               early  history or the . procedural  technical-               ities of these writs in English law, nor  feel               oppressed  by  any differences  or  change  of               opinion  expressed’  in  particular  cases  by               English Judges." Speaking  then of the writ of certiorari the  learned  Judge added:               "We  can make an order or issue a writ in  the               nature of certiorari in all appropriate  cases               and, in appropriate manner, so long as we keep               to  the broad and fundamental principles  that               regulate  the exercise of jurisdiction in  the               matter of granting such writs in English law." What has been said. here has my respectful concurrence,  and is  applicable  to the other writs also.   These  principles have now become firmly established in the interpretation  of Arts. 32 and 226 of the Constitution.  The difference in the two  Articles  is  in two respects :  firstly,  Art.  32  is available  only for the enforcement of  fundamental  rights, but the High Courts can use the Powers for other purposes (a power which Parliament can also confer on the Supreme  Court by  law,  vide Art. 139), and secondly, that  the  right  of moving the supreme Court, is itself a Guaranteed right (Art. 39  (1)  and is unaffected by the powers of the  High  Court (Art. 226 (2)). The foregoing is a resume of the interpretations placed upon

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Art. 32, but there are other provisions of the’ Constitution relating to the Supreme (1)  (1955) 1. S. C. R. 250, 256. 934 Court  which must be viewed alongside, because  the  Supreme Court  has  other roles to perform under  the  Constitution. Those provisions give an indication of how the Supreme Court is intended to use its powers. The  Supreme Court is made, by Arts. 133 and 134, the  final Court  of  appeal  over  the High Court  in  all  civil  and criminal matters, though the right of appeal arises only  in certain classes of cases and subject to certain  conditions. Under  Arts. 132 and 133 (2), the Supreme Court is also  the final  Court  of appeal over the High Court in  all  matters involving  an interpretation of the Constitution.   By  Art. 136, the Supreme Court has been given the power to grant, in its  discretion, special leave to appeal to itself from  any judgment,  decree,  determination,sentence or order  in  any cause  or matter passed or made by any Court of tribunal  in the  territory  of  India.  The last  power  is  overriding, because  Art. 136 commences with the words  "notwithstanding any  thing  in this Chapter".  Only one exemption  has  been made  in  favour of a Court or tribunal  constituted  by  or ordered under any law relating to the Armed Forces. There are other jurisdictions of the Supreme There are other jurisdictions  of  the  Supreme Court  also,  which  may  be described  as  advisory  and original,  arising  in  special circumstances   with  which  we  are  not  concerned.    The appellant  jurisdiction of the Supreme Court sets it at  the top  of the hierarchy of civil and criminal Courts of  civil judicature.  Articles 132, 133, 134 and 135 make the Supreme Court  the  final Court of appeal but only in  cases,  which are. first carried before the High Court in accordance  with the  law  relating to those cases.  Access  to  the  Supreme Court under Arts. 132-135 is not direct but through the High Court.   There  can be no abridging of that  process.   But, under Art. 136, the Supreme Court has the jurisdiction to 935 grant special have, though it has declared in several  oases that it would exercise its discretion under s, Art. 136 only against a final order, See Chandi Prasad Chokhni v. State of Bihar  (1).  Indian Aluminium Co. v. Commissioner of  Income tax  (1), and Kanhaiyalal Lohia v.  Commissioner of  Income- tax  (3)  In exercising the discretionary  powers  to  grant special  leave,  the  Supreme  Court  now  insists  on   the aggrieved  party exhausting all its remedies under  the  law before approaching it. From  what  has been said above it is clear that  there  are three approaches to this Court, and they are : (a) by appeal against the decision of the High Court, (b) by special leave granted  by this Court against the decision of any Court  or tribunal  in India and (c) by a petition under Art. 32.   No Court or tribunal in India other than the Supreme Court  and the  High Courts has been invested with the jurisdiction  to deal  with  breaches  of  fundamental  rights.  through  the Constitution has reserved the power to Parliament to  invest by law this jurisdiction in any other Court [(Art. 32  (3)]. As a result, the enforcement of fundamental rights can  only be  had  in the High Court or the Supreme  Court.   In  most taxation laws, there is a jurisdiction and a right to invoke the  advisory  jurisdiction of the High Court  and  in  some there  is a right of appeal or revision to the  High  Court, but the question of a breach of fundamental rights cannot be raised  in  the proceedings before the  tribunals.   In  its advisory  jurisdiction, the High Court can only  answer  the

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question referred to it or raise one which arises out of the order   passed   and  in  its   appellate   and   revisional jurisdiction, the High Court can deal with the matter on law or  fact or both (as the case may be) but only in so far  as the tribunal has the jurisdiction.  In these  jurisdictions, the plain question of the enforcement of fundamental  rights may (1)  (1962) 2 S.C.R. 276. (2)  Civil Appeal No. 176 of 1959 decided on April 24,1961. (3)  (1962) 2 S.C.R. 839. 936 not arise.  There, is, however, nothing, to prevent a  party moving a separate petition under Art. 32 of the Constitution and  raising the issue; as was actually done in  this  case. The  result  thus  is  that  no  question  of  a  breach  of fundamental  rights can arise except under Arts. 226 and  32 of  the Constitution, and it must be raised before the  High Court  and  the  Supreme Court  respectively,  by  a  proper petition.  But,where the High Court decides such an issue on a petition under Art 226, the question can be bought  before this Court under Arts. 132 and 136. If  this be the, true position; and if this Court  can  only deal  with  question  of breach  of  fundamental  rights  in petitions under Art. 32 and in appeals against the order  of the  High  Court  under Art. 226, I am  of  opinion  that  a petition  under  Art. 32 must always lie where a  breach  is complained  of, though, I must say again, if the ’matter  is brought  before this Court under Art. 32, the only  question that  can be considered is the breach of fundamental  rights and none other. The right to move this Court being guaran teed, the petition may lie, but there are other thing to consider before it can be  said in what cases this Court will interfere.   I  shall now  consider in what, kind of cases the  powers under  Art. 32 will be used by this Court.  Since this case arises under a  taxing  statute, I shall confine myself to  taxing  laws, because   other   considerations   may   arise   in   other. circumstances  and  the  differing facts  are  sometimes  so subtle  as  to elude one, unless they are before  him.   The challenge  on the ground of a breach of  fundamental  rights may  be  against a law or against executive  action.   I  am leaving  out  of  account  action by  the  Courts  of  civil judicature. and am not pausing to consider Whether the’ word "State"  as defined in Art. 12 includes the ordinary  Courts of civil judicature.  That question does not 937 arise here and must be left for decision in a case in  which it properly does.  Whether or not be word "State" covers the ordinary  Courts, there is authority to show that  tribunals which  play  the dual role as dcciding issues  in  a  quasi- judicial   way  and  acting  as  the  instrumentalities   of Governments are within the word "’State" as used in Part III of  the Constitution.  In the Bidi Supply Co., v.  Union  of India(1), Das, C. J., observed:               "Here the State’ which includes its Income-tax               department  has by an illegal order denied  to               the  petitioner, as compared with  other  Bidi               merchants who are similarly situate,  equality               before the law or the equal protection of laws               and  the petitioner can legitimately  complain               of  an  infraction of his  fundamental  rights               under article 14 of th Constitution." Again,  in  Gullapalli  Nageshwara Rao v.  State  of  Andhra Pradesh (2) it was observed:               "The  concept of a quasi-judicial act  implies

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             that  the  act  is  not  wholly  judicial;  it               describes  only a duty cast on  the  executive               body  or  authority  to conform  to  norms  of               judicial procedure in performing some acts  in               exercise of its executive power." The  taxing departments are instrumentalities of the  State. They are not a part of the legislature; nor are they a  part of  the judiciary.  Their functions are the  assessment  and collection of taxes, and in the process of assessing  taxes, they have to follow a pattern of action, which is considered judicial.   They  are not thereby converted into  Courts  of civil  judicature.  They still remain the  instrumentalities of  the  State and are within the definition of  ,State’  in Art. 12.  In this view of the matter, their actions (1)  (1956) S C.R. 267. 277. (2)  (1959) Supp.  1 S.C.R 319, 353, 3S4. 938 must be regarded, in the ultimate analysis, as executive  in nature,  since their determinations result in the demand  of tax  which  neither the legislature nor  the  judiciary  can collect.   Thus, the actions of these quasi-judicial  bodies may  be  open  to  challenge on  the  ground  of  breach  of fundamental rights. I  have already said that the attack on  fundamental  rights may  proceed from laws or from executive action.   Confining myself to taxation laws and executive action in  furtherance of  taxation laws, I shall now indicate how the breaches  of fundamental rights can arise and the extent of  interference by this Court under Art. 32.  Taxing laws have to conform to provisions  in  Part  XII  of  the  Constitution:  they  are circumscribed  further  by Part XIII, and they can  only  be made by an appropriate legislature as indicated in Part  XI. These  are the provisions dealing with the making of  taxing laws.  The total effect of these provisions is summed up  in Art. 165, which says: "No tax shall be levied or collected except by authority  of law," Law is thus a condition precedent to the demand of a tax.  A tax  cannot  be levied by the State, unless a  law  to  that effect  exists,  and that law must follow and obey  all  the directions in the Constitution about the making of laws.  In other words, the law must be one validly made. Taxation laws may suffer from two defects, and they are: (a) if  they are not made within the four corners of the  powers conferred   by   the   Constitution   on   the    particular legislature,,  or  (b) if they are  opposed  to  fundamental rights.   A  law may fail as ultra vires, though it  is  not opposed  to fundamental rights, because it, is  outside  the powers of the legislature that enacted it, or because it  is a  colourable exercise of power, or if the law was not  made in accordance with the special procedure for making 939 it.  A  simple example is imposition of  Profession  Tax  by Parliament,  which  it  has  no  power  to  impose,  or  the imposition  of  a  tax above Rs. 250 per year  on  a  single person by the State Legislature, which is beyond the  powers of  the State Legislature.  In these cases, the  laws  fail, because  in  the  first case,  Parliament  lacks  the  power completely, and in the second, because the State Legislature transgresses  a limit set for it.  Such a law is no  law  at all,  and will be struck down under Art. 265 read  with  the appropriate  provisions  of the  Constitution.   A  question arising under Art. 265 cannot be brought before the  Supreme Court  under  Art.32,  because that Article is  not  in  the Chapter  on Fundamental Rights.  But an executive action  to

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enforce  the  law would expose the executive action  to  the processes  of  Arts. 226 and 32, if a fundamental  right  to carry on a profession or an occupation, trade or business is put  in jeopardy.  In the order of reference in  this  case, this position is summed up in the following observation:               "Where  the provision is void, the  protection               under Art. 265 fails, and what remains is only               unauthorised  interference with-  property  or               trade   by  a  State  Officer,  and   articles               19(1)(f) and (g) are attracted." Where the law fails being opposed to fundamental rights  as, for   example,   when  it  is  void  because   it   involves discrimination or otherwise invades rights protected by Part III the protection of Art. 265 is again lost.  Indeed,  the, law  fails not because of Art. 265 but because of  Art.  13, and  a  cause of action under Art. 35 may arise.   This  was recognised in K. P. Moopil Nair v. State of Kerala(1)  where it was observed:               "Article  265  imposes  a  limitation  on  the               taxing  power  of the State in so  far  as  it               provides that the State shall not levy or (1)  (1961) 3 S.C.R. 77. 940               collect  a  tax, except by authority  of  law,               that  is  to say, a tax cannot  be  levied  or               collected by a mere executive fiat.  It has to               be  done by authority of law, which must  mean               valid  law.   In  order that the  law  may  be               valid,  the tax proposed to be levied must  be               within  the  legislative  competence  of   the               Legislature imposing a tax and authorising the               collection thereof and, secondly, the tax must               be subject to the conditions laid down in Art.               13   of   the  Constitution.   One   of   such               conditions envisaged by Art. 13(2) is that the               Legislature shall not make any law which takes               away  or abridges the equality clause in  Art.               14, which enjoins the State not to deny to any               person  equality before the law or  the  equal               protection  of  the laws of the  country.   It               cannot  be disputed that if the Act  infringes               the provisions of Art. 14 of the Constitution,               it must be struck down as unconstitutional". This arose in a petition under Art. 32 of the Constitution. It appears that taxation laws were unsuccessfully challenged under Art. 32 of the Constitution as a breach of Art.  31(1) in Ramjilal’s case (1) and Laxmanappa Hanumantappa v.  Union of India (2).  In the former, the reason given was:               "Reference has next to be made to article  265               which is in Part XII, Chapter I, dealing  with               "Finance’.  That article provides that no  tax               shall   be  levied  or  collected  except   by               authority  of law.  There was no similar  pro-               vision  in  the corresponding chapter  of  the               Government of India Act, 1935.  If  collection               of  taxes amounts to deprivation  of  property               within the meaning of Art. 31 (1), then  there               was no point in making a separate provision (1) (1951) S.C.R.127. (2) (1951) S.C.R. 769. 941               again  as has been made in article  265.   It,               therefore, follows that clause (1) of  article               31 must be regarded as concerned with depriva-               tion  of property otherwise than by the  impo-

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             sition  or  collection of tax,  for  otherwise               article 265 becomes wholly  redundant.........               In our opinion, the protection against imposi-               tion and collection of taxes save by authority               of  the law directly comes from  article  265,               and  is not secured by clause (1)  of  article               31.   Article 265 not being in Chapter III  of               the  Constitution,  its protection  is  not  a               fundamental right which can be enforced by  an               application to this Court under article  32.lt               is  not  our  purpose to say  that  the  right               secured  by article 265 may not  be  enforced.               It  may  certainly  be  enforced  by  adopting               proper proceedings.  All that we wish to state               is  that  this  application in so  far  as  it               purports  to  be ’founded on article  32  read               with   article   31(1)  to   this   Court   is                             misconceived and must fail." Similar observations were made in the other case. If  by  these observations it is meant to  convey  that  the protection  under  Art. 265 cannot be sought by  a  petition under  Art.  32, 1 entirely agree.  But if it  is  meant  to convey  that  a taxing law which is opposed  to  fundamental rights  must  be  tested  only under Art.  265,  I  find  it difficult  to agree.  Articles 31 (1) and 265 speak  of  the same  condition.  A comparison of these two  Articles  shows this               Art.  31 (1)-"’No person shall be deprived  of               his property save by authority of law."               Art. 265-"No tax shall be levied or  collected               except by authority of law." The  Chapter on Fundamental Rights hardly stands in need  of support from Art. 265.  If the 942 law  is void under that Chapter, and property is  seized  to recover a tax which is void, I do not see why Art. 32 cannot be  invoked.   Where the authority of the law fails  a  tax, Art.  265 is offended, and the tax cannot be  collected.   A collection  of such a tax will also offend Art.  32.   Where the law is opposed to fundamental rights, and in the collec- tion  of  such  a  void tax, a person  is  deprived  of  his property,  Art.  31(1) is offended.  It is not  possible  to circumscribe  Art.  32 by making the remedy only  upon  Art. 265. From  this, it is clear that laws which do not  offend  Part III and are not otherwise ultra vires are protected from any challenge  whether  under Art. 265 or under the  Chapter  on Fundamental  Rights.  Where the laws are ultra vires but  do not per se offend fundamental rights (to distinguish the two kinds  of  defects), they are capable cf a  challenge  under Art.  265, and the executive action, under Art.  32.   Where they  are  intra vires otherwise but void being  opposed  to fundamental  rights, they can be challenged under  Art.  265 and also Art. 32. This  position, however, changes radically when the  law  is valid  but  the  action under it is  challenged.   The  real difference  in  such cases arises, because the  law  is  not challenged at all.  What is challenged is the interpretation of the law by the taxing authorities, and a breach of funda- mental  rights  is  said  to arise  from  the  wrong  inter- pretation.   In  considering this matter, several  kinds  of cases must, be noticed Where the action of an officer of the State is wholly without jurisdiction (as, for example,  when a sales tax officer imposes income-tax or vice versa, though such  things  are hardly likely to happen), it can  have  no

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support  from  the  law  he purports  to  apply.   Cases  of jurisdiction  thus come within Art. 32.  Other examples  are an attempt to recover a tax twice over, 943 where  the  first collection is legal (Tata Iron  and  Steel Company’s   case  (1);  or  acting  beyond  the  period   of limitation  (Madanlal  Arora  v.  The  Excise  and  Taxation Officer,  Amritsar) (2).  In such cases, even if the  taxing authority  thought on its own understanding of the law  that it  was acting within its jurisdiction, it would not  avail, and the want of jurisdiction, if proved, would attract  Art. 32.  Speaking of such a situation, the order of reference in this case has said:               "This  again is a case in which the  authority               had  no  jurisdiction under the  Act  to  take               proceedings  for  assessment of  tax,  and  it               makes  no difference that such  assumption  of               jurisdiction was based on a misconstruction of               statutory provisions." The above was said of Madanlal Arora’s case(2) But,  where the law in made validly and in  conformity  with the  fundamental  rights and the officer enforcing  it  acts with  jurisdiction, other considerations arise.  If, in  the course  of his duties, he has to construe provisions of  law and  miscarries,  it gives a right of appeal  and  revision, where  such lie, and in other appropriate cases, resort  can be  had  to  the  provisions of Arts. 226  and  227  of  the Constitution,  and the matter brought before this  Court  by further  appeals.  This is because every erroneous  decision does not give rise to a breach of fundamental rights.  Every right  of appeal or revision cannot be said to merge in  the enforcement  of fundamental rights. Such errors can only  be corrected by the processes of appeals and revisions, Article 32  does  not,  as already stated, confer  an  appellate  or revisional  jurisdiction  on this Court, and if the  law  is valid and the decision with jurisdiction, the protection  of Art.  265 in not destroyed.  There is only one exception  to this, and it lies within extremely narrow (1) (1961) 1 S.C R. 379. (2) (1962) 1 S.C.R. 823. 944 limits.   That exception also beam upon jurisdiction,  where by  a misconstruction the State Officer or a  quasi-judicial tribunal  embarks upon an action wholly outside the pale  of the  law he is enforcing.  If, in those  circumstances,  his action  constitutes a breach of fundamental rights,  than  a petition under Art. 32 may lie.  The cases of this Court  in which interference can be sustained on this ground are many; but as examples may be seen the following: Amar Singh,  case (2)  and Mohanlal Hargovind’s case (’).  The first is not  a case of a taxing statute, but the second is. The  decision  in  Kailas Nath’s  case  (3),  with  respect, appears  to have unduly widened the last narrow approach  by including cases of interpretation of provisions of law where the  error is not apparently one of jurisdiction  as  within Art. 32.  It cited as authority the case of Bengal  Immunity Company  (4), which does not bear out the wide  proposition. The case involved an interpretation of notification to  find out  whether  an exemption applied to a particular  case  or not,  and no question of want of jurisdiction, as  explained by me, arose there.  Kailas Nath’s case (3) does not  appear to confine the exercise of powers under Art. 32 to cases  of errors of jurisdiction.  In my opinion-and I say it respect- fully-it must be regarded as having stated the proposition a little too widely.

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Whether  taxing statutes which have the protection  of  Art. 265  can  be questioned under Arts. 19(1)(f) and  (g)  is  a subject,  which  need not be gone into in this case.   I  do not,  therefore,  express any opinion upon  it.   Here,  the several statutes and the notification are not challenged  as ultra   vires.   What  is  claimed  is  that  by   a   wrong interpretation  of the word ’bidis’ and tobacco’ as used  in the notification of December 14, 1957, an exemption is (1) (1955) 2 S.C.R. 303.      (2)  (1955) 2 S.C. R. 509. (3)  A.I.R. 1957 S.C. 79.     (4)  (1955) 2 S.C. R. 603. 945 denied  to  the petitioner, to which she was  entitled,  and this  affects her fundamental rights under Arts.  31(1)  and 19(1)(g).   This is not an error of  jurisdiction.   Whether the  Sales  Tax  Officer’s interpretation is  right  or  the contrary   interpretation   suggested  on  behalf   of   the petitioner is right, is a matter for decision on the  merits of  the case.  If there is an error, it can be corrected  by resorting  to  appeals, revisions, references  to  the  High Court  and ultimately by appeal to this Court.   This  Court can@  not  ignore  these remedies and embark  upon  an  exa- mination  of  the law and the interpretation placed  by  the authorities,  when no question of jurisdiction is  involved. To  do so would be to convert the powers under Art. 32  into those of an appeal.  In my opinion, the petition under  Art. 32  is  misconceived  in the  circumstances  of  this  case. would, therefore, dismiss it with costs. As  regards the application of the appeal, I am  of  opinion that the party was negligent in not prosecuting it.  I would therefore,  dismiss  the  application  for  restoration  but without any order about costs. AYYANGAR,  J.-This bench has been constituted  for  deciding the  following  two questions set out at the  conclusion  of what  might  be termed the order of reference (1)  :  Is  an order  of  assessment made by an authority  under  a  taxing statute which is intra vires, open to challenge as repugnant to  Art. 19(1)(g) on the sole ground that it is based  on  a mis-construction of a provision of the Act or of a notifica- tion  issued  thereunder? (2) Can the validity  of  such  an order  be  questioned  in a petition under Art.  32  of  the Constitution?  Though the matter was not discussed with  any elaborateness,  both  these questions were answered  in  the affirmative  by this Court in Kailash nath v. The  State  of U.P.   (1).   In  effect  therefore  the  bench   has   been constituted for (1) A.I.R.[1957] S.C.79. 946 considering the correctness of the decision on these  points in Kailash nath’s case. Before  proceeding  to consider the submissions  of  learned Counsel on either side it is necessary to point out    two matters; (1)  It  was  agreed before us that in  deciding  the  first question  set  out above we need not  consider  the  special features applicable to taxing legislation and in  particular the point as to whether the constitutional validity of  such legislation  could be tested with reference to the  criteria laid down by Art. 19(1 ) (f); in other words, the limits  to which  Art. 19 would be attracted to a law imposing  a  tax. The  discussion in this judgment therefore proceeds  on  the basis of there being no distinction between at law  imposing a tax and other laws. (2)  The  second  matter which I consider  it  necessary  to state at the outset is that notwithstanding the industry  of Counsel which has enabled them top lace  before us  quite  a

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large  number  of decisions of this Court  which  have  been referred to in the judgments of Kapur and Subba Rao, JJ., in none of them was the point approached with reference to  the matters  argued before us.  Some of these decisions  proceed on  the basis that in the circumstances stated  in  question No. 1 a fundamental right had been invaded and on that basis afforded  to the petitioner before them the  relief  sought. Other decisions state that no fundamental right was involved in the grievance put forward by the petitioners before  them and relief has been refused on that basis.  In none of  them was  the question discussed on principle as to when alone  a fundamental  right would be invaded and in particular as  to whether  a  breach  by a  quasi-judicial  authority  of  the provisions of a law which is otherwise valid, could  involve an  invasion  of  a fundamental right.  For  this  reason  I propose to discuss 947 the  question  on  principle and without  reference  to  the decisions  which  were placed before us at the  hearing.   I feel  further  justified in doing so because they  have  all been referred to in the judgment of Kapur, J., and discussed in detail by Subba Rao, J. I  shall now proceed to consider what in my view  should  be the answer to the first of the questions propounded for  our decision  and am ignoring the reference therein to a  taxing enactment.   Pausing  here  it might  be  useful  to  recall briefly  the function of Part III in the Constitution.   The rule  of  British Constitutional Law and in general  of  the Dominion  Constitutions  framed by  the  British  Parliament might   broadly  be  stated  to  be  that  it  asserts   the sovereignty of the Legislature in the sense that within  the sphere of its activity in the case of a Federal Constitution and  in every sphere in the case of a unitary one  its  will was  supreme  and was the law of the land which  the  Courts were  bound to administer.  As Dicey has pointed out,  there are  no  legal  limits to  the  sovereignty  of  Parliament. Public  opinion,  as  well as the  fear  engendered  by  the possibility  of  a popular revolt,  might  impose  practical restraints upon the exercise of sovereignty but so would  be the  limitations  or  restraints  dictated  by  good  sense, justice  or  a sense of fairplay.  But so far as  the  legal position was concerned, any law made by Parliament was legal and  could  be enforced.  Our Constitution  makers  did  not consider  that  to  the conditions of this  country  such  a vesting  of power in the legislatures or in the State  would be  proper or just or calculated to further the  liberty  of the  individual  which  they considered  was  essential  for democratic progress.  It was in these circumstances and with these  ideas  that they imposed fetters on State  action  in Part  III  entitled ,Fundamental Rights".  Article  13  laid down  that  "every  law whether made  before  or  after  the Constitution which was inconsistent with 948 the  rights  guaranteed by the succeeding  Articles  should, save  as  otherwise expressly provided, be  invalid  to  the extent  of  the  repugnancy".  And "law" was  defined  in  a comprehensive  manner so as to include not merely laws  made by  Parliament  or  the  legislatures  but  every  piece  of subsidiary  legislation including even  notifications.   The scheme therefore of the Constitution makers was to prescribe a code of conduct to which State action ought to conform  if it  should pass the test of constitutionality.   The  rights included  in the eighteen Articles, starting from 14  up  to 31,  comprehend provisions for ensuring  guarantees  against any State action for protecting the right to life,  liberty,

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and property, to trade and occupation, besides including the right  to  freedom  of thought,  belief  and  worship.   The general  scheme of Part III may be stated thus:  Certain  of the freedoms are absolute, i.e., subject to on  limitations, e.g., Art. 17, Art. 20(1).  In respect of certain others the Articles  (vide  Art.  19)  set  out  the  precise   freedom guaranteed as well as its content and the qualifications  to which  the  exercise of that freedom might be  subjected  by enacted  law  or action taken under such law.   Having  thus enumerated these freedoms and laid down the limitations,  if any  to which they could be subjected Art. 32 vests  in  the Supreme Court the authority and jurisdiction to ensure  that the fundamental rights granted by Part III are not violated, and even the right to move this Court for appropriate relief for  infraction  of  a fundamental right is  itself  made  a fundamental right which ordinary legislation may not affect. The purpose of my drawing attention to these features is two fold:   (1)   to  emphasize  the  great  value   which   the Constitution-makers  attached to the freedoms guaranteed  as the  sine qua non of progress and the need which  they  con- sidered for marking out a field which was immune from  State action, and (2) the function of this 949 Court  as a guardian of those rights for the maintenance  of individual  liberty enshrined in the Constitution.   It  was with advertance to this aspect of the matter that this Court observed in Daryao v.The State of U. P. (1):               "There  can be no doubt that  the  fundamental               right  guaranteed  by  Art.  32(1)is  a   very               important safeguard for the protection of  the               fundamental  rights of the citizens, and as  a               result  of the said guarantee this  Court  has               been   entrusted  with  the  solemn  task   of               upholding   the  fundamental  rights  of   the               citizens  of this country.   The   fundamental               rights  are  intended  not  only  to   protect               individual’s rights but they are based on high               public policy.  Liberty of the individual  and               the  protection of his fundamental rights  are               the very essence of the democratic way of life               adopted  by  the Constitution, and it  is  the               privilege and the duty of this court to uphold               those  rights.   This  Court  would  naturally               refuse to circumscribe them or to curtail them               except as provided by the Constitution itself.               It  is  because of this aspect of  the  matter               that in Romesh Thappar v. The State of Madras,               (1950  S.  C. R. 594) in the very  first  year               after  the Constitution came into force,  this               Court rejected a preliminary objection  raised               against  the  competence of a  petition  filed               under Art. 32 on the ground that as matter  of               orderly procedure the petitioner should  first               have  resorted  to the High Court  under  Art.               226,  and  observed that ,this Court  is  thus               constituted the protector and guarantor of the               fundamental rights, and it cannot,  consisten-               tly  with the responsibility so laid upon  it,               refuse to entertain applications seeking  pro-               tection against infringements of such rights’.               Thus the right given to the citizen to move (1) (1962) 1 S.C R. 574. 950               this  Court  by a petition under Art.  32  and               claim  an appropriate writ against the  uncon-

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

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These exceptions having been conceded by learned Counsel for the  respondent, it is sufficient if attention’ is  confined to  the question, whether a patently incorrect order  passed on a misconstruction 952 of  a  charging enactment would or would not result  in  the violation of a fundamental right and is that the very narrow question which this bench is called upon to answer. The  argument of the learned Attorney-General  who  appeared for  the petitioner, was short and simple.   His  submission rested on the correctness of the following steps: (1)  The Constitution has vested in this Court the power  to ensure,  when approached by a petition under Art.  32,  that fundamental  rights were not violated and accordingly  there is  a  constitutional  duty cast upon the  Court  to  afford relief  when so approached in every case  where  fundamental rights were violated. (2) The two matters which a petitioner seeking relief  under Art.  32 of the Constitution would have to  establish  would therefore  be: (a) the existence in him of  the  fundamental right  which  he complains has been infringed, and  (b)  its violation  by  State action.  If these  two  conditions  are satisfied  the  petitioner is entitled as of  right  to  the grant  of  relief  and the Court would be under  a  duty  to afford  him  that relief by passing  appropriate  orders  or directions   which   would  be  necessary  to   ensure   the maintenance of his fundamental right. (3)  There was no dispute that a fundamental right could  be invaded by State action which was legislative in  character, or  where  the  complaint  was  as  regards  the  action  of executive and administrative authorities created even  under valid statutes. (4)  If  the above premises which were not in  dispute  were granted, the next step was whether the decision of a  quasi- judicial  authority  constituted  under a  valid  law  could violate a guaranteed freedom.  A quasi-judicial authority he urged is as much 953 part  of  the  machinery  of  the  State  as  executive  and administrative authorities, and its decisions and orders are as much State action and if the function of Part III of  the Constitution  is  to protect the  citizen  against  improper State action, the protection should logically extend to  the infraction  of  rights  effected by such  orders  of  quasi- judicial authorities. The short question for decision may in the circumstances  be formulated thus: Can an action of a quasi-judicial authority functioning under a valid enactment and not overstepping the limits  of  its  jurisdiction imposed by  the  Act  and  not violating  the  procedure  required  by  the  principles  of natural justice but whose decision is patently erroneous and wholly  unjustified  on  any proper  interpretation  of  the relevant  provision,  be complained of as violative  of  the fundamental rights of a party prejudicially affected by such misinterpretation.   Taking  the  handy  illustration  of  a taxing  statute,  if  by a plain  misinterpretation  of  the charging-provision,  an assessing-authority levies a tax  on transaction  A while the statute on its only  possible  con- struction  imposes  no  tax on such a  transaction,  is  any fundamental  right of the party who is subjected to such  an improper levy prejudicially affected by such an imposition ? In  considering  the proper answer to this  question  it  is necessary  to exclude one matter which is apt to  cloud  the issue  and it is this.  The statute under which  the  quasi- judicial authority functions or makes the decision or  order

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may  contain provisions for enabling the correctness of  the decision reached or the order passed being challenged by  an appeal or may provide for a gradation of appeals and further revisions   The  existence  of  procedures  for   redressing grievances  or  correcting errors of  primary  or  appellate authorities   is   obviously   wholly   irrelevant   for   a consideration of the question as to whether the order of the authority involves an 954 infringement  of fundamental rights or not.  This Court  has laid  down  in  a  large number of  cases  of  which  it  is sufficient to refer to-.  Union of India v. T. R. Varma (1), The  State of Uttar Pradesh v. Mohammad Nooh (2), and A.  V. Venkateswaran,  Collector  of Customs,  Bombay  v.  Ramchand Sobharj  Wadhwani (3) that the existence of  an  alternative remedy  is no legal bar to the exercise of the  jurisdiction of  the High Court under Art. 226 of the  Constitution.   If that is so in the case of the jurisdiction under Art. 226 it must  a  fortiori be so in the case of a  guaranteed  remedy such  as  is  vested  in this Court under  Art.  32  of  the Constitution.  Besides it cannot be predicated that there is a  violation of a fundamental right if the  party  aggrieved has  no  appeal  provided by the  statute  under  which  the authority  acts,  but that if other statutory  remedies  are provided there would be no violation of a fundamental right, for the question whether a fundamental right is violated  or not  is  dependent  on the action complained  of  having  an impact  on  a guaranteed right, and its  existence  or  non- existence   or  the  action  constituting  a  breach  of   a fundamental  right  cannot be determined by the  absence  or presence  of  procedures  proscribed  by  the  statute   for correcting  erroneous orders.  The absence of any  provision for  redress  by  way of appeal may have a  bearing  on  the reasonableness of the law, but it has none on the point  now under  discussion.   Besides,  it  cannot  be  that  if  the remedies  open  under  the statute  are  exhausted  and  the authority  vested  with  the ultimate  authority  under  the statute  has  made its decision and there is no  longer  any possibility  of an objection on the score of an  alternative remedy  being  available, there would be a  violation  of  a fundamental right with the consequence that this Court would have jurisdiction, but that if it was (1)   [1958] S.C.R. 499.            (2) [1958] S.C.R. 595. (3)  [1962] 1 S.C.R. 753. 955 approached  at an earlier stage there was no violation of  a fundamental  right and that it lacks jurisdiction to  afford relief  under  Art.  32, for it must  be  admitted  that  in ultimate analysis there is no distinction between the nature and  quality of an order passed by an original  as  distinct from  one  by an appellate or  revisional  authority-in  its consequences   vis-a-vis  the  fundamental  right   of   the individual  affected.   It is common ground and  that  is  a matter   which  has  already  been  emphasized  that  if   a petitioner made out to the satisfaction of the Court that be has a fundamental right in respect of the subject-matter and that  the  same  has been violated by State  action,  it  is imperative  on the Court to afford relief to the  petitioner the  Court not having any discretion in the matter in  those circumstances.  On this basis the only ground upon which the jurisdiction  could  be denied would be that  the  order  or decision  of  the  authority  which  is  impugned  does  not prejudicially   affect   the  fundamental   right   of   the petitioner, for it cannot be that the order of the  ultimate authority under the statute could involve the violation of a

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fundamental  right  but  that  the  same  orders  passed  by authorities  lower down in the rung under the statute  would not involve such a violation. Pausing here, one further matter might also be mentioned for being  put  aside.   This  Court  has  laid  down  that  the principal  underlying the rule of res judicata is  based  on principles  of law of general application and as such  would govern  also  the  right  to relief  under  Art.  32.   That principle is not involved in the consideration of the  point under discussion, because what is sought to be challenged as violating  a  fundamental  right is the very  order  of  the authority and we are not concerned with a collateral  attack on  an  order that had become final as between  the  parties thereto. 956 Coming back to the point under consideration it was conceded by the learned Additional Solicitor General who appeared for the  respondent  that legislative action  might  involve  an infraction  of  fundamental rights and  that  similarly  the action  of the executive-authorities might involve  such  an infraction even when the legislation under which they  acted or  purported to act was within legislative  competence  and within  the constitutional limitations imposed by Part  III. His contention, however, was that a very different state  of circumstances  arose when the action complained of was by  a quasi-judicial authority.  His submission may be  summarised in   the  following  terms:-Where  a  statute   was   within legislative  competence  and  does  not  by  its  provisions violate any of the constitutional guarantees in Part III, it follows  as  a matter of law that every order  of  a  quasi- judicial  authority vested with power under the Act is  also valid   and  constitutional  and  that  the   legality   and constitutionality  of the statute would cover every  act  or order of such an authority if the same was within his or its jurisdiction   and  prevent  them  from  the  challenge   of unconstitutionality.   The same argument was presented in  a slightly different form by saying that such a quasi-judicial authority  has as much jurisdiction to decide rightly as  to decide  wrongly and that if there was error in such a  deci- sion  the only remedy of the citizen affected was by  resort to  the  tribunals  set up by the Act  for  rectifying  such errors and that in the last resort, that is after the entire machinery  under the Act was exhausted, the  affected  party had  a right to approach the High Courts under Art.  226  in cases  where the error was of a type which could be  brought within  the  scope of the remedial-writs  provided  by  that Article. Before  examining the correctness of this submission  it  is necessary to mention that Mr. Chari 957 who appeared for some interveners supporting the Respondent, made  a  submission  which if accepted Si  would  have  far- reaching consequences.  His contention was that the State in Part  III against whose action the fundamental  rights  were guaranteed was confined to the legislative and the executive branches  of  State activity and that the  exercise  of  the judicial  power  of  the State would  never  contravene  the fundamental rights guaranteed by Part III.  It would be seen that  this is wholly different from the submission  made  on behalf  of Government by the learned  Additional  Solicitor- General and it would be convenient to deal with this  larger question after disposing of the arguments of Mr. Sanyal, The question for consideration is what exactly is meant when it  is  said that a statute is valid in the  sense  of:  (a) being legally competent to the legislature to enact, and (b)

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being  constitutional  as  not  violative  of  the  freedoms guaranteed by Part III.  It is obvious that it can only mean that the statute properly construed is not legally incompet- ent  or constitutionally invalid.  In this connection it  is of advantage to refer to a point made by Mr. Palkhivala  who appeared  for  some  of the interveners in  support  of  the petition.  One of his submissions was this: Suppose there is an  Act for the levy of sales-tax which is  constitutionally valid.  On its proper construction it does not purport to or authorise the imposition of a tax on a sale ",in the  course of  export or import." If it did so expressly authorise,  it is  obvious that such a provision in the enactment would  be ultra  vires  and  unconstitutional  as  violative  of   the prohibition contained in Art. 286 (1) (a).  Suppose  further that an authority functioning under such an enactment vested with jurisdiction to assess dealers to sales tax proceeds to levy a tax and includes in the computation of the assessable turnover  not merely those items which are  properly  within the legislative competence of the 958 State  Legislature to tax under the head ’Taxes on the  sale of  goods’ but also the turnover in respect of  transactions which are plainly ,,sales in the course of export or import" and this it does on a patent misconstruction of the statute, could  it be said that the fundamental right of  the  dealer guaranteed  by Art. 19 (1) (f) and (g) was not  violated  by the imposition of the sales tax in such circumstances?   The logic  behind  this argument might be stated  thus:  If  the legislature had in terms authorised the imposition of  sales tax  on such a transaction it would have been  plainly  void and illegal and hence ex-concessis the fundamental right  in respect of property as well as of business under Art. 19 (1) (f) and (g) would be violated by the levy of the tax and its collection.   How is the position improved if  without  even the  legislature saving so in express terms an  officer  who purports  to  act under the statute himself  interprets  the charging provision so as to bring to tax a transaction which it  was  constitutionally incompetent  for  the  legislature itself  to  tax.   I  find  the  logic  in  this   reasoning impossible  to  controvert, nor did the  learned  Additional Solicitor-General attempt any answer to this argument. It appears to be manifest that the fact that an enactment is legislatively  competent  and  on  its  proper  construction constitutionally   valid,  i.  e.,  it  does   not   contain provisions  obnoxious to Part III of the Constitution,  does not  ipso  jure  immunise  the  actions  of   quasi-judicial authorities  set up under the statute from  constituting  an invasion of a fundamental right.  What the legislature could not in express terms enact, could not obviously be  achieved by the State vesting power in an authority created by it  to so   interpret   the   enactment  as   to   contravene   the Constitution.  It might be suggested that such a case  would fall within the exception which it is conceded 959 exists  that an act of a quasi-judicial authority  which  is plainly  beyond  its  jurisdiction could give  rise  to  the violation  of  a fundamental right in regard to  which  this Court  might  afford relief if moved under Art. 32.   In  my opinion,  this is not quite a satisfying answer because  the suggestion  is  coupled with the assertion of  the  wellworn dictum as regards the jurisdiction of the tribunal to decide wrongly  as much as rightly.  The illustration I have  given of unconstitutional action by authorities acting under valid and  constitutional enactments cannot be  properly  answered unless it be held that a plain and patent  misinterpretation

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of  the provisions of the enactment could it self give  rise to  a  plea  that  it was beyond  the  jurisdiction  of  the authority  but  that  would be  stretching  the  concept  of jurisdictional errors beyond what is commonly understood  by that term. Let me next take a case where the mis-interpretation by  the quasi-judicial,  authority  does not involve the levy  of  a duty  beyond the competence of the legislature enacting  the statute.   In the type of case now under  consideration  the quasi-judicial  authority by a plain  misinterpretation  of, let us say, the charging provision of a taxing enactment (as that  furnishes a handy illustration of the point now  under discussion)  levies a tax on a transaction which, under  the Constitution,  it was competent for the legislature to  levy if  it  had been so minded.  In other words, there  are  two related  transaction  or taxable events-A & B.  The  taxing- statute has selected the transaction or taxable event A  and has  imposed  a tax upon it, and it  alone.   The  authority vested with jurisdiction under the Act, however, by a patent misconstruction  of the enactment considers that not  merely the  transaction  or taxable event A but  also  the  related transaction  or  taxable  event B  is  within  the  charging provision  and levies a tax thereon and proceeds to  realise it.  The problem 960 now  under consideration is. could or could it not  be  said that  in such a case the fundamental right of a citizen  who has  been  wrongly  assessed  to  tax  in  respect  of   the transaction  or taxable event B which ex-concessis  was  not intended to be taxed under the enactment has been  violated. With the greatest respect to those who entertain a  contrary view  I consider that the question can be answered  only  in one  way and that in favour of holding that the  fundamental right  of the citizen is prejudicially affected.  When  once it  is  conceded that a citizen cannot be  deprived  of  his property or be restricted in respect of the enjoyment of his property  save by authority of law, it appears to me  to  be plain  that in the illustration above there is no  statutory authority  behind the tax liability imposed upon him by  the assessing  authority.   The Act which imposed  the  tax  and created   the  machinery  for  its  assessment,   levy   and collection  is, no doubt, perfectly valid but by  reason  of this circumstance it does not follow that the deprivation of property occasioned by the collection of a tax which is  not imposed  by  the  charging  section  does  not  involve  the violation   of  a  fundamental  right  merely  because   the imposition was by reason of an order of an authority created by the statute, though by a patent misinterpretation of  the terms of the Act and by wrongly reaching the conclusion that such a transaction was taxable. I consider, that the four concessions made by the respondent which I have set out earlier, all proceed on the basis  that in these cases there is no valid legislative backing for the action of the authority-executive, administrative or  quasi- judicial.   I  consider that the reason of that  rule  would equally  apply to cases where the  quasi-judicial  authority commits  a patent error in construing the  enactment-for  in such  a  case also there would obviously be  no  legislative backing   for  the  action  resulting  form  his   erroneous decision. 961 There  is  however one matter to which it  is  necessary  to advert to avoid misconception, and that concerns the  effect of  findings reached on questions of fact by  quasi-judicial authorities.   Provided there is relevant evidence on  which

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the  finding  could rest., the finding  would  preclude  any violation of a fundamental right because this Court,  though in the absence of a finding of a duly constituted  authority would  have the power and jurisdiction to  investigate  even disputed facts in an appropriate case, would however  accept findings of fact by duly constituted authorities and proceed to find out whether on that basis a fundamental right exists and  is prejudicially affected by the action impugned.   The distinction  which  I  would,  in  this  context,  draw  and emphasise  is  between a misinterpretation of a  statute  by which  an authority brings within the scope of an  enactment transactions  or  activities not within it on  any  possible construction  of its terms, and erroneous findings on  facts by reason of which the authority considers a transaction  as being within the Act even if properly construed. To sum up the Position: (1) If a statute is legally  enacted in  the sense of being within legislative competence of  the relevant legislature and is constitutional as not  violating any  fundamental  rights, it does not  automatically  follow that any action taken by quasi-judicial authorities  created under  it  cannot violate fundamental rights  guaranteed  by Part  III of the Constitution.  The legislative  competence, the  existence  of  which renders the  enactment  valid,  is confined  to  action by the authorities  created  under  it, which  on  its proper construction could be  taken.   In  an authority constituted under such a legal and valid enactment oversteps the constitutional limitations on the  legislative power  of  the  State  Legislature,  the  acts  of  such  an authority   would  be  plainly  unconstitutional   and   the consequences arising out of unconstitutional 962 State action would necessarily attach to such action.  If an "unconstitutional Act" of the State Legislature would invade fundamental   rights  the  same  character  and   the   same consequence must a fortiori follow when that act is not even by  the  State Legislature but by an  authority  constituted under  an  enactment passed by it. (2)  Where  State  action without  legislative  sanction behind it would  violate  the rights  guaranteed  under  Part III, the  result  cannot  be different because the State acts through the mechanism of  a quasi-judicial  authority which is vested with  jurisdiction to  interpret  the enactment.  The  absence  of  legislative sanction for the imposition of an obligation or the creation of a liability cannot be filled in by the  misinterpretation by an authority created under the Act. To  hold  that  a patently  increased  interpretation  of  a statute  by a quasi-judicial authority by which a  liability is  imposed  on a citizen does not violate  his  fundamental rights  under  Arts. 19(1)(f) and (g) might  not  have  done consequences  but  for two circumstances.  The first  is  as regards  the  difficulty of designating  with  certainty  an authority  as quasijudicial.  The fact is that there  is  no hard  and  fast formula for determining  when  an  authority which  is  vested with power to act on behalf of  the  State falls  within category which is termed quasi-judicial’.   As Prof.  Robson stated; ’,’Lawyers, of course, have often  had to decide, in practical cases arising in the courts, whether a particular activity was of a judicial or an administrative (or ministerial’) character; and important consequences have flowed  from their decisions.  But those decisions  disclose no coherent principle, and the reported cases throw no light on  the  question from the wider point  of  view............ save to demonstrate, by the very confusion of thought  which they present, the difficulty of arriving at a clear basis of distinction".  The significance of this point stems from the

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fact that it is a matter of 963 concession that where the power of the State is vested in an executive  or  administrative authority under  an  enactment which is valid and constitutional and such an authority does an  act  which on the proper construction  of  the  relevant statute  is  not justified by it, the act may be of  such  a character  as to violate a fundamental right  guaranteed  by Part  III, i.e., if the impact is in a field which  is  pro- tected  from State interference, and such a violation  could be complained of by a petition to this Court under Art.  32. At the same time it is the contention of the respondent that a  similar  act,  order  or  decision  by  a  quasi-judicial functionary  which  is  not warranted by the  terms  of  the statute, does not give rise to the violation of  fundamental rights. It  is therefore necessary to examine somewhat  closely  the dividing  line between an executive authority whose  actions may  give rise to the violation of a fundamental  right  and what  is termed a ""quasi-judicial" authority whose  actions do not have that effect.  To start with, it is obvious  that the nature of the act or of the order might be the same,  so that  if the same act proceeded from one authority it  would have  a particular effect but would have quite  a  different effect  or  would  not  have that effect  if  the  same  act proceeded from a slightly different type, of authority  also exercising  the power of the State.  This Court  in  Express Newspapers  (Private) Ltd. v. The Union of India (1)  quoted with  approval  the following statement of the law  as  sum- marised in Halsbury’s Law of England (3rd Ed., Vol. 2 at pp. 53-56):               ".................. An administrative body  in               ascertaining facts or law may be under a  duty               to  act  judicially notwithstanding  that  its               proceedings  have none of the formalities  of,               and are not in accordance with the practice of               a (1) (1959) S.C.R, 12 , 113,114. 964               court  of law........................  A  body               may   be  under  a  duty,  however,   to   act               judicially  although there is no form  of  lis               inter partes before it.............." and  in  a  further  passage from  the  decision  in  R.  v. Manchester   Legal  Aid  Committee  (1)  which  this   Court extracted it was observed:               "The true view, as it seems to us, is that the               duty  to  act judicially may arise  in  widely               different circumstances which it would be  im-               possible, and, indeed, inadvisable, to attempt               to define exhaustively." The question therefore whether an authoritiy created under a statute is a quasi-judicial authority or, in other words, an authority  which is bound to act judicially cannot  be  laid down by any hard and fast rule but must be gathered from the entire provisions of the Act read with the purpose for which the power is vested in the authority as well as the  grounds for the creation of such authority.  I must however  confess that  this is a branch of law in which authorities far  from shedding light are in reality unhelpful-for one gets nowhere if  these  lay down as they do. that an authority  would  be quasijudicial,  if  (not being a court) it is bound  to  act judicially  and  that to find out when-,  apart  from  clear provisions in the statute, it is bound to act judicially-you are  told that it is when it is a  quasijudicial  authority.

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Bearing  in mind these circumstances I find it not  possible to  accept the contention that if the power of the State  be exercised  by  an  authority which on a  conspectus  of  the statute  is deemed to be quasi-judicial and the exercise  of such power prejudicially affects rights of life, liberty  or property  which are guaranteed by Part III the  same  cannot amount to a violation of a fundamental right, whereas if  on a proper construction of the (1) [1952] 2 Q.B. 413. 965 statute  that authority were a mere administrative body  but the act remains the same, it would so involve. Let  me  next  see whether there could be  any  rational  or reasonable  basis on which such a contention could rest.   I take  it that the reason why quasi-judicial authorities  are suggested as being exceptions to the general rule that State action  which  involves a prejudicial result on  a  person’s right  to property etc. involves a violation of  fundamental rights is that a quasi-judicial authority is vested with the jurisdiction  to  decide and that the conferment of  such  a jurisdiction  carries  with it by  necessary  implication  a right to decide rightly as well as wrongly; in other  words, that it does not outstep the limits of the jurisdiction by a decision which is erroneous.  I consider that it is the case of  the transference of a principal to a branch of law or  a situation in which it has no place or relevance.The question for consideration in the context   of a petition under  Art. 32 is whether there is   valid  legal  sanction  behind  the action  of the authority, for apart from such a sanction  it must  be and it is conceded that there would be a  violation of  a  fundamental right.  Besides, if this  proposition  is right,  then it must rest on the principal that  the  quasi- judicial authority is vested with the right to decide.  Does it, however, follow that executive action does not in vole a decision or posit a right to decide?  If it is clear law, as must be conceded that there is no necessity to have a lis in order  to render the body or authority deciding a matter  to be  treated as a quasi-judicial authority, then it  is  very difficult to conceive of few actions by the executive  which do  not Involve an element of discretion.  No doubt  in  the case of an administrative of, executive body the decision is not  preceded.  by  a hearing involved  in  the  maxim  Audi Alteram Partem but this, in my opinion of the 966 merely  the procedure before the decision is reached and  is not the essence of the distinction.  Besides, as pointed out by Prof.  Robson in ’Justice and Administrative Law’ (a),               "Sometimes  the  administrative  and  judicial               functions of an office have been so inextrica-                             bly  blended that it is well-night  impossible               to say which capacity is the dominant one." In this state of affairs to determine the maintainability of a  petition under Art. 32 by proceeding on an  investigation as  to the nature of the authority which passed  that  order when,  as I have pointed out earlier, there is no  essential difference in either the nature or the quantum of the injury suffered  by the citizen, cannot be sustained on any  proper interpretation either of the Constitution or the  principles of  law governing the interpretation of statutes.  I  would, therefore, hold that the freedoms guaranteed by Part III may be  violated  by the action of  a  quasi-judicial  authority acting  within the limits of its jurisdiction under a  valid and  constitutional statute where it  plainly  misinterprets the  provisions of the statute under which it  functions  or which it is created to administer.

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As regards the practical effect of accepting the  contention of  the  learned  Additional Solicitor General  there  is  a second  matter  to  which I consider it  essential  to  draw attention.   With  a  very great  increase  in  governmental activity  and the diverse fields in which it operates  owing to  the  State being a welfare State as  contrasted  with  a Police-State  concerned mainly with the maintenance  of  law and order, there has necessarily been a great  proliferation of  governmental departments with the attendant creation  of several authorities which have to pass decisions in  spheres affecting  the citizen at manifold points.  It is  therefore true  to say that in a modern welfare  State  administrative agencies 967 exercising quasi-judicial authority are vastly more numerous and  if I may add, more important and more vital  than  even the  normally  constituted Courts.  In such a  situation  to hold  that fundamental rights would not be involved  by  the activities of these various authorities which are increasing in  number day by day would, be, in my opinion, to  deny  to the citizen the guarantee of effective relief which Art.  32 was  designed to ensure in the great majority of cases.   In such  a  situation  to  assert  at  one  breath  the   prime importance and significance of the function of this Court as a protector and guarantor of fundamental rights, and at  the same time to hold that these numerous statutory  authorities which are created to administer the law cannot invade  those rights would be to render this assertion and this  guarantee of  relief mostly empty of meaning.  Though if the words  of the Constitution were explicit, considerations such as there would be of no avail, yet even if the matter were  ambiguous I am clearly of the opinion that the rejection of the  broad contention  raised on behalf of the respondent is  justified as needed to give effect to the intentions of the framers of the Constitution.  But as I have pointed out already, on  no logical basis could it be held that where an act or order of a  quasi-judicial  authority lacks legislative  backing,  it cannot  still  impinge on a person’s fundamental  right  and where  an  order  suffers  from  patent  error,  it  is   no legislative sanction behind it. It now remains to consider the point urged by Mr. Chari that ’State" action which involves the violation of a fundamental right  does not include that resulting from what  be  termed "the  judicial  authority of the State".  The  argument  put forward  in Support of this proposition was rested  in  most part,  1  not  wholly,  on  the terms  of  Art.  12  of  the Constitution  and the definition of the expression  "’State" contained in it.  Article 12 enacts: 968               "In  this part,, unless the context  otherwise               requires, ’the state’ includes the  Government               and Parliament of India and the Government and               the Legislature of each of the States and  all               local   or   other  authorities   within   the               territory of India or under the control of the               Government of India." It  was  pointed  out that the "State"  whose  action  might involve  the  violation of fundamental rights or  rather  as against  whom  the citizen had been granted a  guarantee  of certain  rights under this Part was defined to  include  the "Government’  and  "Parliament"  of the  Union  and  of  the states,  and  the  local  authorities,  did  not  name   the "Judicial  power  of the State" as within  it.   If  learned Counsel  is right in this submission that the State in  Part III  impliedly excludes judicial and  quasi-judicial  autho-

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rities  by  reason of the absence of  specific  mention  the further  submission  that  by any of  the  actions  of  such anthorities  fundamental rights could not be violated  would appear  to be made out and it has to be added that  if  this contention  is  right some of the concessions  made  by  Mr. Sanyal would be unjustified. There   are   several  considerations  to  which   I   shall immediately   advert   which   conclusively   negative   the correctness  of the inference to be drawn from judicial  and quasi-judicial  authorities not being specifically named  in Art.  12. (1) In the first place, it has to be  pointed  out that  the definition is only inclusive, which itself is  apt to indicate that besides the Government and the  Legislature there might be other instrumentalities of State action which might  be comprehended within the expression "State".   That this expression "includes" is used in this sense and not  in Chat in which it is very occasionally used as meaning "means and  includes"  could  be gathered  not  merely  from  other provisions 969 of  Part  III but also from Art. 12 itself.   Article  20(1) would  admittedly  refer to a limitation  imposed  upon  the judicial power of the State and is obviously addressed also, if  not wholly, to judicial authorities.  Mr. Chari  however sought  to get over the implication arising from Art.  20(1) by suggesting that the definition in Art. 12 which  excluded judicial and quasi-judicial authorities from within the pur- view  of  the  expression "State" should  be  understood  as applying only subject to express provision to the  contrary. I  feel  wholly  unable to accept the  method  suggested  of reconciling   the   presence   of  Art.   20(1)   with   the interpretation  of Art. 12 as excluding judicial and  quasi- judicial  authorities.  No doubt, the definition in Art.  12 starts   with  the  words  "unless  the  context   otherwise requires",  that expression however could serve to cut  down even further the reach of the definition and cannot serve to expand  it  beyond the executive and legislative  fields  of State  action  if  the word ,includes"  were  understood  as "means  and  includes"  which is  the  contention  urged  by learned  Counsel.   Again,  Art. 12 winds  up  the  list  of authorities  falling within the definition by  referring  to "other  authorities"  within the territory  of  India  which cannot, obviously be read as ejusdem generis with either the Government  and the Legislatures or local authorities.   The words  are  of wide amplitude and capable  of  comprehending every  authority  created under a  statute  and  functioning within the territory of India.  There is no characterisation of  the nature of the "authority" in this  residuary  clause and consequently it must include every type of authority set up  under  a statute for the purpose of  administering  laws enacted  by the Parliament or by the State  including  those vested with the duty to make decisions in order to implement those  laws  (2).  Among the reliefs which on the  terms  of Art.  32 this Court might afford to persons  approaching  it complaining of the violation of the 970 fundamental  right  is  the issue of a  writ  of  certiorari specifically  enumerated  in  that Article.   It  is  common ground  that that writ is available for issue  only  against judicial or quasi-judicial authorities and it would normally follow  that quasi-judicial authorities could  equally  with other instruments of State action violate fundamental rights which could be redressed by the issue of this type of  writ. (3)  The  theory propounded by learned Counsel is  based  on what might be termed the rigid doctrine of the separation of

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powers  which is not any feature of our Constitution as  has bean  repeatedly  laid down by this Court. (4) Even  on  the words of Art. 12 as they stand the construction suggested by learned  Counsel has to be rejected.  The article refers  to the  government (of Union and of the States) as  within  the definition  of a ,State".  It is however admitted that  both the  Government  of  the  Union as well  as  of  the  State, function   as  quasi-judicial  authorities   under   various statutory  enactments.   The question would  at  once  arise whether  when  the "government" exercise such powers  it  is deemed to be a "government" falling within the definition of "State"  or  should be classified as  a  judicial  authority wielding  the  judicial  power of the State"  so  as  to  be outside the definition, so that its decisions and orders  do not  give  rise  to  a violation  of  a  fundamental  right. Article 12 on any reasonable construction cannot permit  the dissection  of "’government" for the purpose of  discovering the  nature  or the quality of the powers exercised  by  it, into the three fields of executive pure and simple, judicial and legislative for the purpose of a fresh  reclassification into  certain  categories.  When  government  exercises  any power,  be it executive pure and simple,  or  quasi-judicial under   a  statute  or  quasi-legislative  in  say   framing subordinate  legislation, it does so as "government" and  no further subdivision of it 971 is possible except for the purposes merely of academic study or  for determining the nature of the relief which might  be had by persons affected by its activities in any  particular field.   Similarly,  Parliament  is  vested  with  a  quasi- judicial  power  to punish for contempt which itself  is  by reason  of  such power belonging to the  Parliament  of  the United  Kingdom and this if anything is an  indication  that the  constitution  does not recognise any  doctrine  of  the separation of powers.  In other words., the reference to the Government  and  the  Legislature in  the  definition  is  a reference to them as institutions known by that name and  is not  with a view to describe their particular  functions  in the body politic. (5)   That   the  reference  to  the  Government   and   the Legislatures  is  to them as institutions and is not  to  be understood  as  a  reference to their  functions.  viz.,  to bodies  performing  executive and legislative  functions  is perhaps  forcefully brought out by the inclusion  of  "Local authorities"  in the definition of "State".  It  is  obvious that  municipal  and  local Board  authorities  going  under various   descriptions  in  the,  several  State  would   be comprehended  within  that  term.   Now  municipal  councils exercise,  as is well known, legislative, executive as  well as  quasijudicial functions.  They frame Rules and  bye-laws which are subordinate legislation and would fall within  the description  of  laws"  as defined by Art.  1  3.  Municipal Councils  are vested with administrative functions and  they also exercise quasi-judicial functions when assessing taxes, hearing  taxation appeals, 10 mention only a small  fraction of the quasi-judicial power which they possess and  exercise in   the   discharge  of  their  functions  as   the   local administration.   If  the local authority" as a whole  is  a ’State"   within  the  definition  there  is  no  canon   of construction  by  which  any  part of  the  action  of  that authority could be designated as not 972 failing  within State action for the purpose of giving  rise to  violation of a fundamental right. (6) There is only  one other  matter which need be referred to in this  connection.

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Both  this Court, as well as the High Court have  vested  in them the power to make rules, and it cannot be disputed that such rules would be "’laws" within the definition of the ex- pression in Art. 13.  If so, it is manifest that such  rules might  violate  the fundamental rights, i.e  their  validity would  depend  inter  alia  on their  passing  the  test  of permissible  legislation under Part III.This would  directly contradict any argument that  Courts   and    quasi-judicial authorities are outside  the definition of State in Art. 12. In   the  face  of  these  deductions  following  from   the Constitution  itself, I find it wholly impossible to  accede to  the submission that what is termed as judicial power  of the  State  which,  it is submitted,  would  include  quasi- judicial  authorities  created under statutes  do  not  fall within the definition of the "State" and that their  actions therefore are not to be deemed "’State" action against which the  Constitution has provided the rights  guaranteed  under Part III. I would therefore answer the question referred to the  Bench by  saying that the action of quasijudicial authority  could violate  a fundamental right if on a plain  mis-construction of  the  statute  or  a  patent  misinterpretation  of   its provisions  such an authority affects any rights  guaranteed under  Part  III.  This would be in addition  to  the  three broad categories of cases in regard to which it was conceded that  there could be a violation of fundamental rights:  (1) where  the  statute  under which  it  functions  was  itself invalid or unconstitutional, (2) where the authority exceeds the  jurisdiction conferred on it by the Act, and (3)  where the authority though functioning under statute,  contravenes mandatory procedure prescribed in the statute or 973 violates  the  principles of natural justice and  passes  an order  or makes a  direction affecting a person’s rights  of property etc. Before  concluding it is necessary to advert to  one  matter which was just  touched on in the course of the arguments as one  which  might  be reserved  for  consideration  when  it actually arose, and this related to the question whether the decision  or  order of a regular ordinary Court  of  law  as distinguished  from a tribunal or  quasi-judicial  authority constituted  or created under particular statutes  could  be complained  of  as violating a fundamental right.  It  is  a salutary  principle that this Court should not pronounce  on points which are not involved in the questions raised before it  and that is the reason why I am not dealing with  it  in any  fulness  and am certainly not  expressing  any  decided opinion on it.  Without doing either however, I consider  it proper  to  make  these  observations.   There  is  not  any substantial identity between a Court of law adjudicating  on the  rights of parties in the lis before it and designed  as the High Courts and this Court are to investigate inter alia whether any fundamental rights are infringed and vested with power to protect them, and quasi-judicial authorities  which are  created  under particular statutes and with a  view  to implement  and  administer  their provisions.   I  shall  be content to leave the topic at this. This brings me to the question as to whether there has  been a  patent  misinterpretation  of  the  statute,  as  I  have described  earlier, and whether as a result  the  petitioner has established a violation of a fundamental right.  section 4(1) of the U. P. Sales Tax Act enacted:               "No tax shall be payable on:               (a) the sale of water, milk............on  any               other goods which  the

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974               State  Government may, by notification in  the               official gazette, exempt.               (b)   the  sale of any goods by the All  India               Spinner- Association  or such other person  or               class of persons as the State Government  may,               from  time to time, exempt on such  conditions               as  may  be specified by notification  in  the               official gazette." Pursuant  of  the  powers conferred by a s. 4  (1)  (b)  the Government  of Uttar Pradesh published a notification  dated December  14,  1957 and it is the proper  interpretation  of this notification that forms the central point of the merits of this petition.  The notification read:               "............   In  exercise  of  the   powers               conferred by cl. (b) of sub-s. (1) of s. 4  of               the U. P. Sales Tax Act 1948 as amended up  to               date, the Governor of Uttar Pradesh is pleased               to  order that no tax shall be  payable  under               the aforesaid Act with effect from the 14th of               December 1957 by the dealers in respect of the               following classes of goods:               Provided  that the Additional  Central  Excise               Duties  leviable thereon from the clossing  of               business  on  December 13, 1957 have  paid  on               such  goods  and  that the  dealers  there  of               furnish  proof  to  the  satisfaction  of  the               assessing authority that such duties have been               paid:               (1).....................               (2).....................               (3)  Cigars,  cigarettes. biris  and  tobacco,               that  is to say any form of  tobacco,  whether               cured  or uncured and whether manufactured  or               not and includes the leaf, stalks and 975               stems  of the tobacco plant but does  not  in-               clude any part of a tobacco plant while  still               attached to the earth." The  petitioners  are manufacturers of  handmade  biris  and there  was  no  duty of excise payable  on  them  under  the relevant entry in the Central Excise Act, nor was there  any imposition of any fresh duty on biris so manufactured  under Central  Act 58 of 1957 whose object was to provide for  the levy  and  collection  of "additional  duties  interalia  on tobacco  and tobacco products and for the distribution of  a part  of the net proceeds thereof among the States in  place of  the sales tax which was to be forborne by the States  on those  goods.   Briefly  stated, the,  contention  urged  on behalf  of  the petitioner was that in the  proviso  to  the notification  dated December 14, 1957, the  expression  have been  paid on such goods" applied only to those cases  where an  additional duty was payable and was framed to  deny  the benefit of the exemption to parties who being liable to  pay such duty failed to pay the same.  Where, however, no  duty, was  payable at all, no question of the levy of  duty  arose and  the proviso was inapplicable.  On the other  hand,  the Sales Tax Officer construed the notification with the aid of the  proviso as meaning that the exemption from  payment  of sales  tax  was  granted  only  in  those  cases  where   an additional duty having become payable the same had been paid i. e. the State was intended to be deprived of the right  to levy  Sales tax only when it obtained some benefit from  the additional  excise  duty which was distributed to  it.   The question  that arises is not whether the  construction  con-

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tended  for  by  the  petitioner  is  the  correct  or   the preferable  one, but whether that adopted by the  Sales  Tax Officer was not one which it was possible for one reasonably to take of the provision.  If not withstanding that the  one is  preferable to the other or that a Court of  construction would more 976 readily  accede  to the one rather than to  the  other,  the officer had adopted a construction which it was possible  to take,  could it be said that there was an error apparent  on the  face  of the record justifying the issue of a  writ  of certiorari.  Judged from the point of view I am inclined  to hold  that  where it is possible reasonably  to  uphold  the construction  adopted by an inferior tribunal it would be  a case  of  mere error of law and not a patent  error,  or  an error  apparent  on  the face of  the  record  which  should justify  the issue of a writ of certiorari.  In this view  I would dismiss the writ petition. As  regards  the application to restore the  appeal  to  the file, I do not consider that the request ought to be allowed and  for  two  reasons  :  Firstly,  the  applicant   having voluntarily   withdrawn  the  appeal  I  do  not   see   any justification   for   acceding  to  his   present   request. Secondly,  if as I have held, the error in the order of  the officer  was not such as to justify the issue of a  writ  of certiorari to quash the same the judgment of the High  Court under Art. 226 was correct and the petitioner would not gain any  advantage  by  the  revival  of  the  appeal.   In  the circumstances  I would dismiss the petition for  restoration of the appeal. MUDHOLKAR, J.-The question which arises for consideration in this  petition  under  Art. 32(1)  of  the  Constitution  is whether  a right guaranteed by Part III such as a  right  to carry  on  trade or business is breached  because  a  taxing authority,  though acting under a law which is  inter  vires and following a procedure which is constitutionally as  well as legally permissible has erroneously assessed and levied a tax  on  a  trade  or business.   Unless  we  hold  that  an erroneous assessment, be it due to misconstruction of law or misappreciation of facts, constitutes an invasion of a right guaranteed,  by Part III, the remedy provided by Art.  32(1) will not be available.  The 977 substance  of the petitioner’s contention is that  when  the construction  placed by a taxing authority upon a  provision of  law  is  wrong  the levy of tax  is  one  which  is  not authorised  by law and thus the assesee’s right  under  Art. 19(1)(g) of the Constitution is infringed. What  had  to be construed by the Sales Tax Officer  in  the case  before  us  was  not  a  statutory  provision  but   a notification  issued by the Government of Uttar  Pradesh  on December  14, 1957 under s. 4(1) of the Uttar Pradesh  Sales Tax  Act,  1948 (U.P. Act XV of 1948).  The  aforesaid  pro- vision  of the Sales Tax Act and the notification have  been set out in the judgments of some of my learned brethren  and need  not be set out over again in this judgment.  Upon  the construction  placed by him on this notification  the  Sales Tax  Officer held the petitioner liable to pay sales tax  on the turnover of sales of bidis for the period between  April 1,  1958  and June 20, 1958.   The  petitioner’s  contention before  the Sales Tax Officer was that bidis  were  exempted from  sales tax by the notification in question.   The  plea was  negatived  by the Sales Tax  Officer.   The  petitioner having  unsuccessfully challenged the assessment before  the sales  tax  authorities moved the High  Court  of  Allahabad

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under  Art.  226  of the  Constitution.   The  petition  was dismissed.   Having  failed them the petitioner  sought  and obtained  a  certificate from the High Court to  the  effect that  the  case  is  fit  for  appeal  before  this   Court. Thereafter the petitioner moved the present petition  before this Court but took no steps to bring the appeal before this Court..  That  appeal  was  thereupon  dismissed  for   non- prosecution  on  February  20,  1961.   I  may  incidentally mention  here  that  the  petitioner  has  now  applied  for restoration of the appeal.  But that has nothing to do  with the point which I have referred to earlier. 978 This  petition went up before a constitution bench  of  this Court.  At the hearing reliance was ,placed on behalf of the petitioner on the decision of this Court in Kailash Nath  v. State of U.P.(1) in which by accepting an interpretation  on a  provision  of the Sales Tax Act different from  that  put upon  it by the sales tax authorities this Court  held  that the petitioner before it was being deprived of his  property without  the  authority  of law.   The  correctness  of  the decision was challenged on behalf of the respondent State on the  basis  of  various decisions, including  some  of  this Court,  and  in  view  of the  importance  of  the  question involved the case was directed to be placed before the Chief Justice  for constituting a large Bench.  In  the  referring Order  the  following two questions were formulated  by  the learned Judges who made the reference :               (1)  Is  an  order of assessment  made  by  an               authority  under  a taxing  statute  which  is               intra vires, open to challenge as repugnant to               Art. 19 (1) (g) on the sole ground that it  is               based  on a misconstruction of a provision  of               the Act or of a notification issued thereunder               ?               (2)  Can  the  validity of such  an  order  be               questioned  in petition under Art. 32  of  the               Constitution ? I  have  not discussed the decisions of this Court  as  they have  been considered fully in the judgments of my  brethren but  have  approached the questions with  reference  to  the principles of law applicable to the questions placed  before us; The  two questions are really one : ’Can an erroneous  order of assessment by a taxing authority result in a breach of  a right  to  carry on trade or business so as to  entitle  the person  complaining  of the breach to  approach  this  Court under  Art. 32 ?  The remedy provided by this  Article-which is (1) A.I.R. 957 S.C. 790. 979 itself a fundamental right-is restricted to the  enforcement of  fundamental rights and does not extend to  other  rights such  as a right to have a wrong order quashed.  On the  one hand it was contended at one stage, on the authority of  the decisions  in Ramjilal v. Income-tax  Officer,  Mohindargarh (1)  and Laxmanappa Hanumantappa Jamkhandi v. The  Union  of India  (2) that a fundamental right will not be breached  if the requirements of Art. 265 are satisfied, that is to  say, the  tax is assessed under authority of law.  On  the  other hand it is said, in substance, that an erroneous order of  a taxing  authority  is  an  unreasonable  restriction  on   a person’s  right  to carry on trade or business and  Art.  32 entities  that person to. redress from this Court.  It  has, however, been made clear in sereval decisions of this  Court that  a  law  under  Art.  265  must  not  violate  a  right

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guaranteed  in Part III of the Constitution.  [See  Mohommad Yasin  v.  The  Town Area Committee, Jalalabad  ;  State  of Bombay v. United Motors (India) Ltd., Shree Meenakshi  Mills Ltd.,  Madurai  v. A. V. Viswanatha Sastri  (5);  Ch.   Tika Ramji’ v. The State of Uttar Pradesh (6) ; Balaji v.  Income Tax  Officer,  Special  Investigation Circle,  (7)].  If  it violates  any  of  the guaranteed rights,  recourse  to  the provisions of Art. 32 is avail- able to the aggrieved person. Fundamental  rights enumerated in Art. 19(1)  are,  however, liable to be restricted by laws Permissible under cls. 2  to 6  and, therefore, we must first consider the limits  within which  a  person  can  claim  to  assert  and  exercise  his fundamental right.  We must also bear in mind the nature  of a  quasi-judicial  tribunal and the legal  efficacy  of  its decisions. The  right to carry on trade, business etc., with  which  we are concerned here falls under (1)   [1951] S.C.R. 127. (3)   [1952] S.C.R. 572, 578. (5)   [1955] 1 S.C.R. 787. (2)  [1955] 1 S.C.R 769. (4)   [1953] S.C.R. 1069. (6)   [1956] S.C.R. 393. (7)   [1962] 2 S.C.R. 983. 980 el.  (1) (g) and can be restricted by a law  permissible  by el. 6. This right is further subject to the sovereign  power of the State to levy a tax.  For, the right to levy a tax is essential  for  the  support of the State  and  in  exercise thereof  the State can impose a tax on a trade or  business. Article 265 of the Constitution provides that the imposition must  be  under  the  authority  of  a  law.   Further   our Constitution being, broadly speaking, federal, the right  to levy taxes has been divided between the Union and the States and  the  fields  in  which the Union  and  the  States  can respectively  levy taxes have been demarcated in  the  lists contained  in  the  Seventh Schedule  to  the  Constitution. Despite the demarcation, each is supreme in its own field in the   matter  of  levying  taxes.   There  is  yet   another limitation on the power of the State to make laws  including a law levying a tax and that is placed by el. (2) of Art. 13 of the Constitution which runs thus :               "The State shall not make any law which  takes               away or abridges the rights conferred by  this               Part and any law made in contravention of this               clause   shall,   to   the   extent   of   the               contravention, be void." A .rm60 pre-constitution law like the U. P. Sales Tax Act with which we  are  concerned here must also be  consistent  with  Art. 13(1) which runs thus :               "All  laws in force in the territory of  India               immediately  before the commencement  of  this               Constitution,  in  so far as they  are  incon-               sistent  with  the provisions  of  this  Part,               shall,  to the extent of such in  consistency,               be void." Such  a  law or any provision thereof to the extent  of  its inconsistency  with  the  provisions  of  Part  III  of  the Constitution  will  be void.  The law must  further  not  be violative of any other constitutional 981 provision  as  for example Art. 276(2), Art. 286,  Art.  301 etc.   The law must also have been enacted  after  complying

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with  all the requirements of the Constitution and where  it is subordinate legislation, those of other relevent laws. If  a law imposing a tax is in contravention of any  of  the rights  conferred  by Part III of the Constitution  the  law would  be void and a person aggrieved would be  entitled  to move this Court under Art. 32 on the ground that one of  his fundamental rights has been infringed.  Similarly, if a  law is beyond the competence of the legislature which enacted it or if it contravenes any provision of the Constitution  such as Art. 276 or Art. 286 it would be an invalid law as  being ultra  vires the Constitution and the tax levied  thereunder would  also  be one which is not authorised by law  and  the assessee  can  move this Court under Art. 32 on  the  ground that his right under Art. 19(1)(g) is breached.   Similarly, if  a tax is levied by an authority not empowered by law  to do  so,  or  by a competent authority in  violation  of  the procedure permitted by law or in violation of the principles of  natural justice, the levy would be unauthorised and  the decision under which it was made would be a nullity. In such a case also the assessee can move this Court under Art.  32. All this is accepted before us on behalf of the State. But where a tax is levied by a competent legislature,  after due  compliance  with all the requirements relating  to  the making  of laws and when it is subordinate legislation,  the requirements  of  other relevant laws, and is  also  not  in violation  of  any  provision of the  Constitution  it  will operate  as  a reasonable restriction upon the  right  of  a person  to  carry  on his trade,  business  etc.   Though  a person’s  right  to  carry  on a  trade  or  business  is  a fundamental  right  it  is thus  subject  to  the  aforesaid limitations.  The quantum of the right left to an individual to 982 carry  on his trade or business will be that which  in  left after  a  valid restriction is placed upon it by  the  State under  cl.  (6) of Art. 19.  His actual right  would  be  to carry  on business burdened with the aforesaid  restriction. Where,  as here, the restriction is placed on a  dealer  and takes  the form of a liability to pay a tax on the  turnover of sales on certain commodities by him then he can carry  on his trade subject to his liability to pay the tax as  asses- sed from time to time.  It is this which is the nett content of  his  right to carry on trade, ignoring  for  the  moment restrictions  laid upon it by other competent laws  made  by the  State.   After  a valid restriction is  placed  upon  a fundamental  right  what will be enforceable under  Art.  32 would  be  not  the unrestricted right  but  the  restricted right. It  was not disputed before us that where  a  quasi-judicial tribunal  constituted  under  the Act whereunder  a  tax  is levied, by an erroneous construction of the Constitution  or of that Act holds the tax to be within the competence of the State legislature or as not contravening a provision of  the Constitution, its decision will still be deemed to affect  a fundamental right of the person upon whom a tax is levied in pursuance  of that decision.  This position was rightly  not disputed  before us because, in the premises, the Act  would itself be void and consequently no legal liability can arise by  virtue of the quasi-judicial tribunal constituted  under it.  A restriction imposed by a void law being illegal falls outside el. (6) of Art. 19. Now  when  a  State  wants to impose a tax  on  a  trade  or business  it must necessarily provide for the machinery  for assessing and collecting it The assessment and collection of a  tax  cannot be arbitrary and, therefore, the  State  must

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confer  upon the taxing authority the power and impose  upon it the duty to act judicially.  Absence of such a  provision will make the law bad as being violative 983 of  Art.  19 (1) (g): K. T. Moopil Nair v. State  of  Kerala (1). The Sales Tax Act in force in Uttar Pradesh is a law of this kind.   It  not only imposes a tax on the  sale  of  certain commodities but also provides for the assessment of the  tax as  well as for appeals, revisions etc., from the orders  of assessment.  It is a law as contemplated by Art. 265 and  it is  not  contended that any of its provisions  infringe  the petitioner under Art. 19(1) (g). Being  an instrumentality of the State, like others  charged with  administrative  duties, a taxing authority  is  not  a court  of  law, as that expression is understood.   All  the same  it  has,  in the discharge of its  functions,  to  act judicially.   Since,  however, it is a tribunal  of  limited jurisdiction  and  since also it  performs  other  functions which  are  administrative in character it is not  a  purely judicial but only a quasi-judicial tribunal. The qualification ,quasi’, however, would not make its  duty to  act  judicially  less imperative.  In  its  role  as  an assessing  authority  is if incumbent upon it  to  ascertain facts  and  apply the taxing law to those  facts.   It  must apply its mind to the relevant provisions of the law and  to the  facts of each case and arrive at its findings.  It  is, therefore,  inevitable  that the authority should  have  the power  to construe the facts as well as the laws.  In  other words, it must have jurisdiction to do those things or  else its decisions can never have any value or binding force. A taxing authority which has the power to make a decision on matters falling within the purview of the law under which it is functioning is undoubtedly under an obligation to  arrive at a right decision.  But the liability of a tribunal to err is an accepted phenomenon.  The binding force (1)  (1961) 3 S.C.R. 77. 984 of  a  decision which is arrived at by  a  taxing  authority acting within the limits of the jurisdiction conferred  upon it by law cannot be made dependent upon the question whether its  decision  is  correct or erroneous.   For,  that  would create   an   impossible   situation.    Therefore,   though erroneous,  its decision must bind the  assessee.   Further, if the taxing law is a valid restriction the liability to be bound  by the decision of the taxing authority is  a  burden imposed upon a person’s right to carry on trade or business. This  burden  is not lessened or lifted merely  because  the decision  proceeds upon a misconstruction of a provision  of the  law  which  the  taxing  authority  has  to   construe. Therefore,  it makes no difference whether the  decision  is right  or  wrong so long as the error does  not  pertain  to jurisdiction. The  U.  P. Act empowers the sales tax officer to  make  the assessment,  to  ascertain the necessary fasts  for  holding whether  or not a person is liable to pay tax and if  he  is liable, to determine the turnover of his sales.  Since sales tax  is  imposed  only on certain  commodities  and  tax  at different  rates  is  since sales  chargeable  an  different commodities  the power of the Sales Tax Officer to makes  an assessment  carries with it the power to  determine  whether the sales of particular commodities effected by the assessee fall  within the ambit of the Act or not and if they do,  to determine the rate or rates of tax chargeable in respect  of sales  of  different commodities.  In regard  to  all  these

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matters  he  has to follow the procedure prescribed  by  the Act.  If he finds upon a construction of the Act and of  the rules  and  notifications issued thereunder that  a  certain commodity  is  liable  to  pay a tax then  so  long  as  the transaction  is one upon which the State  legislature  could impose  a  tax and the commodity is one on which  the  State legislature could impose a tax it is 985 difficult  to see how the decision arrived at by  the  Sales Tax  Officer  can be said to be otherwise  than  within  his jurisdiction even though he may have made an error in coming to  a  particular  conclusion.   If  he  comes  to  a  wrong conclusion  would he, in demanding the tax on the  basis  of such  conclusion,  be  making  an  unlawful  demand  ?   The conclusion may be obviously or palpably wrong but so long as it is not shown to be dishonest would his decision be  void? Of  course, if by placing an erroneous construction  on  the law  he holds, say, that a transaction which is bit by  Art. 286  of  the Constitution is- one which can  be  taken  into consideration for the purposes of assessing the tax or if he holds  that  a commodity upon which  the  State  legislature could  not impose a tax is taxable under the Act  he  would. clearly   have  acted  beyond  his  jurisdiction   and   his assessment with respect to such a transaction or a commodity would be void.  With respect to such assessment the assessee will of course have the right to move this Court under  Art. 32.   But where ’such is not the case and the error  of  the Sales Tax Officer lay only in holding that a tax is  payable on  a certain commodity, as in this case bidis, even  though bidis may have been exempted from such tax by a notification made  by the Government, how could he be said to have  acted without jurisdiction ? It   was,  however,  contended  that  where  the   erroneous construction by the Sales Tax Officer results in the levy of a tax for which there is no authority in law the fundamental right  to  carry on trade or business  will  necessarily  be breached.   The answer to this contention is that  since  he has  the  power  to construe the law and  decide  whether  a particular transaction or commodity is taxable his  decision though  erroneous must be regarded as one authorised by  law and consequently the tax 986 levied  thereunder held to be one authorised by  law.   For, what  is  authorised by law is that  which  the  appropriate authority  upon  consideration and construction of  the  law holds to be within the law. It  was  said that the answer would take in  oven  erroneous decisions as to commodities and transactions with respect to which  ’the State legislature, is incompetent to make  laws. I have no doubt that it would not, because the power of  the Sales Tax Officer to levy a tax cannot extend beyond that of the State legislature. The Sales Tax Officer functioning under the Act in  question has, clearly, the power to summon witnesses, call documents, record evidence and so on. The Act imposes a duty on him  to give  an opportunity to the person sought to be assessed  to be  heard.   His decision upon matters  falling  within  the scope  of  the laws governing the  proceedings  before  him, unless  revised or modified by a tribunal or authority or  a court  to  which  he  is  subordinate  must,  therefore,  be regarded  as having as much validity as that of a  court  of law  in  the  exercise of its  judicial  power  subject,  of course, to the limitations stated earlier.  The decision may be  erroneous.   It may proceed upon a  blatant  or  obvious error  on  the face of the record.  Even so,  it  cannot  be

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regarded as ’non est’ or void or a mere nullity.  If that is the correct legal position, what difference would it make if as  a result of an erroneous decision arrived at by a  Sales Tax  Officer  resulting  from  ’  a  misconstruction  of   a notification  under  the  Sales Tax Act, a  person  is  held liable  to pay tax upon sales of a commodity which,  upon  a proper construction, would appear to be exempted from tax by the law like the notification in question?  Just as a person cannot  complain  of a breach of his  fundamental  right  to carry on trade or business because an erroneous decision  of a court of law renders him liable to pay a sum of money,  so too 987 he cannot complain against an equally erroneous decision  of a  Sales  Tax  Officer.   But that does  not  mean  that  an erroneous  decision  can  never be  challenged  before  this Court.  After exhausting the remedies provided by the taxing statute the aggrieved party can challenge it directly  under Art. 136 or indirectly by first moving the High Court  under Art.  226  or 227 and then coming up in appeal  against  the decision of the High Court. Though this Court is the guardian of all fundamental  rights the  Constitution  has  not  taken away  the  right  of  the ordinary courts or of quasijudicial tribunals  administering a  variety of laws to exercise their  existing  jurisdiction and  to determine matters falling within their purview.   If by  reason  of  the decision of a  tribunal  a  person,  for instance, loses his right to occupy a house, or has to pay a tax,  that  decision cannot be thrown to the  winds,  and  a complaint  made to this Court that a fundamental  right  has been violated.  The decision being one made in exercise of a judicial power and in performance of a duty to make it is  a valid adjudication though as a result of it a person may not be  able to occupy his house or may have to pay a tax.   The decision may be a right one or a wrong one.  If it is not  a nullity when it is right I fail to see how it can be said to be a nullity because it is erroneous, so long of course,  as the  law  is  a good law, the decision is  of  an  authority competent to act under the law, the procedure followed by it is  as prescribed by the law and the error does not  pertain to  jurisdiction.   The error may lie  in  the  construction placed upon a statue by the tribunal.  If it is that and  no more,, Such erroneous construction cannot render the  action taken  thereunder arbitrary or unauthorised.  The error  has to  be  corrected  in the manner permitted  by  law  or  the Constitution and until it is so 988 corrected it would not be open to the party to say that  its fundamental right is violated. Looking  at the matter from the aspect of the nature of  the right  which is capable of being enforced under Art. 32  the same  conclusion is reached.  Thus when the provisions of  a taxing  law entitle a taxing authority to assess and levy  a tax  and  for  these  purposes  to  decide  certain  matters judicially and give binding effect to its decision and  none of  the  provisions of that law are void under  Art.  13  or otherwise  invalid the right enforceable under Art.32  would be the right to carry on business subject to the payment  of the tax as assessed by the taxing authority and not a  right to carry on trade or business free from that, liability.  It makes  no  difference even if the assessment of the  tax  is based upon an erroneous construction of the taxing law inas- much as the right to have a correct determination of the tax is  not part of the fundamental right to carry  on  business but  flows  only  from  the taxing  law.   It  would  follow

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therefore  that  in such a case nothing is  left  for  being enforced  under  Art. 32 when the taxing authority  does  no more than assess and levy a tax after determining it. One  more point needs to be dealt with.  It was said that  a quasi-judicial  tribunal  being an  instrumentality  of  the State its action is State action and so it will be under the same  disabilities  as the State to do a thing which  it  is incompetent  or impermissible for the State to do.   ’It  is also said that what a State cannot do directly it cannot  do indirectly.   In  so far as the incompetency  of  the  State arises out of a constitutional prohibition or lack of  legal authority  due  to  any reason whatsoever,  it  will  attach itself   to  the  action  of  the   quasijudicial   tribunal purporting  to  act as the instrumentality_  of  the  State. Where, in such a case, any fundamental right of a person  is violated  by the action of the quasi-judicial tribunal  that person is 989 entitled  to treat the action as arbitrary or a nullity  and come  up to this court under.  Art. 32 because  the,  action would  be one which is not authorised by law.  But while  an erroneous   action   of  the  State  in  exercise   of   its administrative  functions can be challenged  directly  under Art.  32 if it affects a person’s fundamental right  on  the ground  that it is not authorised by law the action  of  the tribunal pursuant to an erroneous order will not be open  to challenge  for the reason that its action arises out of  the exercise of a judicial power and is thus authorised by  law, State action though it be.  When, Under the provisions of  a law, the State exercises judicial power, as for instance, by entertaining an appeal or revision or assessing or levying a tax  it acts as a quasi-judicial tribunal and  its  decision even  though erroneous will not be a nullity and  cannot  be ignored.   It can be corrected only under Art. 226  or  Art. 227  by  the  High Court or under Art.  136  by  this  Court inasmuch  as  the  State would then be acting  as  a  quasi- judicial tribunal. To summarise, my conclusions are these               1.   The   question  of   enforcement   of   a               fundamental  right  will  arise if  a  tax  is               assessed  under a law which is (a) void  under               Art. 13 or (b) is ultra vires the Constitution               or (c) where it is subordinate legislation, it               is ultra vires the law under which it is  made               or inconsistent with any other law in force.               2.  A similar question will also arise if  the               tax is assessed and/or levied by an  authority               (a)  other  than the one empowered  to  do  so               under  the taxing law or (b) in  violation  of               the procedure prescribed by the law or (c)  in               colourable exercise of the powers conferred by               the law.               3. No fundamental right is breached and 990               consequently no question of enforcing a funda-               mental  right arises where a tax  is  assessed               and levied bona fide, by a competent authority               under  a valid law by following the  procedure               laid down by that law, even though it be based               upon  an  erroneous construction  of  the  law               except  when  by reason  of  the  construction               placed  upon  the law a tax  is  assessed  and               levied  which is beyond the competence of  the               legislature or is violative of the  provisions               of Part III or of any other provisions of  the

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             Constitution.               4.   A mere misconstruction of a provision  of               law  does not render the decision of a  quasi-               judicial  tribunal void (as being  beyond  its               jurisdiction).   It is a good and valid  deci-               sion  in law until and unless it is  corrected               in  the appropriate manner.  So long  as  that               decision stands, despite its being  erroneous,               it  must be regarded as one authorised by  law               and  where, under such a decision a person  is               held  liable to pay a tax that  person  cannot               treat  the decision as a nullity  and  contend               that  what  is demanded of  him  is  something               which is not authorised by law.  The  position                             would  be the same even though upon  a  proper               construction, the law under which the decision               was given did not authorise such a levy. My answer to each of the two questions is in the negative. By COURT : In accordance with the judgments of the majority, Writ  Petition No. 79 of 1959 is dismissed, but the  parties will  bear their own costs.  C. M. P. No. 1349 of  1961  for restoration  of  Civil  Appeal  No.  572  of  1960  is  also dismissed, but the parties will bear their own costs. 991