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Walchandnagar Industries, Ltd. Vs. State of Bombay - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtMumbai High Court
Decided On
Case NumberCivil Appln. No. 735 of 1952
Judge
Reported inAIR1953Bom195; (1953)55BOMLR77; ILR1953Bom614
ActsConstitution of India - Articles 32, 226 and 265; Bombay Sugarcane Cess Act, 1948
AppellantWalchandnagar Industries, Ltd.
RespondentState of Bombay
Appellant AdvocateG.N. Joshi, ;R.J. Shah and Desai, Advs. and ;Desai & Co.
Respondent AdvocateM.P. Amin, Adv. General and ;M.N. Desai, Adv. and ;Little & Co.
Excerpt:
.....of high court to issue writs under article--whether such jurisdiction discretionary--when can high court exercise its jurisdiction under article.;the jurisdiction that the high court exercises under article 226 of the constitution of india is an exceptional and a discretionary jurisdiction and this jurisdiction must be sparingly used. if a citizen can obtain equally adequate, equally efficacious, equally prompt remedy in the ordinary courts of law, ordinarily the high court would not exercise its discretion in his favour under article 226. there may, however, be cases where even though an alternative adequate remedy may exist, the high court under special circumstances may issue a writ or order or direction under article 226.;indian sugar mills assocn. v. secy, to govt. [1951]..........under article 226. therefore, this is a case frankly where the petitioner has chosen to come for a writ under article 226 rather than to go to the ordinary court and get his rights decided by ordinary litigation. we cannot accept the position that it is left to the petitioner's choice and option to decide which remedy ho will adopt. this is clearly a case where an alternative adequate and efficacious remedy is open to the petitioner. this is clearly a case where the decision of the petitioner's right by the ordinary procedure in the courts of law will in no way prejudice him, and, therefore, we do not think that we should exercise our special jurisdiction under article 226 to issue a writ, overt assuming that the petitioner's contention is right that the act is unconstitutional.[7].....
Judgment:

Chagla, C.J.

[1] This is a petition to challenge the constitutionality of the Bombay Sugarcane Cess Act, 1948, being Act 82 of 1949. The Act was passed on 17-2-1949, and it came into force on 23-2-1949. The petitioner, which is the Walchandnagar Industries, Ltd., has been paying the cess or tax tinder the Act since 1949, and this petition has been presented on 16-4-1952, alleging that the tax is illegal and offends against Article 265 of the Constitution, in that it is a tax levied by the State of Bombay otherwise than by authority of law.

[2] The Advocate-General has raised certain preliminary objections to the maintainability of this petition. His first objection is that the constitutionality of an Act cannot be challenged by a petition, and in support of that contention he has relied on a judgment of the Nagpur High Court in Sheoshankar v. M. P. State Govt. A. I. R. 1951 Nag. 58. That judgment was mainly concerned with pointing out that a Court will not grant a merely declaratory decree to a party which was in no way aggrieved by a particular Act. The Court does not exercise an advisory jurisdiction to advise citizens as to whether a particular law is valid or not. It is only a party aggrieved or a party whose rights are affected that can come to the Court and challenge the constitutionality of a law. That decision did not consider what we have to consider in this case, whether on a petition the constitutionality of an Act can be challenged by a party who is admit-tedly aggrieved by the operation of that law.

[3] A very interesting and a very able argument has been advanced before us both by the Advocate-General and by Mr. Joshi as to the proper construction of Article 226. On the one hand, the Advocate-General has contended on the strength of the decision of this Court in Emperor v. Jeshingbhai Ishwarlal, : AIR1950Bom363 that inasmuch as we are being asked to issue a writ not in support of any fundamental rights under Part III, we must exercise our jurisdiction under Article 226 in conformity with well-known judicial precedents accepted by this Court. On the other hand, Mr. Joshi has contended that on a true construction of Article 226 we are not debarred by any judicial restrictions in issuing any order or direction if we are satisfied that justice demands it. It is further pointed out by the Advocate-General that if we follow the judicial precedents with regard to the issuing of writs, then in this particular case the writ cannot issue because what the Court is being asked to do is to issue a mandamus upon the State of Bombay prohibiting the State from enforcing a particular law, and the Advocate-General relies on Lady Dinbai Petit v. Noronha, A. I. R. 1946 Bom. 407 for the proposition that when a writ of mandamus is asked for, the legality of the statute must be assumed and the officer must be called upon to do or forbear to do some act which is either enforced upon him or which he is bound not to do under the statute itself. When a writ of mandamus is asked for, the petitioner cannot challenge the constitutionality of the Act. It is on the assumption that the Act is valid and constitutional that the petition for mandamus can be maintained. As against this Mr. Joshi has eon-tended that although the decision in A. I. R. 1946 Bom. 407 may have been good law before the Constitution was enacted, now by reason of Article 226 it is open to the petitioner to challenge tho constitutionality of the Act and to ask the Court to compel Government to forbear from doing something which is illegal, because what the Government is doing is under a law which is an invalid law. In our opinion it is not necessary to decide these very interesting questions, because oar decisions on the preliminary issue can be restricted to a very narrow compass.

[4] Now, it is not disputed by Mr. Joshi, as indeed he cannot, that whatever may be the interpretation of Article 226 and however wide our jurisdiction may be under that article, the jurisdiction that we exercise is an exceptional jurisdiction and a discretionary jurisdiction. It is not suggested--and I do not think it can be suggested--that Article 226 was intended to be a substitute for the ordinary processes of law which are open to a citizen. It was never the intention of our Constitution makers that Article 226 should supplant the ordinary remedies open to a citizen. If that had been the case, then it would have been left to the option of a party aggrieved whether to file a suit in the ordinary Court of law or to approach us to exercise our jurisdiction under Article 226. Surely that could not be the interpretation of Article 226. Once it is conceded, as it is conceded by Mr. Joshi, that the exercise of our jurisdiction under Article 226 is discretionary, certain principles must be laid down for the exercise of that discretionary jurisdiction, and one of the most important principles is that if a citizen can obtain equally ad, equate, equally efficacious, equally prompt remedy in the ordinary Courts of ]aw, ordinarily this Court would not exercise its discretion in his favour under Article 226. It may be that there may be cases where even though an alternative adequate remedy may exist, this Court under special circumstances may issue a writ or order of direction under Article 226. But, as I shall presently point out, this is not an exceptional case which requires an exceptional remedy.

[5] Now, several High Courts have considered the discretionary nature of the Jurisdiction conferred upon the High Court under Article 226. The Allahabad High Court in Indian Sugar Mills Assocn. v. Secy. to Govt. Uttar Pradesh Labour Department, : AIR1951All1 has emphasised the fact that (p. 3):

' ' . . . Article 226 of the Constitution was not intended to provide an alternative method of redress to the normal process of a decision in an action brought in the usual Courts established by law. The powers under this Article should be sparingly used and ouly in those clear cases where the rights of a person have been seriously infringed and he has no other adequate and specific remedy available to him'. The Calcutta High Court has taken the same view in D. Parraju v. General Manager, B.N. Rly., : AIR1952Cal610 and it is pointed out by Das J., at p. 269 that

'In spite of the wide words of Article 226, one must remember that the object of Article 32 or Article 226 was not to supplant the ordinary right of action or the remedy provided for by the ordinary law of the land. If a suitor can get an adequate and convenient and beneficial remedy by the normal process of a suit or by the remedy provided for by a Statute, the High Court will not, in ray opinion, ordinarily exercise its powers under Article 226'.'

[6] Therefore, emphasis has been put by these High Courts upon the fact that however wide the jurisdiction, however great the power conferred upon the High Court, however necessary its exercise may be, this power and this jurisdiction must be sparingly used, and, therefore, the question we have to address ourselves in this case is whether this is a proper ease for exercising out discretion. As pointed out, the Act came into force on 23-2-1949. From 1949 to 1952 the petitioner unquestionably has been paying the tax under that Act. It was open to the petitioner to pay the tax under protest and to file a suit for recovery of the amount, paid by him. He has not chosen to do so. Mr. Joshi says that the petitioner might have realised that the Act was unconstitutional only in 1952 and, therefore, he has come to us by way of this petition. Even if he realized that the Act was unconstitutional in 1952, there was nothing to prevent him, after paying the tax under protest, to file a suit for the recovery of the amount paid by him. It is not suggested that the petitioner ig not in ft position to pay the tax imposed by the Act. No prejudice is pointed out by the delay that might take place by the matter being decided by ordinary procedure rather than under Article 226. Therefore, this is a case frankly where the petitioner has chosen to come for a writ under Article 226 rather than to go to the ordinary Court and get his rights decided by ordinary litigation. We cannot accept the position that it is left to the petitioner's choice and option to decide which remedy ho will adopt. This is clearly a case where an alternative adequate and efficacious remedy is open to the petitioner. This is clearly a case where the decision of the petitioner's right by the ordinary procedure in the Courts of law will in no way prejudice him, and, therefore, we do not think that we should exercise our special jurisdiction under Article 226 to issue a writ, overt assuming that the petitioner's contention is right that the Act is unconstitutional.

[7] Result is that the petition fails and is dismissed with costs.

[8] Petition dismissed.


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