A. V. Venkateswaran, Collector of
Customs, Bombay Vs. Ramchand Sobhraj Wadhwani & ANR [1961] INSC 132 (4
April 1961)
AYYANGAR, N. RAJAGOPALA GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1961 AIR 1506 1962 SCR (1) 753
CITATOR INFO :
RF 1962 SC1621 (90,137) F 1963 SC1319 (7) R
1964 SC1451 (7) E 1964 SC1519 (7) R 1966 SC 142 (6,13) RF 1973 SC 194 (8) RF
1990 SC 772 (22,32)
ACT:
Customs Duties-Fountain pens with nibs and
caps plated with gold-Rate of duty-Indian Tariff Act, 1934 (32 of 1934), Sch. 1,
Items 45(3), 6(8).
Writ--Principles governing issue
of-Alternative remedy time barred--Application for writ, if lies-Constitution
of India, Art. 226.
HEADNOTE:
Under a licence granted for the import of
fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported She
affer pens from Australia, which had nibs which were gold plated and also caps
and clips of similar composition. The imported goods were assessed to duty by
the customs authorities under item 61(8) of the First Schedule to the Indian
Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical
instruments, plated with gold or silver" which provided for a duty Of 781
per cent. ad valorem, while the respondent claimed that the goods fell within
item 45(3) which related to the article described as "Fountain pens,
complete", the rate of duty being 30 per cent. ad valorem. Section 191of
the Sea Customs Act, 1878, enabled any person aggrieved by an order of the
Collector of Customs to file a revision to the Central Government, but the
respondent, without resorting to this remedy filed a writ application in the
High Court of Bombay under Art. 226 of the Constitution of India to quash the
imposition of the duty at the higher rate and to direct the release of the
goods on payment of duty at 30 per cent. The Single judge who disposed of the
application took the view that fountain pens did not cease to be fountain pens
though they contained parts which were plated with gold, that so long as they
were "Fountain pens, complete" only duty under item 45(3) could be
levied and that, in the context of the items in the Tariff Schedule, it was not
reasonably possible for any person to take a contrary view. Accordingly, the
customs authorities were restrained from enforcing payment of any duty higher
than 30 per cent. On appeal, the Appellate Bench of the High Court agreed with
the interpretation of the tariff items and held that, though it was not the
practice to entertain writ petitions by parties who had not exhausted their
statutory remedies, as the remedy of applying in revision to the 95 754 Central
Government had become time-barred by the date of hearing of the appeal, it
would not interfere with the order of the Single judge.
Held, that the High Court was in error in its
view that though the respondent had failed to exercise his statutory remedy,
the fact that it had become time-barred at the date of the hearing of the
appeal against the order in the petition under Art. 22 6, was a good ground for
the Court to exercise its discretion in granting the relief prayed for by the
respondent in his petition.
Held, further (Sarkar, J., dissenting): (i)
that the consignment imported by the respondent was liable only to a duty of 30
per cent. under item 45(3) in the First Schedule to the Indian Tariff Act,
1934, and that the tariff items in the Schedule were not reasonably capable of
any other construction.
(2) that as in the present case the levy of
the duty under entry 61(8) was manifestly erroneous, and the Central Board of
Revenue had issued a ruling to the effect that fountain pens with nibs or caps
which were gold-plated fell with entry 61(8), it could not be said that the
High Court had exercised its discretion improperly in entertaining the writ
application so as to justify interference in an appeal under Art. I36 of the
Constitution.
Per Gajendragadkar, Wanchoo, Das Gupta and
Rajagopala Ayyangar, JJ.-The rule that a party who applies for the issue of a
high prerogative writ should, before he approaches the court, have exhausted
other remedies open to him under the law, is not one which bars the
jurisdiction of the Court to entertain the petition or to deal with it, but is
rather a rule which courts have laid down for the exercise of their discretion.
Union of India v. T. R. Varma, [1958] S.C.R.
499 and The State of Uttar Pradesh v. Mohammad Nook, [1958] S.C.R. 595, relied
on.
Per Sarkar, J.-Item 61(8) in the First
Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold
plated articles other than cutlery and surgical instruments, while item 45(3)
is applicable to fountain pens simpliciter, that is, without gold plating. Such
a view would harmonise the different items in the Tariff Schedule and carry out
the intention of the legislature. The customs authorities were correct in
assessing gold plated fountain pens under entry 61(8).
CIVIL APPELLATE, JURISDICTION: Civil Appeal
No. 388 of 1956.
Appeal by special leave from the judgment and
order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53 of
1955.
755 C. K. Dhaphtary, Solicitor-General of
India, K. B. Choudhuri and B. H. Dhebar, for the appellant.
N. S. Bindra and R. S. Narula, for respondent
No. 1.
B. H. Dhebar, for respondent No. 2.
1961. April 4. The Judgment of P. B.
Gajendragadkar, IC. R. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar,
JJ., was delivered by Ayyangar, J. A. K.Sarkar, J., delivered a separate
judgment.
AYYANGAR, J.-This appeal by special leave is
against the judgment and order of a Division Bench of the Bombay High Court by
which a writ of mandamus or certiorari granted to the respondent was confirmed
on appeal preferred by the appellant now before us.
A few facts are necessary to be stated to
understand the matters in controversy and the points raised for our decision.
The respondent carries on business in Bombay and he was granted on August 18,
1954, a licence under the Imports and Exports (Control) Act, 1947, for the
import of fountain-pens at not less than Rs. 25 C.I.F. value each from soft
currency area, up to a defined amount. He placed an order for the import of She
after pens from Australia and a consignment of these was received by air in
Bombay in October 1954. The fountain-pens thus imported had nibs which were
gold plated and also caps and clips of similar composition. The question in
controversy relates to the rate of duty to be charged on these imported pens.
The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in
relations to the article described, as "fountain pens complete", the
rate of duty being 30 per cent and valorem. It was the case of the respondent
that the imported goods fell within this item and were liable to be charged
with duty at that rate'. The Custom authorities, however, considered that the
consignment fell within the description "articles plated with gold or
silver" being item 61(8) on which duty was payable at 781 per cent.
756 The Assistant Collector of Customs
adjudicated the duty on this latter basis and thereafter the respondent having
filed an appeal to the Collector of Customs, the levy was upheld by order dated
February 22, 1955.
Section 191 of the Sea Customs Act enables
any person aggrieved by an order of the Collector of Customs to file a revision
to the Central Government. The respondent, without resorting to this remedy,
filed a writ application in the High Court of Bombay to quash the imposition of
the duty at the higher rate (certiorari) and to direct the release of the goods
on payment of duty at 30 per cent. (mandamus).
The application was resisted by the Collector
of Customs, who raised substantially two points: (1) that on the merits the
goods imported were "gold-plated articles" notwithstanding their
being fountain-pens and that the proper rate of duty was that which had been
determined by the Assistant Customs Collector, (2) that the respondent had another
remedy open to him, viz., to file a revision to the Central Government and that
he was, therefore., disentitled to move the High Court under-Art. 226 of the
Constitution before availing himself of the remedy specially provided by
statute. The writ petition came on for hearing before justice Tendolkar, who by
his order dated July 5, 1955, recorded that on any reasonable construction of
the items in the Schedule to the Indian Customs Tariff, fountain-pens did not
cease to be fountain-pens" because they contained parts which were plated
with silver or gold and that so long as they were "fountain-pens
complete", subject to any exceptional cases of which this was not one,
only duty at 30 per cent. under item 45(3) could be levied. The learned Judge
further held that the interpretation that he placed upon item 45(3) in the
context of the other entries in the Tariff Schedule can "only be one and
it is not reasonably possible for any person to take a contrary view". In
other words, the learned Judge was of the opinion that the construction put
upon the entry by the Customs authorities was unreasonable or perverse.
757 The objection to the writ petition based
upon the petitioner before him not having exhausted the statutory remedies
available to him was repelled by the learned Judge on the ground that on the
facts the decision to levy duty at 783 per cent. was without jurisdiction. The
petition was, therefore, allowed and the Customs authorities were, by order of
Court, restrained from enforcing payment of any duty higher than 30 percent.
The Collector of Customs filed an appeal
against this order which was disposed of by a judgment delivered on behalf of
the Bench, by Chagla, C. J. The learned Chief Justice was equally emphatic that
no reasonable person could, on the construction of the relevant items in the
Schedule to the Tariff Act, hold that the consignment of fountain-pens could
fall under any item other than 45(3) or be charged a duty other than the 30 per
cent. provided under that item.
Dealing with the other point about the writ
petitioner not having exhausted his statutory remedy of Revision to the
Government, the learned Chief Justice disagreed with the view of the learned
Single Judge that the Customs authorities lacked or exceeded their jurisdiction
in assessing duty at a higher figure than was justified by the relevant items
of the Schedule to the Tariff Act. The learned Chief Justice, after pointing
out that it was the settled practice of the Bombay High Court not to entertain
writ petitions by parties who had not exhausted their statutory remedies,
however, held that in the case before the Bench the remedy of applying in
Revision to the Central:
Government had become time-barred by the
date' of the hearing of the appeal, and that on that ground he would not
interfere with the order of the learned Single Judge. The appeal was,
therefore, dismissed. The Collector of Customs having obtained special leave
from this Court has brought this appeal before US.
The learned Solicitor-General appearing for
the appellant argued the appeal on the basis that the view of the learned
Judges of the Bombay High Court that on any reasonable interpretation of the
items in 758 the Schedule to the Tariff Act the consignment imported by the
respondent could have been liable only to a duty of 30 per cent. under item
45(3) was correct. We might add that even apart from this concession bay for
the purpose of argument, we entirely agree with the learned Judges that the
tariff items in the Schedule are not reasonably capable of any other
construction.
In reaching this conclusion we have taken
into account the fact that "fountain-pens complete" were taken out of
the general item 45 'Stationery etc.' under which they were originally
included, by an amendment effected in 1949 in pursuance of an international
agreement and that though the duty on stationery was thereafter increased from
30 to 371/2 per cent., under the provisions of the Finance Act, 1949, --the
duty of 30 per cent. fixed on fountain-pens remained unchanged. This at least
showed that they were treated as a specialized class of stationery which
required separate treatment. The only question therefore is whether a
fountain-pen in which certain of its essential parts are gold or silver-plated
falls outside the category of "fountain-pens complete". It cannot be
again said that an ib cap and clip are essential parts of a fountain-pen and
not more accessories, and that without them there would be no question of
having a "fountain-pen complete". Next it is a well-known and
recognized fact that most fountain-pens in ordinary use have nibs 'Which are
gold-plated. In this connection it should not be overlooked that gold, apart
from being a store of value, is a metal which has industrial uses by its
malleability and its resistance to oxidation on contact with acids and
chemicals which enter into the composition of ink. The use of gold plating for
nibs is therefore for increasing the utility of the nib for its primary
function of writing and not with a view to enhancing its value by the cost of
the metal. In the case before us it would be noticed that the pens permitted to
be imported had to be not less than Rs. 25 each C.I.F. value, presumably with a
view to protect the market for cheaper pens of indigenous manufacture. Most pens
of the 759 value specified in the licence, it need hardly be added, would have
gold-plated nibs. It could certainly not be that it was the intention of the
authorities that notwithstanding Entry 45(3) reading "fountain-pens
complete" there could practically be no import of pens under that item,
because with the limit of-value prescribed in the licence, the permitted pens
would mostly have gold-plated nibs.
Different considerations might arise when
gold or gold plating is used not for poses essential for the utility of the pen
as such, Purmerely as an addition to its value.
These cases have been excepted by Justice
Tendolkar and we endorse his remarks on this point. No such question arises on
the pens imported by the respondent and it was obviously because of this, that
the learned Solicitor General did not address us on the correctness of the
interpretation placed on relative scope of entries 45(3) and 61(8), by the
learned Judges of the High Court.
The only point, therefore, requiring to be
considered is whether the High Court should have rejected the writ petition of
the respondent in limine because he had not exhausted all the statutory
remedies open to him for having his grievance redressed. The contention of the
learned Soloist-General was that the existence of an alternative remedy was a
bar to the entertainment of a petition under Art. 226 of the Constitution
unless (1) there was a complete lack of jurisdiction in the officer or
authority to take the action impugned, or (2) where the order prejudicial to
the writ petitioner has been passed in violation of the principles of natural
justice and could, therefore, be treated as void or non est. In all other
cases, he submitted, Courts should not entertain petitions under Art. 226, or
in any event not grant any relief to such petitioners. In the present case, he
urged, the-High Court in appeal had expressly dissented from the reasoning of
the learned Single Judge as regards the lack of jurisdiction of the Customs
Officers to adjudicate regarding the item under which the article imported fell
and the duty leviable thereon. Nor was there any complaint in this case that
the order had been passed without an opportunity to the importer 760 to be
heard, so as to be in violation of the principles of natural justice. The
learned Solicitor-General questioned the correctness of the reasoning of the
learned Chief Justice in condoning the conduct of the respondent in not moving
the Government in revision by taking into account the time that had elapsed
between the date of the impugned order and that on which the appeal was heard.
The submission was that if this were a proper test, the rule as to a petitioner
under Art. 226 having to exhaust his remedies before he approached the Court
would be practically a dead letter because in most cases by the date the
petition comes on for hearing, the time for appealing or for applying in
revision to the departmental authorities would have lapsed.
We see considerable force in the argument of
the learned Solicitor-General. We must, however, point out that the rule that
the party who applies for the issue of a high prerogative writ should, before
he approaches the Court, have exhausted other remedies open to him under-the
law, is not one which bars the jurisdiction of the High Court to entertain the
petition or to deal with it, but is rather a rule which Courts have laid down
for the exercise of their discretion. The law on this matter has been
enunciated in several decisions of this Court but it is sufficient to refer to
two cases: In Union of India v. T. R. Varma(l), Venkatarama Ayyar,J., speaking
for the Court said:
"It is well-settled that when an
alternative and equally efficacious remedy is open to a litigant, he should be
required to pursue that remedy and not invoke the special jurisdiction of the
High Court to issue a -prerogative writ. It is true that the existence of
another remedy does not affect the jurisdiction of the Court to issue a writ;
but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana
('a), 'the existence of an adequate legal remedy is a thing to be taken into
consideration in the matter of granting writs'. Vide also (1) [1958] S.C.R. 499
503,504.
(1a) [1950] S.C.R. 566.
761 K.S. Rashid and Son v. The Income-tax
Investigation Commission('). And where such remedy exists, it will be a sound
exercise of discretion to refuse to interfere in a petition under Art. 226,
unless there are good grounds therefore." There is no difference between
the above and the formulation by Das, C. J., in The State of Uttar Pradesh v.
Mohammad Nooh (2), where he observed:
"............ It must be borne in mind
that there is no rule, with regard to certiorari as there is with mandamus,
that it will lie only where there is no other equally effective remedy. It is
well established that, provided the requisite grounds exist, certiorari will
lie although a right of appeal has been conferred by statute. The fact that the
aggrieved party has another and adequate remedy may be taken into consideration
by the superior court in arriving at a conclusion as to whether it should, in
exercise of its discretion, issue a writ of certiorari to quash the proceedings
and decisions of inferior courts subordinate to it and ordinarily the superior
court will decline to interfere until the aggrieved party has exhausted his
other statutory remedies, if any. But this rule requiring the exhaustion of
statutory remedies before the writ will be granted is a rule of policy,
convenience and discretion rather than a rule of law and instances are numerous
where a writ of certiorari has been issued in spite ,of the fact that the
aggrieved party had other adequate legal remedies." After referring to a
few cases in which the existence of an alternative remedy had been held not to
bar the issue of a prerogative writ, the learned Chief Justice added:
"It has also been held that a litigant
who has lost his right of appeal or has failed to perfect an appeal by no fault
of his own may in a proper case obtain a review by certiorari." In the
result this Court held that the existence of other legal remedies was not per
se a bar to the issue (1) [1954] S.C.R738.
96 (2) [1958] S.C.R. 595, 605-607.
762 Of a writ of certiorari and that the
Court was not bound to relegate the petitioner to the other legal remedies
available to him.
The passages in the judgments of this Court
we have extracted would indicate (,I) that the two exceptions which the learned
Solicitor-General formulated to the normal rule as to the effect of the
existence of an adequate alternative remedy were by no means exhaustive, and
(2) that even beyond them a discretion vested. in the High Court to have
entertained the petition and granted the petitioner relief notwithstanding the
existence of an alternative remedy. We need only add that the broad lines of
the general principles on which the Court should act having been clearly laid
down, their -application to the facts of each particular case must necessarily
be dependent on a variety of individual facts which must govern the proper exercise
of the discretion of the Court, and that in a matter which is thus preeminently
one of discretion, it is not possible or even if it were, it would not be
desirable to lay down inflexible rules which should be applied with rigidity in
every case which comes up before the Court.
The question that we have now to consider is
has the discretion which undoubtedly vested in the Court been so improperly
exercised as to call for our interference with that order. We might premise
this discussion by expressing our opinion on two matters merely to prevent any
misunderstanding. First we entirely agree with Chagla, C. J. that the order of
the Assistant Collector of Customs in assessing duty at 781 per cent. or of the
Collector of Customs in confirming the same, was not void for lack of
jurisdiction. The interpretation they put on the relevant items in the Tariff
Schedule might be erroneous, even grossly erroneous, but this error was one
committed in the exercise of their jurisdiction and had not the effect of lacing
the resulting order beyond their jurisdiction.
Secondly, as we have already indicated, we
must express our dissent from the reasoning by which the learned Judges of the
High Court held that the writ petitioner was absolved from the normal
obligation to 763 exhaust his statutory remedies before invoking the
jurisdiction of the High Court under Art. 226 of the Constitution. If a
petitioner has disabled himself from availing himself of the statutory remedy
by his own fault in not doing so within the prescribed time, he, cannot
certainly be ' permitted to urge that as a ground for the Court dealing with
his petition under Art. 226 to exercise its discretion in his favour. Indeed,
the second passage extracted from the judgment of the learned C. J. in Mohammad
Nooh's case. (1) with its reference to the right to appeal being lost
"through no fault of his own" emphasizes this aspect of the rule.
The question, however, still remains whether
in the circumstances of this ease we should interfere with the decision of the
High Court. In considering this, we cannot lose sight of three matters: (1)
that the levy of the duty at 78-3/4 per cent. was manifestly erroneous and
cannot be supported on any reasonable construction of the items in the Tariff
Schedule, (2) it was stated by the Customs authorities in answer to the writ
petition, in the grounds of appeal to the High Court under the Letters Patent,
as also in the statement of case before us, that the Central Board of Revenue
had issued a ruling to the effect that fountain-pens with nibs or caps which
were gold plated fell within item61(8). This might be some indication that the
adjudication by the Assistant Collector of Customs and by the Customs Collector
on appeal was in pursuance of a settled policy of the entire hierarchy of the
department.
Without going so far as to say that a
Revision to the Central Government might in the circumstances be a mere
futility, we consider that this is not a matter which would be wholly
irrelevant for being taken into account in disposing of the appeal before us.
After all, the basis of the rule by which Courts insist upon a person
exhausting his remedies before making application for the issue of a
prerogative writ is that the Court's jurisdiction ought not to be lightly
invoked when the subject can have justice done to him by resorting to the
remedies prescribed by statutes.
(3) Lastly, the learned (1) [1958] S.C.R.
595, 605-607.
764 Solicitor-General does not dispute the
correctness of the principle of law as enunciated by Chagla, C. J., his
complaint is that the law as laid down by the learned Chief Justice has not.
been properly applied to the facts of the case before him. If the challenge to
the judgment of the High Court were of the former type, this Court might have
to interfere to lay down the law correctly lest error creep into the
administration of justice. But where the error is only in the application of
the law correctly understood to the, facts of a particular case, we should be
persuaded that there has been a miscarriage of justice in the case before us
before being invited to interfere; and this the learned Solicitor-General has
not succeeded in doing. It would be remembered that the question is not whether
if the respondent's application were before us, we should have directed the
writ to issue, but whether the learned Judges of the High Court having in their
discretion which they admittedly possessed made an order, there is
justification for our interfering with it. The two matters set out earlier
should suffice to show that no interference could be called for in this appeal.
We consider, therefore, on the whole and
taking into account the peculiar circumstances of this case that the High Court
has not exercised its discretion improperly in entertaining the writ application
or granting the relief prayed for by the respondent and that no care for
interference by us in an appeal under Art. 136 of the Constitution has been
made out.
The appeal fails and is dismissed with costs.
SARKAR, J.-In this case the respondent had imported
a certain number of fountain-pens plated with gold. The goods were assessed to
import duty by an assessing officer of the Indian Customs under item 61(8) of
the first schedule to the Customs Tariff which dealt with "Articles, other
than cutlery and surgical instruments, plated with gold or silver" and
provided for a duty of 78-3/4 per cent. ad valorem. The respondent appealed
from this assessment to the Collector of Customs under a. 188 of the Sea
Customs Act, 1878, on the ground that the assessment should have been 765 under
item 45(3) of that schedule which dealt with "Fountain-pens,
complete" and provided for a duty of 30 percent ad valorem. He did not
dispute that the fountain pens imported by him were, gold plated. His appeal
was dismissed. The respondent then moved the High Court at Bombay for a writ to
quash the order of assessment under item 61(8). The application was allowed by
Tendolkar T. who issued a writ of mandamus directing the Collector of Customs
to release the goods upon payment of the duty specified in item 45(3). The
appeal by the Collector of Customs from the order of Tendol'kar, J., to an appellate
bench of the High Court was dismissed. The Collector has therefore filed the
present appeal.
The first question is, whether the writ
should have been refused on the ground that the respondent had another remedy,
namely, an application to the Central Government under s. 191 of the Sea
Customs Act to revise the order of the Collector. Tandolkar, J., held that the
writ could issue though the other remedy had not been pursued, as the order of
assessment under item 51(8) was without jurisdiction. This was clearly wrong.
The Collector had ample jurisdiction to decide under which item in the schedule
the fountain-pens had to be assessed to duty, and if he made a mistake in his
decision that did not make his order one without jurisdiction: cp. Gulabdas
& Co. v. Assistant Collector of Customs (1). The learned Judges of the
appellate bench held that the writ was properly issued, not because the
assessing authority had no jurisdiction to assess the goods under item 61(8),
but because at the date the matter had come before them, the other remedy had
become barred. This again is in my view, plainly erroneous for a party who by
his own conduct deprives himself of the remedy available to him, cannot have a
better right to a writ than a party who has not so deprived himself.
Normally and the present has not been shown
to be other than a normal case a writ of mandamus is not issued if other
remedies are available. There would be stronger reason for following this rule
where the obligation (1) A.1,R. 1957 S-C733766 sought to be enforced by the
writ is created by a statute and that statute itself provide,% the remedy for
its breach.
It should be the duty, of the courts to see
that the statutory provisions are observed and, therefore, that the statutory
authorities are given the opportunity to decide the question which the statute
requires them to decide.
The fact that the Central Government had on a
prior occasion decided, as appears in this case to have happened, that
fountain-pens of the kind which the respondent had imported, were liable to
ditty under item 61(8) cannot furnish any reason justifying a departure from
the normal rule or the issue of a writ without that government having been moved
under s. 191. This prior decision of the Central Government could be a reason
for such departure only on the presumption that it would not change its view
even if that view was shown to be incorrect. I cannot imagine that a court can
ever make such a presumption. Therefore, it seems to me that it would have been
proper to refuse the writ on the ground that the respondent had another remedy
available to him which he had not pursued. On the present occasion, however, I
do not wish' to decide the case on that ground.
Next, I feel the gravest doubt if the case is
one for the issue of a writ of mandamus. It is of interest to observe that the
respondent had in his petition to the High Court himself asked for a writ of
certiorari. A writ of mandamus issues in respect of a ministerial duty imposed
by a statute; it cannot issue where the duty to be performed is of a judicial
nature, except for the purpose of directing that the judicial duty should be
performed, that is, a decision should be given on the question raised. In John
Shortt's book on Information’s, Mandamus and Prohibition it is stated at p.
256:
"If the duty be of a judicial character
a mandamus will be granted only where there is a refusal to perform it in any
way; not where it is done in one way rather than another, erroneously instead
of properly. In other words, the Court will only 767 insist that the person who
is the judge shall act as such; but it will not dictate in any way what his
judgment should be.
If, however, the public act to be performed is
of a purely ministerial kind, the Court will by mandamus compel the specific
act to be done in the manner which to it seems lawful." It does not seem
to me that the duty which the Sea Customs Act created and the performance of
which was sought to be enforced by a writ in the present case, can properly be
said to be a ministerial duty. That duty was to decide which item in the
Customs Tariff was applicable to the respondent's goods and to realise the
customs duty specified in that item. In so far as the statute required the
officer to realise the Customs levy, I find it difficult to see how it can be
said to be a public duty to the performance of which the respondent had a legal
right and without this right he was not entitled to the mandamus: see Ex parte
Napier(').
In so far again, as the Act required the
Customs Officer to choose the proper item in the Customs Tariff for assessment
of the customs levy on goods, it in my view involves performance of work of a
quasi-judicial nature. The observation of Das, J., in Province of Bombay v. K.
S. Advani (), which I am about to read, fully fits this case:
"If a statutory authority 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 is between the
authority proposing to do the act and the subject opposing it, the final determination
of the authority will yet be a quasi-judical act provided the authority is
required by the statute to act judicially." 'Now the Sea Customs Act
empowers the Customs authorities to impose a certain duty on goods imported and
this no doubt prejudicially affects the importer. The Act, further clearly
requires the authorities to proceed judicially in imposing that duty when a
dispute arises, that is, after giving a hearing to the party affected: see as.
29, 31 and 32 of the Act. In this case a hearing (1) (1852) 18 Q.B. 692.
(2) [1950] S.C.R. 62I, 725.
768 was in fact given to the respondent. This
taken with the provisions as to a right of appeal from the decision of the
first assessing officer and as to the right to move the government in revision
from the decision in the appeal, would clearly indicate that the authorities
have to act judicially. In Gulabdas & Co. v. Assistant Collector(1) this
Court proceeded on the basis that the duty of assessing the customs levy was of
a judicial nature.
Therefore I feel the gravest doubt, if the
present is a case where a mandamus could at all issue.
No doubt if a mandamus could not issue
because the act which the statute required to be performed was not a
ministerial one but judicial in its character, the case might be a fit one for
the issue of a writ of certiorari. But that writ cannot, in any event, issue
unless the proceedings disclosed an error apparent on their face. In issuing a
certiorari again, the Court does not examine the judicial act questioned as if
it was hearing an appeal in respect of it:
see Satyanarayan Laxminarayan Hegde v.
Mallikarjun Bhavanappa Tirumale(2). I do not propose to discuss this question
further in the present case, for it was not considered by the High Court nor
raised at our bar. I proceed on the basis that it was a case where an
application for a mandamus Jay.
The respondent, in substance, asked for and
obtained a writ directing the Customs authorities to release the goods on
payment of duty at the rate of 30 per cent. ad valorem as prescribed by item
45(3). This was on the basis that the duty should have been levied under that
item and not under item 61(8) as the Customs authorities had done.
The question then is, was there a clear duty
on the assessing authorities to assess the goods under item 45(3) dealing with
"Fountain-pens, completed and not to do so under item 61(8) dealing with
"Articles, other than cutlery and surgical instruments, plated with
gold". All the learned Judges of the High Court agreed that this clear
duty had to be established before the respondent could be held entitled to a
mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733.
(2) [1960] 1 S.C.R. 890, 901.
769 a duty. They said that item 45(3) was a
specific provision and therefore it had to be applied in preference to item
61(8) which was a general provision. I am unable to agree with this view.
What, apparently, the learned Judges had in
mind and applied, was the rule of construction of statutes that when two
provisions in an Act are inconsistent with each other, if one is specific and
the other general, the specific provision prevails over the general. Now, this
rule like all other rules of construction, derives its justification from the
fact that it assists in ascertaining the intention of the legislature. The
reason why it so assists is this.
When two provisions enacted by the
legislature, are inconsistent and one cannot operate at all if the other is
given full effect, a question arises as to what the legislature intended.
Clearly, it could not have intended that a provision that it enacted should
have no operation at all. Therefore it is to be presumed that the legislature
intended that both the provisions would at least have some effect, if they
could not have their full effect. The rule under discussion gives effect to
this presumed intention of the legislature. In order to give effect to this
intention, the rule provides that the provision with a narrower scope of
operation should have effect so far as it goes, in preference to the provision
with the larger scope of operation so as to restrict the operation of the
latter which, without such restriction, would have wiped the narrower provision
out of the statute book altogether. This rule permits both the provisions to
have effect; it reduces the scope of one and prevents the other from becoming a
dead letter. This aspect of the rule would, I believe, appear clearly from a
statement of it by Sir John Romillyn pretty v. Solly(1) which I now set out:
"The rule is, that wherever there is a
particular enactment and a general enactment in the same statute, and the
latter, taken in its most comprehensive sense, would overrule the former, the
particular enactment must be operative, and the general (1) (1859) 26 Beav.
6o6; 53 E.R. 1032.
770 enactment must be taken to affect only
the other parts of the statute to which it may properly apply." The test
of the applicability of the rule, therefore, is that one enactment must
overrule the-other. The one overruled is called specific only in comparison
with the other which is in the same way only, called general. There need be
nothing inherent in the nature of the enactments which, apart from a
consideration of their comparative scopes, mark one out as specific and the
other as general.
When one overrules the other, it must include
within its scope that other and so becomes general in comparison with the
other. If two provisions were merely in conflict with each other, each affecting
the other and none overruling the other and itself remaining in force, no
question of calling one general and the other specific would arise.
I should suppose, when Sir John Romilly
talked of one enactment overruling the other. he meant completely overruling.
That would make the rule sensible for, then it would clearly be a guide to the
intention of the legislature which is that, all tile provisions are intended to
have effect. This reason to support the rule would not exist if it was applied
to a case where the provisions only partially affected each other for, then,
both the provisions would have at least some operation. It would further be
impossible to say from a comparison of the degrees of the effect of each on the
other, if such comparison was possible, what the intention of the legislature
was. I am not aware that it has ever been said that when two pro.
visions partially affect each other, without
one completely overruling the other, the legislature intended the one less
affected should yield to the other or even the other way about. To such a case
the rule would, in my view, have no application.
The present is a case of that kind. I now
confine myself only to items 45(3) and 61(8) for, no question as to any other
item in the Tariff arises for applying the rule. If gold plated fountain-pens
were assessed under item 61(8), there would still be plenty of scope left for
item 45(3) to operate upon, for, there would 771 be many kinds of complete
fountain-pens without gold plating. Likewise also if gold plated fountain-pens
were assessed under item 45(3), there might be many other gold plated articles
for being assessed under item 61(8). Item 61(8) cannot be said to overrule item
45(3) completely.
Item 61(8) cannot be said to be a general
provision and item 45(3) a specific one. There is no scope here of applying the
rule giving effect to a specific enactment in preference to the general.
What then should be done? Under which item
should the gold plated fountain-pens then be assessed to duty? In my view, they
were properly assessed under item 61(8). The item is clearly intended to apply
to all gold plated articles other than the two expressly excepted, namely,
cutlery and surgical instruments. There is no reason why this intention should
not be given effect to. The Customs Tariff Schedule no doubt makes separate
provisions for various individual articles. A fountain-pen is one of such
articles. If a gold plated fountain-pen is for the reason that fountain pens
are separately provided for, to be taken out Of item 61(8), all other articles
separately dealt with in the schedule would have for the same reason, to be
taken out of that item even though they happen to be plated with gold.
The result of that would be that item 61(8)
would apply to those articles which are not ,separately provided, and as
Customs Tariff Schedules are made as exhaustive as they can be, there would be
very few articles, if any, left to which item 61(8) might be applied. It does
not, seem to me that this could have been intended.
Item 61(8), as already stated, is intended to
take in all gold plated articles except cutlery and surgical instruments. A
proper construction of this item must give effect to this intention. Item 45(3)
applies to fountain pens. Now it is not necessary for a fountain-pen to be gold
plated at all. Indeed the large majority of them are not gold plated. It is
true that a fountain pen does not cease to be a fountain pen because it is
plated with gold. It is, however, equally true that a gold plated fountain-pen
is an article plated with gold. A fountain-pen may or may not be gold plated
but a gold plated article can only be a gold plated article. Therefore, it
seems to me that item 45(3) was intended to apply to fountain pens simpliciter,
that is, without gold plating or other embellishments which might properly
bring them under another item in the schedule.
This, in my view, would best harmonise the
different items in the Tariff schedule and carry out the intention of the
legislature. This can be illustrated by an example.
Suppose a fountain-pen was Studded with
diamonds. Could it then be said that the legislature intended to pose on them a
duty of 30 percent. ad valorem under item 45(3) and the diamonds were not
intended to be assessed under item 61(10) which deals with jewels and provides
for a higher duty. I do not think that a possible view to take.
I think, therefore, that the assessment in
the present case under item 61(8) was proper. I would hence allow the appeal.
By COURT: In accordance with the opinion of
the majority, this appeal is dismissed with costs.
Appeal dismissed.
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