Babu Ram Prakash Chandra Maheshwari Vs.
Antarim Zila Parishad Muzaffar Nagar [1968] INSC 174 (2 August 1968)
02/08/1968 RAMASWAMI, V.
RAMASWAMI, V.
SHAH, J.C.
GROVER, A.N.
CITATION: 1969 AIR 556 1969 SCR (1) 518
ACT:
Constitution of India, Art. 226--Alternative
remedies not availed of--High Court can still entertain writ petition and issue
writ of certiorari where Tribunal has acted on a provision of law which is
ultra vires and where natural justice is denied.
HEADNOTE:
The appellant was a partnership firm carrying
on the business of manufacturing Khandsari Sugar in the District of
Muzaffarnagar, U.P. Under s. 114- of the U.P. District Boards Act X of 1922 a
District Board had power to levy a tax on circumstances and property subject to
certain conditions and restrictions. The powers of District Boards, under the
aforesaid Act were by virtue of the U.P. Antarim Zila Parishad Act, 1958
conferred on the Parishads formed under the latter Act. The U.P. Antarim Zila
Parishad Act 1958 expired on 31st December, 1959 but its life was extended to
31st December, 1960 by .Amending Act No. 1 1960 which received the assent of
the Governor on January 5, 1960. When the taxing officer of the Antarim Zila
Parishad Muzaffarnagar subjected the appellant to circumstances and property
tax for 1959-60 the appellant filed a writ petition in the High Court
contending inter alia that Amending Act No. 1 of 1960 could not continue the
Act of 1958 because the latter had already expired on 31st December, 1959 while
the former received the consent of the Governor on January 5, 1960. The
constitutionality of the taxing provisions was also challenged. The writ
petition was dismissed by the High Court on the sole ground that the remedy by
way of appeal under s. 128 of the District Boards Act 1922, had not been
exhausted. The U.P. Kshetra Samitis and Zila Parishads Adhiniyam of 1961 (U.P.
Act 32 of 1961) was passed in November, 1961. Acting under it the .taxing
officer of the Zila Parishad subjected the appellant to circumstances and property
tax for the year 1961-62 without giving any notice or inviting objections. In
respect of this assessment also the appellant filed a writ petition in the High
Court pleading denial of natural justice as well as challenging the
constitutionality of the taxing provisions. This petition was also dismissed on
the same ground as the earlier one. The appellant came to this Court.
HELD: The rule of exhaustion of statutory
remedies before a writ is granted is a rule of self imposed limitation, a rule
of policy and discretion rather than a rule of law and the court may therefore
in exceptional cases issue a writ such as a writ of certiorari notwithstanding
the fact that the statutory remedies have not been exhausted. [522 C] State of
Uttar Pradesh v. Mohammad Nooh, [1958] S.C.R.
596, 605, relied on.
There are at least two well recognised
exceptions to the doctrine with regard to the exhaustion Of statutory remedies.
In the first place it is well-settled that where proceedings are taken before a
Tribunal under a provision of law, which is ultra vires, it is open to a party
aggrieved thereby to move the High Court under Art. 226 for issuing appropriate
writs for quashing them on the ground that they are incompetent. without his
being obliged to wait until those proceedings run their full course. [523 C]
519 Cart Still G.M.B.H.v. State of Bihar, A.I.R. 1961 S.C.
1615 and The Bengal Immunity Co. Ltd. v.
State of Bihar, [1955] 2 S.C.R. 603, relied on.
In the second place the doctrine has no
application in a case where the impugned order has been made in violation of
the principle of natural justice. [523 D] State of Uttar Pradesh v. Mohammad
Nooh, [1958] S.C.R.
596, 605, referred to.
In the present case in view of the
allegations of the appellant that the .taxing provisions were ultra vires and
that there was a violation of the principles of natural justice the High Court
was in error in summarily dismissing the writ petition on the ground that the
appellant had an alternative remedy of statutory appeal. The High Court was no
doubt vested with a discretion but in the present case the discretion had not
been exercised in accordance with law. [523 C-524 A]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 605 of 1966.
Appeal by special leave from the judgment and
decree dated March 27, 1964 of the Allahabad High Court in Special Appeal No.
322 of 1964.
E.C. Agarwala and E. Udayarathnam, for the
appellant.
M.C. Chagla and P.C. Agrawala, for the
respondent.
The Judgment of the Court was delivered by
Ramaswami, J. The appellant is a partnership firm consisting of two brothers
Lala Baburam and Shri Prakash Chandra, carrying on the business of
manufacturing Khandsari sugar in the district of Muzaffarnagar. The partnership
firm carries on its business through its two units (1) one located in the
village Basera and run under the name and style of M/s. Baburam Ashok Kumar and
(2) the other located in village Morna and run under the name and style of M/s.
Baburam Prakash Chandra, both in the district
of Muzaffarnagar. The case of the appellant was that the business of
manufacturing Khandsari was seasonal and was carried on at both the places for
less than 5 months in a year, i.e., from the month of November to the beginning
of April. Under the U.P. District Boards Act No. X of 1922, the District Board
of Muzaffarnagar was empowered to levy tax under ss. 108 and. 114 in the rural
area. Section 114 was to the following effect:
"The power of a board to impose a tax on
circumstances and property shall be subject to the following conditions and
restrictions namely :-- (a) The tax may be imposed on any person residing or
carrying on business in the rural area provided that such person has so resided
or carried on business for a 520 total period of at least six months in the
year under assessment.
(b) The total amount of tax imposed on any
person shall not exceed such maximum (if any) as may be prescribed by rule.
Under s. 123 of that Act the matters relating
to the assessment and collection of taxes were to be governed by rules framed
under s. 172 of that Act. On March 1,. 1928, the Government of U.P. issued
notification no. 315/LX-413 notifying the rules for the rules for the
assessment and collection of a tax on circumstances and property in the rural
area of the Muzaffarnagar district. The rules provided, among other matters,
that all the activities of an assessee within the district, whether carried on
under the same or different name, shall be considered in calculating the total
amount to be assessed; and the tax shall be assessed by an Assessing Officer
appointed by the District Board, and the list of assessment of the preceding
year ending December 31, shall be completed on or before January 20, and shall
be submitted to the Board which will return it by February 15 to the Assessing
Officer for being revised and thereafter the Assessing Officer shah give notice
of a date not less than one month when he will proceed to consider the
objection. The assessee may file objections before the date fixed and
thereafter the Assessing Officer shall allow the assessee an opportunity to be
heard. Rule 16 read with Rule 2 fixed the maximum limit of the total amount of
tax assessed on any person not to exceed Rs.
2,000/- in any year, having regard to all the
activities of an assessee within the district whether carried on under the same
or a different name. In the year 1950 the Constitution of India was promulgated
and under el. 2 of Art. 276 the total amount payable in respect of any one
person to the district board, local Board or other local authority in the State
by way of taxes on professions, trades, callings and employments shall not
exceed two hundred and fifty rupees per annum. On August 22, 1958, the U.P.
Antarim Zila Parishad Act of 1958 (U.P. Act no. XXII of 1958) passed by the
U.P. Legislature received the assent of the Governor and was published in the
U.P. Gazette dated August 23, 1958.
Clause (3) of s. 1 of the U.P. Antarim Zila
Parishad Act, 1958 runs as follows :-- "It shall be deemed to have come
into force on the 29th day of April, 1958, and shall expire on the 31st day of
December, 1959." But the Amending Act (U.P. Act no. 1 of 1960) received
the assent of the Governor on January 5, 1960 whereby the figure 1960 was
substituted in place of 1959 in el. (3) of s. 1 of U.P. Act XXII of 1958. The
case of the appellant is that the original 521 Act no. XXII of 1958 had expired
on December 31, 1959 and as such could not be revived on January 5; 1960 when
the Amending Act no. 1 of 1960 received the assent of the Governor and that
fresh legislation was necessary. On March 20, 1960, a copy of the Assessment
Order assessing the appellant to the maximum amount of Rs. 2,000/- as
circumstances and property tax for the assessment year 1959- 60 was issued by
the Antarim Zila Parishad Muzaffarnagar.
The assessment order was issued by Shri O.P.
Varma purporting to act as a Taxing Officer of the Antarim Zila Parishad.
Aggrieved by the assessment order, the appellant filed a Civil Miscellaneous
Writ Petition no. 1780 of 1960 in the Allahabad High Court challenging the
authority of the respondent Antarim Zila Parishad to impose the tax and praying
for the grant of a writ to quash the said assessment order. The writ petition
was summarily dismissed on July 21, 1960 by Jagdish Sahai, J. on a preliminary point
that the appellant had a right to appeal to the prescribed authority under s.
128 of U.P. Act no. X of 1922. The appellant thereafter preferred a Special
Appeal no. 452 of 1960 in the Allahabad High Court against the order of Jagdish
Sahai, J. which was also dismissed on the ground that the appellant had an
alternative remedy of appeal.
During the pendency of the Special Appeal no.
452 of 1960, another new Act, namely the U.P. Kshetra Samitis and Zila
Parishads Adhiniyam of 1961 (i.e., the U.P. Act no. XXXII of 1961).was passed
by the U.P. Legislature and on November 29, 1961 received the assent of the
President of India. The case of the appellant is that on January 15, 1962,
without giving any notice or inviting any objections, the Taxing Officer Shri
O.P. Verma passed the assessment order for 1961-62 in respect of the
circumstances and property tax regarding the Basera Unit. Being aggrieved by
the two separate assessment orders of Rs. 2000/- each in respect of the two
units of Morana and Basera for the years 1961-62, the. appellant filed again in
the Allahabad High Court a writ petition no. 2371 of 1962 under Art. 226 of the
Constitution. The writ petition was summarily dismissed by S. N. Dwivedi, 1.
on, February 13, 1964. The appellant took the matter in appeal in. Special
Appel no. 322 of 1964 but the Special Appeal was dismissed by the Division
Bench on March 27, 1964 on the ground' that the appellant had not availed
himself of the alternative remedy by way of appeal. The present appeal is
brought to this Court by special leave from the judgment of the Division Bench
of the Allahabad High Court dated March 27, 1964 in Special' Appeal no. 322 of
1964.
The sole argument presented on behalf of the
appellant is that the High Court was in error in holding that an appeal under
the U.P. District Boards Act no. X of 1922 was an adequate and efficacious
remedy and that the appellant should have exhausted' the statutory remedy
before applying for a writ under Art. 226 of the Constitution.
522 It is a well-established proposition of
law that when an alternative and equally efficacious remedy is open to a
litigant he should be required to pursue that remedy and not to invoke the
special jurisdiction of the High Court to issue a prerogative writ. It is true
that the existence of a statutory remedy does not affect the jurisdiction of
the High Court to issue a writ. But, as observed by this Court in Rashid Ahmed
v. The Municipal Board, Kairana(1), "the existence of an adequate legal
remedy is a thing to be taken into consideration in the matter of granting
writs" and where such a remedy exists it will be a sound exercise of
discretion to refuse to interfere. in a writ petition unless there are good
grounds therefore. But it should be remembered that the rule of exhaustion of
statutory remedies before a writ is granted is a rule of self imposed
limitation, a rule of policy, and discretion rather than a rule of law and the
court may therefore in exceptional cases issue a writ such as a writ of
certiorari notwithstanding the fact that the statutory remedies have not been
exhausted. In The State of Uttar Pradesh v. Mohammad Nooh(2), S.R. Das, C.J.,
speaking for the Court, observed:
"In the next place 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.
(Halsbury's Laws of England, 3rd Ed., Vol.
II, p. 130 and the cases cited there). 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. In the King v. Postmaster-. General Ex parte
Carmichael [1928 (1) K.B. 291] a certiorari was issued although the aggrieved
party had and alternative remedy by way of appeal. It has been held' that the
superior court will readily issue a certiorari in a case where there has been a
denial of natural justice before a court of summary jurisdiction.
The.
(1) [1950] S.C.R. 566. (2) [1958] S.C.R. 595,
605.
523 case of Rex v. Wandsworth Justices Ex
parte Read [1942 (1) K.B. 281] is an authority in point. In that case a man had
been convicted in a court of summary jurisdiction without giving him an
opportunity of being heard. It Was held that his remedy was not by a case
stated or by an appeal before the quarter sessions but by application to the
High Court for an order of certiorari to remove and quash the conviction."
There are at least two well-recognised exceptions to .the doctrine with regard
to the exhaustion of statutory remedies. In the first place, it is well-settled
that where proceedings are taken before a Tribunal under a provision of law,
which is ultra vires, it is open to a party aggrieved thereby to move the High
Court under Art. 226 for issuing appropriate writs for quashing them on the
ground that they are incompetent, without his being obliged to wait until those
proceedings run their full course.--(See the decisions of this Court in Carl
Still G.m.b.H.v. The State Bihar(1) and The Bengal Immunity Co. Ltd. v. The
State Bihar(2). In the second place, the doctrine has no application in a case
where the impugned order has been made in violation of the principles of
natural justice (See The State of Uttar Pradesh v. Mohammad Nooh(3).
It is manifest in the present case that the
appellant had alleged in the writ petition that the Taxing Officer had no
authority to impose the tax and there was no validly constituted Antarim Zila
Parishad after December 31, 1959.
It was further alleged that ss. 114 and 124
of the U.P.
District Boards Act no. X of 1922 violated
Art. 14 of the Constitution as arbitrary power was granted to District Boards
as well as the State Government to exempt any person or class of persons or any
property or class of properties from the scope of the Act. There is also an
allegation that the imposition of the tax violated the provisions of Art.
276 of the Constitution and that the Antarim
Zila Parishad could not impose the tax beyond the maximum limit of Rs. 250/per
annum prescribed in that Article. It was further contended on behalf of the
appellant that the procedure for assessment of the tax was not followed and
there was violation of the principles of natural justice. In view of the
allegations of the appellant that the taxing provisions are ultra vires and
that there was violation of the principles of natural justice, we think that
the High Court was in error in summarily dismissing the writ petition on the
ground that the appellant had an alternative remedy of statutory. appeal. It
was contended by Mr. Chagla on behalf of the respondent that in dismissing the
writ petition the High Court was acting in its discretion. But it is manifest
in the present case that (1) A.I.R. 1961 S.C. 1615.
(2) [1955] 2 S.C.R. 603.
(3) [1958] s.c.R,. 595.
524 the discretion of the High Court has not
been exercised in accordance with law and the judgments of the Division Bench
dated March 27, 1964 and of the learned Single Judge dated February 13, 1964
summarily dismissing the writ petition are defective in law.
For the reasons expressed we hold that this
appeal must be allowed, the judgments of the Division Bench in Special Appeal
no. 322 of 1964 dated March 27, 1964 and of the learned Single Judge dated
February 13, 1964 should be set aside and Civil Miscellaneous Writ no. 2371 of
1962 should be restored to file and dealt with in accordance with law.
There will be no order with regard to the
costs of this appeal in this Court.
G.C. Appeal allowed.
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