# A. V. VNNKATESWARAN, COLLECTOR OF CUSTOMS, BOMBAY v. RAMOHAND SOBHRAJ WADHW ANI AND ANOTHER

- **Citation:** [1962] 1 S.C.R. 753
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeal No. 388of1956
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanohoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/a-v-vnnkateswaran-collector-of-customs-bombay-v-ramohand-sobhraj-wadhw-ani-and-2080
- **Pages:** 20

## Headnote

Customs Duties-Fountain pens with nibs and caps plated with
gold-Rate of duty-Indian Tariff Act, I934 (32 of r934), Sch. I,
Items 45(3), 6r(8).
Writ-Principles governing issue of-Alternative remedy timebarred-Application for writ, if lies-Constitution of India, Art.
226.
Under a licence granted for the import of fouutain pens at
not less than Rs. 25 C.l.F. value, the respondent imported Sheaffer 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 78! 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 191 of 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, tho.ugh 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
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April 4.
754
StJl>REM:E COURT RE:POR't'S
[1962]
z96z
Central Government had become time-barred bv the date of
hearing of the appeal, it would not interfere with" the order of
A. V.
the Single Judge.
Venkateswaran,
Held, that the High Court was in error in its vie\v that
Collector 01
though the respondent had failed to exercise his statutory
Customs, Bombay remedy, the fact that it had become time-barred at the date of
v.
the hearing of the appeal against the order in the petition under
Ramchand Sobhraj Art. 226, was a good ground for the Court to exercise its disWadhwani
cretion in granting the relief prayed for by the respondent in
his petition.
Held, further (Sarkar, J., dissenting): (1) that the consignment imported by the respondent was liable only to a duty of
30 per cent. under item45(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 6r(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. 136 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 la

## Text

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I S.C.R. SUPREME COURT REPORTS
753
A. V. VNNKATESWARAN, COLLECTOR OF
CUSTOMS, BOMBAY
v.
RAMOHAND SOBHRAJ WADHW ANI
AND ANOTHER
(P. B. GAJENDRAGADKAR, A. K. SARKAR,
K. N. WANOHOO, K. C. DAS GUPTA and
N. RAJAGOPALA AYYANGAR, JJ.)
Customs Duties-Fountain pens with nibs and caps plated with
gold-Rate of duty-Indian Tariff Act, I934 (32 of r934), Sch. I,
Items 45(3), 6r(8).
Writ-Principles governing issue of-Alternative remedy timebarred-Application for writ, if lies-Constitution of India, Art.
226.
Under a licence granted for the import of fouutain pens at
not less than Rs. 25 C.l.F. value, the respondent imported Sheaffer 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 78! 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 191 of 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, tho.ugh 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
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April 4.
754
StJl>REM:E COURT RE:POR't'S
[1962]
z96z
Central Government had become time-barred bv the date of
hearing of the appeal, it would not interfere with" the order of
A. V.
the Single Judge.
Venkateswaran,
Held, that the High Court was in error in its vie\v that
Collector 01
though the respondent had failed to exercise his statutory
Customs, Bombay remedy, the fact that it had become time-barred at the date of
v.
the hearing of the appeal against the order in the petition under
Ramchand Sobhraj Art. 226, was a good ground for the Court to exercise its disWadhwani
cretion in granting the relief prayed for by the respondent in
his petition.
Held, further (Sarkar, J., dissenting): (1) that the consignment imported by the respondent was liable only to a duty of
30 per cent. under item45(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 6r(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. 136 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 Nooh, [1958] S.C.R. 595,
relied on.
Per Sarkar, ].-Item 6I(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 6I(8).
CIVIL APPELLATE JURISDICTION:
Civil Appeal No.
388of1956.
Appeal by special leave from the judgment and
order dated the August 19, 1955, of the Bombay High
Court in Appeal No. 53of1955.
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1 S.C.R. SUPREME COURT REPORTS
755
C. K. Daphtary, Solicitor-General of India, K. R.
Chaudhuri and R.H. Dhebar, for the appellant.
N. 8. Bindra and R. 8. Narula, for respondent
No. 1.
A. V.
Venkateswaran,
Collector of
Customs, Bombay
R. H. Dhebar, for respondent No. 2.
v.
,
,
Ra~nchand Sobhraj
1961. Apnl 4.
The Judgment of P. B. GaJendraWadhwimi
gadkar, K. N. 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
1s
Ayyangar J.
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 Sheaffer pens from Australia and a consignment of these was received by ~ir 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 au item numbered 45(3) in relation to the
article described as "fountain pens complete'', the
rate of duty being 30 per cent. ad 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 78! per cent.
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SUPREME COURT REPORTS
[1962]
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The Assistant Collector of Customs adjudicated the
duty on this latter basis and thereafter the responv,n;!;es:~ran, dent having filed an appeal to the Collector of CusCollector of
toms, the levy was upheld by order dated February
Customs, Bombay 22, 1955.
v.
Section 191 of the Sea Customs Act enables any
Ram,hund Sob.hrnj person aggrieved by an order of the Collector of CusWadhwan•
toms to file a revision to the Central Government.
Ayyangar J.
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 releaE:e 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 fountainpens 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
eases 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.
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1 S.C.R. SUPREME COURT REPORTS
757
The objection to the writ petition based upon the
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petitioner before him not having exhausted the statutory remedies available to him was repelled by the venk~;es~~ran.
learned Judge on the ground that on the facts the
coueetor of
decision to levy duty at 78£ per cent. was without Customs, Bombay
jurisdiction. The petition was, therefore, allowed and
v.
.
the Customs authorities were, by order of Court, res- Ramchand Sobhra1
· d f
r
·
t f
d t h · h
Wadhwani
trame
rom en1orcmg paymen o any u y rg er
than 30 per cent.
.
Ayyangar J.
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 Hevision 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
SUPREME COURT REPORTS
[1962]
i96r
the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only
Venk~;es:~rnn, to a du.ty of 30 per cent. under item 45(3).was correct.
Collect°' of
We might add that even apart from this concession
customs, Bombay for the purpose of argument, we entirely agree with
v.
the learned Judges that the tariff items in the ScheRamchand Sobhraj dule are not reasonably capable of any other construe.
TV adhwani
tion.
Ayyaugar ;.
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 37! 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 gainsaid that a nib, cap and clip are essential parts of a fountain-pen and not mere 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 conta.ct 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
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1 S.C.R. SUPREME COURT REPORTS
759
value specified in the licence, it need hardly be added,
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would ha.ve gold-plated nibs. It could certainly not
be that it was the intention of the authorities that Venk~t~s:;ran
notwithstanding Entry 45(3) reading "fountain-pens
Collector
0/
complete" there could practically be no import of pens c,,,,,,ms, Bombay
under that item, because with the limit of value presv.
cribed in the licence the permitted pens would mostly Ramchand Sobhraj
h
ld 1
d 'b'
D'ff
t
'd
t'
. ht
Wadhwani
ave go -pate m s.
1 eren cons1 era 10ns m1g
arise when gold or gold plating is used not for purAyyangar J.
poses essential for the utility of the pen as such, but
merely as an addition to its value. Trrese 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 SolicitorGeneral 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 CourL 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 Solicitor-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 Ieviable thereon. Nor was
there any complaint in this case that the order had
been passed without an opportunity to the importer
760
SUPREME COURT REPORTS
[1962)
t96r
to be heard, so as to be in violation of the principles
of natural justice. The learned Solicitor-General quesv 'At. v.
tioned the correctness of the reasoning of the learned
'""• eswaran, Ch. f J
.
.
d
.
h
Collect°' of
ie
ustice m con onmg t e conduct of the responCustoms.
Bombay dent in not moving the Government in revision by
v.
. taking into account the time that had elapsed betRamchand Sobh>aJ ween the date of the impugned order and that on
Wadhwam
which the appeal was heard. The submission was that
Ayyangar J.
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 entert!tin 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 (1), Venkatarama Ayyar, J., speaking for the
Court said:
"It is well-settled that when an alternative and
equally efficacious remedy is open to :1 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_ ¥unicipal
Board, Kairana ('a), 'the existence of an adequate
legal remedy is a thing to be taken into consideration in the matter of granting writE1'.
Vide also
(I I [1958] S.C.R. 499, 503, 504.
(rn) [1950] s.c.R. 566,
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1 S.C.R. SUPREME COURT REPORTS
761
K. S. Rashid and Son v. The Income-tax Investigation Commission (1).
And where such remedy
A. V.
exists, it will bo a sound exercise of discretion to v, nkateswaran,
refuse to interfere in a petition under Art. 226, unCollect°' of
less there are good grounds therefor."
Cu<toms,
Bombay
There is no difference between tho above and the for- Ra1ncha•;d Sobhrnj ·
mulation by Das, C. J., in The State of Uttar Pradesh
wadhwani
v. Mohammad Noah (2), where he observed:
" ............ It must be borne in mind that there is
Ayyangar ].
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 remsdies 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) ['95~] S.C.R. 738.
96
(2) [1958] S.C.R. 595, 605-607,
762
SUPREME COURT REPORTS
[1962)
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of a writ of certiorari and that the Court was not
bound to relegate the petitioner to the other legal reVenk~;,:,;aran, medies available. to him',
.
Collector of
The passages m the Judgments of this Court we
Customs, Bombay have extracted would indicate (1) that the two excepv.
tions which the learned Solicitor-General formulated
Ramchand Sobhrajto the normal rule as to the effect of the existence of
Wadhwani
d
t
lt
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d
b
an a equa e a erna 1ve reme y were
y no means
exhaustive, and (2) that even beyond them a discre.
Ayyangar ].
•
tion vested in the High Court to have entertained the
petition and granted the petitioner relief notwith.
standing 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 pre-eminently 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 asse:ising duty at
78! 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
placing 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
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SUPREME COURT REPORTS
763
exhaust his statutory remedies before invoking the
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jurisdiction of the High Court under Art. 226 of the
Constitution. If a petitioner has disabled himself from
venh~;,;,;aran,
availing himself of the statutory remedy by his own
Collector of
fault in not doing so within the prescribed time, he Customs.
Bombay
cannot certainly be permitted to urge that as a ground
. . v.
.
for the Court dealing with his petition under Art. 226 Ramchand Sobhra;
Wadhwani
to exercise its discretion in his favour.
Indeed, the
second passage extracted from the judgment of the
Ayyrngar ].
learnedC.J. in Mohammad Noah's case(') with its
reference to the right to appeal being lost "through
no fault of his own" emphasizes this aspect of the
rule.
The q1~estion, however, still remains whether in
the circumstances of this case wo should interfere with
the decision of the High Court. In considering this,
we cannot lose sight of three matters: (I) that the
levy of the duty at 78! per cent. was manifestly erroneous a .d 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 Oil.Se before us, that the Central Board of
Revenue had issued a ruling to the effect that fountain-pens with nibs or Citps which were gold-plated
fell within item 61(8).
This might be some indication
that the adjudication by the Assistant Collector of
Customs aud by the Customs Collector on appeal was
in pursuance of a settled policy of the entire heirarchy
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
(I) [1958] S.C.R. 595, 605-607.
764
SUPREME COURT REPORTS
[1962]
'96'
Solicitor-General does not dispute the correctness of
the principle oflaw as enunciated by Chagla, C. J., his
A. v.
I
Vrnkateswarnn, comp aint is that the law as laid down by the learned
Collect"' of
Chief J usticc has not been properly applied to the
cu,trn,;, Bombay facts of the case before him. If the challenge to the
,
v.
. judgment of the High Court were oft.he former type,
J.am:i:a;': Sobh•aJ this Court might have to interfere to lay down the law
a
wam
correctly lest error creep into the administration of
Ayyangar ].
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 w hether 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 shouM 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 case 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.
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 :tnd surgical
instruments, plated with gold or silver" and provided
for a duty of 78! per cent. ad valorem. The respondent appealed from this assessment to the Collector of
Customs under s. 188 of the Sea Customs Act, 1878,
on the ground that the assessment should have been
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1 S.C.R. SUPREME COURT REPORTS
765
under item 45(3) of that schedule which dealt with
I96r
"Fountain-pens, complete" and provided for a duty
of 30 per cent. ad valorem. He did not dispute that Venk~;es~~ran,
the fountain-pens imported by him were gold plated.
collector of
His appeal was dismissed. The respondent then Customs,
!Joinbay
moved the High Court at Bombay for a writ to quash
v.
.
the order of assessment under item 61(8).
The llamchand Sol>hra;
application was allowed by Tendolkar, J., who issued
Wadhwani
a writ of mandamus directing the Collector of Customs
Sarkar J.
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 Tendolkar, 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.
Tendolkar, 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 haci 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 & Go. v.
Assistant Collector of Customs (1). The lea,rned 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. :Normallyand 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.LR. 1957 S.C. 733·
766
SUPREME COURT REPORTS
[1962]
z96z
sought to be enforced by the writ is created by a
statute and that statute itself provides the remedy for
v enk~;es~~ran, its breach, It should be the duty of the courts to see
Collector of
that the statutory provisions are observed and, there.
Customs, Bombay fore, that the statutory authorities are given the
v.
. opportunity to decide the question which the statute
Ramchand Sob.hraJ requires them to decide.
Wadhwani
The fact that the Central Government had on a
Sarkar 1.
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 duty 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
vr hich he had not pursued. On tho 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 Informamations, Mandamus and Prohibilion it is stated at
p. 256:
"If tho duty be of a judicial character a mandamus will be granted only where there ir. a refusal to
perform it in any way; not where it is done in ono
way rather than another, erroneously instead of
properly.
In other words, the Court will only
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1 S.C.R.
SUPREME COURT REPORTS
767
insist that the person who is the judge shall act as
r96r
such; but it will not dictate in any way what his
A. V.
judgment should be.
Venkateswaran.
If, however, the public act to be performed is of
Collect°' of
a purely ministerial kind, the Court will by manda- Cnstoms.
Bombay
mus compel the specific act to be done in the manv.
h. h t 't
1 wf I ,,
llamchand Sobhraj
ner w 10
o 1 seems a
u .
w dh
·
,
a
wani
It does not seem to me that the duty whrnh the
Sea Customs Act created and the performance of
Sarkar J.
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 (1). 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 h11s
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 hfl 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,
t_hat is, after giving a hearing to the party affected:
see ss. 29, 31 and 32 of the Act. In this case a hearing
(1) (1852) 18 Q.B. 692.
(2) [1950] S.C.R. 621, 725.
768
SUPREME COURT REPORTS
[1962)
1961
· was in fact given to the respondent. This taken with
the provisions as to a right of appeal from the decision
v /; v.
of the first assessing officer and as to the right to move
'~
1
0~;,;;:,•;,7· the government in revision from the decision in the
Customs, Bombay appeal, would clearly indicate that the authorities
v.
have to act judicially. In Gulabdas & Co. v. Assistant
Ramchand Sobhraj Collector(') this Court proceeded on the basis that the
Wadhwani
duty of assessing the customs levy was of a judicial
5.,-;;; J.
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 Ii egde v. M allikarjun Bhavanappa Tirumale ('). t 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 lay.
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, complete"
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.LR. 1957 S.C. 733.
(2) [1960] r. S.C.R 890, 901.
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1 S.C.R. SUPREME COURT REPORTS
769
a dll:t:y.
They said that item 45(3) was a specific
'96'
prov1s10n and therefore it had to be applied in preference to item 61(8) which was a general provision. v
A. v.
I
bl
. h th"
.
eukateswarnn,
am una e to agree wit
IS view.
Collector of
What, apparently, the learned Judges had in mind Customs, Bombay
and applied, was the rule of construction of statutes
v.
that when two provisions in an Act are inconsistent Ramchand Sobhraj
with each other, if one is specific and the other
w adhwani
general, the specific provision prevails over the general.
Sar7:a~ J.
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 Romilly in Pretty
v. Solly(') 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
~
(r} (r859) 26 Beav. 606; 53 R.R. 1032.
97
770
SUPREME COURT REPORTS
[1962]
r96r
enactment must be taken to affect only the other
parts of the statute to which it may properly
A. v.
1 ,,
Venkateswaran,
a pp y'
.
. .
collector of
The test of the appltcab1hty of the rule, therefore,
customs, Bombay is that one enactment must overrule the other. The
v.
one overruled is called specific only in comparison
RamchandSobhraj with the other which is in the same way only, called
Wadhwani
general. There need be nothing inherent in the nature
Sarkar J.
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.