Kewal Krishan Puri and another Vs State of Punjab and others- 04/05/1979

SUPREME COURT OF INDIA JUDGMENTS

Court pointing out the difference between “tax” and “fee” with reference to the constitutional provisions and otherwise also, the problem before us has presented some new angles and facets.

SUPREME COURT OF INDIA

Kewal Krishan Puri and another

Versus

State of Punjab and others

AND

M/s Bharat Ice and General Mills

Versus

State of Punjab

AND

M/s Pehlad Rai Dwarka Dass
Appellant

Versus

The State of Haryana and others
Respondent

AND

M/s Sharda Cotton Ginning and Pressing Factory and another
Appellant

Versus

The State of Haryana and others
Respondent

AND

M/s Hans Raj and Brothers
Appellant

Versus

State of Haryana and another
Respondent

AND

M/s Sangha Gupta Rice and General Mills and others

Versus

State of Punjab and others

(Before : Y. V. Chandrachud, C.J.I., P. N. Bhagwati, N. L. Untwalia, S. Murtaza Fazl Ali And R. S. Pathak, JJ.)

Civil Appeal Nos. 1083 of 1977, 1616, 1700-1761, 1762-1773, 1626-1627 of 1978 and Writ Petns. Nos. 4436, 4470, 4472, 4481, 4485, 4564, 4420, 4450, 4460 and 4484 of 1978

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Rajiv Sarin and Another Vs State of Uttarakhand and Others-09/08/2011

SUPREME COURT OF INDIA JUDGMENTS

JT 2011 (9) SC 524 : AIR 2011 SC 3081 : (2011) 8 SCALE 446

SUPREME COURT OF INDIA

Rajiv Sarin and Another
Versus
State of Uttarakhand and Others

(Before : S.H. Kapadia, C.J.I., Mukundakam Sharma, K.S. Radhakrishnan, Swatanter Kumar and Anil R. Dave, JJ.)

Civil Appeal No. 4772 of 1998 :

Decided On: 09-08-2011

Kumaun and Uttarakhand Zamindari Abolition and land reforms Act, 1960—Section 4-A—Kumaun and Uttrakhand Zamindari Abolition and land reform Rules, 1965—Rule 2—Constitution of India, 1950—Article 226.

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SMT. UJJAM BAI Vs. STATE OF UTTAR PRADESH -28/04/1961

SUPREME COURT OF INDIA JUDGMENTS

A mere misconstruction of a provision of law does not render the decision of a quasi-judicial tribunal void (as being beyond its jurisdiction). It is a good and valid decision in law until and unless it is corrected in the appropriate manner. So long as that decision stands, despite its being erroneous, it must be regarding as one authorised by law and where, under such a decision a person is held liable to pay a tax that person cannot treat the decision as a nullity and contend that what is demanded of him is something which is not authorised by law. The position would be the same even though upon a proper construction, the law under which the decision was given did not authorise such a levy.

(1962) AIR(SC) 1621 : (1962) 1 EastLR 147 : (1963) 1 SCA 1 : (1963) 1 SCR 778

SUPREME COURT OF INDIA

FULL BENCH

( Before : S. K. Das, J; N. Rajagopala Ayyangar, J; M. Hidayatullah, J; K. Subba Rao, J; J. R. Madholkar, J; J. L. Kapur, J; A. K. Sarkar, J )

SMT. UJJAM BAI — Appellant

Vs.

STATE OF UTTAR PRADESH — Respondent

Decided on : 28-04-1961

Civil Procedure Code, 1908 (CPC) – Order 5 Rule 2
Constitution of India, 1950 – Article 14, Article 19, Article 265, Article 31, Article 32
Supreme Court Rules, 1950 – Order 5A Rule 2
Uttar Pradesh Sales Tax Act, 1948 – Section 4(1)
Limitation Act, 1908 – Section 5 – Dismissal of writ petition.

JUDGMENT

Venkatarama Aiyar, J.—The petitioner is a partner in a firm called Messrs. Mohan Lal Hargovind Das, which carries on business in the manufacture and sale of biris in number of States, and is dealer registered under the U.P. Sales Tax Act 15 of 1948 with its head office at Allahabad. In the present petition filed under Article 32 of the Constitution, the petitioner impugns the validity of a levy of sales tax made by the Sales Tax Officer, Allahabad, by his order dated December 20, 1958.

2. On December 14, 1957, the Government of Uttar Pradesh issued a notification u/s 4(1)(b) of the Act exempting from tax, sales of certain goods including biris, provided that the additional Central Excise duties leviable thereon had been paid. In partial modification of this notification, the Government issued another notification on November 25, 1958, exempting from tax unconditionally sales of biris, both machine made and handmade, with effect from July 1, 1958. The effect of the two notifications aforesaid taken together is that while for the period, December 14, 1957, to June 30, 1958, the exemption of biris from tax was subject to the proviso contained in the notification dated December 14, 1957, for the period commencing from July 1, 1958, it was unconditional and absolute.

3. The petitioner’s firm filed its return for the quarter ending June, 1958, disclosing a gross turnover of Rs. 75,44,633/- and a net turnover of Rs. 111/- representing the sale proceeds of empty packages, and deposited a sum of Rs. 3.51 n.P. as sales tax on the latter. On November 28, 1958, the Sales Tax Officer, Allahabad, sent a notice to the petitioner’s firm for assessment of tax on the sale of biris during the period, April 1, 1958, to June 30, 1958, and on the date of enquiry which was held on December 10, 1958, the petitioner filed a petition stating that by reason of the exemption granted under the notification No. ST-4485/X dated December 14, 1957, no tax was payable on the sale of biris. By his order dated December 20, 1958, the Sales Tax Officer rejected this contention. He observed :

“The exemption envisaged in this notification applied to dealers in respect of Biris, provided that the additional Central Excise duties leviable thereon from the closing of business on December 13, 1957, have been paid on such goods. The assessee paid no such Excise duties. Sales of Biris by the assessee are, therefore, liable to sales tax.”

4. Against this order, there was appeal (Appeal No. 441 of 1959) to the Court of the Judge (Appeals), Sales Tax, Allahabad, who, by his order dated May 1, 1959, dismissed the same on the ground that the exemption from sale tax under the notification related “to such classes of goods only on which the Additional Central Excise Duty was leviable.” u/s 10 of the Act, a person aggrieved by an order in appeal might take it up on revision before the Revising Authority, and u/s 11, the assessee has a right to require that any question of law arising out of the order of assessment be referred to the opinion of the High Court. The Petitioner did not take any proceedings under the Act against the order in appeal dated May 1, 1959, and that has become final.

5. While Appeal No. 441 of 1959 was pending, the petitioner also filed under Article 226 of the Constitution a petition in the High Court of Allahabad, for a writ of certiorari to quash the assessment order dated December 20, 1958. That was dismissed on January 27, 1959, by the learned Judges on the ground that, as the assessee could contest the validity of the order in appropriate proceedings under the Act, and as, in fact, an appeal had been filed, there was no ground for exercising the extraordinary jurisdiction under Article 226. In this view, the learned Judges did not decide the case on the merits, but observed that the “language of the notification might well be read as meaning that the notification is to apply only to those goods on which an additional Central excise duty had been levied and paid.” The petitioner then field an application under Article 133 of the Constitution for certificate for appeal to this Courts against the above order, and that was granted. But instead of pursuing that remedy, the petitioner has chosen to file the present application under Article 32 challenging the validity of the order of assessment dated December 20, 1958. It is alleged in the petition that the imposition and levy of tax aforesaid “amounts to the infringement of the fundamental rights of the petitioner to carry on trade and business guaranteed by Article 19(1)(g) of the Constitution,” and that it is further “an illegal confiscation of property without compensation and contravenes the provisions of Article 31 of the Constitution.” The prayer in the petition is that this Courts might be “pleased to issue –

(a) a writ of certiorari or other order in the nature of certiorari quashing of the Sales Tax Officer, Allahabad, dated 20th December 1958;

(b) a writ of mandamus directing the opposite parties not to realise any sales tax from the petitioner on the basis of the said order dated 20th December, 1958.”

6. No argument has been addressed to us that the impugned order of assessment is in contravention of Article 31. Such a contention would be wholly untenable in view of the decision of this Court in Ramjilal Vs. Income Tax Officer, Mohindargarh, and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, , where it has been held that when tax is authorised by law as required by Article 265, the levy is not open to attack under Article 31 of the Constitution. The whole of the argument on behalf of the petitioner is that the assessment order is unconstitutional as infringing Article 19(1)(g). It is contended in support of this position that the Sales Tax Officer has misconstrued the notification dated December 14, 1957, in holding that exemption of tax thereunder is limited to biris on which additional excise duty had been levied, that as a result of such midconstruction tax has been imposed which is unauthorised, and that constitutes an interference with the right of the petitioner to carry on business guaranteed by Article 19(1)(g). That is how the jurisdiction of this Court under Article 32 is invoked.

7. To this, the answer of the respondents is that the Sales Tax Officer had correctly construed the notification in limiting the exempting to goods on which additional excise duty had been paid. The respondents further raise a preliminary objection to the maintainability of this petition on the ground that laws of taxation which are protected by Article 265 fall outside the purview of Part III of the Constitution, and are not open to attack as infringing fundamental rights guaranteed therein, and that even if they are subject to the restrictions in Part III, an order of assessment made by a tribunal acting judicially under a statute which is intra vires such as the impugned order dated December 20 1958, does not infringe Article 19(1)(g), and that, further, a petition under Article 32 is not maintainable for challenging it, even if it is erroneous on the merits.

8. On these contentions, the points that arise for decision are whether taxation laws are subject to the limitations imposed by Part III; whether the order of assessment dated December 20, 1958, is in contravention of Article 19(1)(g); and whether it can be impugned in a petition under Article 32 of the Constitution. The first question that falls to be considered is whether the restrictions imposed in Part III of the Constitution have application to taxation laws. The contention of the respondents is that taxation is a topic which is dealt with separately in Part XII of the Constitution, that the governing provision is Article 265, which enacts that no tax shall be levied or collected except by authority of law, that when there is a law authorising the imposition of tax and that does not contravene any of the inhibitions in Part XII then the levy thereunder cannot be attacked as infringing any of the fundamental rights declared in Part III. In support of this contention, the following observations in Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) were relied on :

“Reference has next to be made to article 265 which is in Part XII, Chapter I, dealing with “Finance”. That article provides that tax shall be levied or collected except by authority of law. There was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collections of taxes amounts to deprivation of property within the meaning of Article 31(1), then there was no point in making a separate provision again as has been made in article 265. It, therefore, follows that clause (1) of Article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant. In the United States of America the power of taxation is regarded as distinct from the exercise

“of police power or eminent domain. Our Constitution evidently has also treated taxation as distinct from compulsory acquisition of property and has made independent provision giving protection against taxation save by authority of law…… In our opinion, the protection against imposition and collection of taxes save by authority of law directly comes from article 265, and is not secured by clause (1) of Article 31. Article 265 not being in Chapter III of the Constitution, its protection is not a fundamental right which can be enforced by an application to this court under article 32. It is not our purpose to say that the right secured by article 265 may not be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be founded on article 32 read with article 31(1) to this court is misconceived and must fail.”

9. A similar decision was given in Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, . Where an order of assessment made in November, 1953, was attacked in a petition under Article 32 on the ground that the Act under which it was made, viz., the Taxation on Income (Investigation Commission) Act (30 of 1947) was void under Article 14 of the Constitution. Rejecting this contention, Mahajan, C.J., delivering the Judgment of the Court, observed :

“The assessment orders under the income tax Act itself were made against the petitioner in November, 1953. In these circumstances we are of the opinion that he is entitled to no relief under the provisions of article 32 of the Constitution. It was held by this Court in Ramjilal Vs. Income Tax Officer, Mohindargarh, that as there is a special provision in article 265 of the Constitution that no tax shall be levied or collected accept by authority of law, clause (1) of article 31 must therefore be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, and inasmuch as the right conferred by article 265 is not a right conferred by Part III of the Constitution, it could not be enforced under article 32.”

10. The argument of the respondents based on the above decisions is that a law imposing a tax enacted by a competent legislature is not open to attack under the provisions of Part III.

11. The contention of the petitioner, on the other hand, is that a law of taxation is also subject to the limitations prescribed in Part III of the Constitution, and that recent decision of this Court in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, is relied on in support of it. There, the question was whether the provisions of the Travancore-Cochin Land Tax Act 15 of 1955, as amended by the Travancore-Cochin Land Tax (Amendment) Act 10 of 1957, contravened Article 14 of the Constitution. The Court was of the opinion that they did. Then the contention was raised that in view of Article 265 the legislation was not open to attack under the provisions of Part III. In repelling this contention, the Court observed :

“Article 265 imposes a limitation on the taxing power of the States in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the Legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. One of such conditions envisaged by Article 13(2) is that the Legislature shall not make any law which takes away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional.”

12. In the result, the impugned legislation was struck down as unconstitutional.

13. It might appear at first sight that this decision is in conflict with the decision in Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, . But when the matter is closely examined, it will be seen that it is not so. In Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and in Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, , the contention urged was that the tax which is duly authorised by valid legislation as required by Article 265 will still be bad under Article 31(1) as amounting to deprivation of property. This was negatived, and it was held that Article 31(1) had no application to a law, which was within the protection afforded by Article 265. There are observations in the above decisions which might be read as meaning that taxation laws are altogether outside the operation of Part III. But, in the context, they have reference to the application of Article 31(1). In Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, , the contention urged was that even though a taxing law might be discriminatory, it was not open to attach under Article 14 by reason of Article 265. In negativing this contention, this Court held that a law which authorised the imposition of a tax under Article 265 was also a law within Article 13, and that, therefore, if it contravened Article 14 it was liable to be struck down. This decision is clearly an authority for the position that laws of taxation must also pass the test of the limitations prescribed in Part III of the Constitution. But it is not an authority for the position that all the provisions contained in Part III are necessarily applicable to those laws. It did not decide contrary to Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, , that Article 31(1) would apply to a taxation law, which is otherwise valid. In our judgment, the correct position in law is that a taxation law infringes a fundamental right cannot be shut out on the ground that Article 265 grants immunity to it from attack under the provisions of Part III, but that whether there has been infringement must be decided on a consideration of the terms of the particular Article, which is alleged to have been infringed. It is on this reasoning that taxation laws were held in Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and in Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, to be unaffected by Article 31(1), whereas in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, they were held to be within the purview of Article 14.

14. In this view the question that arises for decision is whether Article 19(1)(g), which is alleged to have been infringed, is applicable to a sales tax law which has been enacted by a competent legislature and which is not otherwise ultra vires. Article 19(1)(g) enacts that all citizens have the rights to practise any profession or to carry on any occupation, trade or business. Is a law imposing a tax on sale by a dealer an infringement of his right to carry on trade ? We must assume for the purpose the present discussion that the sales tax statute in question is within the competence of the legislature and is not ultra vires. Where a law is passed by a legislature which has no competence to enact it as when a States Legislature imposes what is in substance, a tax on income, a subject which is within the exclusive competence of the center under Entry 82, that legislation has no existence in the eye of law and any levy of tax under the provisions of that law will not be within the protection afforded by Article 265, and will, in consequence, be hit by Article 19(1)(g). The same result would follow when a law though disguised as a taxation law, is, in substance a law which is intended to destroy or even burden trade and not to raise revenue. That is colourable legislation which cannot claim the benefit of Article 265, and it must be held to contravene Article 19(1)(g) unless saved by Article 19(6). But where the law in within the competence of the legislature and is otherwise valid and is not colourable can it be said that it is liable to be attacked as infringing Article 19(1)(g) ? The Object of the legislation is not to prevent the dealer from carrying on his business. Far from it is envisages that the trader will carry on his business and carry it on a large scale so that the State might earn the tax. It is, therefore, difficult to conceive how a sales tax law can fall within the vision of Article 19(1)(g). Articles 19(1)(f) and 19(1)(g) are in the same position as Article 31(1). They all of them enact that the citizen shall have the right to hold property or to carry on business without interference by the State. If Article 31(1) is as held in Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, inapplicable to taxation laws, Articles 19(1)(f) must on the same reasoning also be held to be inapplicable to such laws.

15. The question can also be considered from another standpoint. Article 19(1)(g) and Article 19(6) from parts of one law which has for its object the definition of the fundamental right of a citizen to carry on business. Article 19(1)(g) declares that right and Article 19(6) prescribes its limits. The two provisions together make-up the whole of the fundamental right to carry on business. If a taxation law is within Article 19(1)(g) it must also be capable of being upheld as a reasonable restriction under Article 19(6). But can imposition of a tax be properly said to be a restriction on the carrying on of trade within Article 19(6) ? It is only if that is so that the question of reasonableness can arise. If the imposition of sales tax is a restriction on the carrying on of business then the imposition of income tax must be that even to a greater degree. Likewise land tax must be held to be a restriction on the right of a citizen to hold property guaranteed by Article 18(1)(g). Indeed it will be impossible to conceive of any taxation law which will not be a restriction under Article 19(1)(g) or Article 19(1)(f). It is difficult to imagine that that is the meaning which the word “restriction” was intended to bear in Articles 19(5) and (6). That this is not the correct interpretation to be put on the word “restriction” will be clear when Article 19(6) is further examined. Under that provision the question whether a restriction is reasonable or not is one for the determination of the Court and that determination has to be made on an appreciation of the facts established. If it is to be held that taxation laws are within Article 19(1)(g) then the question whether they are reasonable or not becomes justiciable and how is the Court to judge whether they are so or not ? Can the Court say that that the taxation is excessive and is unreasonable ? What are the material on which the matter could be decided, and what are the criteria on which the decision thereon could be reached ? It would, therefore, seem that the reasonableness of taxation laws is not a matter which is justiciable and therefore they could not fall within the purview of Articles 19(5) and (6). If it is to be held that taxation laws are within the inhibition enacted in Article 19(2)(g), then all those laws must be struck down as unconstitutional, because they could never be saved under Article 19(5) and Article 12(6). It should be noted that Article 19(1)(g) and Article 19(6) form parts of one scheme and for a proper understanding of the one, regard must be had to the other, Article 19(1)(g) cannot operate where Article 19(6) cannot step in and the considerations arising under Article 19(6) being foreign to taxation laws Article 19(1)(g) can have no application to them.

16. We may now refer to the decision of this Court where the question of applicability of Article 19(1)(g) to taxation laws has been considered. Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, the question arose with reference to a sales tax which was sought to be imposed under explanation II to section 2(g) of the Central Provinces and Berar Sales Tax Act 21 of 1947, under which a sale was defined as a transaction by which property in goods which were actually within the State was transferred wherever the sale might have been made. That provision was held to be ultra vires the State Legislature. A dealer then filed an application under Article 226 in the High Court of Nagpur questioning the vires of that provision and asking for appropriate writ. The State resisted the application on the ground that as there was a special machinery provided in the Act for questioning the assessment a petition under Article 226 was not maintainable. In rejecting this contention this Court held that,

“Explanation II to section 2(g) of the Act having been declared ultra vires, any imposition of sales tax on the appellant in Madhya Pradesh is without the authority of law, and that being so a threat by the State by using the coercive machinery of the impugned Act to realise it from the appellant is sufficient infringement of his fundamental right under Article 19(1)(g) and it was clearly entitled to relief under Article 226 of the Constitution”.

17. This decision is a direct authority for the proposition that when a provision in a taxing statute is ultra vires and void any action taken thereunder is without the authority of law, as required under Article 265 and that in that situation Article 19(1)(g) would be attracted.

18. This decision was approved in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, . The facts of that case are that the appellant-Company filed a petition under Article 226 in the High Court of Patna for a writ of prohibition restraining the Sales Tax Officer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that the sales sought to be assessed were made in the course of inter-State Trade that the provisions of the Bihar sales Act 19 of 1947 which authorised the imposition of tax on such sales were repugnant to Article 286(2) and void and that, therefore, the proceedings taken by the Sales Tax Officer should be quashed. That application was dismissed by the High Court on the ground that if the Sales Tax Officer made an assessment which was erroneous the assessee could challenge it by way of appeal or revision under sections 24 & 25 of the Act and that as the matter was within the jurisdiction of the Sales Tax Officer, no writ of prohibition or certiorari could be issued. There was an appeal against this order to this Court and therein a preliminary objection was taken that a writ under Article 226 was not the appropriate remedy open to an assessee for challenging the legality of the proceedings before a Sales Tax Officer. In rejecting this contention this Court observed :

“It is however clear from article 265 that no tax can be levied or collected except by authority of law which must mean a good & valid law. The contention of the appellant company is that the Act which authorises the assessment, levying and collection of Sales Tax on inter state trade contravenes & constitutes an infringement of Article 286 and is therefore ultra vires, void and unenforceable. If however this contention be well founded the remedy by way of a writ must on principle and authority be available to the party aggrieved”.

19. And dealing with the contention that the petitioner should proceed by way of appeal or revision under the Act, this Court observed :

“The answer to this plea is short and simple. The remedy under the Act cannot be said to be adequate and is, indeed, nugatory or useless if the Act which provides for such remedy is itself ultra vires, and void and the principle relied upon can, therefore, have no application where a party comes to Court with an allegation that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and prays for appropriate relief under article 226”.

20. It will be seen that in this case the question arose with reference to a provision in the taxing statute, which was ultra vires, and the decision was only that any action taken under such a provision was without authority of law and was, therefore, an unconstitutional interference with the right to carry on business under Article 19(1)(g). There is nothing in these two decisions which lends any support to the contention that, where the provision of law under which assessment is made is intra vires, the order is liable to be impugned as contravening Article 19(1)(g), if the order is, on the merits, erroneous. That however, was held in the decision in Kailash Nath and Another Vs. State of U.P. and Others, .

21. In that case, a petition under Article 32 of the Constitution was filed in this Court challenging an order of assessment on the ground that the Sales Tax Officer had disallowed an exemption on a misconstruction of a notification issued u/s 4 of the U.P. Sales Tax Act, and that thereby the right of the petitioner to carry on business under Article 19(1)(g) had been infringed. An objection was taken that, even if the Sales Tax Officer had misconstrued the notification, no fundamental right of the petitioner had been infringed, and that the petition was not maintainable Overruling this contention, Govinda Menon, J., observed :

“If a tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this Court for a writ under Article 32, “since his right to carry on a trade is violated, or infringed by the imposition and such being the case, Article 19(1)(g) comes into play”.

22. In support of this view, the observations in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, were relied on. The Petitioner contends that, on this reasoning, Article 19(1)(g) must be held to be violated not merely when an assessment is made under a statute which is ultra vires, but also when it is made on a misconstruction of a statute, which is intra vires. It is incontrovertible that is the effect of the decision in Kailash Nath and Another Vs. State of U.P. and Others, . But it is equally incontrovertible that the decision in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , which it purports to follow, does not support it. There is a fundamental distinction between as order of assessment made on a provision, which is ultra vires, and one made on a valid provision, which is misconstrued. Where the provision is void, the protection under Article 265 fails, and what remains is only unauthorised inference with property or trade by a State Officer, and Articles 19(1)(f) and (g) are attracted. But where the provision itself is valid, Article 265 operates, and any action taken thereunder is protected by it. An authority having jurisdiction to decide a matter has jurisdiction to decide wrong as well as right, & the protection afforded by Article 265 is not destroyed, if its decision turns out to be erroneous. To such cases, Article 19(1)(g) has no application. Both in Himmatlal’s case ((1954) S.C.R. 1122, 1127.) and in The Bengal Immunity Company Limited Vs. The State of Bihar and Others, the decision of the Court that the proceedings constituted an infringement of the right of the citizen under Article 19(1)(g) was based expressly on the ground that Article 265 did not apply to those proceedings. But this ground did not exist in Kailash Nath’s case (6), and that makes all the difference in the legal position. The decision in Kailash Nath’s (6) which merely purposed to follow The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , is open to the criticism that it has overlooked this distinction.

23. We may now refer to two decision subsequent to the one in Kailash Nath and Another Vs. State of U.P. and Others, , which have been relied on by the petitioner. In Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, , the question arose under the Central Sales Tax Act. Under that Act, sales in the course of State trade are liable to the taxed at a single point. The petitioner we assessed to tax on certain sales falling within Act by the Central Sales Tax Officer, Bihar, and the tax was also duly paid. Thereafter, the Central Sales Tax Officer in West Bengal made an order assessing to tax the very sales in respect of which tax had been paid. The petitioner than moved this Court under Article 32 for an order quashing the order of assessment. A preliminary objection to the maintainability of the petition was taken on behalf of the respondent State on the ground that under the Act the petitioner could file an appeal against the order of assessment, and that proceedings under Article 32 were, therefore, incompetent. In overruling this contention Shah, J., referred to the decision of this Court in Himmatlal’s case ((1954) S.C.R. 1122, 1127.), The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and the The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, and observed;

“In these cases, in appeals from orders passed by the High Court in petitions under Article 226, this Court held that an attempt to levy tax under a statute which was ultra vires, infringed the fundamental right of the citizens, and recourse to the High Court for protection of the fundamental right was not prohibited because of the provision contained in Article 265. In the case before us, the vires of the Central Sales Tax Act, 1956, are not challenged; but in Kailash Nath v. State of U.P., a petition challenging the levy of a tax was entertained by this court even through the Act under the authority of which the tax was sought to be recovered was not challenged as ultra vires. It is not necessary for purposes of this case to decide whether the principle of Kailash Nath’s case is inconsistent with the view expressed by this court in Ramjilal’s Case.

24. The learned Judges then proceeded to hold that, as there was under the Act a single liability and that had been discharged, proceedings for the assessment of the same sales a second time to tax infringed the fundamental right of the petition to hold property. Dealing with this point, Sarkar, J., observed in the same case :

“This Court held that an illegal levy of sales tax on a trader under an Act the legality of which was not challenged violates his fundamental right under Article 19(1)(g) and a petition under Article 32 with respect to such violation lies. Ramjilal Vs. Income Tax Officer, Mohindargarh, does not appear to have been considered. It is contended that the decision in Kailash Nath’s case, requires reconsideration. We do not think, however, that the present is a fit case to go into the question whether the two cases are not reconcilable and to decide the preliminary question raised. The point was taken at a last stage of the proceeding after much costs had been incurred”.

25. It is clear from the above observation that the learned Judges were of the opinion that the decision in Kailash Nath and Another Vs. State of U.P. and Others, required reconsideration. The ratio of the decision in Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, would appear to be that, as the law did not authorise the imposition of tax a second time on sales, on which tax has been levied and collected, proceedings for assessment a second time are without jurisdiction, and, therefore, Article 19(1)(g) is attracted, In the present case, there is no contention that the proceedings of the Sales Tax officer are without jurisdiction.

26. The petitioner also relied on a recent decision of this Court in Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, . In that case, a notice for assessment was issued after that expiry of the period prescribed therefore by the Statute. The assessee thereupon applied to this Court under Article 32 for quashing the proceedings on the ground that they were without jurisdiction, and it was held that, as the taxing authority had no power under the statute it issue the notice in question, the proceedings must be quashed. This again is a case, in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax, and it makes no difference that such assumption of jurisdiction was based on a misconstruction of statutory provision. In the present case. We are concerned with an alleged misconstruction, which bears on the merits of the assessment, and does not affect the jurisdiction of the Sales Tax Officer to make the assessment, and the two are essentially different. And we should add that the present question was not raised or decided in that case.

27. It remains to refer to the decision in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, , which has been already discussed in connection with Article 14. In that case, the provision of the Travancore-Cochin Land Tax Act 15 of 1955 as amended by the Travancore-Cochin Land Tax (Amendment) Act 10 of 1957, were held to be bad as violative also of Article 19(1)(f). As the considerations applicable to Articles 19(1)(f) and 19(1)(g) are the same, we should have to examine the ground on which this decision rests. They were thus stated :

“Ordinarily, a taxing statute lays down a regular machinery for making assessment of the tax proposed to be imposed by the statute. It lays down detailed procedure as to notice to the proposed assessee to make a return in respect of property proposed to be taxed, prescribes the authority and the procedure for hearing any objections to the liability for taxation or as to the extent of the tax proposed to be levied, and finally, as to the right to challenge the regularity of assessment made, by recourse to proceeding in a higher civil Court….. The Act being silent as to the machinery and procedure to be followed in making the assessment leaves it to the Executive to evolve the requisite machinery and procedure. The whole thing from beginning to end, is treated as of a purely administrative character, completely ignoring the legal position that the assessment of a tax on person or property is at least of a quasi-judicial character…… It is clear, therefore, that apart from being discriminatory and imposing unreasonable restrictions on holding property, the Act clearly confiscatory in character and effect….. For these reasons, as also for the reasons for which the provisions of sections 4 and 7 have been declared to be unconstitutional in view of the provisions of Article 14 of the Constitution, all these operative sections of the Act, namely, 4, 5A and 7, must be held to offend Article 19(1)(f) of the Constitution also.”

28. From the above observations, it will be seen that the ground on which the law was held to be in contravention of Article 19(1)(f) was not one which had any reference to the merits of the assessment but to the procedure laid down for imposing tax. This decision is an authority only for the position that, where the procedure laid down in a taxing statute is opposed to rules of natural justice, then any imposition of tax under such a procedure must be held to violate Article 19(1)(f).

29. Reference may be, made to the following passage in Willoughby’s Constitution of the United States, Second Edn, Vol. 3, p. 1718 relied on for the respondents :

“It is established that the guaranty to suitors of due process of law does not furnish to them a right to have decision of courts reviewed upon the mere ground that such decisions have been based upon erroneous findings of fact or upon erroneous determinations of law. Such errors, if committed by trial courts, can be corrected only by ordinary appellate proceedings as provided for by law. Especially has this doctrine been declared in cases in which the Federal Court have been asked to review the decisions of State court”.

30. Our attention was also invited to the decisions in Mc Govern v. New York [1913] 229 U.S. 363, L.ed. 1228.) and American Railway Express Co. v. Kentucky [1927] 273 U.S. 269 71 L.ed. 639. It was observed in the latter case :

“It is firmly established that a merely erroneous decision given by a State court in the regular course of judicial proceedings does not deprive the unsuccessful party of property without due process of law.”

31. The above remarks support the contention of the respondent that an order of a Court or tribunal is not hit by Article 19(1)(g).

32. The result of the authorities may thus be summed up :

(1) A tax will be valid only if it is authorised by a law enacted by a competent legislature. That is Article 265.

(2) A law which is authorised as aforesaid must future be not repugnant to any of the provisions of the Constitution. Thus, a law which contravenes Article 14 will be bad, Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, .

(3) A law which is made by a competent legislature and which is not otherwise invalid, is not open to attack under Article 31(1). Ramjilal’s case ((1951) S.C.R. 127, 136, 137.) and Laxmanappa’s case ((1951) S.C.R. 127, 136, 137.).

(4) A law which is ultra vires either because the legislature has no competence over it or it contravenes, some constitutional inhibition, has no legal existence, and any action taken thereunder will be an infringement of Article 19(1)(g) Himmatlal’s case ((1954) S.C.R. 1122, 1127.) and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, . The result will be same when the law is a colourable piece of legislation.

(5) Where assessment proceedings are taken without the authority of law, or where the proceedings are repugnant to natural justice, there is an infringement of the right guaranteed under Article 19(1)(f) and Article 19(1)(g) : Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, ; Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, and Shri Madan Lal Arora’s case ((1962) 1 S.C.R. 1122, 1127.).

33. Now, the question is, when a law is enacted by a competent legislature and it is not unconstitutional as contravening any probation in the Constitution such as Article 14, and when proceedings for assessment of tax are taken thereunder in the manner provided therein, and there is no violation of rules of natural justice, does Article 19(1)(g) apply, even through the taxing authority might have, in the exercise of its jurisdiction, misconstrued the legal provisions ? The decision in Kailash Nath and Another Vs. State of U.P. and Others, would appear to support the contention that it does; but for the seasons already given, we think that its correctness is open to question and the point needs reconsideration.

34. There is another objection taken to the maintainability of this petition. Article 32, under which it is presented, confers on a person, whose fundamental right guaranteed in Part III is infringed, a right to move this Court for appropriate writs for obtaining redress. The contention of the petitioner is that the order of assessment dated December 20, 1958, amounts to interference with the right of the firm to carry on business and is, therefore, in contravention of Article 19(1)(g), and that relief should be granted under Article 32. Now the objection that is taken on behalf of the respondents is that the guarantee given under Article 19(1)(g) is against an action of the executive or legislature of the State, that the order of assessment now in question is one passed in judicial proceedings and is, therefore, outside the purview of Article 19(1)(g). If this contention is well-funded, then Article 32 will have no application and the present petition must fail on this ground.

35. The constitutional provisions bearing on this question are Articles 12, 13, 19 and 32. Article 12 enacts that :

“In this Part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India”.

36. Article, 13(3)(a) defines ‘law’ as follows :

“‘law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;”

37. Article 19(1) enacts that the citizen shall have the seven right mentioned therein, and Articles 19(2) to 19(6) save laws, whether existing or to be made, which imposed reasonable restrictions on the exercise of those rights, subject to the conditions laid down therein. Article 32(1) guarantees “the right to move the Supreme Court by appropriate proceedings for the enforcement of the right conferred by this Part”. Than we have Article 32(2), which is as follows :

“The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, which ever may be appropriate, for the enforcement of any of the right conferred by this Part”.

38. It will be convenient now to set out the contentions of the parties urged in support of their respective positions. The contention of the respondents based upon Article 12 is that the word “State” in Part III means only the Executive and the Legislature, that the Judiciary is excluded therefrom, and that, therefore, on question of a fundamental right can arise with reference to an order passed by an authority discharging judicial functions. The answer of the petitioner to this is that the word “State” comprehends all the three organs, the Executive, the Legislature and the Judiciary, that the express mention of the Government and the Legislature in Article 12 cannot be construed as excluding the Judiciary, that the use of the word “includes” shows that the enumeration which follows is not exhaustive, and that, therefore, the ordinary and the wider connotation of the word “State” is not cut down by Article 12.

39. It is true that the word “includes” normally signifies that what is enumerated as included is not exhaustive. But the question ultimately is, what is the intention of the Legislature, and that has to be gathered on a reading of the enactment as a whole. It is possible that in some context the word “includes” might import that the enumeration is exhaustive. The following observation of Lord Watson in Dilworth v. Commissioner of Stamps [1899] A.C. 99 were relied upon :

“The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include,’ and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions.”

40. Now, when the Legislature wants to enlarge the sense in which an expression is generally, used so as to take in certain other things, it does so by using the word “includes”. therefore, it may be argued that the word “includes” would be appropriate only when the expression, the connotation of which is sought to be extended by the word “includes”, does not, in its ordinary sense, include what is sought to be “included”, and that as the Executive and the Legislature of a State are, according to all accepted notions, understood as included in the word “State”, the use of the word “includes” with reference to them would make no sense. The Article also provides that the word “State” is to include “all local or other authorities”. With reference to them, the use of the word “includes” will be quite appropriate, because they would not in the ordinary sense of the words “the State”, be understood as included therein. A reading of the Article, as a whole, would seem to show that the intention of the Legislature was, on the one hand, to restrict the accepted connotation of the word “State”, and, on the other hand, to extend it by including “local or other authorities”. There is much to be said in favour of the contention of the respondents that in the context the word “includes” must to be read as “means and includes”.

41. In further support of the contention that orders of Courts and Tribunals are not, in general within the purview of Part III, the respondents rely on the definition of ‘law’ in Article 13(3). Judgments and orders made in the course of judicial proceedings do not fall within that definition. It is con tended that the scheme of the Constitution is that, whenever there is an infringement of a fundamental right by the Executive or the Legislature, the person aggrieved has a right of resort to this Court under Article 32, that being the consequence of this definition of ‘State’ under Article 12 and of law under Article 13(3); that Court and Tribunals are not law-making bodies in the sense in which law is defined in Article 13(3), their function being to interprets law; and that it will, therefore, be inappropriate to bring them within Part III, which enacts limitations on power to makes laws.

42. It is urged that the scheme of the Constitution does no contemplated judicial orders being brought up before this Court in a petition under Article 32. Wherever a fundamental right is infringed, it is said, the party aggrieved has a right to resort to the civil Court either in their ordinary jurisdiction or under Article 226, and the decisions of the Courts will ultimately come up it this Court on appeal under Articles 132 to 136. Thus, when executive and legislative action infringes fundamental right, the Supreme Court can deal with it under Article 32, whereas orders of Courts and Tribunals, in which questions of infringement of fundamental rights are decided, will come up for review before the Supreme Court under Articles 132 to 136.

43. We may now refer to the decisions where this question has been considered by this Court. In Bashesher Nath v. The Commissioner of income tax [1959] Supp. (1) S.C.R. 528 occur the following observations, relied on for the respondents :

“In the third place it is to be observed that, by virtue of Article 12, ‘the State’ which is, by Article 14, forbidden to discriminate between persons includes the Government and Parliament of India and the Government and the Legislature of each of the State and all local or other authorities within the territory of India or under the control of the Government of India. Article 14, therefore, is an injunction to both the legislative as well as the executive organs of the State and the other subordinate authorities. As regards the legislative organ of the State, the fundamental right is further consolidated and protected by the provisions of Article 13… That apart, the very language of Article 14 of the Constitution expressly directs that ‘the state’, by which Article 12 includes the executive organ, shall not deny to any person equality before the law or the equal protection of the law. Thus Article 14 protects us from both legislation, and executive tyranny by way of discrimination.”

44. The above remarks are based on the view that the words “the State” in Article 12 comprehend only the Executive and the Legislature.

45. A more direct decision on this point is the one in Sahibzada Saiyed Muhammed Amirabbas Abbasi and Others Vs. The State of Madhya Bharat and Others, . There, the facts were that one Amirabbas Abbasi applied to the Court of the District Judge at Ratlam for an order that he should be appointed guardian of the person and properties of his two children. The application was rejected by the District Judge, who appointed another person, Sultan Hamid Khan, as the guardian. An appeal against this order to the High Court was also dismissed. Amirabbas Abbasi then filed a petition in this Court under Article 32 of the Constitution, challenging the validity of the order of the District Court on the ground that it was discriminative and violative of Article 14 of the Constitution. In dismissing this petition, this Court observed :

“The second respondent was appointed guardian of the minors by order of a competent court, and denial of equality before the law or the equal protection of the laws can be claimed against executive action or legislative process but against the decision of a competent tribunal. The remedy of a person aggrieved by the decision of a competent judicial tribunal is to approach for redress a superior tribunal, if there be one.”

46. The following observations in Ratilal v. State of Bombay AIR [1959] Bom. 242 are also relied on for the respondents :

“The second observation which must be made is that the protection afforded by the Constitution to fundamental right is against executive, or legislative interference. A decision of a regularly constituted Court cannot however be challenged as an in reference with fundamental right in the abstract. The Court in the very nature of things adjudicates upon conflicting claims and declares rights and does not by the operation of its own order seek to infringe any Fundamental rights.”

47. These observation would appear to apply with equal force to judicial proceedings before tribunals, as they cannot be regarded as representing the executive to the legislative function of the State.

48. It is next contended for the petitioner that the Sales Tax Officer will at least fall within the category of “other authority” in Article 12. The meaning of the expression “other authorities” was considered in The University of Madras v. Shantha Bai I.A.R. 1954 Mad. 67. There, the question was as to whether the University of Madras was “other authority” within that Article. In deciding that it was not, it observed that the words “other authorities” must be construed ejusdem generis with what had been enumerated in the Article, namely, the Government or the Legislature. This clearly supports the respondents.

49. It is contended for the petitioner that even if Courts could not be held to be “other authorities”, quasi judicial tribunals must be regarded as falling within that expression, and that Sales Tax Officers are at best only quasi judicial officers, and they cannot be put on the same footing as regular Courts. It is argued that sales tax authorities are Officers of Government to whom is entrusted the work of levy and collection of taxes, that that is primarily an executive function, that the officers have, no doubt, to act judicially in determining that tax payable but that that is only incidental to the discharge of what is essentially an administrative act, that, at best the assessment proceedings are quasi-judicial character, and that accordingly an Officer imposing a tax must be held to be “other authority” within Article 12. In this view, it is urged, the assessment order dated December 20, 1958, falls within the purview of Part III.

50. The respondents dispute the correctness of this contention. They concede that a Sales Tax Officer has certain function of an administrative character but urge that the proceedings with which we are concerned, are entirely judicial. In this connection, it will have to be borne in mind that it is a feature well-known in the Government of this country that both executive and judicial functions are vested in the same Officer, and because of the undesirable results which followed from this combination, Article 50 of the Constitution has enacted as one of the Directive Principles that,

“The State shall take step to separate the judiciary from the executive in the public services of the State”.

51. When an authority is clothed with two functions, one administrative and the other judicial, proceedings before it which fall under the latter category do not cease to be judicial by reason of the fact that it has got other non-judicial functions. What has to be seen is the capacity in which authority acts with reference to the impugned matter. It will, therefore, be necessary to examine the character in which the Sales Tax Officer function when he takes proceeding for assessment of tax. Under the provisions of the Act, the Sales Tax Officer has to issue notice to the assessee, take evidence in the matter, hear him and than decide, in accordance with the provisions of the statute, whether tax is payable, and if so, how much. Against his order, there is an appeal in which against the parties have to be heard and a decision given in accordance with law. The legality or propriety of an order passed in an appeal is again open to consideration on revision by a Revising Authority who must be “a person qualified under clause (2) of Article 217 of the Constitution for appointment as Judge of a High Court”. Section II, which is on the same lines as section 66 of the Indian income tax Act, provides that the Revising Authority might refer for the opinion of the High Court any question of law arising out of its order, and u/s 11(4), the assessee has a right to move the High Court for an order that the Revising Authority do refer the question of law arising out of the order, if there has been an erroneous refusal to refer. Now the respondents contend that the proceedings commencing with a notice issued by the Sales Tax Officer and ending with a reference to the High Court are entirely judicial, that it is in that view that petitions for certiorari and prohibition are entertained against orders of assessment under Article 226 of the Constitution, and appeals against such order are entertained by this Court under Article 136. It will be inconsistent it is urged, to hold, on the one hand, that the orders passed in these assessment proceedings are open to appeal under Article 136 on the footing that they are made by Tribunals, and, on the other, that they are open to attack under Article 32 of the footing that they are made by executive authorities.

52. It is also contended for the petitioner that the definition of “State” in Article 12 is to govern Part III “unless the context otherwise required”, and that in the context of Article 32; “The State” would include Courts and Tribunals exercising judicial functions. Article 32, it will be noticed; confers on the Court jurisdiction to issues among others, write of Certiorari and prohibition. The argument is that as these write are issued only with reference to judicial proceedings, the restricted definition of “the State” in Article 12 as excluding them must give way to the express language of Article 32. It is accordingly contended that even on the footing that the order of assessment is judicial in character, the present petition for issue of certiorari is within Article 32. It is true argue the respondents, that certiorari and prohibition lie only in respect of judicial and not administrative acts, and it must, therefore, be taken that Article 32 does envisage that there could be a petition under that Article with respect to judicial proceedings. It is also true, as held by this Court that the right of an aggrieved party to resort to this court under that Article is itself a fundamental right under Article 32. But the right of resort to this Court under Article 32(1) is only when there is an infringement of a fundamental right which had been guaranteed in Part III, that it is Article 14 to 31 that declare what those, fundamentals right are, for the breach of which remedy can be had under Article 32(2), and that what has to be seen, therefore, is whether there is anything in the Article which is said to have been infringed, which is repugnant to the definition of “the State” in Article 12. Examining, it is said, Article 19(1)(g) which is alleged to have been violated, there is nothing in it which is repugnant to the restricted connotation of the expression “the State” in Article 12, and judicial proceedings therefore cannot be brought within it. It is further argued that Article 19(2) to 19(6) clearly show that it is only laws existing and to be made that are within their purview, an judicial pronouncements not being law cannot fall within the ambit of those provisions. In the result, it is contended that the definition of “State” in Article 12 stands and an order made by a Court or tribunal cannot be held infringe Article 19(1)(g) read along with Article 12.

53. If that is the true position, replies the petitioner, then what purpose is served by the provision in Article 32 that this Court might issue writs of certiorari or prohibition ? The answer of the respondents is that among the substantive enactments forming Articles 14 to 31, there are some which are specially, directed against judicial proceedings, and the writ of certiorari or prohibition will lie in respect of them. On such, for example, is Article 20, which is as follows :

“20. (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in forces at the time of the commission of the offence.

(2) No person shall be prosecuted and punished for the same offence more than once.

(3) No person accused of any offence shall be compelled to be a witness against himself.”

54. This Article clearly applies to prosecutions and convictions for offences. It has reference, therefore, the judicial proceedings, and the restricted definition of “State” in Article 12 is, in the context, excluded. And proceedings contemplated by Article 20 being judicial, writs of certiorari and prohibition can issue. In this connection, the respondents rely upon the expression “whichever may be appropriate” occurring in Article 32(2). It means, it is said, that when once an infringement of a fundamental right is established, the writ which the Court can issue must depend upon the nature of the right involved. It is accordingly contended that Article 19(1)(g) is, on its terms inapplicable to judicial proceedings, and no writ of certiorari can issue for the infringement of a right under that Article.

55. It was also argued for the petitioner that under the American law certiorari lies against decisions of the State Court when they are repugnant to the provision of the Constitution, and the decision in National Association for the Advancement of Colored People v. State of Alabama (1958) 2 L.ed. 2d. 1488 was relied support of this position. There the question related to the validity of a provision in a statute of Alabama requiring foreign corporations to disclose, among other things, the names and addresses of their local members and agents. The appellant-Corporation having made default in complying with this provision, the State instituted as action for appropriate relief, and the Court granted the same. Than the Corporation moved that Supreme Court for a writ of certiorari on the ground that the provision in the statute was an invasion of the right to freely assemble, guaranteed by the Constitution. One of the grounds on which the State resisted the application was that no certiorari will lie for quashing an order of Court. In rejecting this contention, the Court observed :

“It is not of moment that the State has there acted solely through its judicial branch for whether legislative or judicial, it is still the application of state power which we are asked to scrutinize.”

56. It is unnecessary to refer to other decisions in which similar views have been taken. The principle on which all these decisions are based was thus stated in Virginia v. Rives (1880) 100 U.S. 313 : 25 Sl. ed. 667 :

“It is doubtless true that a State may act through different agencies, – either by its legislative, its executive, or its judicial authorities; and the prohibitions of the amendment extend to all action of the State denying equal protection of the laws, whether it be action by one of these agencies or by another.”

57. These decisions have no bearing on the point now under consideration, which is not whether a writ of certiorari will lie under the general law against decisions of Courts – on that, there could be and has been no controversy – but whether, on the terms of Article 12, that will lie against an order a of Court or Tribunal.

58. The above is a resume of the arguments addressed by both sides in support of their respective contentions. The question thus debated is of considerable importance on which there has been no direct pronouncement by this Court. It seems desirable that it should be authoritatively settled. We accordingly direct that the papers be placed before the Chief Justice for constituting a larger Bench for deciding the two following question :-

1. Is an order of assessment made by an authority under a taxing statute which is intra vires, open to challenge as repugnant to Article 19(1)(g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder ?

2. Can the validity of such an order be questioned in a petition under Article 32, of the constitution ?

1962. April 10. The matter was finally heard by a larger Bench consisting of S. K. Das, J. L. Kapur, A. K. Sarkar, K. Subba Rao, M. Hidayatullah, N. Rajagopala Ayyangar and J. R. Mudholkar, JJ. and

S.K. Das, J.

59. The facts of the case have been stated in the judgment of my learned brother Kapur J., and it is not necessary for me to restate them. I have reached the same conclusion as has been reached by my learned brother. But in view of the importance of the question raised, I would like to state in my own words the reasons for reaching that conclusion.

60. The two questions which have been referred to this larger Bench are :

1. Is an order of assessment made by an authority under a taxing statute which is Intra vires, open to challenge as repugnant to Article 19(1)(g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued there under ?

2. Can the validity of such an order be questioned in a petition under Article 32 of the Constitution ?

These two questions are inter-connected and substantially relate to one matter : is the validity of an order made with jurisdiction under an Act which in Intra vires and good law in all respects, or of a notification properly issued thereunder, liable to be questioned in a petition under Article 32 of the Constitution on the sole ground that the provisions of the Act, or the terms of the notification issued thereunder, have been misconstrued ?

It is necessary, perhaps, to start with the very Article, namely, Article 32, with reference to which the question has to be answered.

“32. (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

61. The Article occurs in Part III of the Constitution headed ‘Fundamental Rights’. It is one of a series of articles which fall under the sub-head, “Right to Constitutional Remedies”. There can be no doubt that the right to move the Supreme Court by appropriate proceedings for the enforcement of the right conferred by Part III is itself a guaranteed fundamental right. Indeed, clause (1) of the Article says so in express terms. Clause (2) says that this Court shall have power to issue directions or order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by Part III. Clause (4) makes it clear that the right guaranteed by the Article shall not be suspended except as otherwise provided for by the Constitution. Article 359 of the Constitution states that where a Proclamation of Emergency is in operation the President may by order declare that the right to move any court for the enforcement of such of the rights conferred by Part III as may be mentioned in the order and all proceedings pending in any court for the enforcement of the rights so mentioned shall remain suspended etc. It is clear, therefore, that so long as no order is made by the President to suspend the enforcement of the rights conferred by Part III of the Constitution every person in India, citizen or otherwise, has the guaranteed right to move the Supreme Court for enforcement of the rights conferred on him by Part III of the Constitution and the Supreme Court has the power to issue necessary directions, orders or writs which may be appropriate for the enforcement of such rights. Indeed, this Court has held in more than one decision that under the Constitution it is the privilege and duty of this Court to uphold the fundamental rights, whenever a person seeks the enforcement of such rights. The oath of office which a Judge of the Supreme Court takes on assumption of office contains inter alia a solemn affirmation that he will “uphold the Constitution and the laws”.

62. The controversy before us centers round the expression “enforcement of the rights conferred by this Part” which occurs in clauses (1) and (2) of the Article. It has not been disputed before us that this Court is not trammelled by technical considerations relation to the issue of writs habeas corpus mandamus, Prohibition, quo warranto and certiorari. This Court said in T. C. Basappa v. T. Nagappa [1955] 1 S.C.R. 230.

“In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular case by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate case and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.”

63. therefore, apart altogether from all technical considerations, the broad question before us is – in what circumstances does the question of enforcement of the rights conferred by Part III of the Constitution arise under Article 32 of the Constitution, remembering all the time that the constitutional remedy under Article 32 is itself a fundamental right ? On behalf of the petitioner it has been submitted that whenever it is prima facie established that there is violation of a fundamental right, the question of its enforcement arises; for example, (a) it may arise when the statute itself is ultra vires and some action is taken under such a statute, or (b) it may also arise when some action is taken under an intra vires statute, but the action taken is without jurisdiction so that the statute though intra vires does not support it; to (c) it may again arise on misconstruction of statute which is intra vires, but the misconstruction is such that the action taken on the misconstrued statute results in the violation of fundamental right. It has been argued before us that administrative bodies do not cease to come within the definition of the word “State” in Article 12 of the Constitution when they perform quasi-judicial functions and in view of the true scope of Article 32, the action of such bodies whenever such action violates or threatens to violate a fundamental right gives rise to the question of enforcement of such right and no distinction can be drawn in respect of three classes of cases referred to above. As to the case before us the argument is that the taxing authorities misconstrued the terms of the notification which was issued by the State Government on December 14, 1957 u/s 4(1)(b) of the United Provinces Sales Tax Act, U.P. Act No. XV of 1948 and as a result of the misconstruction, they have assessed the petitioner to sales tax on the sum of Rs. 4,71,541.75 nP. which action, it is submitted, has violated the fundamental right guaranteed to the petitioner under Article 19(1)(f) and (g) and Article 31 of the Constitution.

64. The misconstruction, it is argued, may lead to a transgression of constitutional limits in different ways; for example, in a case where an inter-State transaction of sale is sought to be taxed despite the constitutional prohibition in Article 286 of the Constitution as it stood previously, by wrongly holding that the transaction in intra-State, there is a transgression of constitutional limits. Similarly, where a quasi-judicial authority commits an error as to a fact or issue which the authority has complete jurisdiction to decide under the statute, but the error is of such a nature that it affects a fundamental right, there is again a transgression of constitutional limits. The argument is that there is no distinction in principle between these classes of misconstruction of a statute, and the real test, it is submitted, should be the individuality of the error, namely, whether the error impinges on a fundamental right. If it does, then the person aggrieved has a right to approach this Court by means of a petition under Article 32 of the Constitution.

65. On the contrary, the contention of the respondents which is urged as a preliminary objection to the maintainability of the petition in that on the facts stated in the present petition no question of the enforcement of any fundamental right arises and the petition is not maintainable. It is stated that the validity of the Act not being challenged in any manner, every part of it is good law; therefore, the provision in the Act authorising the Sales-tax Officer as a quasi-judicial tribunal to assess the tax is a valid provision and a decision made by the said tribunal strictly acting in exercise of the quasi-judicial power given to it must necessarily be a fully valid and legal act. It is pointed out that there is no question here of the misconstruction leading to a transgression of constitutional limits nor to any error relating to a collateral fact. The error which is complained of, assuming it to be an error, is in respect of a matter which the assessing authority has complete jurisdiction to decide; that decision is legally valid irrespective of whether it is correct or otherwise. It is stated that a legally valid act cannot offend any fundamental right and the proper remedy for correcting an error of the nature complained of in the present case is by means of an appeal or if the error is an error apparent on the face of the record, by means of a petition under Article 226 of the Constitution.

66. Before I proceed to consider these arguments it is necessary to clear the ground by standing that certain larger questions were also mooted before us, but I consider it unnecessary to examine or decide them. Such questions were : (1) whether taxation laws are subject to the limitations imposed by Part III, particularly Article 19 therein, (2) whether the expression “the State” in Article 12 includes “courts” also, and (3) whether there can be any question of the enforcement of fundamental rights against decisions of courts or the action of private persons. These larger questions do not fall for decision in the present case and I do not consider it proper to examine or decide them here. I should make it clear that nothing I have stated in the present judgment should be taken as expressing any opinion on these larger questions. It is perhaps necessary to add also that this writ petition could have been disposed of on the very short ground that there was no misconstruction of the notification dated December 14, 1957 and the resultant action of the assessing authority did not affect any fundamental right of the petitioner. That is the view which we have expressed in the connected appeal of M/s. Chhotabhai Jethabhai Patel & Co. v. The Sales Tax Officer, Agra and another (Civil Appeal No. 99 of 1961) in which Judgment is also being delivered to-day.

67. The writ petition, however, has been referred to a larger Bench for the decision of the two important constitutional questions relating to the scope of Article 32, which I have stated earlier in this judgment. It is, therefore, necessary and proper that I should decide those two questions which undoubtedly arise as a preliminary objection to the maintainability of the writ petition.

68. I now proceed to a consideration of the main arguments advanced before us. On some of the aspects of the problem which has been debated before us there has been very little disagreement. I may first delimit the filed where there has been agreement between the parties and then go on to the controversial area of disagreement. It has not been disputed before us that where the statute or a provision thereof is ultra vires, any action taken under such ultra vires provision by a quasi-judicial authority which violates or threatens to violate a fundamental right does give rise to a question of enforcement of that right and a petition under Article 32 of the Constitution will lie. There are several decisions of this Court which have laid this down. It is unnecessary to cite them all and a reference need only be made to one of the earliest decision on this aspect of the case, namely, Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, . A similar but not exactly the same position arose in the The Bengal Immunity Company Limited Vs. The State of Bihar and Others, . The facts of the case were that the appellant company filed a petition under Article 226 in the High Court of Patna for a writ of prohibition restraining the Sales Tax Officer from making an assessment of sales tax pursuant to a notice issued by him. The appellant claimed that the sales sought to be assessed were made in the course of inter-State trade, that the provisions of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) which authorised the imposition of tax on such sales were repugnant to Article 286(2) and void, and that, therefore, the proceedings taken by the Sales Tax Officer should be quashed. The application was dismissed by the High Court on the ground that if the Sales Tax Officer made an assessment which was erroneous, the assessee could challenge it by way of appeal or revision under sections 24 and 25 of that Act, and that as the matter was within the jurisdiction of the Sales Tax Officer, no writ of prohibition or certiorari could be issued. There was an appeal against this order to this Court and therein a preliminary objection was taken that a writ under Article 226 was not the appropriate remedy open to an assessee for challenging the legality of the proceedings before a Sales Tax Officer. In rejecting the contention, this Court observed :

“It is, however, clear from article 265 that no tax can be levied or collected except by authority of law which must mean a good and valid law. The contention of the appellant company is that the Act which authorises the assessment, levying and collection of Sales tax on inter-State trade contravenes and constitutes an infringement of Article 286 and is, therefore, ultra vires, void and unenforceable. If, however, this contention by well founded, the remedy by way of a writ must, on principle and authority, be available to the party aggrieved.”

69. And dealing with the contention that the petitioner should proceed by way of appeal or revision under the Act, this Court observed :

“The answer to this plea is short and simple. The remedy under the Act cannot be said to be adequate and is, indeed, nugatory or useless if the Act which provides for such remedy is itself ultra vires and void and the principle relied upon can, therefore, have no application where a party comes to Court with an allegation that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and prays for appropriate relief under article 226.”

70. It will be seen that the question which arose in that case was with reference to a provision in the taxing statute which was ultra vires and the decision was that any action taken under such a provision was without the authority of law and was, therefore, an unconstitutional interference with the right to carry on business under Article 19(1)(f). In circumstances somewhat similar in nature there have been other decision of this Court which the violation of a fundamental right was taken to have been established when the assessing authority sought to tax a transaction the taxation of which came within a constitutional prohibition. Such cases were treated as on a par with those cases where the provision itself was ultra vires.

71. The decision in Bidi Supply Co. v. The Union of India [1956] 2 S.C.R. 67 arose out of a somewhat different set of facts. There the Central Board of Revenue transferred by means of a general order certain cases of the petitioner u/s 5(7-A) of the India income tax Officer, District III, Calcutta, to the income tax Officer, Special Circle, Ranchi. It was held that an omnibus wholesale order of transfer as was made in the case was not contemplated by the sub-section and, therefore, the impugned order of transfer which was expressed in general terms without reference to any particular case and without any limitation as to time was beyond the competence of the Central Board of Revenue. It was also held that the impugned order was discriminatory against the petitioner and violated the fundamental right guaranteed by Article 14 of the Constitution. This decision really proceeded upon the basis that an executive body cannot, without authority of law, take action violative of a fundamental right and if it does, an application under Article 32 will lie. In that case no question arose of the exercise of a quasi-judicial function in the discharge of undoubted jurisdiction; on the contrary, the ratio of the decision was that the order passed by the Central Board of Revenue was without jurisdiction. The decision was considered again in Pannalal Binjraj Vs. Union of india (UOI), after further amendments had been made in section 5(7-A) of the India income tax Act, 1922 and it was pointed out that section 5(7-A) as amended was a measure of administrative convenience and constitutionally valid and an order passed thereunder could not be challenged as unconstitutional.

72. There are other decisions which proceeded on a similar basis, namely that if a quasi-judicial authority acts without jurisdiction or wrongly assumes jurisdiction by committing an error as to a collateral fact and the resultant action threatens or violates a fundamental right, the question of enforcement of that right arises and a petition under Article 32 will lie. (See Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, ; and Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, . In Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, the question arose under the Central Sales Tax Act, 1956. Under that Act sales in the course of inter-State trade are liable to be taxed at a single point. The petitioner was assessed to tax on certain sales falling within the Act by the Central Sales Tax Officer’ Bihar, and the tax was also duly paid. Thereafter the Central Sales Tax Officer in West Bengal made on order assessing to tax the very sales in respect of which tax had been paid. The petitioner then moved this Court under Article 32 for an order quashing the assessment. A preliminary objection to the maintainability of the petition was taken on behalf of the respondent State on the ground that under the Act the petitioner could file an appeal against the order of assessment and that proceedings under Article 32 were, therefore, incompetent. In overruling this contention Shah, J., referred to the decisions of this Court in Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, , The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and the State of Bombay v. United Motor (India) Ltd. [1953] S.C.R. 1969 and observed :

“In these cases, in appeals from orders passed by the High Courts in petitions under Article 226, this Court held that an attempt to levy tax under a statute which was ultra vires infringed the fundamental right of the citizens and recourse to the High Court for protection of the fundamental right was not prohibited because of the provisions contained in Article 265. In the case before us, the vires of the Central Sales Tax Act, 1956, are not challenged; but in Kailash Nath and Another Vs. State of U.P. and Others, a petition challenging the levy of a tax was entertained by this Court even though the Act under the authority of which the tax was sought to be recovered was not challenged as ultra vires. It is not necessary for purposes of this case to decide whether the principle of Kailash Nath and Another Vs. State of U.P. and Others, is inconsistent with the view expressed by this Court in Ramjilal Vs. Income Tax Officer, Mohindargarh, .”

73. The learned Judge then proceeded to hold that as there was under the Act a single liability and that had been discharged, there could be no proceedings for the assessment of the same sales a second time to tax. The ration of the decision would appear to be that as the law did not authorise the imposition of tax a second time on sales on which tax had been levied and collected, proceedings for assessment a second time were without jurisdiction. In Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, a notice for assessment was issued after the expiry of the period prescribed therefore by the statute. The assessee thereupon applied to this Court under Article 32 for quashing the proceedings for assessment on the ground that they were without jurisdiction and it was held that as the taxing authority had not power under the statute to issue the notice in question the proceedings were without jurisdiction and must be quashed. This again was a case in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax and it made no difference that such assumption for jurisdiction was based on a misconstruction of statutory provision.

74. It is necessary perhaps to refer here to another class of cases which have sometimes been characterised as cases of procedural ultra vires. When a statute prescribes a manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescription. The courts must, therefore, formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory in which case disobedience will render void or voidable what has been done, or as directory in which case disobedience will be treated as a mere irregularity not affecting the validity of what has been done. A quasi-judicial authority is under an obligation to act judicially. Suppose, it does not so act and passes an order in violation of the principles of natural justice. What is the position then ? There are some decisions, particularly with regard to customs authorities, where it has been held that an order of a quasi-judicial authority given in violation of the principles of natural justice is really an order without jurisdiction and if the order threatens or violates a fundamental right, an application under Article 32 may lie. (See Sinha Govindji Vs. The Deputy Chief Controller of Imports and Exports and Others, . These decisions stand in a class by themselves and really proceed on the footing that the order passed was procedurally ultra vires and therefore without jurisdiction.

75. So far I have dealt with three main classes of cases as to which there is very little disagreement : (1) where action is taken under an ultra vires statute; (2) where the statute is intra vires, but the action taken is without jurisdiction; and (3) where the action taken is procedurally ultra vires. In all these cases the question of enforcement of a fundamental right may arise and if it does arise, an application under Article 32 will undoubtedly lie. As to these three classes of cases there has been very little disagreement between the parties before us.

76. Now, I come to the controversial area. What is the position with regard to an order made by a quasi-judicial authority in the undoubted exercise of its jurisdiction in pursuance of a provision of law which is admittedly intra vires ? It is necessary first to clarify the concept of jurisdiction. Jurisdiction means authority to decide. Whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into a question of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari but are binding until reversed on appeal. Where a quasi-judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion whether it is wrong in law or in fact. The question, whether a tribunal has jurisdiction depends not on the truth or falsehood of the facts into which it has to enquire, or upon the correctness of its findings on these facts, but upon their nature, and it is determinable “at the commencement, not at the conclusion, of the inquiry’. (Rex v. Bolten [1841] I Q.B. 66. Thus, a tribunal empowered to determine claims for compensation for loss of office has jurisdiction to determine all questions of law and fact relating to the measure of compensation and the tenure of the office, and it does not exceed its jurisdiction by determine any of those questions incorrectly but it has no jurisdiction to entertain a claim for reinstatement or damages for wrongful dismissal, and it will exceed its jurisdiction if it makes an order in such terms, for it has no legal power to give any decision whatsoever on those matters. A tribunal may lack jurisdiction if it is improperly constituted, or if it fails to observe certain essential preliminaries to the inquiry. But it does not exceed its jurisdiction by basing its decision upon an incorrect determination of any question that it is empowered or required (i.e.,) had jurisdiction to determine. The strength of this theory of jurisdiction lies in its logical consistency. But there are other cases where Parliament when it empowers an inferior tribunal to enquire into certain facts intend to demarcate two areas of enquiry, the tribunal’s findings within one area being conclusive and with in the other area impeachable. “The jurisdiction of an inferior tribunal may depend upon the fulfilment of some condition precedent or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the tribunal has to try and the determination whether it exists or not is logically prior to the determination of the actual question which the tribunal has to try. The tribunal must itself decide as to the collateral fact when, at the inception of an inquiry by a tribunal of limited jurisdiction, a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not. There may be tribunals which, by virtue of legislation constitution them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess.” (Halsbury’s Laws of England, 3rd Edn. Vol. 11 page 59). The characteristic attribute of judicial act or decision is that it binds, whether it be right or wrong. An error of law or fact committed by a judicial or quasi-judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends. These principles govern not only the findings of inferior courts stricto sensu but also the findings of administrative bodies which are held to be acting in a judicial capacity. Such bodies are deemed to have been invested with power to err within the limits of their jurisdiction; and provided that they keep within those limits, their decisions must be accepted as valid unless set aside on appeal. Even the doctrine of res judicata has been applied to such decisions. (See Livingstone v. Westminister Corporation [1904] 2 K.B. 109; Re Birkenhead Corporation (1952) Ch. 359 Re 56 Denton Road Twickenham [1953] Ch. 51 Society of Medical Officers of Health v. Hope [1959] 2 W.L.R. 377, . In Burn and Co., Calcutta Vs. Their Employees, this Court said that although the rule of res judicata as enacted by section 11 of the CPC did not in terms apply to an award made by an industrial tribunal its underlying principle which is founded on sound public policy and is of universal application must apply. In Daryao v. The State of U.P. [1961] [2] S.C.R. 591 this Court applied the doctrine of res judicata in respect of application under Article 32 of the Constitution. It is perhaps pertinent to observe here that when the Allahabad High Court was moved by the petitioner under Article 226 of the Constitution against the order of assessment, passed on an alleged misconstruction of the notification of December 14, 1957, the High Court rejected the petition on two grounds. The first ground given was that the petitioner had the alternative remedy of getting the error corrected by appeal the second ground given was expressed by the High Court in the following words :

“We have, however, heard the learned counsel for the petitioner on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. the circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even handmade biris have been subject to Sales Tax since long before the date of the issue of the above notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957, was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales Tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957, to 30th June, 1958, the petitioner was liable neither to payment of excise duty nor to payment of Sales Tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to apply only to those goods on which an additional Central excise duty had been levied and paid.”

77. If the observations quoted above mean that the High Court rejected the petition also on merits, apart from the other ground given, then the principle laid down in Daryao v. The State of U.P. 1961 2 S.C.A. 591 will apply and the petition under Article 32 will not be maintainable on the ground of res judicata. It is, however, not necessary to pursue the question of res judicata any further, because I am resting my decision on the more fundamental ground that an error of law or fact committed by a judicial body cannot, in general, be impeached otherwise than on appeal unless the erroneous determination relates to a matter on which the jurisdiction of that body depends.

78. In Malkarjun Narhari [1950] L.R. 279 I. A, 216 the Privy Council dealt with a case in which a sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor’s estate, and the executing court had erroneously decided that he was to be treated as such representative. The Privy Council said :

“In so doing the Court was exercising its jurisdiction. It made a sad mistake, it is true; but a Court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed”.

79. The above view finds support from a number of decisions of this Court.

80. Aniyoth Kunhamina Umma Vs. Ministry of Rehabilitation and Others, . In this case it had been held under the Administration of Evacuee Property Act, 1950, that a certain person was an evacuee and that certain plots of land which belonged to him were, therefore, evacuee property and vested in the Custodian of Evacuee Property. A transferee of the land from the evacuee then presented a petition under Article 32 for restoration of the lands to her and complained of an infringement of her fundamental right, under Article 19(1)(f) and Article 31 of the Constitution by the aforesaid orders under the Administration of Evacuee Property Act. The petitioner had been a party to the proceedings resulting in the declaration under that Act earlier mentioned. This Court held that as long as the decision under the Administration of Evacuee Property Act which had become final stood, the petitioner could not complain of any infringement of any fundamental right. This Court dismissed the petition observing :

“We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceedings. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has not such right.”

81. Gulabdas and Co. and Another Vs. Assistant Collector of Customs and Others, . In this case certain imported goods had been assessed to customs tariff. The assessee continued in a petition under Article 32 that the duty should have been charged under a different item of that tariff and that its fundamental right was violated by reason of the assessment order charging it to duty under a wrong item in the tariff. This Court held that there was no violation of fundamental right and observed :

“If the provisions of law under which impugned orders have been passed are with jurisdiction, whether they be right or wrong on fact, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal”.

82. Bhatnagars and Co. Ltd. Vs. The Union of India (UOI), . In this case the Government had held that the petitioner had been trafficking in licences and in that view confiscated the goods imported under a licence. A petition had been filed under Article 32 challenging this action. It was held :

“If the petitioner’s grievance is that the view taken by the appropriate authority in this matter is erroneous, that is not a matter which can be legitimately agitated before us in a petition under Article 32”.

83. The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, . In this case it was contended that the decision of the Transport Authority in granting a permit for a motor carriage service had offended Article 14 of the Constitution. This Court held that the decision of a quasi-judicial body, right or wrong, could not offend Article 14.

84. There are, however, two decisions which stand out and must be mentioned here. A contrary view was taken in Kailash Nath and Another Vs. State of U.P. and Others, There a question precisely the same as the one now before us had arisen. A trader assessed to sales tax had claimed exemption under certain notification and this claim had been rejected. Thereupon he had moved this Court under Article 32. It was contended that the right to be exempted from the payment of tax was not a fundamental right and therefore, the petition under Article 32 was not competent. This Court rejected that contention basing itself on The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and Bidi Supply Co’s case ([1956] S.C.R. 267.). The two cases on which the decision was rested had clearly no application to the question decided. I have shown earlier that in both those cases the very statute under which action had been taken was challenged as ultra vires. In Kailash Nath and Another Vs. State of U.P. and Others, the question was not considered from the point of view in which it has been placed before us in the present case and in which it was considered in the four cases referred to above. therefore, I am unable to agree with the view taken in Kailash Nath and Another Vs. State of U.P. and Others, .

85. In Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer, Akola, the question raised was whether betel leaves were exempted from sales tax under certain provisions of the C.P. & Berar Sales Tax Act. This Court agreed with the view of the assessing authority that they were not exempted. The question as to the maintainability of the application under Article 32 was neither raised nor was it decided. This decision cannot, therefore, be taken as an authority for holding that an application under Article 32 is maintainable even in respect of orders which are made in the undoubted exercise of jurisdiction by a quasi-judicial authority.

86. Certain other decisions were also cited before us, namely, Thakur Amar Singhji Vs. State of Rajasthan, ; Mohanlal Hargovind Das, Bidi Merchants, Jabalpur (M.P.) Vs. The State of Madhya Pradesh and Another, ; Y. Mahaboob Sheriff and sons, Y. Mahaboob Sheriff and Others and S. Shamsoddin and Others Vs. Mysore State Transport Authority, Bangalore and Others, , J.V. Gokal and Co. (Private) Ltd. Vs. The Assistant Collector Sales-tax (Inspection) and Others, ; and Universal Imports Agency and Another Vs. The Chief Controller of Imports and Exports and Others, . These decisions fall under the category in which an executive authority acts without authority of law, or a quasi-judicial authority acts in transgression of a constitutional prohibition and without jurisdiction. I do not think that these decisions support the contention of the petitioner.

87. In my opinion, the correct answer to the two questions which have been referred to this larger Bench must be in the negative. An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder. Nor can the validity of such an order be questioned in a petition under Article 32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of appeal, or if the error is an error apparent on the face of the record, then by an application under Article 226 of the Constitution. It is necessary to observe here that Article 32 of the Constitution does not give this Court an appellate jurisdiction such as is given by Arts 132 to 136. Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred by Part III of the Constitution. Unless a question of the enforcement of a fundamental right arises, Article 32 does not apply. There can be no question of the enforcement of a fundamental right if the order challenged is a valid and legal order, in spite of the allegation that it is erroneous. I have, therefore, come to the conclusion that no question of the enforcement of fundamental right arises in this case and the writ petition is not maintainable.

88. It is necessary to refer to one last point. The petitioner’s firm had also field an appeal on a certificate of the Allahabad High Court against the order of that Court dismissing their petition under Article 226 of the Constitution. The appeal against that order was dismissed by this court for non-prosecution on February 20, 1961. In respect of that order of dismissal the petitioner’s firm has field an application for restoration on the ground that it had been advised that in view of a rule having been issued under Article 32 of the Constitution, it was not necessary to prosecute the appeal. The petitioner’s firm has prayed for condonation, of delay in filing the application for restoration of appeal. In my opinion no sufficient cause has been made out for allowing the application for restoration. The petitioner’s firm had deliberately allowed the appeal to be dismissed for non-prosecution and it cannot now be allowed to get the dismissal set aside on the ground of wrong advice.

89. Furthermore, in the appeal filed on behalf of M/s. Chhotabhai Jethabhai Patel & Co. v. The Sales Tax Officer, Agra and another (Civil Appeal No. 99 of 1961) we have decided the question on merits and have held that the assessing authorities did not put a wrong construction on the notification in question.

Kapur, J.

90. In this petition under Article 32 of the constitution which is directed against the order passed by the Sales Tax Officer, Allahabad, dated December 20, 1958, the prayer is for a writ of certiorari or other order in the nature of certiorari quashing the said order, a writ of mandamus against the respondents to forbear from realizing the sales tax imposed on the basis of the said order and such other writ or direction as the petitioner may be entitled to.

91. The petitioner is a partner in the firm M/s. Mohanlal Hargovind Das which carried on the business of manufacture and sale of handmade biris, their head office being in Jubbalpore in the State of Madhya Pradesh. They also carry on business in U.P., and in that State their principal place of business is at Allahabad.

92. u/s 4(1) of the U.P. Sales Tax Act (Act XV of 1948) hereinafter called the ‘Act’, the State Government is authorised by a notification to exempt unconditionally under clause (a) and conditionally under clause (b) any specified goods. On December 14, 1957, the U.P. Government issued a notification u/s 4(1)(b) of the Act exempting cigars, cigarettes, biris and tobacco provided that the additional Central Excise Duties leviable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957) had been paid. This notification was subsequently modified and on November 25, 1958, another notification was issued unconditionally exempting from sales tax biris both handmade and machine-made with effect from July 1, 1958. The exemption of biris from sales tax was conditional under the notification dated December 14, 1957, for the period December 14, 1957, to June 30, 1958, but was unconditional as from July 1, 1958.

93. The petitioner’s firm submitted its return for the quarter beginning April 1, 1958, to June 30, 1958, showing a gross turnover of Rs. 75,44,633 and net turnover of Rs. 111. The firm claimed that as from December 14, 1957, biris had been exempted from payment of sales tax which had been replaced by the additional central excise duty and therefore no tax was leviable on the sale of biris. The requisite sales tax of Rs. 3.51 nP. on the turnover of Rs. 111 was deposited as required under the law. The petitioner’s firm also submitted its return for the periods December 14, 1957, to December 31, 1957, and from January 1, 1958, to March 31, 1958. For the subsequent periods returns were made but those are not in dispute as they fell within the notification of November 25, 1958. The Sales Tax officer on November 28, 1958, sent a notice to the petitioner’s firm for assessment of tax on sale of biris during the assessment period April 1, 1958, to June 30, 1958. On December 10, 1958, the petitioner’s firm submitted an application to the Sales Tax Officer stating that no sales tax was exigible under the Act on the sale of biris because of the notification dated December 14, 1957. This place was rejected by the Sales Tax Officer and on December 20, 1958, he assessed the sales of the petitioner’s firm to sales tax amounting to Rs. 4,71,541.75 nP. In his order the Sales Tax Officer held :-

“The exemption envisaged in this notification applies to dealers in respect of sales of biris provided that the additional Central Excise duties leviable thereon from the closing of business on 13-12-1957 have been paid on such goods. The assessees paid no such Excise duties. Sales of biris by the assessees are therefore liable to sales tax”.

94. Against this order the firm took an appeal u/s 9 of the Act to the Judge (Appeals) Sales Tax, Allahabad, being Appeal No. 441 of 1959, but it was dismissed on May 1, 1959.

95. The petitioner’s firm filed a petition under Article 226 of the Constitution in the High Court of Allahabad challenging the validity of the order of assessment and demand by the Sales Tax Officer. This was civil Miscellaneous Writ No. 225 of 1959 which was dismissed on January 27, 1959 on the ground that there was another remedy open to the petitioner under the Act. The High Court also observed :-

“We have come to the conclusion that the Sales Tax Officer has not committed any apparent or obvious error in the interpretation of the notification of 14th December 1957”.

96. Against the order of the High Court an appeal was brought to this Court on a certificate under Article 133(1)(a). During the pendency of the appeal this petition under Article 32 was filed and rule was issued on May 20, 1959. Subsequently the appeal which had been numbered C-A. 572/60 was dismissed by a Divisional Bench of this Court for non-prosecution. An application has been filed in this Court for restoration of the appeal and for condonation of delay. That matter will be dealt with separately.

97. In the petition under Article 32 the validity of the order of assessment dated December 20, 1958, is challenged on the ground that the levy of the tax amounts to “infringement of the fundamental right of the petitioner to carry on trade and business guaranteed by Article 19(1)(g)” and further that it is an ‘illegal confiscations of property without payment of compensation and contravenes the provisions of Article 31 of the Constitution”. The prayers have already been set out above.

98. As before the Constitution Bench which heard the petition a preliminary objection against the competency of the petitioner’s right to move this court under Article 32 of the Constitution, was raised and the correctness of the decision in Kailash Nath and Another Vs. State of U.P. and Others, was challenged, the Constitution Bench because of that decision and of certain other decisions of this court and because of the importance of the question raised made the following order :

“The question thus debated is of considerable importance on which there has been no direct pronouncement by this court. It seems desirable that it should be authoritatively settled. We accordingly direct that the papers be placed before the Chief Justice for constituting a larger Bench for deciding the two following questions :

1. Is an order of assessment made by an authority under a taxing statute which is intra vires open to challenge as repugnant to Article 19(1)(g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder ?”.

2. Can the validity of such an order be questioned in a petition under Article 32 of the Constitution ?”

99. That is how this matter has come up before this bench.

100. Before examining the rival contentions raised and the controversy between the parties it is necessary to state that (i) in the present case we are not called upon to decide whether clauses (f) and (g) of Article 19 are applicable to a taxing statute or to express our preference for the view of this court as expressed in a group of cases beginning with Ramjilal Vs. Income Tax Officer, Mohindargarh, over the later view taken in the second Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, case or Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, whether the word “State” in Article 12 of the Constitution Comprises judicial power exercised by courts and (3) the wider question whether Article 32 is applicable in the case of infringement of rights by private parties. The controversy in the present case in this; the petitioner contends that an erroneous order, in this case, of assessment resulting from a misconstruction of a notification issued under a statute by a quasi-judicial authority like the Sales Tax Officer even if the statute is intra vires is an infringement of the fundamental right to carry on trade under Article 19(1)(g) on the ground that the essence of the right under that Article is to carry on trade unfettered and that such a right can be infringed as much by an executive act of an administrative tribunal as by a quasi-judicial decision given by such a tribunal. The petitioner mainly relies on the decision of this Court in Ramjilal Vs. Income Tax Officer, Mohindargarh, .

101. The submission of the respondent, which was urged as a preliminary objection to the maintainability of this petition, was that the impugned decision of the Sales tax Officer does not violate any fundamental right. The respondent argued that if the constitutionality of the Act is not challenged then all its provisions must necessarily be constitutional and valid including the provisions for the imposition of the tax and procedure for assessment and appeals against such assessments and revisions therefrom would be equally valid. A decision by the Sales tax Officer exercising quasi-judicial power and acting within his powers under the Act and within his jurisdiction must necessarily be valid and legal irrespective of whether the decision is right or wrong. therefore an order of the Sales tax Officer even if erroneous because of misconstruction of notification issued thereunder remains a valid and legal order and a tax levied thereunder cannot contravene fundamental rights and cannot be challenged under Article 32. An aggrieved party must proceed against the decision by way of appeal etc. as provided under the statute or in appropriate cases under Article 226 of the Constitution and finally by appeal to this Court under Article 136. For the order to be valid and immune from challenge under Article 32, it is necessary therefore that (1) the statute is intra vires in all respects; (2) the authority acting under it acts quasi-judicially; (3) it acts within the powers given by the Act and within jurisdiction; and (4) it does not contravene rules of natural justice.

102. In 5 CWN 10 (Privy Council) Lord Hobhouse while dealing with an erroneous order of a court said :

“The Code goes on to say that the Court shall issue a notice to the party against whom execution is applied. It did issue notice to Ramlingappa. He contended that he was not the right person, but the Court, having received his protest, decided that he was the right person, and so proceeded with the execution. It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right. If it decided wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is not taken the decision, however wrong, cannot be disturbed.”

103. In an earlier case dealing with the revisional powers of the Court, Sir Barnes Peacock in Rajah Amir Hassan Khan v. Sheo Baksh Singh [1884] L.R. 11 IndAp 237 said :-

“The question then is, did the judges of the Lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity. It appears that they had perfect jurisdiction to decide the question which was before them, and they did decide it. Whether they decided it rightly or wrongly they had jurisdiction to decide the case; and even if they decided wrongly, they did not exercise their jurisdiction illegally or with material irregularity”.

104. This principal has been accepted by this Court in cases to which reference will be made later in this judgment. Although these cases were dealing with the decisions of Courts they are equally applicable to decisions of quasi-judicial tribunals because to both cases where the authority has jurisdiction to decide a matter it must have jurisdiction to decide it rightly or wrongly and if the decision is wrong the aggrieved party can have recourse to the procedure prescribed by the Act for correcting the erroneous decision.

105. Now Article 32 is a remedial provision and is itself a fundamental right which entitles a citizen to approach this court by an original petition in any case where his fundamental right has been or may be infringed. The relevant part of the Article provides :-

Article 32(1) “The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus, mandamus, prohibition, que warranto and certiorari, whichever may be appropriate for the enforcement of any of the rights conferred by this Part”.

106. Under Article 32(1) a citizen can approach this Court when his fundamental rights guaranteed under Part III of the Constitution are invaded the remedy for which is provided in clause (2) of Article 32. Thus the remedy under Article 32 is not available unless the fundamental rights of a citizen are invaded.

107. In my opinion the contention raised by the respondents is well founded. If the statute and it constitutionality is not challenged then every pars of it is constitutionally valid including the provisions authorising the levying of a tax and the mode and procedure for assessment and appeals etc. A determination of a question by a Sales tax Officer acting within his jurisdiction must be equally valid and legal. In such a case an erroneous construction, assuming it is erroneous, is in respect of a matter which the statute has given the authority complete jurisdiction to decide. The decision is therefore a valid act irrespective of its being erroneous.

108. An order of assessment passed by a quasi-judicial tribunal under a statute which is ultra vires cannot be equated with an assessment order passed by that tribunal under an intra vires statute even though erroneous. The former being with out authority of law, is wholly unauthorised and has no existence in law and therefore the order is an infringement of fundamental rights under Article 19(1)(f) & (g) and can be challenged under Article 32. The latter is not unconstitutional and has the protection of law being under the authority of a valid law and therefore it does not infringe any fundamental right and cannot be impugned under Article 32. To say that the doing of a legal act violates a fundamental right would be a contradiction in terms. It many be pointed out that by an erroneous decision of the quasi-judicial authority the wronged party is not left without a remedy. In the first place under the Act before an assessment is made the Sales tax Officer is required to give notice and hear objections of a taxpayer and give decision after proceeding in a judicial manner that is after considering the objection, and such evidence as is led. Against the order of assessment an appeal is provided by section 9 of the Act and against such an appellate order a revision can be taken u/s 10 of the Act u/s 11 a reference to the High Court on a question of law is provided and if the revising authority refuses to make a reference then the High Court can be moved to direct the revising authority to state a case and then an appeal would lie under Article 136 of the Constitution of India and it may be added that a petition under Article 226 would lie to the High Court in appropriate cases against which an appeal will lie to this Court under Article 136. It may here be added that the procedure prescribed by the Act shows that the Sales tax Officer has to determine the turnover after giving the taxpayer a reasonable opportunity of being heard and such an assessment is a quasi-judicial act Province of Bombay Vs. Kusaldas S. Advani and Others, . If a Sales tax Officer acts a quasi-judicial authority then the decision, whether right or wrong, is a perfectly valid act which has the authority of an intra vires statute behind it. Such a decision, in my opinion, does not infringe any fundamental right of the petitioner and any challenge to it under Article 32 is unsustainable.

109. Before giving the reasons for any opinion I think it necessary to refer to the constitutional provisions dealing with the power to tax. This subject is dealt with in Part XII of Constitution and Article 265 therein which is the governing provision provides :-

“No tax shall be levied or collected except by authority of law.”

110. therefore a taxing law enacted by a legislature, which it is not competent to enact, will have no existence in the eye of law and will be violative of Article 19(1)(g). The same result will follow if the law is a colourable piece of legislation e.g., a law disguised as a taxing law but really law but confiscatory measure the object of which is not to raise revenue but confiscation. Similarly, if a tax is assessed by an authority which has no jurisdiction to impose it will also be outside the protection of law being without authority of law. The same will be the case where an Executive authority levies an unauthorised tax. Then there are cases like the present one where a quasi-judicial tribunal imposes a tax by interpreting a notification under a taxing provision and the objection taken is that the interpretation is erroneous. The cases relied upon by counsel for the appellant and the respondent fall within one or other of these categories.

111. As I have said above, the submission of the learned Additional Solicitor General is well founded. It has the support of the following decisions of this Court which I shall now deal with. In Gulabdas and Co. and Another Vs. Assistant Collector of Customs and Others, it was held that if the order impugned is made under the provisions of a statue which is intra vires and the order is within the jurisdiction of the authority making it then whether it is right or wrong, there is no infraction of the fundamental rights and it has to be challenged in the manner provided in the Statute and not by a petition under Article 32. In that case the petitioner was aggrieved by the order of the Assistant Collector of Customs who assessed the goods imported under a licence under a different entry and consequently a higher Excise Duty was imposed. The petitioners feeling aggrieved by the order field a petition under Article 32 and the objection to its maintainability was that the application could not be sustained because no fundamental right had been violated by the impugned order it having been properly and correctly made by the authorities competent to make it. The petitioner there contended that the goods imported, which were called ‘Lyra’ brand Crayons were not crayons at all and therefore imposition of a higher duty by holding them to be crayons was an infringement of fundamental right under Article 19(1)(f) & (g). This contention was repelled. Delivering the judgment of the Court, S. K. Das, J., observed at p. 736 :-

“What, after all, is the grievance of the petitioners ? They do not challenge any of the provisions of the India Traiff Act, 1934 (XXXII of 1934) or any of the provisions of the Sea Customs Act, 1878 (VIII of 1878). It is for the Customs authorities to determine under the provisions of the said Acts what duty is payable in respect of certain imported article. The Customs authorities came to a decisions, right or wrong, and the petitioners pursued their remedy by way of an appeal to the Central Board of Revenue.

The Central Board of Revenue dismissed the appeal. Unless the provisions relating to the imposition of duty are challenged as unconstitutional, or the orders in question are challenged as being in excess of the powers given to the Customs authorities and therefore without jurisdiction it is difficult to see how the question of any fundamental right under Article 19(1) clauses (f) & (g) of the Constitution can at all arise.

If the provisions of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits the proper remedy is by way of an appeal.

All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any fundamental right under Article 19 of the Constitution.”

112. The second case is Bhatnagars and Co. Ltd. Vs. The Union of India (UOI), . In that case the Sea Customs authorities ordered the confiscation of goods on the ground that the petitioner had been trafficking in licenses under which the goods had been imported. This order was challenged under Article 32. It was held that the order of confiscation made as a result of investigation, which the Customs Authorities were competent to make, was not open to challenge in proceedings under Article 32 of the Constitution on the ground that the conclusions were not properly drawn. It was observed :-

“If the petitioner’s grievance is that the view taken by the appropriate authorities in this matter is erroneous that is not a matter which can be legitimately agitated before us is a petition under Article 32. It may perhaps be, as the learned Solicitor General suggested, that the petitioner may have remedy by suit for damages but that is a matter with which we are not concerned. If the goods have been seized in accordance with law and they have been seized as a result of the findings recorded by the relevant authorities competent to hold enquiry under the Sea Customs Act, it is not open to the petitioners to contend that we should ask the authorities to exercise discretion in favour of the petitioner and allow his licences a further lease of life. Essentially the petitioner’s grievance is against the conclusions of fact reached by the relevant authorities.”

113. The third case is The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, where the decision of a Transport Authority in granting a motor carriage permit was challenged as a contravention of Article 14. The Court held that the Regional Transport Authority acts in a quasi-judicial capacity in the matter of granting permits, and if it comes to an erroneous decisions the decision is not challengeable under Article 32 of the Constitution because the decision right or wrong could not infringe Article 14. Sarkar J., said at p. 188 :-

“The decision of respondent No. 1 (Regional Transport Authority) may have been right or wrong…….. but we are unable to see that the decision offends Article 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi-judicial body if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Article 14”.

114. Lastly reliance was placed on an unreported judgment of this Court in Aniyoth Kunhamina Umma Vs. Ministry of Rehabilitation and Others, . The petitioner in that case was a representative-in-interest of her husbands who had been declared an evacuee by the Custodian of Evacuee property. Her appeals first to the Deputy Custodian and then to the Custodian General were unsuccessful. She then field a petition under Article 32 of the constitution. It was held that the appropriate authorities of competent jurisdiction under the Administration of Evacuee property Act 1950 having determined that the husband was an evacuee within that Act and the property was evacuee property it was not open to the petitioner to challenge the decision of the Custodian General under Article 32 of the Constitutions. S. K. Das, J., delivering the judgment of the Court observed :-

“Where, however, on account of the decision of an authority competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of infringement at right can arise as a ground for a petition under Article 32 of the constitution unless the decision on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee property. Is the decision of the appropriate authorities of competent jurisdiction cannot complain be otherwise got rid of, the petitioner cannot complain of her fundamental right under Articles 19(1)(f) and 31 of the Constitution”.

115. These authorities show (1) that if a statute is intra vires than a competent order under it by an authority acting as a quasi-judicial authority is equally intra vires (2) that the decision whether right or wrong is not violative of any fundamental right and (3) that if the order is erroneous then it can be questioned only under the provisions of that statute because the order will not amount to an infringement of a fundamental right as long as the statute is constitutional. In appropriate case it may be challenged under Article 226 and in both cases an appeal lies to this Court.

116. I may now examine decisions of this Court relied upon by the learned Attorney General in which the operation of taxation laws as violating Article 19(1)(g) was considered and the procedure by which this Court was approached. In support of his case the Attorney General mainly relied on Kailash Nath and Another Vs. State of U.P. and Others, and tried to buttress that decision by certain cases decided before and subsequent to it. He submitted that a misconstruction of a provision of law even by a quasi-judicial tribunal is equally an infringement of fundamental rights under Article 19(1)(f) & (g) because as a consequence of such misconstruction the tax is an illegal imposition. In Kailash Nath’s case it was contended before the Sales tax Authorities that cloths, on which Excise duty had already been paid and which was then processed, hand-printed and exported, no sales tax was leviable as it was exempt under the notification u/s 4 of the U.P. Sales Tax Act. The Sales Tax Authorities however held the exemption to be applicable only to cloth which had not been processed and hand-printed and was in the original condition. A petition under Article 32 was filed against that order and it was contended that the rights of the assessee under Article 19(1)(g) were infringed by the order misinterpreting the notification. the Court said :-

“If a tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this court for a writ under Article 32 since his right to carry on trade is violated or infringed by the imposition and such being the case, Article 19(1)(g) comes into play”.

117. The objection there taken on behalf of the State was in the following terms :-

“That the imposition of an illegal tax will not entitle the citizen to invoke Article 32 but he must resort to remedies available under ordinary law or proceed under Article 226 of the Constitution, in view of the fact that the right to be exempted from the payment of tax cannot be said to be a fundamental right which comes within the purview of Article 32”.

118. This contention was repelled because of the following observations in the The Bengal Immunity Company Limited Vs. The State of Bihar and Others, :

“We are unable to agree the above conclusion. In reaching the conclusion the High Court appears to have overlooked the fact that the main contention of the appellant company, as set forth in its petition, is that the Act, in so far as it purports to tax a non-resident dealer in respect of an inter-State sale or purchase of goods, is ultra vires the Constitution and wholly illegal………”

119. The other cases referred to in that judgment were Mohammad Yasin Vs. The Town Area Committee, Jalalabad and Another, ; The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, ; Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, and Bidi Supply Co. v. Union of India [1956] S.C.R. 257. Thus the decision in that case was based on decisions none of which supports the proposition that a misconstruction by a quasi-judicial tribunal of a notification under the provision of a statute which is intra vires is a violation of Article 19(1)(g). On the other hand they were all cases where the imposition of tax or license fee or executive action was sought to be supported by an ultra vires provision of the law and was therefore void and violative of Article 19(1)(g). As this distinction was not kept in view the remedy by way of petition under Article 32 was held to be available. The question as now raised was not argued in Kailash Nath’s case.

120. The distinction between a competence order of assessment made under a provision of law which is intra vires even if it is erroneous and an order made under a provision of law which is ultra vires in fundamental in the matter of applicability of Article 32. In the former case the provision of law being valid the order will be protected as being under the authority of a valid law and therefore it will not be violative of Article 19(1)(g) and Article 32 is not available to challenge that order. In the latter case, the provisions of law being void the protection of law does not operate and the order is an unauthorised interference with the rights of a citizen under Article Article 19(1)(g). It can therefore be challenged under Article 32. This distinction does not seem to have been kept in view in Kailash Nath and Another Vs. State of U.P. and Others, . That case is further open to the criticism that it is based on decisions which were not cases of erroneous interpretations of notifications under intra vires statutes but were cases where an unconstitutional provision of law was sought to be used to support a tax. For the reasons I have given Kailash Nath and Another Vs. State of U.P. and Others, cannot be accepted as well founded”.

121. In yet another case where the remedy under Article 32 was sought to challenge the decision of a Sales Tax Officer is Ramavatar Budhaiprasad Etc. Vs. Assistant Sales Tax Officer, Akola, . There a Sales tax Officer on a construction of a Schedule of the Sales Tax Act had held that betel leaves were subject to sales tax as they were not vegetables which were exempt from that tax and this Court upheld that decision. The question as to the availability of Article 32 was not raised.

122. Besides Kailash Nath’s case which I have dealt with above the other case relied upon by the learned Attorney General fall within the following category in none of which the question as now argued arose or was considered.

(1) Where the tax imposed or action taken is under a statute which is unconstitutional.

(2) Where the Executive action is without authority of law.

(3) Where the taxing authority imposes a tax or acts without authority of law.

(4) Where the quasi-judicial authority without having jurisdiction determines a fact or gives a decision.

I shall now discuss the cases which fall in the first category i.e. where action is taken under a statute which is unconstitutional. The action taken thereunder must necessarily be unconstitutional which is challengeable by an aggrieved party under Article 32.

123. In Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, sales tax was neither levied nor demanded but apprehending that an illegal sales tax may be assessed and levied a petition under Article 226 was filed in the High Court which was dismissed and an appeal was brought to this Court and thus it was not a petition under Article 32. In that case the sales tax under explanation II to section 2(g) of the Central Provinces & Berar Sales tax Act (Act 2 of 1947) was held ultra vires of the State Legislature because it offended Article 286(1)(a) and its imposition or threat of imposition was held without authority of law and therefore infringement of the constitutional right guaranteed under Article 19(1)(g) entitling the petitioner to apply under Article 226 of the constitution. This case therefore decided that a tax under an Act which is unconstitutional ultra vires and void is without authority of law under Article 265 and is an infringement of Article 19(1)(g). This case and Ramjilal Vs. Income Tax Officer, Mohindargarh, received approval in The Bengal Immunity Co. case (1953) 2 S.C.R. 603. In the Bengal Immunity case also the right infringed was by an Act which was ultra vires and the remedy under the Act was held to be inadequate, nugatory or useless. The facts of that case were that the appellant company filed a petition under Article 226 in the High Court of Patna for a writ of prohibition restraining the Sales tax Officer from making an assessment of sales tax pursuant to a notice issued by him. the appellant claimed that sales sought to be assessed were made in the course of inter-State trade, that the provision of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) which authorised the imposition of tax on such sales were repugnant to Article 286(2) and void, and that, therefore, the proceedings taken by the Sales tax Officer should be quashed. The application was dismissed by the High Court on the ground that if the Sales tax Officer should be quashed. The made an assessment which was erroneous, the assessee could challenge it by way of appeal or revision under sections 24 and 25 of the Act and that as the matter was within the jurisdiction of the Sales tax Officer, no writ of prohibition or certiorari could be issued. There was an appeal against this order to this Court and therein a preliminary objection was taken that a writ under Article 226 not the appropriate remedy open to an assessee for challenging the legality of the proceedings before a Sales tax Officer. In rejecting this contention, this Court observed :-

“It is, however, clear from article 265 that no tax can be levied or collected except by authority of law which must mean a good and valid law. The contention of the appellant company is that the Act which authorises the assessment, levying and collection of sales tax on inter-State trade contravenes and constitutes an infringement of Article 286 and is, therefore, ultra vires, void and unenforceable. If, however, this contention be well founded, the remedy by way of a writ must, on principle and authority, be available to the party aggrieved.”

124. And dealing with the, contention that the petitioner should proceed by way of appeal or revision under the Act, this Court observed :-

“The answer to this plea is short and simple. The remedy under the Act cannot be said to be adequate and is, indeed nugatory or useless if the Act which provides for such remedy is itself ultra vires and void and the principle relied upon can, therefore, have no application were a party comes to Court with an allegation that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void and prays for a appropriate relief under article 226.” (p. 620).

125. It will be seen that the question which arose in that case was with reference to a provision in a taxing statute which was ultra vires and the decision was only that action taken under such a provision was without the authority of law and was, therefore, an unconstitutional interference with the right to carry on business under Article 19(1)(g).

126. In Mohammad Yasin Vs. The Town Area Committee, Jalalabad and Another, the imposition of the license fee was without authority of law and was therefore held to be challengeable under Article 32 because such a license fee on a business not only takes away the property of the licensee but also operates as on reasonable restriction on the right to carry on business. In Balaji v. The Income Tax Officer, Special Investigation Circle, Akola (1952) 2 S.C.R. 983 the Income tax Officer included, after the registration of a firm, the income of the wife and of the minor children who had been admitted to partnership.

127. The assessee attacked the constitutionality of section 16(3)(a)(i)(ii) of the Income tax Act. The first question there raised was of the legislative competence of Parliament to enact the law and that Parliament was held competent to enact. Secondly the constitutionality of the provision was questioned on the ground that it violated the doctrine of equality before the law under Article 14 of the Constitution and that ground was also repelled and it was held that the legislature had selected for the purpose of classification only that group of persons who in fact are used as a cloak to perpetuate fraud of taxation. The third ground of attack was based on Article 19(1)(f) & (g) of constitution. Relying upon the case of Mohammad Yasin Vs. The Town Area Committee, Jalalabad and Another, which was a case of license fees and Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, in which there was no determination by any tribunal but there was a threat of an illegal imposition, the court held that not only must law be valid in the sense of there being legislative competence, it must also not infringes the fundamental rights declared by the constitution. This again was not a case of a determination of a question by a taxing authority acting quasi-judicially but the constitutionality and vires of the statute were challenged.

128. The second category of cases is were the Taxing Authority imposes a tax or acts without authority of law and the assessment made by the Taxing Authority is without jurisdiction. Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, was a case under the Central Sales Tax Act under which sales in the course of inter-State trade are liable to be taxed only once and by one State on behalf of the Central Government. The petitioner company in that case was assessed to tax of certain sales falling within that Act by the Central Sales Officer, Bihar and the tax was paid. They were again taxed by the Central Sales tax Office, West Bengal who held that under the statute that was the “Appropriate State” to levy the tax as the sites of sale was in West Bengal and that was assailed under Article 32. The objection to the maintainability of the petition on the ground that an appeal against the order of assessment could be taken and that proceedings under Article 32 were incompetent was overrules. Shah J., in delivering the judgment of the majority referred to the decision of this Court in Himmatlal Harilal Mehta’s case, ((1954) S.C.R. 1122.); The Bengal Immunity Company Limited Vs. The State of Bihar and Others, and the The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, and observed as follows :-

“In these cases, in appeal from orders passed by the High Courts in petitions under Article 226, this Court held that an attempt to levy tax under a statute which was ultra vires infringed the fundamental right of the citizen and recourse to the High Court for protection of the fundamental right was not prohibited because of the provisions contained in Article 265. In the case before us, the vires of the Central Sales Tax Act, 1956, are not challenged; but in Kailash Nath and Another Vs. State of U.P. and Others, a petition challenging the levy of a tax was entertained by this Court even though the Act under the authority of which the tax was sought to be recovered was not challenged as ultra vires. It is not necessary for purposes of this case to decide whether the principle of Kailash Nath’s case is inconsistent with the view expressed by this Court in Ramjilal Vs. Income Tax Officer, Mohindargarh, “.

129. The learned Judges also held that the statute made impossible to levy two taxes on the same sale and only one tax being payable it could be collected on behalf of the Government of India by one State only and one sale could not be taxed twice. It having been collected once the threat to recover it again was Prima facie in infringement of the fundamental right of the petitioner. Sarkar, J., who gave the minority judgment observed :-

“In Kailash Nath v. The State of U.P. AIR 1947 S.C. 790, this Court held that an illegal levy of sales tax on a trader under an Act the legality of which was not challenged violates his fundamental rights under Article 19(1)(g) and a petition under Article 32 with respect to such violation lies. The earlier case of Ramjilal Vs. Income Tax Officer, Mohindargarh, does not appear to have been considered. It is contended that the decision in Kailash Nath’s case requires reconsideration. We do not think however that the present is a fit case to go into the question whether the two cases not reconcilable and to decide the preliminary question raised. The point was taken as a late stage of proceedings after much costs had been incurred. The question arising on this petition is further of general importance a decision of which is desirable in the interest of all concerned. As there is at least one case supporting the competence of the petition, we think it fit to decide this petition on its merits on the footing that it is competent”.

130. It cannot be said that this case is an authority which supports the contention of the petitioner. Apart from the fact that Kailash Nath and Another Vs. State of U.P. and Others, did not receive approval it was decided on the ground of the Central Sates tax being a tax, which could be collected on a sale once and by one State on behalf of the Government of India, and having been imposed and paid once could not be imposed a second time. In other words it was a tax which was without jurisdiction and therefore fell within Article 12(1)(f).

131. A similar case also relied upon by the petitioner is J.V. Gokal and Co. (Private) Ltd. Vs. The Assistant Collector Sales-tax (Inspection) and Others, . The There the petitioner had entered into contracts with the Government of India for the supply of certain quantities of foreign sugar. When the goods were on the high seas the petitioner delivered to the Government shipping documents pertaining to the foods and received the price. On their arrival they were taken possession of by the Government of India after paying the requisite customs duty. For the assessment year 1954-55 the petitioner was assessed to sales tax in calculating which the price of the sales made to the Government of India deducted. The Assistant Collector of Sales tax issued a notice to the petitioner proposing to review the said assessment passed by the Sales tax Officer. Objections were filed but were rejected and it was held by the Assistant Collector that sales tax was payable in respect of the two transactions. Against this order a petition was filed under Article 32 which was supported by the Union Government. It was contended by the petitioner that the sales in question were not liable to sales tax inasmuch as they took place in the course of import of goods into India. This Court held that the property in the goods passed to the Government of India when the shipping documents were delivered against payment and that the sales of goods by the petitioner to the Government took place when the goods were on the high seas and were therefore exempt from sales tax under Article 286(1)(b) of the Constitution. This was also a case of lack of legislative authority and jurisdiction to impose the sales tax.

132. Then there are cases where the Executive action is without authority of law. One such case is Bombay Dyeing Manufacturing Co. Ltd. v. The State of Bombay (1958) S.C.R. 1122 which was not a petition under Article 32 but an appeal against can order under Article 226. In that case under the Bombay Labour Welfare Fund Act, which authorised the constituting of a fund for financing labour welfare, notices were served upon the appellant company to remit the fines and unpaid accumulations in its custody to the Welfare Commissioner. The appellant company questioned in a petition under Article 226 the validity of that Act as a contravention of Article 31(2). The High Court held that Act intra vires and dismissed the petition. On appeal against that judgment this Court held that the unpaid accumulations of wages and fines were the property of the Company and any direction for the payment of those sums was a contravention of Article 31(2) and therefore invalid. It was also held that assuming that the money was not property within the meaning of Article 31(2) and Article 19(1)(f) applied that Article would also be of no help to the Welfare Commissioner because it could not be supported under Article 19(5) of the Constitution. Moreover this was not a case of a determination by a quasi-judicial tribunal but was a case of executive action without authority of law.

133. In Bidi Supply Co. v. The Union of India ((1956) S.C.R. 257, 271, 277.) an order passed by Central Board of Revenue transferring the assessment records and proceedings of the petitioner from Calcutta to Ranchi u/s 5(7A) of the Income tax Act was challenging under Article 32 as an infringement of the fundamental rights of the petitioner under Articles 14, 19(1)(g) and 31 of the Constitution. The impugned order by the Central Board of Revenue was made acting in its executive capacity and this Court, without deciding the question whether the order could be supported on the ground of reasonable classification held that the order expressed in general terms without any reference to any particular case and without any limitation as to time was not contemplated or sanctioned by sub-section 7(A) of section 5 and therefore the petitioner was entitled to the benefit of the provisions of sub-sections 1 and 2 of section 64 of Indian Income tax Act. The question decided therefore was that the Central Board of Revenue acting u/s 5(7A) was not empowered to pass an “omnibus wholesale order of transfer”. It was not a quasi-judicial order of an administrative tribunal acting within its jurisdiction but an unauthorised executive order of an administrative tribunal acting in its administrative capacity. Section 5(7A) was subsequently ‘amended and in a somewhat similar case Pannalal Binjraj Vs. Union of india (UOI), it was held that the amended section 5(7A) was a measure of administrative convenience and was constitutional and an order passed thereunder was equally constitutional.

134. In Thakur Amar Singhji Vs. State of Rajasthan, the State of Rajasthan passed orders assuming certain jagirs under Rajasthan Land Reforms and Resumption of Jagirs Act. In the case of one of the jagirs it was held by this Court that the notification, by which the resumption was made, was bad as regards properties comprised in that petition because the properties were not within the impugned Act, and being dedicated for religious purposes was exempt u/s 20 of the Act. This again was not a case of any quasi-judicial decision but it was a notification issued by the executive Government in regard to properties not within the Act which was challenged in that case.

135. A case strongly relied upon by the petitioner was Mohanlal Hargovind Das, Bidi Merchants, Jabalpur (M.P.) Vs. The State of Madhya Pradesh and Another, . The petitioners there were called upon to file their returns of the total purchase of tobacco made by them out of Madhya Pradesh with a view to assess and levy purchase tax. The return was filed under protest and the Sales tax Authorities, as it was required under the law, called upon the petitioners to deposit the purchase tax. No quasi-judicial determination was made, no decision was given after hearing the taxpayer, but deposit was asked to be made as that was a requirement of the statute. In a petition under Article 32 of the Constitution for a writ of mandamus restraining the State of Madhya Pradesh from enforcing Madhya Pradesh Act against the petitioners it was contended that the transactions were in the course of inter-State trade. The nature of the transaction was that finished tobacco which was supplied to the petitioners by the suppliers moved from the State of Bombay to the State of Madhya Pradesh and the transactions which were sought to be taxed were therefore in the course of inter-State trade and were not liable to tax by the State. That was not a case of misconstruction of any statue by any quasi-judicial authority but that was a case in which the very transaction was outside the taxing powers of the State and any action taken by the taxing authorities was one without authority of law. The statue did not give jurisdiction to the Authority to decide an inter-State transaction was an intra-State sale. If it had so done the statute would have been unconstitutional under Article 286(1)(a).

136. In Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, , notices were issued to the assessee enquiring him to attend with the documents and other evidence in support of his returns. In the last of these notices it was stated that on failure to produce the documents and evidence the case will be decided “on best judgment assessment basis”. The petitioner did not comply with the notices but filed a petition under Article 32 of the Constitution challenging the right of the authority to make a “best judgment assessment” on the ground that at the date of the last notice the sales tax authority had no right to proceed to make any “best judgment assessment” as the three years within which alone such assessment could be made had expired. This contention was held to be well founded. Indeed the respondent conceded that he could not contend to the contrary. This therefore was a case in which the taxing authority had no jurisdiction to take proceeding for assessment of tax because of the expiry of three years which had to be counted from the end of the each quarter in respect of which the return had been filed. The question was one of lack jurisdiction and it made no difference that the Sales tax Officer had misconstrued the provision.

137. Y. Mahaboob Sheriff and sons, Y. Mahaboob Sheriff and Others and S. Shamsoddin and Others Vs. Mysore State Transport Authority, Bangalore and Others, , was a case under the Motor Vehicles Act. The petitioners’ application for the renewal of the permits were granted by the Regional Transport Authority empowered to grant renewal for the period of one year. A petitioner Articles 226 and 227 of the Constitution was filed against the order of renewal after the usual appeals had been taken and proved unsuccessful and the petition was summarily dismissed. Thereafter a petition under Article 32 of the Constitution was filed in this Court and the question for determination was whether on a proper construction of the provision of section 58(1)(a) and (2) of the Motor Vehicles Act the period of renewal like in the case of original permit had to be not less than three and not more than five years. It was held that it had to be for that period as provided in sub-section (1)(a) of section 58 read with sub-section 2 of that section. This, it was submitted, was an authority for the proposition that where a provision is misconstrued by an authority having jurisdiction to construe a section a petition under Article 32 is competent In the first place the question as to whether Article 32 was applicable was not raised an was therefore not decided. Secondly what was held was that if the authority renewed a permit the renewal had to be for a particular period as specified in section 58 and could not be for a lesser period. The question was therefore of jurisdiction.

138. In Universal Imports Agency and Another Vs. The Chief Controller of Imports and Exports and Others, , the petitioners, in Pondicherry, entered before its merger with India, into firm contracts with foreign sellers and the goods agreed to be imported were shipped before or after the merger. The goods were confiscated by the Controller of Customs on the ground that they were imported without a license but as an option in lieu of confiscation the goods were released on payment of a fine. On a petition under Article 32 it was held by a majority that under paragraph 6 of the French Establishments (Application of Laws) Order 1954, the transactions in question fell within the words “things done” in the saving clause and were not liable to tax. This saving clause was contained in the Order applying Indian laws in place of the French laws. The construction was not of the taxing statute but of certain Orders by which the taxing statute had been applied to Pondicherry. These Orders the Taxing Officer had no power to construe and there was no law to support the order of the Collector. In any case this is an instance of want of jurisdiction to tax transactions which the law excludes from the taxing powers of the authority levying the tax. There again the question of the applicability of Article 32 to quasi-judicial determination was not raised.

139. There is one other class of cases of which Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, is an example. That was a case where the tax was of a confiscatory nature and the procedure was contrary to rules of natural justice. The imposition of land tax at a flat rate of Rs. 2 per acre imposed under the provisions of Travancore Cochin Land Tax Act (Act 15 of 1955) as amended by Travancore Cochin Land Tax Act (Act 10 of 1957) was held to be violative of Articles 14 and 19(1)(f). A taxing statute it was held by a majority of the Court, was not immune from attack on the ground that if infringes the equality clause under Article 14, and the tax was also held to be violative of Article 19(1)(f), because it was silent as to the machinery and procedure to be followed in making the assessment leaving to the executive to evolve the requisite machinery and procedure thus treating the whole thing as purely administrative in character and ignoring that the assessment on a person or property is quasi-judicial in character. It was also held that a tax of Rs. 2 was unreasonable as it was confiscatory in effect. The main ground on which the law was held to be an infringement of Article 19(1)(f) was the procedure or the want of procedure for imposing taxes and therefore its being opposed to rules of natural justice. Here again the vice was in the Act and not in any misinterpretation of it. No doubt the amount of the tax imposed was also held to be unreasonable because it was in effect confiscatory but this is not a matter which is necessary in the present case to go into as the question whether Article 19(1) applies to taxing laws or not was not debated by the parties before us. On the main contention as to the applicability of Article 32 these were the submissions of the learned Attorney-General.

140. A review of these cases shows that (1) the law which is ultra vires either because of the legislative incompetence or its contravention of some constitutional inhibition is a non-existing law and any action taken thereunder, quasi-judicial or otherwise, would be a contravention of Article 19(1)(f) and (g) and the result will be no different if it is a colourable piece of legislation; (2) where the proceedings are repugnant to the rules of natural justice the right guaranteed under Article 19(1)(f) and (g) are infringed; (3) the consequence is the same where assessment is made by an authority which has no jurisdiction to impose the tax and (4) if an administrative tribunal acting quasi-judicially misconstrues a provision which it has jurisdiction to construe and therefore imposes a tax infringement according of Article 19(1)(g) would result according to Kailash Nath and Another Vs. State of U.P. and Others, but there is no such infringement according to cases which the learned Additional Solicitor General relied upon and which have been discussed above. The reason why the decision in the latter cases is correct and the decision in Kailash Nath and Another Vs. State of U.P. and Others, is not have already been given and it is unnecessary to repeat them.

141. Mr. Palkhivala who intervened in C.M.P. 1496/61 in support of the petition in the main argued the question whether a misconstruction of a taxing statute can involve the violation of a fundamental right under Article 19(1)(g). His contention was that an erroneous construction which result in transgression of constitutional limits would violate Article (19)(1)(g) and that the difference between jurisdictional and non-jurisdictional error was immaterial and that a misconstruction of a statute can violate the right to trade and he relied upon Mohanlal Hargovind Das, Bidi Merchants, Jabalpur (M.P.) Vs. The State of Madhya Pradesh and Another, which was a case of inter-State sale and which has already been discussed. He also relied upon the decision in Rai Sahib Ram Jawaya Kapur and Others Vs. The State of Punjab, . In that case it was held that the acts of the Executive even if deemed to be sanctioned by the legislature can be declared void if they infringe any of the fundamental rights but no question of judicial determination by quasi-judicial tribunal arose there. Similarly in M/s. Ram Narain Sons Ltd. v. Asstt. Commissioner of Sales tax [1955] 2 S.C.R. 498 the question raised was of the meaning and scope of the proviso to Article 286(2) and therefore the question was one of inter-State sales sales which no statute could authorise to turn into intra-State sale by a judicial decision.

142. It was argued before us that the decision of a tribunal acting quasi-judicially operates as res judicata and further that the judgment of the High Court of Allahabad when it was moved by the petitioner under Article 226 of the Constitution against the order of assessment passed on the ground of misconstruction of the notification of December 14, 1957 also operates as res judicata as the appeal against that order has been withdrawn. The High Court rejected the petition under Article 227 firstly on the ground that there was an alternative remedy of getting the error corrected by way of appeal and secondly the High Court said :-

“We have, however, heard the learned counsel for the petitioner on merits also, but we are not satisfied that the interpretation put upon this notification by the Sales Tax Officer contains any obvious error in it. The circumstances make the interpretation advanced by the learned counsel for the petitioner unlikely. It is admitted that even hand-made biris have been subject to Sales tax since long before the date of the issue of the above notification. The object of passing the Additional Duties of Excise (Goods of Special Importance) Central Act, No. 58 of 1957 was to levy an additional excise duty on certain important articles and with the concurrence of the State Legislature to abolish Sales tax on those articles. According to the argument of the learned counsel for the petitioner during the period 14th December, 1957 to June 30, 1958, the petitioner was liable neither to payment of excise duty nor to payment of sales tax. We do not know why there should have been such an exemption. The language of the notification might well be read as meaning that the notification is to apply only to those goods on which an additional Central excise duty had been levied and paid.”

143. It is unnecessary to decide this question in this case.

144. It was next argued that the Sales tax Authorities are all officers of the State charged with the function of levy and collection of taxes which is essentially administrative and that when they act as quasi-judicial tribunals that function is only incidental to the discharge of their administrative function and therefore the assessment order of December 20, 1958, was an executive order and falls within Article 19(1)(g). Reference was made to Bidi Supply Co., v. The union of India (1956) S.C.R. 257 (at pp. 271 and 277), a case u/s 5(7-A) of the Income tax Act. At page 271 the definition of the word “State” is set out and at p. 277 Das, C.J., said that the “State” includes its Income tax Department. There is no dispute that the Sales tax Department is a department of the State and is included within the word “State” but the question is what is the nature and quality of the determination made by a Sales Tax Officer when he is performing judicial or quasi-judicial function. The argument of the learned Attorney General comes to this that even though in the performance of quasi-judicial functions that Taxing Officer may have many of the trappings of a court still he is not a court and therefore the decision of the taxing authority in the present case was not entitled to the protection which an erroneous decision of a proper court has : Chaparala Krishna Brahman Vs. Guduru Govardhanaiah, where it was held that the Income tax Officer is not a court within section 195 of the Criminal Procedure Code was cited in support of the contention that the taxing authority in the present case was not a court. So also Sell Co. of Australia Ltd. v. The Federal Commissioner of Taxation (1931) A.C. 275, where it was held that a Board of Revenue created by the Income tax Assessment Act to review the decision of Commissioner of Income tax is not a court exercising the judicial powers of the Commonwealth. At page 298 Lord Sankey. L.C., observed :

“An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so called. Mere externals do not make a direction to an administrative officer by an ad hoc tribunal an exercise by a court of judicial power”.

145. It was also observed in that case that there are tribunals with many of the trappings of a court, which nevertheless are not courts in the strict sense exercising judicial power. There is no gainsaying that Sales tax Officer is not a court even though he may have many of the trappings of a court including the power to summon witnesses, receive evidence on oath and making judicial determinations. In the strict sense of the term he is not a court exercising judicial power; but the question for decision in the present case is not whether he is a Court or not but whether the determination made by him in regard to the exemption available to the petitioners on the sale of biris was a decision made by a quasi-judicial authority in the exercise of its statutory powers and within its jurisdiction and therefore not an administrative act.

146. The characteristic of an administrative tribunal is that it has no ascertainable standards. It only follows policy and expediency which being subjective considerations are what a tribunal makes them. An administrative tribunal and acting as an administrative tribunal and acting as a judicial tribunal may be distinguished thus :

“Ordinarily ‘administrative’ tribunals need not act on legal evidence at all, but only on such considerations as they see fit. A statute requiring such evidence to be received prevents a tribunal’s making up its mind until it has given this evidence a chance to weigh with it. But it is a fallacy to assume that the tribunal is thereby limited to acting on that evidence. It is an ‘administrative’ tribunal it must till be governed by policy and expediency until it has heard the evidence, but the evidence need not influence its policy any further than it sees fit. A contrary view would involve the decision’s being dictated by the evidence, not by policy and expediency; but if certain evidence with it a right to a particular decision, that decision would be a decision on legal rights; so the tribunal would be administering ‘justice’ and would be exercising judicial not ‘administrative'”. 1933) L.Q.R. 424.

147. There are decisions of this court in which certain tribunals have been held judicial bodies; The Bharat Bank Ltd., Delhi Vs. Employees of the Bharat Bank Ltd., Delhi and The Bharat Bank Employees’ Union, Delhi, ; Province of Bombay Vs. Kusaldas S. Advani and Others, where Das, J., (as he then was) observed at p. 725 :

“that if a statutory authority has power to do any act which will prejudicially affect the subject then, although there are not two parties apart from the authority and the contest between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the statute to act judicially”.

148. See also Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, .

149. It is unnecessary again to examine in detail the provisions of the Act to determine the character of the Sales tax Officer when he takes assessment proceedings for they have already been referred to. They are all characteristics of judicial or quasi-judicial process and would clothe the Sales tax Officer making assessment orders with judicial or quasi-judicial character. Indeed, because the order of assessment was judicial or quasi-judicial the petitioner filed in the High Court a petition for certiorari and against that order an appeal under Article 136 as also a petition for certiorari under Article 32. Taking the nature of the determination by the Sales tax Officer in the instant case it cannot be said that he is purely an administrative authority or the order passed by him is an executive order; on the contrary when he is determining the amount of tax payable by a dealer, he is acting in a quasi-judicial capacity.

150. Mr. Chari, intervening on behalf of the State of Bihar, submitted that in Article 12 the judicial branch of the State was not included in the definition of the word “State” and the words “other bodies” there did not comprise a tribunal having jurisdiction to decide judicially and its decisions could not be challenged by way of a petition under Article 32 of the Constitution. In view of my decision that a quasi-judicial order of the Sales tax Officer is not challengeable by proceedings under Article 32, I do not think it necessary to decide the wider question whether the definition of the word “State” as given in Article 12 comprises the judicial department of the State or not.

151. In view of the decision as to the correctness of the decision in Kailash Nath and Another Vs. State of U.P. and Others, , it is not necessary in this case to go into the correctness or otherwise of the order of the Sales tax Officer. The petition under Article 32 therefore fails and is dismissed. There will be no orders as to costs.

(C.M.P. No. 1349 of 1961)

Kapur, J.

152. Messrs. Mohanlal Hargovind Das, the assessee firm had filed an appeal on a certificate of the Allahabad High Court against the order of the Court dismissing their petition under Article 226 of the Constitution challenging the imposition of the sales tax, on the ground that another remedy was available. The appeal against that order was dismissed by this Court for non-prosecution on February 20, 1961. Against that order of dismissal the assessee firm has filed an application for restoration on the ground that it had been advised that in view of the rule having been issued under Article 32 of the Constitution wherein the contentions were the same as raised in the appeal against the order under Article 226 it was unnecessary to prosecute the appeal. It also prayed for condonation of delay in filing the application for restoration.

153. No sufficient cause has been made out for allowing the application for restoration. The assessee firm deliberately allowed the appeal, which was pending in this Court, to be dismissed for non-prosecution and after deliberately taking that step it cannot be allowed to get the dismissal set aside on the ground of wrong advice. The application for restoration is therefore dismissed with costs.

Sarkar, J.

154. I have had the advantage of reading the judgments just delivered by my brothers Das and Kapur and I am in agreement with them.

Subba Rao, J.

155. I have carefully gone through the judgment prepared by my learned brother Kapur, J. I am unable to agree. The facts have been fully stated in his judgment and it is therefore not necessary to cover the ground over again.

156. This larger Bench has been constituted to canvass the correctness of the decision in Kailash Nath and Another Vs. State of U.P. and Others, . After hearing the elaborate arguments of learned counsel, I am convinced that no case has been made out to take a different view.

157. Learned Attorney General seeks to sustain the correctness of the said decision. He broadly contends that this Court is the constitutional protector of the fundamental rights enshrined in the Constitution, that every person whose fundamental right is infringed has a guaranteed right to approach this Court for its enforcement, and that it is not permissible to whittle down that jurisdiction with the aid of doctrines evolved by courts for other purposes. He argues that in the present case an executive authority functioning under the Uttar Pradesh Sales Tax Act, 1948 (Act XV of 1948), hereinafter called the Act, made a clearly erroneous order imposing tax on exempted goods, namely bidis, and that it is a clear infringement of the fundamental right of the petitioner to carry on business in bidis. Whenever such a right is infringed, the argument proceeds, by a State action – here we are only concerned with State action – it is the duty of this Court to give the appropriate relief and not to refuse to do so on any extraneous considerations.

158. The Additional Solicitor General appearing for the State does not admit this legal position. He says that the Act is a reasonable restriction on the petitioner’s right to carry on business in bidis, that thereunder a Sales-Tax Officer has jurisdiction to decide, rightly or wrongly, whether bidis are exempted from sales-tax, and that, therefore, his order made with jurisdiction cannot possibly infringe the fundamental rights of the petitioner.

159. Mr. Chari, who appears for the intervener, while supporting the argument of learned Solicitor General emphasizes the point that the fundamental rights enshrined in Article 19(1)(g) of the Constitution in only against State action, that the definition of “State” in Article 12 thereof excludes and authorities exercising judicial power, and that sales-tax authority, in making the assessment in exercising judicial power, and that, therefore, no writ can be issued by this Court against the said authority.

160. Before attempting to answer the questions raised, it is relevant and convenient to ascertain precisely the position of the fundamental rights under the Constitution and the scope of the jurisdiction of this Court in enforcing those rights.

161. Fundamental rights are enshrined in Part III of the Constitution as the paramount right of the people. Article 13(2) prohibits the State from making any law which takes away or abridges the rights conferred by the said Part and declares that any law made in contravention of this clause shall, to the extent of the contravention, be void. These right may be broadly stated to relate to (i) right to equality – Articles 14 to 18, (ii) right to freedom – Articles 19 to 22, (iii) right against exploitation – Articles 23 and 24, (iv) right to freedom of religion – Articles 25 and 28, (v) cultural and educational rights – Articles 29 and 30, (vi) right to property – Articles 31 and 31A, and (vii) right to constitutional remedies – Articles 32 to 35. These are the inalienable rights of the people of this country – some of them of non-citizens also – believed to be necessary for the development of human personality; they are essential for working out one’s way of life. In theory these rights are reserved to the people after the delegation of the other rights by them to the institutions of Government created by the Constitution, which expresses their will : see observations of Patanjali Sastri, J., as he then was, in A.K. Gopalan Vs. The State of Madras, . In The State of Madras Vs. Srimathi Champakam Dorairajan, the same idea was more forcibly restated thus :

“The chapter of Fundamental Rights is sacrosanct and not liable to abridged by any legislative or Executive Act or order, except to the extent provided in the appropriate article in Part III. The directive principles of State Policy have to conform to and run as subsidiary to the Chapter of Fundamental Rights.”

162. In the context of fundamental right, an important principle should be borne in mind, namely, that the English idea of legislative supremacy is foreign to our Constitution. As this Court pointed out in A.K. Gopalan Vs. The State of Madras, the Constitution has not accepted the English doctrine of absolute supremacy of Parliament in matters of legislation. therefore, every institution, be it the Executive, the Legislature of the Judiciary, can only function in exercise of the powers conferred on it that is, the Constitution is the paramount law. As the Constitution declares the fundamental rights and also prescribes the restrictions that can be imposed thereon, no institutions can overstep the limits, directly or indirectly, by encroaching upon the said rights.

163. But a mere declaration of the fundamental rights would not be enough, and it was necessary to evolve a machinery to enforce them. So our Constitution, entrusted the duty of enforcing them to the Supreme Court, the highest judicial authority in the country. This Court has no more important function than to preserve the inviolable fundamental rights of the people; for, the fathers of the Constitution, in their fullest confidence, have entrusted them to the care of this Court and given to it all the institutional conditions necessary to exercise its jurisdiction in that regard without fear of favour. The task is delicate and sometimes difficult; but this Court has to discharged it to the best of its ability and not to abdicate it on the fallacious ground of inability or inconvenience. It must be borne in mind that our Constitution in effect promises to usher in a welfare State for our country; and in such a state the Legislature has necessarily to create innumerable administrative tribunals, and entrust them with multifarious functions. They will have powers to interfere with every aspect of human activity. If their existence is necessary for the progress of our country, the abuse of power by them may bring about an authoritarian or totalitarian state. The existence of the aforesaid power in this Court and the exercise of the same effectively when the occasion arise is a necessary safeguard against the abuse of the power by the administrative tribunals.

164. The scope of the power of this Court under Article 32 of the Constitution has been expounded by this Court on many occasions. The decisions not only laid down the amplitude of the power but also the mode of exercising that power to meet the different situations that might present themselves to this Court. In Romesh Thappar Vs. The State of Madras, this Court declared that under the Constitution the Supreme Court constituted as the protector guarantor of fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, although such applications are made to the Court in the first instance without resort to a High Court having concurrent jurisdiction in the matter. This Court again in Rashid Ahmed Vs. The Municipal Board, Kairana, pointed out that the powers given to this Court under Article 32 of the Constitution are much wider and are not confined to issuing prerogative writs only. This Court further elucidated the scope of the jurisdiction in T.C. Basappa Vs. T. Nagappa and Another, , wherein Mukherjee, J., speaking for the Court defined the scope of the power thus :

“In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges.”

165. This Court again elaborated the scope of its power under that Article in Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959) Supp. 2 S.C.R. 316. Das, C.J., after reviewing the earlier case law on the subject observed :

“Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now – this Court cannot, on a similar ground, decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right.”

166. In that case it was pressed upon this Court to hold that in exercise of its power under Article 32 of the Constitution, this Court could not embark upon an enquiry into disputed questions of fact, and various inconveniences were pointed out if it was otherwise. After considering the cases cited in support of that contention, this Court came to the conclusion that it would fail in its duty as the custodian and protector of fundamental rights if it was to decline to entertain a petition under Article 32 simply because it involved the determination of disputed questions of fact. When it was pointed out that if that view was adopted, it might not be possible for this Court to decide questions of fact on affidavits, the learned Chief Justice observed :

“As we have already said, it is possible very often to decide questions of fact on affidavits. If the petitions and the affidavits in support thereof are not convincing and the court is not satisfied that the petitioner has established his fundamental right or any breach thereof, the court may dismiss the petition on the ground that the petitioner has not discharged the onus that lay on him. The court may, in some appropriate cases, be inclined to give an opportunity to the parties to establish their respective cases filing further affidavits or by issuing a commission or even by setting the application down for trial on evidence, as has often been done on the original sides of the High Courts of Bombay and Calcutta, or by adopting some other appropriate procedure. Such occasions will be rare indeed and such rare cases should not, in our opinion, be regarded as a cogent reason for refusing to entertain the petition under Article 32 on the ground that it involves disputed questions of fact.”

167. Finally, this Court also held that in appropriate case it had the power, in its discretion, to frame writs or orders suitable to the exigencies created by enactments and that where the occasion so required to make even a declaratory order with consequential relief. In short, this decision recognized the comprehensive jurisdiction of this Court under Article 32 of the Constitution and gave it full effect without putting any artificial limitations thereon. But in Daryao and Others Vs. The State of U.P. and Others, , this Court applied the doctrine of res judicata and held that the petitioners in that case had no fundamental right, as their right on merits was defined by the High Court in a petition under Article 226 of the Constitution and that as no appeal was filed therefrom, it has become final. But the learned Judges carefully circumscribed the limits of the doctrine in its application to a petition under Article 32. Gajendragadkar, J., speaking for the Court observed :

“If the petition filed in the High Court under Article 226 is dismissed not on the merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32. If a writ petition is dismissed in limine and an order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend upon the nature of the order. If the order is on the merits it would be a bar; if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not be a bar, except in cases which we have already indicated. If the petition is dismissed in limine without passing a speaking order then such dismissed cannot be treated as creating a bar or res judicata. It is true that, prima facie, dismissal in limine even without passing a speaking order in that behalf may strongly suggest that the Court took the view that there was no substance in the petition at all; but in the absence of a speaking order it would not be easy to decide what factors weighed in the mind of the Court and that makes it difficult and unsafe to hold that such a summary dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 32. If the petition is dismissed as withdrawn it cannot be a bar to a subsequent petition under Article 32, because in such a case there has been no decision on the merits by the Court.”

168. Though this decision applies the doctrine of res judicata, the aforesaid observations indicate the anxiety of the Court to confine it within the specified limits and to prevent any attempt to overstep the said limits. Shortly stated it is settled law that Article 32 confers a wide jurisdiction on this Court to enforce the fundamental right, that the right to enforce a fundamental right is itself a fundamental right, and that it is the duty of this Court to entertain an application and to decide it on merits whenever a party approaches it to decide whether he has a fundamental right or if so whether it has been infringed irrespective of the fact whether the question raised involves a question of law or depends upon questions of fact. The doctrine of res judicata applied by this Court does not detract from the amplitude of the jurisdiction, but only negatives the right of a petitioner on the ground that a competent court has given a final decision against him in respect of the right claimed.

169. In this case a further attempt is made on behalf of the State to restrict the scope of the Court’s jurisdiction. Uninfluenced by judicial decisions, let us approach the question on principle. An illustration arising on the facts of the present case will highlight the point to be decided. A citizen of India is doing business in bidis. He has fundamental right to carry on that business. The State Legislature enacts the Sales Tax Act imposing a tax on the turnover and on the sales of various goods, but gives certain exemptions. It expressly declares that no tax shall be levied on the exempted goods. The said law is a reasonable restriction on the petitioner’s fundamental right to carry on the business in bidis. Now on a true construction of the relevant provisions of the Act, no tax is leviable on bids. But on a wrong construction of the relevant provisions of the Act, the Sales-tax Officer imposes a tax on the turnover of the petitioner relating to the said bidis. He files successive statutory appeals to the hierarchy of tribunals but without success. The result is that he is asked to pay tax in respect of the business of bidies exempted under the Act. The imposition of the said illegal tax on the turnover of bidis is certainly an infringement of his fundamental right. He comes to this Court and prays that his fundamental right may be enforced against the Sales-tax Officer. The Officer says, “It may be true that my order is wrong; it may also be that the Supreme Court may hold that my construction of the section as accepted by the highest tribunal is perverse; still, as under the Act I have got the power to decide rightly or wrongly, my order though illegal operates as a reasonable restriction on the petitioner’s fundamental right to carry on business.” This argument, in my view, if accepted, would in effect make the wrong order of the Sales-tax Officer binding on the Supreme Court, or to state it differently, a fundamental right can be defeated by a wrong order of an executive officer, and this Court would become a helpless spectator abdicating its functions in favour of the subordinate officer in the Sales-tax Department. The Constitution says in effect that neither the Parliament nor the Executive can infringe the fundamental rights of the citizens, and if they do, the person affected has a guaranteed right to approach this Court, and this Court has a duty to enforce it; but the Executive authority says, “I have a right to decide wrongly and, therefore the Supreme Court cannot enforce the fundamental right”. There is nothing in the Constitution which permits such an extraordinary position. It cannot be a correct interpretation of the provisions of the Constitution if it enables any authority to subvert the paramount power conferred on the Supreme Court.

170. It is conceded that if the law is invalid, or if the officer acts with inherent want of jurisdiction, the petitioner’s fundamental right can be enforced. It is said that if a valid law confers jurisdiction on the officer to decide rightly or wrongly, the petitioner has no fundamental right. What is the basis for this principle ? None is discernible in the provisions of the Constitution. There is no provision which enables the Legislature to make an order of an executive authority final so as to deprive the Supreme Court of its jurisdiction under Article 32 of the Constitution.

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

172. Now let us consider the decisions cited at the Bar which would throw some light on the nature of such tribunals. In considering whether the Board of review created by section 41 of the Federal income tax Assessment Act, 1922-25 was a judicial authority, the Judicial Committee in Shell Company of Australia Limited v. Federal Commission of Taxation (1930) A.C. 275 observed.

“The authorities are clear to show that there are tribunals with many of the trappings of a Court which, nevertheless, are not Courts in the strict sense of exercising judicial power.”

173. The Judicial Committee further observed :

“An administrative tribunal may act judicially, but still remain an administrative tribunal as distinguished from a Court, strictly so-called. Mere externals do not make a direction to an administrative officer by and ad hoc tribunal an exercise by a Court of judicial power.”

174. The Allahabad High Court in Kamlapat Moti Lal Vs. Commissioner, Income Tax, held that the income tax authorities are not courts and, therefore, their decisions cannot operate as res judicata. Malik, C.J., observed :

“The income tax authorities cannot be treated as Courts deciding a disputed point, except for the purposes mentioned in section 37, and further there is no other party before them and there are no pleadings. As has been said by Lord Herschell in Boulter v. Kent Justices (1897) A.C. 556.”

“There is no truth, no lis, no controversy inter parties, and no decision in favour of one of them and against the other, unless, indeed, the entire public are regarded as the other party”.

175. The income tax authorities are mainly concerned with finding out the assessable income for the year and not with deciding any question of tile. But to arrive at that income they have at times to decide certain general questions which might affect the determination of the assessable income not only in the year in question but also in subsequent years…..

176. An assessment is inherently of a passing nature and it cannot provide an estoppel by res judicata in later years by reason of a matter being taken in to account or not being taken into account by the income tax Officer in an earlier year of assessment.”

177. An instructive discussion on the question whether an income tax Officer is a court within the meaning of section 195 of the Code of Criminal Procedure is found in Chaparala Krishna Brahman Vs. Guduru Govardhanaiah, , where Balakrishna Ayyar, J., after considering the case law on the subject and the provisions of the income tax Act, held that an income tax officer was not a “court”. The learned Judge did not think that the adaptation of norms of judicial procedure or the fact that appeals were provided for, was sufficient to make them courts. The learned Judge observed :

“When exercising his powers under Chapter IV of the Act, it seems to me, that the income tax Officer is acting in a purely administrative capacity. It is his duty to ascertain what the income of the particular individual is and what amount of tax he should be required to pay. There is therefore no ‘lis’ whatever before him.”

178. The same reasoning would equally apply to sales-tax authorities. This Court in Bidi Supply Co. v. The Union of India , speaking through Das, C.J., set aside the order of an income tax Officer and in doing so observed :

“Here, ‘the State’ which includes its income tax Department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of the laws and the petitioner can legitimately complain of an infraction of his fundamental right under article 14 of the Constitution.”

179. Though this cannot be called a direct decision on the question raised in the present case, it indicates that this Court treated the income tax Officer as a department of the executive branch of the Government. This Court again in Gullapalli Nageswara Rao v. State of Andhra Pradesh [1959] Supp. 1 S.C.R. 319 pointed out the distinction between a quasi-judicial act of an Executive authority and the judicial act of a court thus :

“The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of its executive powers.”

180. It is, therefore, clear that administrative tribunal cannot be equated with courts. They are designed to discharge functions in the exercise of the executive power of the State, and the mere fact that the relevant statutes, with a view of safeguard the interest of the people, direct them to dispose of matters coming before them following the principle of natural justice and by adopting the same well known trappings of judicial procedure, does not make them any the less the executive organs of the State. It is not possible to apply the principle of res judicata to the orders of such tribunals, for obviously section 11 of the CPC dose not apply to such orders, and the general principle of res judicata de’hors that provision has never been applied to such orders. It is true that some statutes expressly or by necessary implication oust the jurisdiction of civil Courts in respect of Certain matters but such exclusion can-not affect the extraordinary powers of superior courts conferred under Articles 226, 227 and 32 of the Constitution.

181. There is a simpler answer to the plea of res judicata. In the present case the Sales tax authorities decided the case against the petitioners. The petitioners are seeking the help of this Court under Article 32 of the Constitute to enforce their fundamental rights on the ground that he said order infringes their rights. To put it differently, the petitioners by this application question the orders of the Sales-tax authority. How it is possible to contend that the order which is now sought to be quashed can operate as res judicata precluding this Court from questioning its correctness ? The principle underlying the doctrine of res judicata is that no one shall be vexed twice on the same matter. This implies that there should be two proceedings, and that in a former proceeding in a court of competent jurisdiction, an issue has been finally decided inter parties and therefore the same cannot be reagitated in a subsequent proceeding. On the said principle the impugned order itself cannot obviously be relied upon to sustain the plea of res-judicata.

182. The argument ab-inconvenienti does not appeal to me. As it is the duty of this Court to enforce a fundamental right of a party if any authority has infringed his right, considerations based upon inconvenience are of no relevance. It is suggested that if the jurisdiction of this Court is not restricted in the manner indicated, this Court will be flooded with innumerable petitions. Apart from the fact that this is not a relevant circumstance, a liberal interpretation of Article 32 has not had that effect during the ten years of this Court’s existence, and I do not see any justification for such an apprehension in the future. It is further said that if a wider interpretation is given namely, that if this Court has to ascertain in each case whether a statutory authority has infringed a fundamental right or not, it will have to decide complicated questions of fact involving oral and documentary evidence, and the machinery provided under Article 32 of the Constitution is not adequate to discharge that duty satisfactory. This again is an attempt to cloud the issue. It the jurisdiction is there and there are difficulties in the way, this Court will have to evolve by convention or otherwise some procedure to avoid the difficulties. A similar argument of inconvenience was raised in Kavalappara Kottarathil Kochuani Moopil Nayar v. State of Madras ([1959] Supp.) and was negatived by this Court. This Court evolved a procedure to meet some of the difficult situations that might arise in particular cases. That apart, this Court also may evolve or mould further rules of practice to suit different contingencies. If a party comes to this Court for enforcement of a fundamental right the existence whereof depends upon proof of facts and the said party has not enhausted the remedies available to him by going through the hierarchy of tribunal created by a particular Act, this court, if the party agrees, may allow him to withdraw the petition with liberty to file it at a later stage, or, if the party does not agree, may adjourn it Sine die till after the remedies are exhausted. If, on the other hand the party comes here after exhausting his remedies and after the tribunals have given their findings of fact, this Court may ordinarily accept the findings of fact as it does in appeals under Article 136 of the Constitution. If the party complains that the order made against him by a tribunal is based upon a wrong construction of the provisions of a statute, this Court may ascertain whether on a correct interpretation of the statute, the petitioner’s fundamental right has been violated. There may be many other situations, but I have no doubt that this Court will deal with them as and when they arise. I would, therefore, unhesitatingly reject the argument based on inconvenience.

183. I shall now proceed to deal with the main argument advanced by learned counsel for the respondent. Briefly stated, the argument is that the Sales-tax Officer has jurisdiction to construe rightly or wrongly the provisions of the Act, which is a valid law, and that even if the said authority wrongly constructed a provision of the Act and imposed the tax, though on a right construction of the said provision it cannot be so imposed, the said order does not infringe the fundamental right of the petitioner. With respect, if I may say so, this argument equates the guaranteed right of a citizen under Article 32 of the Constitution with that of the prerogative writs obtaining in England, such as writs of certiorari, prohibition and mandamus issued against orders of inferior tribunals or authorities. This also confuses the fundamental right enshrined in Article 32 of the Constitution with one or more of the procedural forms this Court may adopt to suit each occasion. The approach to the two question is different. The jurisdiction of the Supreme Court under Article 32 is couched in comprehensive phraseology and, as pointed out earlier, is of the widest amplitude : it is not confined to the issue of prerogative writs, for the Supreme Court has power to issue directions or orders to enforce the fundamental right; even in respect of issuing the said writs, this Court is not oppressed by the procedural technicalities of the prerogative writs in England. While under Article 32 this Court may, for the purpose of enforcing a fundamental right, issue a writ of certiorari, prohibition or mandamus, is a suitable case, it may give the relief even in a case not reached by the said writs. The limitations imposed on the prerogative writs cannot limit the power of the Supreme Court under Article 32 of the Constitution. In order a writ of certiorari may lie against a tribunal, the said tribunal must have acted without jurisdiction or in excess of jurisdiction conferred upon it by law or there must be some error of law apparent on the face of the record. There are similar limitations in the case of writs of prohibition and mandamus. In the context of the issue of the said writs, courts were called upon to define what “jurisdiction” means. Jurisdiction may be territorial, pecuniary, or personal. There may be inherent want of jurisdiction or irregular exercise of jurisdiction. A tribunal may have power to decide collateral facts for the purpose of assuming jurisdiction; or it may have exclusive jurisdiction to decide even the said facts. In Halsbury’s Laws of England, 3rd edn., Vol. III, the scope of the power of mandamus, prohibition and certiorari is stated thus at p. 59 :

“The primary function of the three orders is to prevent any excess of jurisdiction (prohibition land certiorari; or to ensure the exercise of jurisdiction (mandamus). The jurisdiction of inferior tribunals may depend upon the fulfilment of some condition precedent (such as notice) or upon the existence of some particular fact. Such a fact is collateral to the actual matter which the inferior tribunal has to try, and the determination whether it exists or not is logically and temporally prior to the determination of the actual question which the inferior tribunal has to try. The inferior tribunal must itself decide as to the collateral fact : when, at the inception of an inquiry by a tribunal of limited jurisdiction a challenge is made to its jurisdiction, the tribunal has to make up its mind whether it will act or not, and for that purpose to arrive at some decision on whether it has jurisdiction or not.”

“There may be tribunals which, by virtue of legislation constituting them, have the power to determine finally the preliminary facts on which the further exercise of their jurisdiction depends; but, subject to that, an inferior tribunal cannot, by a wrong decision with regard to a collateral fact, give itself a jurisdiction which it would not otherwise possess or deprive itself of a jurisdiction which it otherwise would possess”.

184. It is clear from this passage that a tribunal may have to decide collateral facts to exercise its jurisdiction, but unless the relevant statute confers an exclusive jurisdiction on that tribunal, it cannot wrongly clutch at jurisdiction which it has not or refuse to exercise jurisdiction which it possesses. The doctrine of jurisdiction with its limitations may be relevant in the matter of issue of prerogative writs to quash the orders of tribunals made without or in excess of jurisdiction, but the said restrictions cannot limit the power of the Supreme Court in enforcing the fundamental rights, for under Article 32 of the Constitution for enforcing the said rights it has power to issue to directions or orders uncontrol by any such limitations. That apart, even within the narrow confines of the doctrine of jurisdiction, it is wrong to confine the jurisdiction to inherent want of jurisdiction. A person, who has within the narrow confines of the doctrine of no authority to function under an Act, if he purports to act under that Act, his order will be no doubt without jurisdiction. If an authority by a wrong construction of a section purports to exercise jurisdiction under an Act which it does not possess at all, it may again be described as inherent want of jurisdiction. But there may be a many cases on the border line between inherent went of jurisdiction and exercise of undoubted jurisdiction. The authority may have jurisdiction, to decide certain disputes under an Act, but by a wrong construction of the provisions of the Act, it may make an order affecting a particular subjecting-matter, which, on a correct interpretation, it cannot reach. By a slight modification of the facts arising in the present case, the point may illustrated thus : A provision of the Sales-tax Act says that the sale of bidis is not taxable; the statute prohibits taxation of bidis; but the Sales-tax Officer on a wrong construction of the provision holds that hand-made bidis are taxable; on a correct interpretation, the Act does not confer any power on the Sales-tax Officer to tax such bidis. In such a case on a wrong interpretation of the provisions of the Act, he has exercised jurisdiction in respect of a subject-matter, which, on their correct interpretation, he does not possess. In a sense he acts without jurisdiction in taxing goods which are not taxable under the Act.

185. The criterion of jurisdiction must also fail in a case where an aggrieved party approaches this Court before the Sales-tax authority makes its order. A Sales-tax authority may issue only a notice threatening to take action under the Act : at that point of time, there is no decision by the tribunal. The person to whom notice is given approaches this Court and complains that the authority under the colour of the Act proposes to infringe his fundamental right; in that case, if this Court is satisfied that his fundamental right is infringed, it has a duty to enforce it. But it is said that when the Sales-tax Act provides a machinery for getting the validity of his claim tested by the tribunals, he must only resort to that machinery. This argument may be relevant to the question whether a civil courts jurisdiction is ousted in view of the special machinery created by a statute, but that circumstance cannot have any bearing on the question of enforcement of fundamental rights, for no low can exclude the jurisdiction of this Court under Article 32 of the Constitution. Nor is the argument that if a citizen comes to this Court when the proceeding before the Sales-tax authorities is in the midstream, this Court will be permitting a citizen to short-circuit the rest of the procedure laid down by the Act, has any relevance to the question of its jurisdiction under Article 32. This may be an argument of inconvenience and this Court, as has already been indicated, may adjourn the case till the entire proceedings come to an end before the highest Sales-tax authority. This argument of inconvenience cannot obviously arise when a party approaches this Court after availing himself of all the remedies available to him under the Act.

186. I would, therefore, hold that the principles evolved by the courts in England and accept by the courts in India governing the issue of prerogative writs cannot circumscribe the unlimited power of the Supreme Court to issue orders and directions for the enforcement of the fundamental rights. Even otherwise, in cases similar to those covered by the illustration Supra, a prerogative writ can be issued for quashing the order of an inferior tribunal, and a fortiori an order can be issued for enforcing a fundamental right under Article 32 of the Constitution.

187. Even if the said legal position be wrong, the present case falls within the limited scope of the principle governing the issue of a writ of certiorari. In Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, , the scope of that power vis-a-vis an error of law has been stated thus :

“It may therefore be taken as settled that a writ of certiorari could be issued to correct an error of law. But it is essential that it should be something more than a mere error; it must be one which must be manifest on the face to the record. The real difficulty with reference to this matter, however, is not so much in the statement of the principle as in its application to the facts of a particular case. When does an error case to be mere error, and become an error apparent on the face of the record ? Learned counsel on either side were unable to suggest any clear-cut rule by which the boundary between the two classes of errors could be demarcated. Mr. Pathak for the first respondent contended on the Strength of certain observations of Chagla, C.J., in Batuk K. Vyas Vs. Surat Borough Municipality and Others, , that no error could be said to be apparent on the face of the record if it was not self-evident, and if it required an examination or argument to establish it. This test might afford a satisfactory basis for decision in the majority of cases. But there must be cases in which even this test might break down, because judicial opinions also differ, and an error that might be considered by one Judge as self-evident might not be so considered by another. The fact is that what is an error apparent on the face of the record, cannot be defined precisely or exhaustively there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case.”

188. Whether there is an error of law on the face of the record can be determined only on the facts of each case, and, as this Court pointed out, and error that might be considered as self-evident by one Judge may not be so considered by another. Except perhaps in a rare case, it is always possible to argue both ways. I would not, therefore, attempt to law down a further criterion then that which has been accepted by this Court, namely, that the question must be left to be determined judicially on the facts of each case. In the present case, the recitals in the notification clearly disclose that there is an error of law on the face of the order of the tribunals. If that error is corrected, as we should do, the position is that the Sales-tax tribunals imposed a tax on the sales transactions of biris which they had no power to do. In that event, there is a clear infringement of the fundamental rights of the petitioners to carry on business in biris.

189. Now let us look at the decisions of this Court to ascertain whether all or any of them have applied the criterion of jurisdiction in the matter of enforcement of fundamental right of a citizen.

190. Where u/s 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, the Controller was given jurisdiction to determine whether there was non-payment of rent or not, as well as the jurisdiction on finding that there was non-payment of rent, to order eviction of a tenant, it was held by this Court in Rai Brij Raj Krishna and Another Vs. S.K. Shaw and Brothers, that even if the Controller has wrongly decided the question whether there had been non-payment of rent, his order for eviction on the ground that there had been non-payment of rent could not be questioned in a civil court. This decision has nothing to do with the scope of this Court’s power to enforce a fundamental right, but it deals only with the question of the ouster of the civil court’s jurisdiction when a special tribunal is created to finally decide specific matters. In Mohanlal Hargovind Das, Bidi Merchants, Jabalpur (M.P.) Vs. The State of Madhya Pradesh and Another, when the Sale-tax authorities of Madhya Pradesh on a wrong view of the transactions carried on by the petitioners therein, held that the said transactions were intra-State transactions and on that basis required them to file a statement of return of total purchase of tobacco made by them, this court, on a correct view of the transactions came to the conclusion that they related to inter-State trade and, on that view, enforced the fundamental right of the petitioners. Though there was no decision of the Sales-tax authorities that the transactions were intra-State, the notice was on that basis; but yet that did not prevent this Court from coming to a different conclusion and enforcing the fundamental right of the petitioners. In Ram Narain Sons Ltd. Vs. Asst. Commissioner of Sales Tax and Others, the Sales-tax authorities determined the turnover of the petitioners including therein the proceeds of sales held by them to be intra-State transactions. This Court held, considering the nature of the transactions once again, that they were not sales inside the State and were only sales in the course of inter-State trade and commerce, and, on that basis, enforced the fundamental right of the petitioners. This Court again enforced the fundamental rights of the petitioners in J.V. Gokal and Co. (Private) Ltd. Vs. The Assistant Collector Sales-tax (Inspection) and Others, by reversing the finding of the Sales-tax Officer, who had held that the sales in that case were intra-State and holding that they were made in the course of import.

191. Ignoring the first decision wherein there was no order of the Sales-tax Officer on merits, in the other two decisions, the Sale-tax Officer in exercise of his jurisdiction decided on the facts before him that the sales were intra-State sales, whereas this Court on a reconsideration of the facts held that they were outside sales. The criterion of jurisdiction breaks in these cases, for the Sales-tax Officer has inherent jurisdiction to decide the question whether the sales were inside sales or outside sales. But an attempt is made to distinguish these cases on the ground that by a wrong view of the transactions, the sales-tax Officer violated the provisions of Article 286 of the Constitution, and therefore he had no inherent jurisdiction to impose the tax. There are no merits in this distinction. The Sales-tax Officer had jurisdiction to decide under the relevant sales-tax Act whether a transaction was inside or outside sale. He had the jurisdiction to decide rightly or wrongly; on the basis of his finding, though a wrong one, the sales were not exempt from taxation. If, on the facts of the case, the Sales-tax Officer had arrived at the correct conclusion, he would not have any power to impose a tax on inter-State sales under the Act; he would also have infringed Article 286 of the Constitution, if he had imposed a tax on such a sale. The absence of jurisdiction or want of power in one case was traceable to a statutory injunction, and in the other to a constitutional prohibition; but that in itself cannot sustain the distinction in the application of the criterion of jurisdiction, for the either case the said wrong finding of fact was the root of the error.

192. The decision of this Court in Kailash Nath and Another Vs. State of U.P. and Others, , which necessitated the reference to this Bench, is another instance where this Court enforced the fundamental right of the petitioner by accepting an interpretation of the provisions of the Sales-tax Act different from that put upon them by the Sales-tax authority. There, as in the present case, the question depended upon the interpretation of the terms of a notification issued u/s 3 of the Sales-tax Act exempting certain goods from taxation. It is said that the view of this Court wad based upon the judgments of this Court enforcing fundamental rights on the ground that the impugned provisions whereunder tax was levied were ultra vires. But the objection taken before this Court in that case was that the imposition of an illegal tax would not entitle a citizen to invoke Article 32 of the Constitution, but he must resort to the remedies available under the ordinary law or proceed under Article 226 of the Constitution. But that argument was negatived on the basis of the decisions cited before them. The test of jurisdiction now sought to be applied was not directly raised in that Case. It cannot therefore be said that this Court went wrong by relying upon irrelevant decisions. The discussion shows that this Court held in the manner it did as it came to the conclusion that a fundamental right had been clearly infringed by a wrong interpretation of the notification.

193. Let me now consider the decisions of this Court which are alleged to have departed from the view expressed in that case. In Gulabdas and Co. and Another Vs. Assistant Collector of Customs and Others, , the petitioners were established importers holding quota rights for importing stationery articles and having their places of business in Calcutta. They had a licence for a period of 12 months to import goods known as “Articles’ Materials” falling under Serial No. 168(C) of Part IV of the Policy Statement. Item No. 11 of Appendix XX annexed to the Import Trade Control Policy Book was described as “Crayons”. The petitioners, on the basis of the licence, imported “Lyra” brand crayons. The Assistant Collector of Customs instead of assessing duty on them under item 45(A), assessed duty under item 45(4) of the Indian Customs Tariff. On appeal the Central Board of Revenue confirmed it. It was argued, inter alia, that the Customs authorities imposed a duty heavier than the goods had to bear under the relevant provisions. This Court held that no question of fundamental right arose in that case. In that context, the following observations were made.

“If the provision of law under which the impugned orders have been passed are good provisions and the orders passed are with jurisdiction, whether they be right or wrong on facts, there is really no question of the infraction of a fundamental right. If a particular decision is erroneous on facts or merits, the proper remedy is by way of an appeal.”

“If the petitioner were aggrieved by the order of the Central Board of Revenue they had a further remedy by way of an application for revision to the Central Government….. All that is really contended is that the orders are erroneous on merits. That surely does not give rise to the violation of any fundamental right under Article 19 of the constitution”.

194. In that case, on facts, the Customs authorities held that the petitioners were liable to pay a particular duty on the goods, and this Court accepted that finding and, therefore, no question of fundamental right arose. But, if on the other hand the observations meant that the order of the Customs authorities was binding on this Court, I find it difficult to accept that view. It is one thing to say that this Court ordinarily will accept the findings of administrative tribunals on questions of fact, and it is another to say that the said finding are binding on this Court. I do not think that this Court intended to lay down that the findings of administrative tribunals are binding on this Court, however, erroneous or unjust the said findings may be. This Court again in Bhatnagars and Co. Ltd. Vs. The Union of India (UOI), accepted the findings of fact recorded by the relevant Customs authorities, and observed :

“Essentially the petitioner’s grievance is against the conclusions of fact reached by the relevant authorities. If the said conclusion cannot be challenged before us in the present writ petition, the petitioner would obviously not be entitled to any relief of the kind claimed by him.”

195. The finding arrived at by the Customs authorities was that, though the licences were obtained by the petitioner in his name, he had been trafficking in those licences, that the consignments had been ordered by another individual, that the said individual held no licence for import of soda ash and as such the consignments received by the said individual were liable to be confiscated. The finding was purely one of fact, and this Court accepted : it as correct : on that basis, no question of fundamental right would arise. The decision in The Parbhani Transport Co-operative Society Ltd. Vs. The Regional Transport Authority, Aurangabad and Others, related to the fundamental right of the petitioner therein to carry on the business of plying motor buses as stage carriages. The State applied for permits for all these routes under Ch. IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 1956, and the petitioner’s applied for renewal of its permit. The Regional Transport Authority rejected the petitioner’s right and granted the permit to the State. One of the contentions raised was that the provisions of Article 14 of the Constitution had been infringed. This Court held that the Regional Transport Authority, on the facts, had held that there was no discrimination. Dealing with that contention, this Court observed :

“This contention is in our view clearly untenable. The decision of respondent No. 1 may have been right or wrong and as to that we say nothing, but we are unable to see that decision offends Article 14 or any other fundamental right of the petitioner. The respondent No. 1 was acting as a quasi-judicial body and if it has made any mistake in its decision there are appropriate remedies available to the petitioner for obtaining relief. It cannot complain of a breach of Article 14.”

196. This decision in effect refused to interfere with the findings of fact arrived at by the tribunal for the reasons mentioned therein. If the findings stand no question on fundamental right would arise. The decision in A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, is of no assistance, as it was a decision under Article 226 of the Constitution. In Aniyoth Kunhamina Umma Vs. Ministry of Rehabilitation and Others, , the petitioner therein filed a writ petition for enforcement of his fundamental right on the ground that the property in question was not evacuee property. The authorities under the relevant Act decided that it was an evacuee property, and the petitioner carried the matter to the appellate tribunals without success. This Court dismissing the petition on the ground that the petitioner had no fundamental right made the following observations :

“It is, indeed, true that section 28 of the Act cannot affect the power of the High Court under Articles 226 and 227 of the constitution or of this Court under Articles 136 and 32 of the Constitution. Where, however, on account of the decision of an authority of competent jurisdiction the right alleged by the petitioner has been found not to exist, it is difficult to see how any question of infringement of that right can arise as a ground for a petition under Article 32 of the Constitution, unless the decision of the authority of competent jurisdiction on the right alleged by the petitioner is held to be a nullity or can be otherwise got rid of. As long as that decision stands, the petitioner cannot complain of any infringement of a fundamental right. The alleged fundamental right of the petitioner is really dependent on whether Kunhi Moosa Haji was an evacuee and whether his property is evacuee property. If the decision of the appropriate authorities of competent jurisdiction on these questions has become final and cannot be treated as a nullity or cannot be otherwise got rid of, the petitioner cannot complain of any infringement of her fundamental right under Articles 19(1)(f) and 31 of the Constitution.”

197. Concluding the judgment, it was observed :

“We are basing our decision on the ground that the competent authorities under the Act had come to a certain decision, which decision has now become final the petitioner not having moved against that decision in an appropriate court by an appropriate proceeding. As long as that decision stands, the petitioner cannot complain of the infringement of a fundamental right, for she has no such right.”

198. It would be seen that the tribunals found, on the facts of that case, that the property was evacuee property, and if that finding was accepted, no question of fundamental right arose. It is true that this Court accepted that finding on the ground that it had become final and the petitioner had not questioned the correctness of that decision in a proper court by an appropriate proceeding. As I have said earlier, this Court may ordinarily accept the findings of fact arrived at by tribunals; but, on the other hand, if the judgment meant that under no conceivable circumstances this Court could interfere with the findings of an administrative tribunal even if there was a clear infringement of fundamental right, in my view, it would amount to an abdication of its jurisdiction in favour of administrative tribunals. Nor does the decision of this Court in Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, carry the matter further. There, the petitioner was a dealer registered under the Punjab General Sales Tax Act. Notices were served on him by the Sales tax authority, the last of them being that if the relevant documents were not produced within a particular date the case would be decided on the “best judgment assessment basis”. It was contended on the basis of section 11 of the Punjab General Sales Tax Act that at the date of the notice last mentioned the Sales Tax authorities had no right to proceed to make any “best judgment” assessment as the three years within which only such assessment could be made had expired before then. This Court accepted the construction put forward by the petitioner and held that no assessment could be made on the petitioner; and, in that view, it enforced his fundamental right. There was no inherent want of jurisdiction in the Sales Tax authorities, for they had jurisdiction to construe the relevant provisions of section 11 and hold whether the assessment could be made within a particular time or not. Notwithstanding that circumstance, this Court enforced the petitioner’s fundamental right. It is not necessary to multiply decisions. On a superficial reading of the aforesaid decisions, though they may appear to be conflicting, there is one golden thread which runs through all of them and, that is, a citizen has a guaranteed procedural right under Article 32 of the Constitution, and that a duty is cast upon this Court to enforce a fundamental right if it is satisfied that the petitioner has a fundamental right and that it has been infringed by the State. That question was approached by this Court from different perspectives, having regard to the facts of each case. When a fundamental right of a petitioner was infringed by an action of an officer purporting to exercise a power under an Act which is ultra vires or unconstitutional, or without jurisdiction, this Court invariably enforced the fundamental right. So too, this Court give relief under Article 32 of the Constitution whenever a statutory authority infringed a fundamental right of petitioner on a wrong construction of the provisions of a statute whereunder he purported to act. This Court, as a rule of practice, accepted the findings of fact arrived at by tribunals and on that basis held that no fundamental right was infringed. But I do not understand any of these decisions as laying down that the amplitude of the jurisdiction conferred on this Court under Article 32 of the Constitution and the guaranteed right given to a citizen under the aid article should be restricted or limited by some principle or doctrine not contemplated by the Constitution.

199. Mr. Chari, appearing for one of the interveners, raised a wider question. His argument is that of relief under Act. 32 cannot be given against an authority exercising judicial power and that the Sales-tax authorities are authorities exercising judicial power of the State. This argument is elaborated thus : Under the Constitution, the institutions created thereunder can exercise either legislative, executive or judicial functions and sometimes the same institution may have to exercise one or more of the said powers; institutions exercising legislative powers make laws, those exercising powers, administer the laws, and those exercising judicial power decide the disputes between citizens and citizens, between citizens and State and State, the said judicial powers can be conferred in the manner prescribed by the Constitution on any institution of individual officer, whether it is a court or not; with that background if Article 12 of the Constitution is looked at, the argument proceeds, the institutions exercising judicial power are excluded therefrom. Article 32 enables the Supreme Court to enforce a fundamental right only against the State action; no fundamental right can be enforced against an officer exercising judicial power as he does not come under the definition of State in Article 12 of the Constitution.

200. It is not necessary in this case to decide the two questions, namely, (1) whether a person can approach this Court to enforce his fundamental right on the ground that it was infringed by a decision of a court of law, and (2) whether the right guaranteed by Article 19 of the Constitution can be enforced under Article 32 against the action of a private individual. We are concerned only with the narrow question whether such a right can be enforced against the action of an administrative tribunal. It can certainly be enforced against it, if it comes under the definition of a State under Article 12 of the Constitution. We have already held that on administrative tribunal is not a court but is only an executive authority functioning under a statute adopting the norms of judicial procedure. It is a department of the executive Government exercising statutory functions affecting the rights of parties. Under Article 12, “the State” has been defined to include the Government and the Parliament of India and the Government and the Legislature of each of the States and all local and other authorities within the territory of India or under the control of the Government of India. A Division Bench of the Madras High Court in The University of Madras Vs. Shantha Bai and Another, construed the words “local or other authorities” under Article 12 of the Constitution thus :

“These words must be construed as ejusdem generis with Government of Legislature and so construed can only means authorities exercising governmental functions. They would not include persons natural or juristic who cannot be regarded a instrumentalities of the Government.”

201. Applying this definition to Article 12, it is manifest that authorities constituted under the Sales-tax Act for assessing the tax would be “other authorities” within the meaning of Article 12; for the said authorities exercise governmental functions and are the instrumentalities of Government. But it is contended that if the fathers of our Constitution intended to include in the definition authorities exercising judicial functions, having included the Government and the Parliament, they would not have omitted to mention specifically the judicial institutions therein. This argument may have some relevance if the question is whether a court of law is included within the definition of “State”, but none when the question is whether an administrative tribunal is included in the said definition. An administrative tribunal is an executive authority and it is clearly comprehended by the words “other authorities”. If the argument of learned counsel be accepted, Government also shall be excluded from the definition where it exercises quasi-judicial functions. So too, Parliament will have to be excluded when it exercises a quasi-judicial function. That would be to introduce words which are not in the Article. It is, therefore, clear to my mind that the definition of the word, whether it takes in a court or not, certainly takes in administrative tribunals. If an administrative tribunal is a “State” and if any order made or action taken by it infringes a fundamental right of a citizen under Article 19 of the Constitution, it can be enforced under Article 32 thereof.

202. Let me now restate the legal position as I conceive it : (1) A citizen has a fundamental right to carry on business in bidis under Article 19(1) of the Constitution. (2) The State may make a law imposing reasonable restrictions on that right : it is conceded that the Uttar Pradesh Sales Tax Act is such a law. (3) The Sales-tax authorities constituted under the Act, purporting to exercise their powers there under, may make an illegal order infringing that right. (4) The order may be illegal because the authority concerned has acted without jurisdiction in the sense that the authority is not duly constituted under the Act or that it has inherent want of jurisdiction; the order may be illegal also because the said authority has construed the relevant provisions of the Act wrongly and has decided the facts wrongly or drawn the inferences from the facts wrongly. (5) The Act expressly or by necessary implication cannot give finality to the order of the authority or authorities so as to prevent the Supreme Court from questioning its correctness when the said order in fact affects the fundamental right of a citizen. (6) The aggrieved party may approach this Court before a decision is given by the Sales-tax authority or after the decision is given by the original authority or when an appeal is pending before the appellate tribunal or after all the remedies under the Act are exhausted. (7) Whatever may be the stage at which this Court is approached this Court may it its discretion, if the question involved is one of jurisdiction or a construction of a provision, decide the question and enforce the right without waiting till the procedure prescribed by a law is exhausted; but if it finds that questions of fact or mixed questions of fact and law are involved, it may give an opportunity to the party, if he agrees, to renew the application after he has exhausted his remedies under the Act, or, if he does not agree, to adjourn the petition till after the remedies are exhausted. (8) If the fundamental right of the petitioner depends upon the findings of fact arrived at by the administrative tribunals in exercise of the powers conferred on them under the Act, this Court may in its discretion ordinarily accept the findings and dispose of the application on the basis of those findings.

203. The following of this procedure preserves the jurisdiction of this Court as envisaged by the Constitution and safeguards the guaranteed rights of the citizens of this country without at the same time affecting the smooth working of the administrative tribunals created under the Act. If the other view is accepted, this Court will be abdicating its jurisdiction and entrusting it to administrative tribunals, who in a welfare State control every conceivable aspect of human activity and are in a dominant position to infringe the fundamental rights guaranteed to the citizens of this country. I would prefer this pragmatic approach to one based on concepts extraneous to the doctrine of fundamental rights.

204. I would, therefore, hold that in the present case if the Sales-tax officer; by a wrong construction of the provisions of the Act, made an illegal order imposing a tax on the petitioner’s fundamental right, it is liable to be quashed.

205. The next question is whether the Sales-tax officer has wrongly construed the notification issued by the Government u/s 4(1)(a) of the Act. Section 4(1) of the Act reads as follows :

“No tax shall be payable on –

(a) The sale of water, milk, salt, newspapers and motor spirit as defined in the U.P. State Motor Spirit (Taxation) Act, 1939, and of any other goods which the State Government may by notification in the official Gazette, exempt.

(b) the sale of any goods by the All-India Spinners’ Association or Gandhi Ashram, Meerut, and their branches or such other persons or class of persons as the State Government may from time to time exempt on such conditions and on payment of such fees, if any, not exceeding eight thousand rupees annually as may be specified by notification in the Official Gazette.”

206. The following notification dated December 14, 1957 was issued under the said section :

“In partial modification of notifications No. ST-905/X, dated March 31, 1956 and ST-418/X 902 (9)-52, dated January 31, 1957, and in exercise of the powers conferred by clause (b) of sub-section (1) of section 4 of the U.P. Sales Tax Act, 1948 (U.P. Act No. XV of 1948) as amended up to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957 by the dealers in respect of the following classes of goods provided that the Additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957 have been paid on such goods and that the dealers thereof furnish proof of the satisfaction of the assessing authority that such duties have been paid.

(1) …………………………………………………….

(2) …………………………………………………….

(3) Cigars, cigarettes, biris and tobacco, that is to say any form of tobacco, whether cured or uncured and whether manufactured or not includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth.”

207. The following facts are not disputed : In regard to the sales of certain commodities with an inter-State market certain difficulties cropped up in the matter of imposition of sales-tax by different States. In order to avoid those difficulties, the Central Government and the States concerned came to an arrangement arrangement whereunder the State agreed for the enhancement of the excise duties under the Central Act in respect of certain commodities in substitution for the sales-tax levied upon them, and that the Central Government agreed to collect the enhanced excise duty on the said commodities and distribute the additional income derived amongst the State Governments. To implement that arrangement, Parliament passed Act No. 58 of 1957 called the Additional Duties of Excise (Goods of Special Importance) Act, 1957, on December 24, 1957. The long title of that Act shows that it was enacted to provide for the levy and collection of additional duties of excise on certain goods and for the distribution of a part of the net proceeds thereof among the Stages in pursuance of the principles of distribution formulated and the recommendation made by the Finance Commission. Under the Central Act, before the amendment, there was excise duty on tobacco used for various purposes, including machine-made bidis, but there was no excise duty on hand-made bidis. therefore, under the amended Act, additional duty was payable only on tobacco products already taxable under original Act; with the result, enhanced tax was imposed on tobacco which went in to make hand-made bidis, but no additional tax was imposed on hand-made bidis.

208. With this background let us look at the notification issued u/s 4(1) of the Act. There is some controversy whether that notification was issued u/s 4(1)(a) or 4(1)(b) of the Act; but that need not detain us, for I shall assume that the notification was issued u/s 4(1)(b). The goods specified therein were exempted conditionally. The goods exempted under the notification were bidis and tobacco. Bidis might be hand-made or machine-made, and the tobacco included tobacco out of which bidis were made. Under the first part of the notification the said bidis and tobacco were exempted from the sales-tax from December 14, 1957. The condition imposed for the operation of that exemption was that additional central excise duties leviable thereon from the closing of business on December 13, 1957, should have been paid on such bidis and tobacco. Briefly stated, the bidis and tobacco, among others, were exempted from payment of sales-tax, if excise duties leviable thereon were paid during the relevant period. So far as the hand-made bidis were concerned under the amending Act no tax was leviable thereon. The condition was applicable to bidis as a unit. Out of bidis, no excise duty was leviable on hand-made bidis, while excise duty was leviable in respect of machine-made bidis. therefore, the condition imposed has no application to hand-made bidis, for under the said condition only tax leviable on the said bidis had to be paid, and, as no excise duty was leviable in respect of hand-made bidis, they were clearly exempted under the said notification. Assuming that the said notification applied only to goods in respect whereof additional excise duty was leviable, the payment of additional duty in respect of tobacco which went in making hand-made bidis was also a condition attached to the exemption of such bidis from taxation. It is not disputed that additional excise duty on the said tobacco was paid by the appellant. I, therefore, hold, on a plain reading of the expressed terms of the notification, that hand made bidis were exempted from taxation under the Act.

209. There was also every justification for such exemption. It appears from the record that the merchants doing business in hand-made bidis were not able to complete with businessmen manufacturing machine-made bidis. Indeed, before the amending Act, excise duty was imposed on machine-made bidis mainly, though not solely, for protecting the business in the former in competition with the latter. In the circumstances, it was but reasonable to assume that the State Government by the amending Act did no intend to impose sales-tax on hand-made bidis, though additional excise duty was imposed on tobacco out of which the said bidis were manufactured. The entire scheme of protection of one against unfair competition from the other would break if the Central Government could impose additional excise duty on tobacco and the State could impose sales-tax on bidis made out of the said tobacco. That this was the intention of the State Government was made clear by the subsequent notification dated December 14, 1957, exempting hand-made bidis from taxation without any condition. I am, therefore, clearly of the opinion that, on a fair reading of the said notification, sales of hand-made bidis were exempted from taxation under the Act.

210. In the result, there will be an order directing the responsible not to proceed to realize any sales-tax from the petitioner on the basis of the order dated December 20, 1958. The petitioner will have her costs.

211. Now coming to civil Appeal No. 572 of 1960, the said appeal was dismissed by for non-prosecution by order of this Court dated February 20, 1961. The assessee firm has filed an application for restoration of the said appeal on the ground that it did not press the appeal in view of the decision of this Court in Kailash Nath and Another Vs. State of U.P. and Others, ; but, as I have said that the said decision is still good law, this ground is not open to the said firm. In the result the application for restoration of civil Appeal No. 572 of 1960 is dismissed with costs.

Hidayatullah, J.

212. The facts have been set out fully in the order of Venkatarama Aiyar, J., and need not be stated at length. The petitioner is a partner in a firm of bidi manufacturers registered under the Uttar Pradesh Sales Tax Act. Under a scheme by which certain additional Central Excise duties are being levied under special Acts for the purpose and are being distributed among the States in respect of the certain classes of goods, on which the States have foregone collection of sales tax locally, the Government of Uttar Pradesh issued notification on December 14, 1957, exempting bidis from sales tax under the U.P. Sales Tax Act, provided the additional duties of excise were paid. This was followed by another notification on November 25, 1958, by which bidis, whether machine-made or hand-made, where exempted without any condition from sales tax from July 1, 1958. The dispute in this petition is about the quarter ending June 30, 1958, in which the firm claimed the exemption. This claim was rejected on the ground that the firm had not paid any additional excise duty on bidis. An appeal followed, but was unsuccessful, and though a revision lay under the Sales Tax Act, none was filed. The firm filed instead a petition under Article 226 of the Constitution in the High Court of Allahabad, but was again unsuccessful, mainly because the firm had other remedies under the Sales Tax Act which it had not available of. The firm, however, obtained a certificate from the High Court, and filed an appeal in this Court. Ujjambai filed this petition under Article 32 of the Constitution for the same reliefs. When she obtained a rule in the petition, the firm did not prosecute the appeal and it was dismissed. In this petition, she claims a writ of certiorari against the order of the Sales Tax Officer as also a mandamus to the Department not to levy the tax. As a further precautionary measure, lest it be held that the remedy under Article 32 is misconceived, the firm has also applied for the revival of the appeal. I shall deal with the application later.

213. The question is whether the exemption granted by the notification of December 14, 1957, exempting bidis conditionally upon payment of additional duty of excise applied to the petitioner during the quarter ending June 30, 1958. This question depends upon the words of the notification and the schedule of articles on which additional duty of excise was payable and the fact whether such excise duty was, in fact paid or not. But the question which has been debated in this case is one which arises at the very threshold, and it is this : whether a petition under Article 32 can lie if the petitioner alleges a breach of fundamental rights, not because the tax is demanded under an invalid or unconstitutional law but because the authority is said to have misconstrued certain provisions of that law. The petitioner contends that she has paid additional excise duty on tobacco used in the manufacture of bidis and the word “tobacco” is used comprehensively in the Central Excise Salt Act. 1944, and in Act No. 58 of 1957 and would include bidis in the exemption. The Sales Tax Officer rejected this claim, observing :

“The exemption envisaged in this notification applies to dealers in respect of sales of Biris, provided that the additional Central Excise duties leviable thereon from the closing of business on December 13, 1957, have been paid on such goods. The assessee paid no such Excise duties. Sales of Biris by the assessee are, therefore, liable to Sales Tax.”

214. Whether there has been a misconstruction of any of the provisions is a matter which, of course, could be considered on revision, or in a reference to the High Court of point of law a rising out of the order finally passed or even ultimately by appeal to this Court with its special leave under Article 136. The petitioner, however, contends that she is entitled to file a petition under Article 32 of the Constitution, if by a wrong construction of a provision of law, a tax is demanded which is not due because it amounts to a deprivation of property without authority of law and also a restriction upon her right to carry on trade or business. The breach of fundamental rights is thus stated to arise under Articles 31(1) and 19(1)(g) primarily by the wrong interpretation and secondarily by the result thereof, namely, the demand of a tax which is not due. The other side contends that no fundamental rights can be said to be breached when the authorities act under a valid law even though by placing their interpretation on some provision of law they may err, provided they have the jurisdiction to deal with the matter and follow the principles of natural justice. Any such error, according to the respondents, must be corrected by the ordinary process of appeals or revisions etc. and not by a direct approach to the Supreme Court under Article 32 of the Constitution. Both sides cite cases in which petitions under Article 32 were previously field and disposed of by this Court, either by granting writs or by dismissing the petitions. In some of them, the question was considered, but in some it was not, because no objection was raised.

215. There, however, appears to be some conflict on this point. In Kailash Nath and Another Vs. State of U.P. and Others, , where the allegation was that an exemption was wrongly refused on a misconstruction of a notification u/s 4 of the U.P. Sales Tax Act, it was held that the fundamental rights of the taxpayer were in jeopardy, and the remedy under Article 32 was open. Govinda Menon, J., then observed :

“If tax is levied without due legal authority on any trade or business, then it is open to the citizen aggrieved to approach this Court for a writ under Article 32 since his right to carry on a trade is violated, or infringed by the imposition and such being the case Article 19(1)(g) comes into play.”

216. This proposition was rested upon the case of this Court in the The Bengal Immunity Company Limited Vs. The State of Bihar and Others, ; but a close examination of the latter case shows that no such proposition was stated there. In the latter case, exemption was claimed on the ground that the sales sought to be taxed were made in the course of inter-State trade and the Bihar Sales Tax Act, which purported to authorise such levy, offended Article 286(2) of the Constitution and thus was invalid. On the other hand, doubts were cast on the decision in Kailash Nath and Another Vs. State of U.P. and Others, on this point, in Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, ; but the question was left open. The question has now been raised and argued before this special Bench. In this judgment, I am only concerned with the question of constitutional law raised, since I agree with the interpretation placed on the notification by my brother, Kapur, J.

217. The general principles underlying Part III of the Constitution have been stated so often by this Court that it is hardly necessary to refer to them, except briefly, before considering to what extent and in what circumstances actions or order of judicial, quasi-judicial and administrative authorities are open to question under Article 32. The Constitution has accepted a democratic form of Government with the characteristic division of authority of the State between the Legislature, the Judiciary and the Executive. The Constitution being federal in form, there is a further division of powers between the center and the States. This division is also made in the jurisdictions of the three Departments of the State. To achieve these purposes, the distribution of legislative powers in indicated in Part XI and of taxes in Part XII, and certain special provisions regarding trade, commerce and intercourse within the territory of India are placed in Part XIII. In addition to these Parts of the Constitution, to which some reference may be necessary hereafter, the Constitution has also in other Parts indicated what things can only be done by law to be made by Parliament or the State Legislatures. These Articles are too numerous to specify here. But this much, however, is clear that where the Constitution says that a certain thing can be done under authority of law, it intends to convey that no action is justified unless the legality of that action can be supported by a law validly made. The above is, in outline, the general pattern of conferral of power upon the Legislature and the Executive by the people.

218. The people, however, regard certain rights as paramount, because they embrace liberty of action to the individual in matters of private life, social intercourse and share in the government of the country and other spheres. The people who vested the three limps of Government with their power and authority, at the same time kept back these rights of citizens and also sometimes of non-citizens, and made them inviolable except under certain conditions. The rights thus kept back are placed in Part III of the Constitution, which is headed “Fundamental Rights”, and the conditions under which these right can be abridged are also indicated in that Part. Briefly stated, the conditions are that they can be abridged only by a law in the public interest or to achieve a public purpose. These rights are not like the Directive Principles, which indicate the policy and general pattern for State action to enable India to emerge, after its struggle with poverty, disease, inequalities and prejudices, as a welfare State. These Directive Principles are not justiciable, but any breach of fundamental rights gives a cause of action to the aggrieved person.

219. The sum total of this is that the Constitution insists upon the making of constitutional and otherwise valid laws as the first step towards State action. No arbitrary or capricious action affecting the rights of citizens and others is to be tolerated, if it is unsupported by such law. But even the Legislature cannot go beyond the limits set by the Chapter on Fundamental Rights, because ingress upon those rights is either forbidden absolutely of on condition that the action is either in an emergency or dictated by the overriding public interest. The executive can never affect the fundamental rights unless a valid law enables that to be done. To secure these fundamental rights, the High Courts by Article 226 as part of their general jurisdiction and the Supreme Court by Article 32 have been given the power to deal with any breach complained of and to rectify matters by the issue of directions, orders or writs including certain high prerogative writs. Article 32 is included in the Chapter on Fundamental Rights, and provides an expressly guaranteed remedy of approach to the Supreme Court in all cases where fundamental rights are invaded. This right is the most valuable right of the citizen against the State. The Article provides further that the of moving the Supreme Court is also fundamental right. Thus, it was that this Court said in Romesh Thappar Vs. The State of Madras, that this Court is the protector and guarantor of fundamental rights, in Rashid Ahmed Vs. The Municipal Board, Kairana, that the Supreme Court’s powers under Article 32 are wider than the mere right to issue prerogative writs, in A.K. Gopalan Vs. The State of Madras, that the fundamental rights are the residue from the power surrendered by the people and kept back by them to themselves, and in Champakam Doraijan’s case [1961] 3 S.C.R. 525 that the fundamental rights are sacrosanct and incapable of being abridged by any legislative or executive action except to the extent provided in the appropriate Articles in Part III. It may, however, be stated that under certain Articles of the Constitution, laws can be made without a challenge in Courts, notwithstanding the constitution (see, for example Article 329), and other considerations may arise in respect of those laws. In this judgment, therefore, I shall deal with those laws and situations only, which admittedly are affected by the Chapter on Fundamental Rights.

220. The invasion of fundamental rights may assume many forms. It may proceed directly from laws which conflict with the guaranteed rights. It may proceed from executive action unsupported by any valid law or laws in spite of them. Examples of both kinds are to be found in the Reports. In Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, , a taxing statute was held to be discriminatory and also unreasonable because of the restrictions it created and was struck down under Articles 14 and 19(1)(f) of the constitution. In Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, , a threat to recover a tax twice over was said to offend fundamental rights. In both these cases, Article 32 was invoked successfully. In the first kind of cases the law itself fails, and if the law fails, so does any action under it. In the second kind of cases, the laws are valid but in their application, the executive departments make their own actions vulnerable. A law can give protection to an action only which is within itself, but it cannot avail, if the action it outside. Thus, in Chintaman Rao Vs. The State of Madhya Pradesh, , a law was struck down because it arbitrarily and excessively invaded a fundamental right and in Lachmandas Kewalram Ahuja and Another Vs. The State of Bombay, , section 12 of the Bombay Public Safety Measures Act, 1947 was declared void (after January 26, 1950) as it did not proceed upon any purported classification. Of these two cases, the first was a petition under Article 32 of the Constitution and the latter, an appeal on a certificate of the High Court under Article 132 of the Constitution. The method of approach to this court was different, but it made no difference to the application of the provisions of Part III. There are other such decisions, but these two will suffice.

221. The inference is, therefore, quit clear that this Court will interfere under Article 32 if a breach of fundamental rights comes before it. and indeed, it was so stated in Romesh Thappar Vs. The State of Madras, that this Court –

“cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,”

although such applications are made to the Court in the first instance without resort to a High Court, and the American cases about exhausting of other remedies were not followed. In Himmatlal Harilal Mehta Vs. The State of Madhya Pradesh and Others, this Court issued a writ prohibiting assessment of a tax under an invalid law, even though there was no assessment begun or even a threat of one. In K. K. Kochunni Moopil Nayar v. State of Madras (1959) Supp. 2 S.C.R. 316 Das, C.J. after considering all previous cases of this Court laid down.

“Further, even if the existence of other adequate legal remedy may be taken into consideration by the High Court in deciding whether it should issue any of the prerogative writs on an application under Article 226 of the Constitution, as to which we say nothing now – this Court cannot, on a similar ground decline to entertain a petition under Article 32, for the right to move this Court by appropriate proceedings for the enforcement of the rights conferred by Part III of the Constitution is itself a guaranteed right.”

222. In that case, the learned Chief Justice said that, if necessary, this Court may even get a fact of facts proved by evidence.

223. The view expressed in the last case finds further support from what Gajendragadkar, J., said very recently in Daryao and Others Vs. The State of U.P. and Others, :

“If the petition field in the High Court under Article 226 is dismissed not on the merits but because of the laches of the laches of the party applying for the writ of because it is held that the party had an alternative remedy available to it, then the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32 except in cases where and if the facts thus found by the High Court may themselves be relevant even under Article 32.”

224. Gajendragadkar, J. then went on to consider the matter from the point of view of res judicata, and held that in some cases, that principle would apply if no appeal against the order of the High Court was field, but not in others. This must be so, because if there is a decision of the High Court negating fundamental rights or their breach, then the decision of the competent Court must be removed by appeal to establish the rights or their breach.

225. From these cases, it follows that what may be said about a direct appeal to this Court without following the intermediate steps may not be said about Article 32, because resort to other forums for parallel reliefs is strictly not necessary where a party complains of breach of fundamental rights. Of course, when he makes an application under Article 32, he take the risk of either succeeding or failing on that narrow issue, and a finding of the High Court or some tribunal below on some point, if not set aside in appropriate proceedings, may stand in his way. The right under Article 32 is not a right of appeal, and cannot be used as such, and this Court may not be in a position to examine the case with the same amplitude as in appeal. But, if a party takes the risk of coming to this court direct on the narrow issue, he cannot be told that he has other remedies. To take this restricted view of Article 32 may, in some cases, by delay or expense involved in the other remedies, defeat the fundamental rights before even they can be claimed. But this is not to say that the other remedies are otiose. The issue to be tried under Article 32 is a narrow one, and once that issue fails, everything else must fail. In jurisdictions like that under Article 226 and/or in appeals under Article 132 or Article 136, not only can the breach of fundamental rights be considered but all other matters which the Court may permit to be raised. It, therefore, follows that if a person chooses to invoke Article 32, he cannot be told that he must go elsewhere first. The right to move this Court is guaranteed. But this Court in dealing with the petition will deal with it from the narrow standpoint of fundamental rights and not as a appeal.

226. Though the area of action may be thus limited, the power exercisable therein are vast. The power to issue writes in the nature of the five high prerogative writs of hebeas corpus, mandamus, prohibition quo warranto and certiorari is, in itself, sufficient to compel obedience by the State (as defined in Article 12) and observance by it of the Constitution and the laws in all cases where a breach of fundamental right or rights is established. The writ of mandamus is a very flexible writ and has always been called in aid to ampliate justice and proves sufficient in most cases of administrative lapses of excesses. Then, there is the writ of certiorari to get rid of orders which affect fundamental rights, the writ of prohibition to stop action before it can be completed, the writ of quo warranto to question a wrongful assumption of office, and lastly, the writ of habeas corpus to secure liberty. Indeed, and observed by Lord Atkin (then, Atkin, L.J.) in Rex v. Electricity Commissioner (1924) 1 K.B. 171 :

“Whenever any body or persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division exercised in these writs.”

227. What was said of judicial action and of the writ of certiorari applies equally to other writs and actions of administrative agencies, which are executive or ministerial. The powers of the Supreme Court and the High Courts in our country are no whit less than those of the Kings Bench Division. Indeed, the power conferred on him is made even more ample by enabling these superior Courts to issue in addition to the Prerogative Writs, directions, orders and writs other than the named writs, and the concluding words of Article 32(2) “whichever may be appropriate, for the enforcement of any of the rights conferred by this Part (Part III)” show the wide ambit of the power. As far back as T.C. Basappa Vs. T. Nagappa and Another, , 256.), Mukherjee, J. (as he then was) observed :

“In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any differences or change of opinion expressed in particular cases by English Judges.”

228. Speaking then of the writ of certiorari the learned Judge added :

“We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.”

229. What has been said here has my respectful concurrence, and is applicable to the other writs also. These principles have now become firmly established in the interpretation of Articles 32 and 226 of the Constitution. The difference in the two Articles is in two respects” firstly, Article, 32 is available only for the enforcement of fundamental rights, but the High Courts can use the powers for other purposes (a power which Parliament can also confer on the Supreme Court by law, vide Article 139), and secondly, that the right of moving the Supreme Court is itself a guaranteed right (Article 32(1) and is unaffected by the powers of the High Court (Article 226(2)).

230. The foregoing is a resume of the interpretations places upon Article 32, but there are other provisions of the Constitution relating to the Supreme Court which must be viewed alongside, because the Supreme Court has other roles to perform under the Constitution. Those provisions give an indication of how the Supreme Court is intended to use its powers.

231. The Supreme Court is made, by Articles 133 and 134, the final Court of appeal over the High Court in all civil and criminal matters, though the right of appeal arises only in certain classes of cases and subject to certain conditions. Under Articles 132 and 133(2), the Supreme Court is also the final Court of appeal over the High Court in all matters involving an interpretation of the Constitution. By Article 136, the Supreme Court has been given the power to grant, in its discretion, special leave to appeal to itself from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any Court or tribunal in the territory of India. The last power is overriding, because Article 136 commences with the words “notwithstanding any thing in this Chapter”. Only one exemption has been made in favour of a Court or tribunal constituted by or ordered under any law relating to the Armed Forces.

232. There are other jurisdiction of the Supreme Court also, which may be described as advisory and original, arising in special circumstances with which we are not concerned. The appellate jurisdiction of the Supreme Court sets it at the top of the hierarchy of civil and criminal Courts of civil judicature. Articles 132, 133, 134 and 135 make the Supreme Court the final Court of appeal but only in cases which are first carried before the High Court in accordance with the law relating to those cases. Access to the Supreme Court under Articles 132-135 is not direct but through the High Court. There can be no abridging of the process. But, under Article 136, the Supreme Court has the jurisdiction to grant special leave, though it has declared in several cases that it would exercise its discretion under Article 136 only against a final order. See Chandi Prasad Chokhani Vs. The State of Bihar, , Indian Aluminium Co. v. Commissioner of Income tax (Civil Appeal No. 176 of 1959 decided on April 24, 1961.), and Shri Kanhaiyalal Lohia Vs. The Commissioner of Income Tax, West Bengal, . In exercising the discretionary powers to grant special leave, the Supreme Court now insists on the aggrieved party exhausting all its remedies under the law before approaching it.

233. Form what has been said above, it is clear that there are three approaches to this Court, and they are : (a) by appeal against the decision of the High Court, (b) by special leave granted by this Court against the decision of any Court or tribunal in India and (c) by a petition under Article 32. No Court or tribunal in India other than the Supreme Court and the High Courts has been invested with the jurisdiction to deal with breaches of fundamental rights, though the Constitution has reserved the power to Parliament to invest by law this jurisdiction in any other Court [Article 32(3)]. As a result, the enforcement of fundamental rights can only be has in the High Court or the Supreme Court. In most taxation laws, there is a jurisdiction and a right to invoke the advisory jurisdiction of the High Court and in some there is a right of appeal or revision to the High Court, but the question of a breach of fundamental rights cannot be raised in proceedings before the tribunals. In its advisory jurisdiction, the High Court can only answer the question referred to it or raise one which arises out of the order passed and in its appellate and revisional jurisdiction, the High Court can deal with the matter on law or fact or both (as the case may be) but only in so far as the tribunal has the jurisdiction. In these jurisdictions, the plain question of the enforcement of fundamental rights may not arise. There is, however, nothing to prevent a part moving a separate petition under Article 32 of the Constitution and raising the issue, as was actually done in this case. The result thus is that no question of a breach of fundamental rights can arise except under Articles 226 and 32 of the Constitution, and it must be raised before the High Court and the Supreme Court respectively, by a proper petition. But, where the High Court decides such an issue on a petition under Article 226 the question can be brought this Court under Article 132 and 136.

234. If this be the true position, and if this Court can only deal with question of breach of fundamental rights in petitions under Article 32 and in appeals against the orders of the High Court under Article 226, I am of opinion that a petition under Article 32 must always lie where a breach is complained of, though, I must say again, if the matter is brought before this Court under Article 32, the only question that can be considered is the breach of fundamental rights and none other.

235. The right to move this Court being guaranteed, the petition may lie, but there are other thing to consider before it can be said in what cases this Court will interfere. I shall now consider in what kind of cases the powers under Article 32 will be used by this Court. Since this case arises under taxing statute, I shall confine myself to taxing laws, because other considerations may arise in other circumstances and the differing facts are sometimes so subtle as to elude one, unless they are before him. The challenge on the ground of a breach of fundamental rights may be against a law or against executive action. I am leaving out of account action by the Court of civil judicature, and am not pausing to consider whether the word “State” as defined in Article 12 includes the ordinary Courts of civil judicature. That question does not arise here and must be left for decision in a case in which it properly does. Whether or not be word “State” covers the ordinary Courts, there is authority to show that tribunals which play the dual role as deciding issues in a quasi-judicial way and acting as the instrumentalities of Governments are within the word “State” as used in Part III of the Constitution. In the Bidi Supply Co. Vs. The Union of India (UOI) and Others, , Das, C.J., observed :

“Here ‘the State’ which includes its income tax department has by an illegal order denied to the petitioner, as compared with other Bidi merchants who are similarly situate, equality before the law or the equal protection of laws and the petitioner can legitimately complain of an infraction of his fundamental rights under article 14 of the Constitution.”

236. Again, in Gullapalli Nageswara Rao v. State of Andhra Pradesh (1959) Supp. 1 S.C.R. 319 it was observed :

“The concept of a quasi-judicial act implies that the act is not wholly judicial; it describes only a duty cast on the executive body or authority to conform to norms of judicial procedure in performing some acts in exercise of it executive power.”

237. The taxing departments are instrumentalities of the State. They are not a part of the legislature; nor are they a part of the judiciary. Their functions are the assessment and collection of taxes, and in the process of assessing taxes, the have to a follow a pattern of action, which is considered judicial. They are not thereby coverted into Courts of civil judicature. They still remain the instrumentalities of the State and are within the definition of 1’State’ in Article 12. In this view of the matter, their actions must be regarded, in the ultimate analysis, as executive in nature, since their determinations result in the demand of tax which neither the legislature nor the judiciary can collect. Thus, the actions of these quasi-judicial bodies may be open to challenge on the ground of breach of fundamental rights.

238. I have already said that the attack on fundamental rights may proceed from laws or from executive action. Confining myself to taxation laws and executive action in furtherance of taxation laws, I shall now indicate how the breaches of fundamental rights can arise and the extent of interference by this Court under Article 32. Taxing laws have to conform to provisions in Parts XII of the Constitution : they are circumscribed further by Part XIII, and they can only be made by an appropriate legislature as indicated in Part XI. these are the provisions dealing with the making of taxing laws. The total effect of these provisions is summed up in Article 165, which says :

“No tax shall be levied or collected except by authority of law.”

239. Law thus a condition precedent to the demand of a tax. A tax cannot be levied by the State, unless a law to that effect exists, and that law must follow and obey all the directions in the Constitution about the making of laws. In other words, the law must be one validly made.

240. Taxation laws may suffer from two defects, and they are : (a) if they are not made within the four corners of the powers conferred by the Constitution on the particular legislature, or (b) if they are opposed to fundamental rights. A law may fail as ultra vires, though it is not opposed to fundamental rights, because it is outside the powers of the legislature that enacted it, or because it is a colourable exercise of power, or if the law was not made in accordance with the special procedure for making it. A simple example is imposition of Profession Tax by Parliament, which it has no power to impose, or the imposition of tax above Rs. 250 per year on a single person by the State Legislature, which is beyond the powers of the State Legislature. In these cases, the laws fail, because in the first case, Parliament lacks the power completely, and in the second, because the State Legislature transgresses a limit set for it. Such a law is no law at all, and will be struck down under Article 265 read with the appropriate provisions of the constitution. A question arising under Article 265 cannot be brought before the Supreme Court under Article 32, because that Article is not in the Chapter on Fundamental Rights. But an executive action to enforce the law would expose the executive action to the processes of Article 226 and 32, if a fundamental right to carry on a profession or an occupation, trade or business is put in jeopardy. In the order of reference in this case, this position is summed up in the following observations :

“Where the provision is void, the protection under Article 265 fails, and what remains is only unauthorised interference with property or trade by a State Officer, and articles 19(1)(f) and (g) are attracted.”

241. Where the law fails being opposed to fundamental rights as, for example, when it is void because it involves discrimination or otherwise invades rights protected by Part III, the protection of Article 265 is again lost. Indeed, the law fails not because of Article 265 but because of Article 13, and a cause of action under Article 35 may arises. This was recognised in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, where it was observed :

“Articles 265 imposes a limitation on the taxing power of the State in so far as it provides that the State shall not levy or collect a tax, except by authority of law, that is to say, a tax cannot be levied or collected by a mere executive fiat. It has to be done by authority of law, which must mean valid law. In order that the law may be valid, the tax proposed to be levied must be within the legislative competence of the legislature imposing a tax and authorising the collection thereof and, secondly, the tax must be subject to the conditions laid down in Article 13 of the Constitution. One of such conditions envisaged by Article 13(2) is that the Legislature shall not make any law which takes away or abridges the equality clause in Article 14, which enjoins the State not to deny to any person equality before the law or the equal protection of the laws of the country. It cannot be disputed that if the Act infringes the provisions of Article 14 of the Constitution, it must be struck down as unconstitutional”.

242. This arose in a petition under Article 32 of the Constitution.

243. It appears that taxation laws were unsuccessfully challenged under Article 32 of the Constitution as a breach of Article 31(1) in Ramjilal Vs. Income Tax Officer, Mohindargarh, and Laxmanappa Hanumantappa v. Union of India (1951) S.C.R. 769. In the former, the reason given was :

“Reference has next to be made to article 265 which is in Part XII, Chapter I, dealing with ‘Finance’. That article provides that no tax shall be levied or collected except by authority of law. There was no similar provision in the corresponding chapter of the Government of India Act, 1935. If collection of taxes amounts to deprivation of property within the meaning of Article 31(1), then there was no point in making a separate provision again as has been made in Article 265. It, therefore, follows that clause (1) of article 31 must be regarded as concerned with deprivation of property otherwise than by the imposition or collection of tax, for otherwise article 265 becomes wholly redundant……… In our opinion, the protection against imposition and collection of taxes save by authority of the law directly comes from article 265, and is not secured by clause (1) of article 31. Article 265 not being in Chapter III of the Constitution, its protection is not fundamental right which can be enforced by an application to this Court under article 32. It is not our purpose to say that the right secured by article 265 may not be enforced. It may certainly be enforced by adopting proper proceedings. All that we wish to state is that this application in so far as it purports to be founded on article 32 read with article 31(1) to this Court is misconceived and must fail.”

244. Similar observations were made in the other case.

245. If by these observations it is meant to convey that the protection under Article 265 cannot be sought by a petition under Article 32, I entirely agree. But if it is meant to convey that a taxing law which is opposed to fundamental rights must be tested only under Article 265, I find it difficult to agree. Articles 31(1) and 265 speak of the same condition. A comparison of these two Articles shows this :

Article 31(1) – “No person shall be deprived of his property save by authority of law.”

Article 265 – “No tax shall be levied or collected except by authority of law.”

246. The Chapter on Fundamental Rights hardly stands in need of support from Article 265. If the law void under that Chapter, and property is seized to recover a tax which is void, I do not see why Article 32 cannot be invoked. Where the authority of the law fails a tax, Article 265 is offended, and the tax cannot be collected. A collection of such a tax will also offend Article 32. Where the law is opposed to fundamental rights, and in the collection of such a void tax, a person is deprived of his property, Article 31(1) is offended. It is not possible to circumscribe Article 32 by making the remedy only upon Article 265.

247. From this, it is clear that laws which do not offend Part III and are not otherwise ultra vires are protected from any challenge whether under Article 265 or under the Chapter on Fundamental Rights. Where the laws are ultra vires but do not per se offend fundamental rights (to distinguish the two kinds of defects), they are capable of a challenge under Article 265, and the executive action, under Article 32. Where they are intra vires otherwise but void being opposed to fundamental rights, they can be challenged under Article 265 and also Article 32.

248. This position, however, changes radically when the law is valid but the action under it is challenged. The real difference in such cases arises, because the law is not challenged at all. What is challenged is the interpretation of the law by the taxing authorities, and a breach of fundamental rights is said to arise from the wrong interpretation. In considering this matter, several kinds of cases must be noticed. Where the action of an officer of the State is wholly without jurisdiction (as, for example, when a sales tax officer imposes income tax or vice versa, though such things are hardly likely to happen), it can have no support from the law he purports to apply. Cases of jurisdiction thus come within Article 32. Other examples are an attempt to recover a tax twice over, where the first collection is legal (Tata Iron and Tata Iron and Steel Co., Limited, Bombay Vs. S.R. Sarkar and Others, ; or acting beyond the period of limitation ( Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, . In such cases, even if the taxing authority thought on its own understanding of the law that it was acting within it jurisdiction, it would not avail, and the want of jurisdiction, if proved, would attract Article 32. Speaking of such a situation, the order of reference in this case has said :

“This again is a case in which the authority had no jurisdiction under the Act to take proceedings for assessment of tax, and it makes no difference that such assumption of jurisdiction was based on a misconstruction of statutory provisions.”

249. The above was said of Madan Lal Arora Vs. Excise and Taxation Officer, Amritsar, .

250. But where the law in made validly and in conformity with the fundamental rights and the officer enforcing it acts with jurisdiction, other considerations arise. If, in the course of his duties, he has to construe provisions of law and miscarries, it gives a right of appeal and revision, where such lie, and in other appropriate cases, resort can be had to the provisions of Articles 226 and 227 of the Constitution, and the matter brought before this Court by further appeals. This is because every erroneous decision does not give rise to a breach of fundamental rights. Every right of appeal or revision cannot be said to merge in the enforcement of fundamental rights. Such errors can only be corrected by the processes of appeals and revisions. Article 32 does not, as already stated, confer an appellate or revisional jurisdiction on this Court, and if the law is valid and the decision with jurisdiction, the protection of Article 265 in not destroyed. There is only one exception to this, and it lies within extremely narrow limits. That exception also bears upon jurisdiction, where by a misconstruction the State Officer or a quasi-judicial tribunal embarks upon an action wholly outside the pale of the law he is enforcing. If, in those circumstances, his action constitutes a breach of fundamental rights, than a petition under Article 32 may lie. The cases of this Court in which interference can be sustained on this ground are many; but as examples may be seen the following : Thakur Amar Singhji Vs. State of Rajasthan, and Mohanlal Hargovind Das, Bidi Merchants, Jabalpur (M.P.) Vs. The State of Madhya Pradesh and Another, . The first is not a case of a taxing statute, but the second is.

251. The decision in Kailash Nath’s case (A.I.R. 1957 S.C. 79.), with respect, appears to have unduly widened the last narrow approach by including cases of interpretation of provisions of law where the error is not apparently one of jurisdiction as within Article 32. It cited as authority the case of The Bengal Immunity Company Limited Vs. The State of Bihar and Others, , which does not bear out the wide proposition. The case involved an interpretation of notification to find out whether an exemption applied to a particular case or not, and no question of want of jurisdiction, as explained by me, arose there. Kailash Nath’s case (A.I.R. 1957 S.C. 79.) does not appear to confine the exercise of powers under Article 32 to cases of errors of jurisdiction. In my opinion – and I say it respectfully – it must be regarded as having stated the proposition a little too widely.

252. Whether taxing statutes which have the protection of Article 265 can be questioned under Articles 19(1)(f) and (g) is a subject, which need not be gone into in this case. I do not, therefore, express any opinion upon it. Here, the several statutes and the notification are not challenged as ultra vires. What is claimed is that by a wrong interpretation of the word ‘bidis’ and ‘tobacco’ as used in the notification of December 14, 1957, an exemption is denied to the petitioner, to which she was entitled, and this affects her fundamental rights under Article 31(1) and 19(1)(g). This is not an error of jurisdiction. Whether the Sales Tax Officer’s interpretation is right or the contrary interpretation suggested on behalf of the petitioner is right, is a matter for decision on the merits of the case. If there is an error, it can be corrected by resorting to appeals, revisions, references to the High Court and ultimately by a appeal to this Court. This Court cannot ignore these remedies and embark upon an examination of the law and the interpretation placed by the authorities, when no question of jurisdiction is involved. To do so would be to convert the powers under Article 32 into those of an appeal. In my opinion, the petition under Article 32 is misconceived in the circumstances of this case. I would, therefore, dismiss it with costs.

253. As regards the application of the appeal, I am of opinion that the party was negligent in not prosecuting it. I would therefore, dismiss the application for restoration but without any order about costs.

Ayyangar, J.

254. This bench has been constituted for deciding the following two questions set out at the conclusion of what might be termed the order of reference (1) : Is an order of assessment made by an authority under a taxing statute which is intra vires, open to challenge a repugnant to Article 19(1)(g) on the sole ground that it is based on a mis-construction of a provision of the Act or of a notification issued thereunder ? (2) Can the validity of such an order be questioned in a petition under Article 32 of the Constitution ? Though the matter was not discusses with any elaborateness, both these questions were answered in the affirmative by this Court in Kailashnath v. The State of U.P. AIR [1957] S.C. 79. In effect therefore the bench has been constituted for considering the correctness of decision on these points in Kailashnath’ case.

255. Before proceeding to consider the submissions of learned Counsel on either side it is necessary to point out two matters;

(1) It was agreed before us that in deciding the first question set out above we need not consider the special features applicable to taxing legislation and in particular the point as to whether the constitutional validity of such legislation could be tested with reference to the criteria laid down by Article 19(1)(f); in other words, the limits to which Article 19 would be attracted to a law imposing a tax. The discussion in this judgment therefore proceeds on the basis of there being no distinction between a law imposing a tax and other laws.

(2) The second matter which I consider it necessary to state at the outset is that notwithstanding the industry of Counsel which has enabled them top lace before us quite large number of decisions of this Court which have been referred to in the judgments of Kapur and Subba Rao, JJ., in none of them was the point approached with reference to the matters argued before us. Some of these decisions proceed on the basis that in the circumstances stated in question No. 1 a fundamental right had been invaded and on that basis afforded to the petitioner before them the relief sought. Other decisions state that no fundamental right was involved in the grievance put forward by the petitioners before them and relief has been refused on that basis. In none of them was the question discusses on principle as to when alone a fundamental right would be invaded and in particular as to whether a breach by a quasi-judicial authority of the provisions of a law which is otherwise valid, could involve an invasion of a fundamental right. For this reason I propose to discuss the question on principle and without reference to the decisions which were placed before us at the hearing. I feel further justified in doing so because they have all been referred to in the judgment of Kapur, J., and discussed in detail by Subba Rao, J.

256. I shall now proceed to consider what in my view should be the answer to the first of the questions propounded for our decision and am ignoring the reference therein to taxing enactment. Pausing here it might be useful to recall briefly the function of Part III in the Constitution. The rule of British Constitutional Law and in general of the Dominion Constitutions framed by the British Parliament might broadly be stated to be that it asserts the sovereignty of the Legislature in the sense that within the sphere of its activity in the case of a Federal Constitution and in every sphere in the case of a unitary one its will was supreme and was the law of the land which the Court were bound to administer. As Dicey has pointed out, there are no legal limits to the sovereignty of Parliament. Public opinion, as well as the fear engendered by the possibility of a popular revolt, might impose practical restraints upon the exercise of sovereignty but so would be the limitations or restraints dictated by good sense, justice or a sense of fairplay. But so far as the legal position was concerned, any law made by Parliament was legal and could be enforced. Our Constitution makers did not consider that to the conditions of this country such a vesting of power in the legislatures or in the State would be proper or just or calculated to further the liberty of the individual which they considered was essential for democratic progress. It was in these circumstances and with these ideas that they imposed fetters on State action in Part III entitled “Fundamental Rights”. Article 13 laid down that “every law whether made before or after the Constitution which was inconsistent with the right guaranteed by the succeeding Articles should, save as otherwise expressly provided, be invalid to the extent of the repugnancy”. And “law” was defined in a comprehensive manner so as to include not merely laws made by Parliament or the legislatures but every piece of subsidiary legislation including even notifications. The schemes therefore of the Constitution makers was to prescribe a code of conduct to which State action ought to conform if it should pass the test of constitutionality. The rights included in the eighteen Articles, starting from 14 up to 31, comprehend provisions for ensuring guarantees against any State action for protecting the right to life, liberty, and property, to trade and occupation, besides including the right to freedom of thought, belief and worship. The general scheme of Part III may be stated thus : Certain of the freedoms are absolute, i.e., subject to on limitations, e.g., Article 17, Article 20(1). In respect of certain others the Articles (vide Article 19) set out the precise freedom guaranteed as well as its content and the qualifications to which the exercise of that freedom might be subjected by enacted law or action taken under such law. Having thus enumerated these freedoms and laid down the limitations, if any to which they could be subjected Article 32 vests in the Supreme Court the authority and jurisdiction to ensure that the fundamental rights granted by Part III are not violated, and even the right to move this Court for appropriate relief for infraction of a fundamental right is itself made a fundamental right which ordinary legislation may not affect. The purpose of my drawing attention to these features is two fold : (1) to emphasize the great value which the Constitution-makers attached to the freedoms guaranteed as the sine qua non of progress and the need which they considered for marking out a field which was immune from State action, and (2) the function of Court as a guardian of those rights for the maintenance of individual liberty enshrined in the Constitution. It was with advertence to this aspect of the matter that this Court observed in Daryao and Others Vs. The State of U.P. and Others, :

“There can be no doubt that the fundamental right guaranteed by Article 32(1) is a very important safeguard for the protection of the fundamental rights of the citizens, and as a result of the said guarantee this Court has been entrusted with the solemn task of upholding the fundamental rights of the citizens of this country. The fundamental rights are intended not only to protect individual’s rights but they are based on high public policy. Liberty of the individual and the protection of his fundamental rights are the very essence of the democratic way of life adopted by the Constitution, and it is the privilege and the duty of this court to uphold those rights. This Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself. It is because of this aspect of the matter that in Romesh Thappar Vs. The State of Madras, in the very first year after the Constitution came into force, this Court rejected a preliminary objection raised against the competence of a petition filed under Article 32 on the ground that as matter of orderly procedure the petitioner should first have resorted to the High Court under Article 226, and observed that ‘this Court is thus constituted the protector and guarantor of the fundamental rights, and it cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights’. Thus the right given to the citizen to move this Court by a petition under Article 32 and claim an appropriate writ against the unconstitutional infringement of his fundamental rights itself is a matter of fundamental right, and in dealing with the objection based on the applications of the rule of res judicata this aspect to the matter has no doubt to be borne in mind.”

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

258. These exceptions having been conceded by learned Counsels for the respondent, it is sufficient if attention is confined to the question, whether a patently incorrect order passed on a misconstruction of a charging enactment would or would not result in the violation of a fundamental right and is that the very narrow question which this bench is called upon to answer.

259. The argument of the learned Attorney-General who appeared for the petitioner, was short and simple. His submission rested on the correctness of the following steps :

(1) The Constitution has vested in this Court the power to ensure, when approached by a petition under Article 32, that fundamental rights were not violated and accordingly there is a constitutional duty cast upon the Court to afford relief when so approached in every case where fundamental rights were violated.

(2) The two matters which a petitioner seeking relief under Article 32 of the Constitution would have to establish would therefore be : (a) the existence in him of the fundamental right which he complains has been infringed, and (5) its violation by State action. If these two conditions are satisfied the petitioner is entitled as of right to the grant of relief and the Court would be under a duty to afford him that relief by passing appropriate orders or directions which would be necessary to ensure the maintenance of his fundamental right.

(3) There was no dispute that a fundamental right could be invaded by State action which was legislative in character, or where the complaint was as regards the action of executive and administrative authorities created even under valid statutes.

(4) If the above premises which were not in dispute were granted, the next step was whether the decision of a quasi-judicial authority constituted under a valid law could violate a guaranteed freedom. A quasi-judicial authority he urged is as much part of the machinery of the State as executive and administrative authorities, and its decisions and orders are as much State action and if the function of Part III of the Constitution is to protect the citizen against improper State action, the protection should logically extend to the infraction of rights effected by such orders of quasi-judicial authorities.

260. The short question for decision may in the circumstances be formulated thus : Can an action of a quasi-judicial authority functioning under a valid enactment and not overstepping the limits of its jurisdiction imposed by the Act and not violating the procedure required by the principles of natural justice but whose decision is patently erroneous and wholly unjustified on any proper interpretation of the relevant provision, be complained of as violative of the fundamental rights of a party prejudicially affected by such mis-interpretation. Taking the handy illustration of a taxing statute, if by plain misinterpretation of the charging-provision, an assessing authority levies a tax on transaction A while the statute on its only possible construction imposes no tax on such a transaction, is any fundamental right of the party who is subjected to such an improper levy prejudicially affected by such imposition ?

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

262. Pausing here, one further matter might also be mentioned for being put aside. This Court has laid down that the principle underlying the rule of res judicata is based on principles of law of general application and as such would govern also the right to relief under Article 32. That principle is not involved in the consideration of the point under discussion, because what is sought to be challenged as violating a fundamental right is the very order of the authority and we are not concerned with a collateral attack on an order that had become final as between the parties thereto.

263. Coming back to the point under consideration it was conceded by the learned Additional Solicitor General who appeared for the respondent that legislative action might involve an infraction of fundamental rights and that similarly the action of the executive-authorities might involve such an infraction even when the legislation under which they acted or purported to act was within legislative competence and within the constitutional limitations imposed by Part III. His contention, however, was that a very different state of circumstances arose when the action complained of was by a quasi-judicial authority. His submission may be summarised in the following terms :- Where a statute was within legislative competence and does not by its provisions violate any of the constitutional guarantees in Part III, it follows as a matter of law that every order of a quasi-judicial authority vested with power under the Act is also valid and constitutional and that the legality and constitutionality of the statute would cover every act or order of such an authority if the same was within his or its jurisdiction and prevent them from the challenge of unconstitutionality. The same argument was presented in a slightly different form by saying that such a quasi-judicial authority has as much jurisdiction to decide rightly as to decide wrongly and that if there was error in such a decision the only remedy of the citizen affected was by resort to the tribunals set up by the Act for rectifying such errors and that in the last resort, that is after the entire machinery under the Act was exhausted, the affected party had a right to approach the High Courts under Article 226 in cases where the error was of a type which could be brought within the scope of the remedial-writs provided by that Article.

264. Before examining the correctness of this submission it is necessary to mention that Mr. Chari who appeared for some interveners supporting the Respondent, made a submission which if accepted would have far-reaching consequences. His contention was that the State in Part III against whose action the fundamental rights were guaranteed was confined to the legislative and the executive branches of State activity and that the exercise of the judicial power of the State would never contravene the fundamental rights guaranteed by Part III. It would be seen that this is wholly different from the submission made on behalf of Government by the learned Additional Solicitor-General and it would be convenient to deal with this larger question after disposing of the arguments of Mr. Sanyal.

265. The question for consideration is what exactly is meant when it is said that a statute is valid in the sense of : (a) being legally competent to the legislature to enact, and (b) being constitutional as not violative of the freedoms guaranteed by Part III. It is obvious that it can only mean that the statute properly construed is not legally incompetent or constitutionally invalid. In this connection it is of advantage to refer to a point made by Mr. Palkhivala who appeared for some of the interveners in support of the petition. One of his submission was this : Suppose there is an Act for the levy of sales-tax which is constitutionally valid. On its proper construction it does not purport to or authorise the imposition of a tax on a sale “in the course of export or import.” If it did so expressly authorise, it is obvious that such a provision in the enactment would be ultra vires and unconstitutional as violate of the prohibition contained in Article 286(1)(a). Suppose further that an authority functioning under such an enactment vested with jurisdiction to assess dealers to sales tax proceeds to levy a tax and includes in the computation of the assessable turnover not merely those items which are properly within the legislative competence of the State Legislature to tax under the head ‘Taxes on the sale of goods’ but also the turnover in respect of transactions which are plainly “sales in the course of export or import” and this it does on a patent misconstruction of the statute, could it be said that the fundamental right of the dealer guaranteed by Article 19(1)(f) and (g) was not violated by the imposition of the sales tax in such circumstances ? The logic behind this argument might be stated thus : If the legislature had in terms authorised the imposition of sales tax on such a transaction it would have been plainly void and illegal and hence ex-concessis the fundamental right in respect of property as well as of business under Article 19(1)(f) and (g) would be violated by the levy of the tax and its collection. How is the position improved if without even the legislature saving so in express terms an officer who purports to act under the statute himself interprets the charging provision so as to bring to tax a transaction which it was constitutionally incompetent for the legislature itself to tax. I find the logic in this reasoning impossible to controvert, nor did the learned Additional Solicitor-General attempt any answer to this argument.

266. It appears to be manifest that the fact that an enactment is legislatively competent and on its proper construction constitutionally valid, i.e., it does not contain provisions obnoxious to Part III of the Constitution, does not ipso jure immunise the actions of quasi-judicial authorities set up under the statute from constituting an invasion of a fundamental right. What the legislature could not in express terms enact, could not obviously be achieved by the State vesting power in an authority created by it to so interpret the enactment as to contravene the Constitution. It might be suggested that such a case would fall within the exception which it is conceded exists that an act of a quasi-judicial authority which is plainly beyond its jurisdiction could give rise to the violation of a fundamental right in regard to which this Court might afford relief if moved under Article 32. In my opinion, this is not quite a satisfying answer because the suggestion is coupled with the assertion of the well-worn dictum as regards the jurisdiction of the tribunal to decide wrongly as much a rightly. The illustration I have given of unconstitutional authorities acting under valid and constitutional enactments cannot be properly answered unless it be held that a plain and patent mis-interpretation of the provisions of the enactment could it self give rise to a plea that it was beyond the jurisdiction of the authority but that would be stretching the concept of jurisdictional errors beyond what is commonly understood by that term.

267. Let me next take a case where the mis-interpretation by the quasi-judicial authority does not involve the levy of a duty beyond the competence of the legislature enacting the statute. In the type of case now under consideration the quasi-judicial authority by a plain misinterpretation of, let us say, the charging provision of a taxing enactment (as that furnishes a handy illustration of the point now under discussion) levies a tax on a transaction which, under the Constitution, it was competent for the legislature to levy if it had been so minded. In other words, there are two related transaction or taxable events – A & B. The taxing statute has selected the transaction or taxable event A and has imposed a tax upon it, and it alone. The authority vested with jurisdiction under the Act, however, by a patent misconstruction of the enactment considers that not merely the transaction or taxable event A but also the related transaction or taxable event B is within the charging provision and levies a tax thereon and proceeds to realise it. The problem now under consideration is, could or could it not be said that in such a case the fundamental right of a citizen who has been wrongly assessed to tax of in respect of the transaction or taxable event B which ex-concessis was not intended to be taxed under the enactment has been violated. With the greatest respect to those who entertain a contort view I consider that the question can be answered only in one way and that in favour of holding that the fundamental right of the citizen is prejudicially affected. When once it is conceded that a citizen cannot be deprived of his property or be restricted in respect of the enjoyment of his property save by authority of law, it appears to me to be plain that in the illustration above there is no statutory authority behind the tax liability imposed upon him by the assessing authority. The Act which imposed the tax and created the machinery for its assessment, levy and collection is, no doubt, perfectly valid but by reason of this circumstance it does not follow that the depravation of property occasioned by the collection of a tax which is not imposed by the charging section does not involve the violation of a fundamental right merely because the imposition was by reason of an order of an authority created by the statute, though by a patent mis-interpretation of the terms of the Act and by wrongly reaching the conclusion that such a transaction was taxable.

268. I consider that the four concessions made by the respondent which I have set out earlier, all proceed on the basis that in these cases there is no valid legislative backing for the action of the authority – executive, administrative or quasi-judicial. I consider that the reason of that rule would equally apply to cases where the quasi-judicial authority commits a patent error in construing the enactment – for in such a case also there would obviously be no legislative backing for the action resulting from his erroneous decision.

269. There is however one matter to which it is necessary to advert to avoid misconception, and that concerns the effect of findings reached on questions of fact by quasi-judicial authorities. Provided there is relevant evidence on which the finding could rest, the finding would preclude any violation of fundamental right because this Court, through in the absence of a finding of a duty constituted authority would have the power and jurisdiction to investigate even disputed facts in an appropriate case, would however accept findings of fact by duly constituted authorities and proceed to find out whether on that basis a fundamental right exists and is prejudicially affected by the action impugned. The distinction which I would, in this context, draw and emphasise is between a mis-interpretation of a statute by which an authority brings within the scope of an enactment transactions of activities not within it on any possible construction of its terms, and erroneous findings on facts by reason of which the authority considers a transaction as being within the Act even if properly construed.

270. To sum up the position : (1) If a statute is legally enacted in the sense of being within legislative competence of the relevant legislature and is constitutional as not violating any fundamental rights, it does not automatically follow that any action taken by quasi-judicial authorities created under it cannot violate fundamental rights guaranteed by Part III of the Constitution. The legislative competence, the existence of which renders the enactment valid, is confined to action by the authorities created under it, which on its proper construction could be taken. In an authority constituted under such a legal and valid enactment over-steps the constitutional limitations on the legislative power of the State Legislature, the acts of such an authority would be plainly unconstitutional and the consequences arising out of unconstitutional State action would necessarily attach to such action. If an “unconstitutional Act” of the State Legislature would invade fundamental rights the same character and the same consequence must a fortiori follow when that act is not even by the State Legislature but by an authority constituted under an enactment passed by it (2) Where State action without legislative sanction behind it would violate the rights guaranteed under Part III, the result cannot be different because the State acts through the mechanism of a quasi-judicial authority which is vested with jurisdiction to interpret the enactment. The absence of legislative sanction for the imposition of an obligation or the creation of a liability cannot be filled in by the misinterpretation by an authority created under the Act.

271. To hold that a patently increased interpretation of a statute by a quasi-judicial authority by which a liability is imposed on a citizen does not violate his fundamental rights under Articles 19(1)(f) and (g) might not have done consequences but for two circumstances. The first is as regards the difficulty of designating with certainty an authority as quasi-judicial. The fact is that there is no hard and fast formula for determining when an authority which is vested with power to act on behalf of the State falls within category which is termed ‘quasi-judicial’. As Prof. Robson stated; “Lawyers, of course, have often had to decide, in practical cases arising in the courts, whether a particular activity was of a judicial or an administrative (or ‘ministerial’) character, and important consequences have flowed from their decisions. But those decisions disclose no coherent principle, and the reported cases throw no light on the question from the wider point of view………. save to demonstrate, by the very confusion of thought which they present, the difficulty of arriving at a clear basis of distinction”. The significance of this point stems from the fact that it is a matter of concession that where the power of the State is vested in an executive or administrative authority under an enactment which is valid and constitutional and such an authority does an act which on the proper construction of the relevant statute is not justified by it, the act may be of such a character as to violate a fundamental right guaranteed by Part III, i.e., if the impact is in a field which is protected from State interference, and such a violation could be complained of by a petition to this Court under Article 32. At the same time it is the contention of the respondent that a similar act, order or decision by a quasi-judicial functionary which is not warranted by the terms of the statute, does not give rise to the violation of fundamental rights.

272. It is therefore necessary to examine somewhat closely the dividing line between an executive authority whose actions may give rise to the violation of a fundamental right and what is termed a “quasi-judicial” authority whose actions do not have that effect. To start with, it is obvious that the nature of the act or of the order might be the same, so that if the same act proceeded from one authority it would have a particular effect but would have quite a different effect or would not have that effect if the same act proceeded from a slightly different type of authority also exercising the power of the State. This Court in Express Newspapers (Private) Ltd. and Another Vs. The Union of India (UOI) and Others, quoted with approval the following statement of the law as summarised in Halsbury’s Law of England (3rd Ed., Vol. 2 at pp. 53-56) :

“………….. An administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of, and are not in accordance with the practice of a court of law……………… A body may be under a duty, however, to act judicially although there is no form of lis inter parties before it……..”

273. and in a further passage from the decision in R. v. Manchester Legal Aid Committee [1952] 2 Q.B. 413 which this Court extracted it was observed :

“The true view, as it seems to us, it that the duty the act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable, to attempt to define exhaustively.”

274. The question therefore whether an authority created under a statute is a quasi-judicial authority or, in other words, an authority which is bound to act judicially cannot be laid down by any hard and fast rule but must be gathered from the entire provisions of the Act read with the purpose for which the power is vested in the authority as well as the grounds for the creation of such authority. I must however confess that this is a branch of law in which authorities far from shedding light are in reality unhelpful – for one gets nowhere if these lay down as they do, that an authority would be quasi judicial, if (not being a court) it is bound to act judicially and that to find out when, apart from clear provisions in the statute, it is bound to act judicially – you are told that it is when it is a quasi-judicial authority. Bearing in mind these circumstances I find it not possible to accept the contention that if the power of the State be exercised by an authority which on a conspectus of the statute is deemed to be quasi-judicial and the exercise of such power prejudicially affects rights of life, liberty or property which are guaranteed by Part III the same cannot amount to a violation of a fundamental right, whereas if on a proper construction of the statute that authority were a mere administrative body but the act remains the same, it would so involve.

275. Let me next see whether there could be any rational or reasonable basis on which such a contention could rest. I take it that the reason why quasi-judicial authorities are suggested as being exceptions to the general rule that State action which involves a prejudicial result on a person’s right to property etc. involves a violation of fundamental rights is that a quasi-judicial authority is vested with the jurisdiction to decide and that the conferment of such a jurisdiction carries with it by necessary implication a right to decide rightly as well as wrongly; in other words, that it does not outstep the limits of the jurisdiction by a decision which is erroneous. I consider that it is the case of the transference of a principal to a branch of law or a situation in which it has no place or relevance. The question for consideration in the context of a petition under Article 32 is whether there is valid legal sanction behind the action of the authority, for apart from such a sanction it must be and it is conceded that there would be a violation of a fundamental right. Besides, if this proposition is right, then it must rest on the principal that the quasi-judicial authority is vested with the right to decide. Does it, however, follow that executive action does not involve a decision or posit a right to decide ? If it is clear law, as must be conceded, that there is no necessity to have a lis in order to render the body or authority deciding a matter to be treated as a quasi-judicial authority, then it is very difficult to conceive of few actions by the executive which do not involve an element of discretion. No doubt in the case of an administrative or executive body the decision is not preceded by a hearing involved in the maxim Audi Alteram Partem but this, in my opinion of the merely the procedure before the decision is reached and is not the essence of the distinction. Besides, as pointed out by Prof. Robson in ‘Justice and Administrative Law’ (a),

“Sometimes the administrative and judicial functions of an office have been so inextricably blended that it is well-nigh impossible to say which capacity is the dominant one.”

276. In this state of affairs to determine the maintainability of a petition under Article 32 by proceeding on an investigation as to the nature of the authority which passed that order when, as I have pointed out earlier, there is no essential differences in either the nature of the quantum of the injury suffered by the citizen, cannot be sustained on any proper interpretation either of the Constitution or the principles of law governing the interpretation of statutes. I would, therefore, hold that the freedoms guaranteed by Part III may be violated by the action of a quasi-judicial authority acting within the limits of its jurisdiction under a valid and constitutional statute where it plainly misinterprets the provisions of the statute under which it functions or which it is created to administer.

277. As regards the practical effect of accepting the contention of the learned Additional Solicitor General there is a second matter to which I consider it essential to draw attention. With a very great increase in governmental activity and the diverse fields in which it operates owing to the State being a welfare State as contrasted with a Police-State concerned mainly with the maintenance of law and order, there has necessarily been a great proliferation of governmental departments with the attendant creation of several authorities which have to pass decisions in spheres affecting the citizen at manifold points. It is therefore true to say that in a modern welfare State administrative agencies exercising quasi-judicial authority are vastly more numerous and if I may add, more important and more vital than even the normally constituted Courts. In such a situation to hold that fundamental rights would not be involved by the activities of these various authorities which are increasing in number day by day would, be in my opinion, to deny to the citizen the guarantee of effective relief which Article 32 was designed to ensure in the great majority of cases. In such a situation to assert at one breath the prime importance and significance of the function of this Court as a protector and guarantor of fundamental rights, and at the same time to hold that these numerous statutory authorities which are created to administer the law cannot invade those rights would be to render this assertion and this guarantee of relief mostly empty of meaning. Though if the words of the Constitution were explicit, considerations such as there would be of no avail, yet even it the matter were ambiguous I am clearly of the opinion that the rejection of the broad contention raised on behalf of the respondent is justified as needed to given effect to the intentions of the framers of the Constitution. But as I have pointed out already, on no logical basis could it be held that where an act or order of a quasi-judicial authority lacks legislative backing, it cannot still impinge on a person’s fundamental right and where an order suffers from patent error, it is no legislative sanction behind it.

278. It now remains to consider the point urged by Mr. Chari that “State” action which involves the violation of a fundamental right does not include that resulting from what be termed “the judicial authority of the State”. The argument put forward in support of this proposition was rested in most part, if not wholly, on the terms of Article 12 of the Constitution and the definition of the expression “State” contained in it. Article 12 enacts :

“In this part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

279. It was pointed out that the “State” whose action might involve the violation of fundamental rights or rather was against whom the citizen had been granted a guarantee of certain rights under this Part was defined to include the “Government” and “Parliament” of the Union and of the States, and the local authorities, did not name the “Judicial power of the State” as within it. If learned Counsel is right in this submission that the State in Part III impliedly excludes judicial and quasi-judicial authorities by reason of the absence of specific mention the further submission that by any of the actions of such authorities fundamental rights could not be violated would appear to be made out and it has to be added that if this contention is right some of the concessions made by Mr. Sanyal would be unjustified.

280. There are several considerations to which I shall immediately advert which conclusively negative the correctness of the inference to be drawn from judicial and quasi-judicial authorities not being specifically named in Article 12(1) In the first place, it has to be pointed out that the definition is only inclusive, which itself is apt to indicate that besides the Government and the Legislature there might be other instrumentalities of State action which might be comprehended within the expression “State”. That this expression “includes” is used in this sense and not in that in which it is very occasionally used as meaning “means and includes” could be gathered not merely from other provisions of Part III but also from Article 12 itself. Article 20(1) would admittedly refer to a limitation imposed upon the judicial power of the State and is obviously addressed also, if not wholly, to judicial authorities. Mr. Chari however sought to get over the implication arising from Article 20(1) by suggesting that the definition in Article 12 which excluded judicial and quasi-judicial authorities from within the purview of the expression “State” should be understood as applying only subject to express provision to the contrary. I feel wholly unable to accept the method suggested of reconciling the presence of Article 20(1) with the interpretation of Article 12 as excluding judicial and quasi-judicial authorities. No doubt, the definition in Article 12 starts with the words “unless the context otherwise requires”, that expression however could serve to cut down even further the reach of the definition and cannot serve to expand it beyond the executive and legislative fields of State action if the word “includes” were understood as “means and includes” which is the contention urged by learned Counsel. Again, Article 12 winds up the list of authorities falling within the definition by referring to “other authorities” within the territory of India which cannot, obviously be read as ejusdem generis with either the Government and the Legislatures or local authorities. The words are of wide amplitude and capable of comprehending every authority created under a statute and functioning within the territory of India. There is no characterisation of the nature of the “authority” in this residuary clause and consequently it must include every type of authority set up under a statue for the purpose of administering laws enacted by the Parliament or by the State including those vested with the duty to make decisions in order to implement those laws (2). Among the reliefs which on the terms of Article 32 this Court might afford to persons approaching it complaining of the violation of the fundamental right is the issue of a writ of certiorari specifically enumerated in that Article. It is common ground that that writ is available for issue only against judicial or quasi-judicial authorities and it would normally follow that quasi-judicial authorities could equally with other instruments of State action violate fundamental rights which could be redressed by the issue of this type of writ. (3) The theory propounded by learned Counsel is based on what might be termed the rigid doctrine of the separation of powers which is not any feature of our Constitution as has bean repeatedly laid down by this Court. (4) Even on the words of Article 12 as they stand that construction suggested by learned Counsel has to be rejected. The article refers to the government (of Union and of the States) as within the definition of a “State”. It is however admitted that both the Government of the Union as well as of the State, function as quasi-judicial authorities under various statutory enactments. The question would at once arise whether when the “government” exercise such powers it is deemed to be a “government” falling within the definition of “State” or should be classified as a judicial authority wielding ‘the judicial power of the State” so as to be outside the definition, so that its decisions and orders do not give rise to a violation of a fundamental right. Article 12 on any reasonable construction cannot permit the dissection of “government” for the purpose of discovering the nature or the quality of the powers exercised by it, into the three fields of executive pure and simple, judicial and legislative for the purpose of a fresh reclassification into certain categories. When government exercises any power, be it executive pure and simple, or quasi-judicial under a statute or quasi-legislative in say framing subordinate legislation, it does so as “government” and no further sub-division of it is possible except for the purposes merely of academic study or for determining the nature of the relief which might be had by persons affected by its activities in any particular field. Similarly, Parliament is vested with a quasi-judicial power to punish for contempt which itself if by reason of such power belonging to the Parliament of the United Kingdom and this if anything is an indication that the constitution does not recognise any doctrine of the separation of powers. In other words, the reference to the Government and the Legislature in the definition is a reference to them as institutions known by that name and is not with a view to describe their particular functions in the body politic.

(5) That the reference to the Government and the Legislatures is to them as institutions and is not to be understood a reference to their functions, viz., to bodies performing executive and legislative functions is perhaps forcefully brought out by the inclusion of “Local authorities” in the definition of “State”. It is obvious that municipal and local Board authorities going under various descriptions in the several State would be comprehended within that term. Now municipal councils exercise, as is well known, legislative, executive as well as quasi-judicial functions. They frame Rules and bye-laws which are subordinate legislation and would fall within the description of “laws” as defined by Article 13, Municipal Councils are vested with administrative functions and they also exercise quasi-judicial functions when assessing taxes, hearing taxation appeals, to mention only a small fraction of the quasi-judicial power which they possess and exercise in the discharge of their functions as the local administration. If the “local authority” as a whole is a “State” within the definition there is no canon of construction by which any part of the action of that authority could be designated as not falling within State action for the purpose of giving rise to violation of a fundamental right. (6) There is only one other matter which need be referred to in this connection. Both this Court, as well as the High Court have vested in them the power to make rules, and it cannot be disputed that such rules would be “laws” within the definition of the expression in Article 13. If so, it is manifest that such rules might violate the fundamental rights, i.e., their validity would depend inter alia on their passing the test of permissible legislation under Part III. This would directly contradict any argument that Courts and quasi-judicial authorities are outside the definition of State in Article 12.

281. In the face of these deductions following from the Constitutions itself, I find it wholly impossible to accede to the submission that what is termed as judicial power of the State which, it is submitted, would include quasi-judicial authorities created under statutes do not fall within the definition of the “State” and that their actions therefore are not to be deemed “State” action against which the Constitution has provided the rights guaranteed under Part III.

282. I would therefore answer the question referred to the Bench by saying that the action of quasi-judicial authority could violate a fundamental right if on a plain mis-construction of the statute or a patent misinterpretation of its provisions such an authority affects any rights guaranteed under Part III. This would be in addition to the three broad categories of cases in regard to which it was conceded that there could be a violation of fundamental rights : (1) where the statute under which it functions was itself invalid or unconstitutional, (2) where the authority exceeds the jurisdiction conferred on it by the Act, and (3) where the authority though functioning under statute, contravenes mandatory procedure prescribed in the statue or violates the principles of natural justice and passes an order or makes a direction affecting a person’s rights of property etc.

283. Before concluding it is necessary to advert to one matter which was just touched on in the course of the arguments as one which might be reserved for consideration when it actually arose, and this related to the question whether the decision or order of a regular ordinary Court of law as distinguished from a tribunal or quasi-judicial authority constituted or created under particular statutes could be complained of as violating a fundamental right. It is a salutary principle that this Court should not pronounce on points which are not involved in the questions raised before it and that is the reason why I am not dealing with it in any fullness and am certainly not expressing any decided opinion on it. Without doing either however, I consider it proper to make these observations. There is not any substantial identity between a Court of law adjudicating on the rights of parties in the lis before it an designed as the High Courts and this Court are to investigate inter alia whether any fundamental right are infringed and vested with power to protect them, and quasi-judicial authorities which are created under particular statutes and with a view to implement and administer their provisions. I shall be content to leave the topic at this.

284. This brings me to the question as to whether there has been a patent misinterpretation of the statute, as I have described earlier, and whether as a result the petitioner has established a violation of a fundamental right. Section 4(1) of the U.P. Sales Tax Act enacted :

“No tax shall be payable on :

(a) the sale of water, milk…………… and on any other goods which the State Government may, by notification in the official gazette, exempt.

(b) the sale of any goods by the All India Spinner – Association …………….. or such other person or class of persons as the State Government may, from time to time, exempt on such conditions …….. as may be specified by notification in the official gazette.”

285. Pursuant of the powers conferred by a section 4(1)(b) the Government of Uttar Pradesh published a notification dated December 14, 1957 and it is the proper interpretation of this notification that forms the central point of the merits of this petition. The notification read :

“…….. In exercise of the powers conferred by clause (b) of sub-section (1) of section 4 of the U.P. Sales Tax Act 1948 as amended up to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from the 14th of December 1957 by the dealers in respect of the following classes of goods :

Provided that the Additional Central-Excise Duties leviable thereon from the closing of business on December 13, 1957 have paid on such goods and that the dealers there of furnish proof to the satisfaction of the assessing authority that such duties have been paid :

(1) ………………………………………………………

(2) ………………………………………………………

(3) Cigars, cigarettes, biris and tobacco, that is to say any form tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth.”

286. The petitioners are manufacturers of hand-made biris and there was no duty of excise payable on them under the relevant entry in the Central Excise Act, nor was there any imposition of any fresh duty on biris so manufactured under Central Act 58 of 1957 whose object was to provide for the levy and collection of “additional duties interalia on tobacco and tobacco products and for the distribution of a part of the net proceeds thereof among the States in place of the sales tax which was to be forborne by the States on those goods. Briefly stated, the contention urged on behalf of the petitioner was that in the proviso to the notification dated December 14, 1957, the expression have been paid on such goods” applied only to those cases where an additional duty was payable and was framed to deny the benefit of the exemption to parties who being liable to pay such duty failed to pay the same. Where, however, no duty, was payable at all, no question of the levy of duty arose and the proviso was inapplicable. On the other hand, the Sales Tax Officer construed the notification with the aid of the proviso as meaning that the exemption from payment of sales tax was granted only in those cases where an additional duty having become payable the same had been paid i.e. the State was intended to be deprived of the right to levy Sales was only when it obtained some benefit from the additional excise duty which was distributed to it. The question that arises is not whether the construction contended for by the petitioner is the correct or the preferable one, but whether that adopted by the Sales Tax Officer was not one which it was possible for one reasonably to take of the provision. If not withstanding that the one is preferable to the other or that a Court of construction would more readily accede to the one rather than to the other, the officer had adopted a construction which it was possible to take, could it be said that there was an error apparent on the face of the record justifying the issue of a writ of certiorari. Judged from the point of view I am inclined to hold that where it is possible reasonably to uphold the construction adopted by an inferior tribunal it would be a case of mere error of law and not a patent error, or an error apparent on the face of the record which should justify the issue of a writ of certiorari. In this view I would dismiss the writ petition.

287. As regards the application to restore the appeal to the file, I do not consider that the request ought to be allowed and for two reasons : Firstly, the applicant having voluntarily withdrawn the appeal I do not see any justification for acceding to his present request. Secondly, if as I have held, the error in the order of the officer was not such as to justify the issue of a writ of certiorari to quash the same the judgment of the High Court under Article 226 was correct and the petitioner would not gain any advantage by the revival of the appeal. In the circumstances I would dismiss the petition for restoration of the appeal.

Mudholkar, J.

288. The question which arises for consideration in this petition under Article 32(1) of the Constitution is whether a right guaranteed by Part III such as a right to carry on trade or business is breached because a taxing authority, though acting under a law which is inter vires and following a procedure which is constitutionally as well as legally permissible has erroneously assessed and levied a tax on a trade or business. Unless we hold that an erroneous assessment, be it due to misconstruction of law or misappreciation of facts, constitutes an invasion of a right guaranteed by Part III, the remedy provided by Article 32(1) will not be available. The substance of the petitioner’s contention is that when the construction placed by a taxing authority upon a provision of law is wrong the levy of tax is one which is not authorised by law and thus the assessee’s right under Article 19(1)(g) of the Constitution is infringed.

289. What had do be construed by the Sales Tax Officer in the case before us was not a statutory provision but a notification issued by the Government of Uttar Pradesh on December 14, 1957 u/s 4(1) of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act XV of 1948). The aforesaid provision of the Sales Tax Act and the notification have been set out in the judgments of some of my learned brethren and need not be set out over again in this judgment. Upon the construction placed by him on this notification the Sales Tax Officer held the petitioner liable to pay sales tax on the turnover of sales of bidis for the period between April 1, 1958 and June 20, 1958. The petitioner’s contention before the Sales Tax Officer was that bidis were exempted from sales tax by the notification in question. The plea was negatived by the Sales Tax Officer. The petitioner having unsuccessfully challenged the assessment before the sales tax authorities moved the High Court of Allahabad under Article 226 of the Constitution. The petition was dismissed. Having failed them the petitioner sought and obtained a certificate from the High Court to the effect that the case is fit for appeal before this Court. Thereafter the petitioner moved the present petition before this Court but took no steps to bring the appeal before this Court. That appeal was thereupon dismissed for non-prosecution on February 20, 1961. I may incidentally mention here that the petitioner has now applied for restoration of the appeal. But that has nothing to do with the point which I have referred to earlier.

290. This petition went up before a constitution bench of this Court. At the hearing reliance was placed on behalf of the petitioner on the decision of this Court in Kailash Nath and Another Vs. State of U.P. and Others, in which by accepting an interpretation on a provision of the Sales Tax Act different from that put upon it by the sales tax authorities this Court held that the petitioner before it was being deprived of his property without the authority of law. The correctness of the decision was challenged on behalf of the respondent State on the basis of various decisions, including some of this Court, an in view of the importance of the question involved the case was directed to be placed before the Chief Justice for constituting a large Bench. In the referring Order the following two questions were formulated by the learned Judges who made the reference :

(1) Is an order of assessment made by an authority under a taxing statute which is intra vires, open to challenge as repugnant to Article 19(1)(g) on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder ?

(2) Can the validity of such an order be questioned in petition under Article 32 of the Constitution ?

291. I have not discussed the decisions of this Court as they have been considered fully in the judgments of my brethren but have approached the questions with reference to the principles of law applicable to the questions placed before us.

292. The two questions are really one : ‘Can an erroneous order of assessment by a taxing authority result in a breach of a right to carry on trade or business so as to entitle the person complaining of the breach to approach this Court under Article 32 ? The remedy provided by this Article – which is itself a fundamental right – is restricted to the enforcement of fundamental rights and does not extend to other rights such as a right to have a wrong order quashed. On the one hand it was contended at one stage, on the authority of the-decisions in Ramjilal Vs. Income Tax Officer, Mohindargarh, and Laxmanappa Hanumantappa Jamkhandi Vs. The Union of India (UOI) and Another, that a fundamental right will not be breached if the requirements of Article 265 are satisfied, that is to say, the tax is assessed under authority of law. On the other hand it is said, in substance, that an erroneous order of a taxing authority is an unreasonable restriction on a person’s right to carry on trade or business and Article 32 entitles that person to redress from this Court. It has, however, been made clear in several decisions of this Court that a law under Article 265 must not violate a right guaranteed in Part III of the Constitution. [See Mohammad Yasin Vs. The Town Area Committee, Jalalabad and Another, ; The State of Bombay and Another Vs. The United Motors (India) Ltd. and Others, ; Shree Meenakshi Mills Ltd., Madurai Vs. Sri A.V. Visvanatha Sastri and Another, ; Ch. Tika Ramji and Others etc. Vs. The State of Uttar Pradesh and Others, ; Balaji Vs. Income Tax Officer, Special Investigation Circle, . If it violates any of the guaranteed rights, recourse to the provisions of Article 32 is available to the aggrieved person.

293. Fundamental rights enumerated in Article 19(1) are however, liable to be restricted by laws permissible under clauses 2 to 6 and, therefore, we must first consider the limits within which a person can claim to assert and exercise his fundamental right. We must also bear in mind the nature of a quasi-judicial tribunal and the legal efficacy of its decisions.

294. The right to carry on trade, business etc., with which we are concerned here falls under clause (1)(g) and can be restricted by a law permissible by clause 6. This right is further subject to the sovereign power of the State to levy a tax. For, the right to levy a tax is essential for the support of the State and in exercise thereof the State can impose a tax on a trade or business. Article 265 if the Constitution provides that the imposition must be under the authority of a law. Further our Constitution being, broadly speaking, federal, the right to levy taxes has been divided between the Union and the States and the fields in which the Union and the States can respectively levy taxes have been demarcated in the lists contained in the Seventh Schedule to the Constitution. Despite the demarcation, each is supreme in its own field in the matter of levying taxes. There is yet another limitation on the power of the State to make laws including a law levying a tax and that is placed by clause (2) of Article 13 of the Constitution which runs thus :

“The State shall not makes any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.”

295. A per-constitution law like the U.P. Sales Tax Act with which we are concerned here must also be consistent with Article 13(1) which runs thus :

“All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such in consistency, be void.”

296. Such a law or any provision thereof the extent of its inconsistency with the provisions of Part III of the Constitution will be void. The law must further not be violative of any other constitutional provision as for example Article 276(2), Article 286, Article 301 etc. The law must also have been enacted after complying with all the requirements of the Constitution and where it is subordinate legislation, those of other relevant laws.

297. If a law imposing a tax is in contravention of any of the rights conferred by Part III of the Constitution the law would be void and a person aggrieved would be entitled to move this Court under Article 32 on the ground that one of his fundamental rights has been infringed. Similarly, if a law is beyond the competence of the legislature which enacted in or if it contravenes any provision of the Constitution such as Article 276 or Article 286 it would be an invalid law as being ultra vires the Constitution and the tax levied thereunder would also be one which is not authorised by law and the assessee can move this Court under Article 32 on the ground that his right under Article 19(1)(g) is breached. Similarly, if a tax is levied by an authority not empowered by law to do so, or by a competent authority in violation of the procedure permitted by law or in violation of the principles of natural justice, the levy would be unauthorised and the decision under which it was made would be a nullity. In such a case also the assessee can move this Court under Article 32. All this is accepted before us on behalf of the State.

298. But where a tax is levied by a competent legislature, after due compliance with all the requirements relating to the making of laws and when it is subordinate legislation, the requirements of other relevant laws, and is also not in violation of any provision of the Constitution it will operate as a reasonable restriction upon the right of a person to carry on his trade, business etc. Though a person’s right to carry on a trade or business is a fundamental right it is thus subject to the aforesaid limitations. The quantum of the right left to an individual to carry on his trade or business will be that which is left after a valid restriction is placed upon it by the State under clause (6) of Article 19. His actual right would be to carry on business burdened with the aforesaid restriction. Where, as here, the restriction is placed on a dealer and takes the form of liability to pay a tax on the turnover of sales on certain commodities by him then he can carry on his trade subject to his liability to pay the tax as assessed from time to time. It is this which is the nett content of his right to carry on trade, ignoring for the moment restrictions laid upon it by other competent laws made by the State. After a valid restriction is placed upon a fundamental right what will be enforceable under Article 32 would be not the unrestricted right but the restricted right.

299. It was not disputed before us that where a quasi-judicial tribunal constituted under the Act whereunder a tax is levied, by an erroneous construction of the Constitution or of that Act holds the tax to be within the competence of the State legislature or as not contravening a provision of the Constitution, its decision will still be deemed to affect a fundamental right of the person upon whom a tax is levied in pursuance of that decision. This position was rightly not disputed before us because, in the premises, the Act would itself be void and consequently no legal liability can arise by virtue of the quasi-judicial tribunal constituted under it. A restriction imposed by a void law being illegal falls outside clause (6) of Article 19.

300. Now when a State wants to impose a tax on a trade or business it must necessarily provide for the machinery for assessing and collecting it. The assessment and collection of a tax cannot be arbitrary and, therefore, the State must confer upon the taxing authority the power and impose upon it the duty to act judicially. Absence of such a provision will make the law bad as being violative of Article 19(1)(g) : Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, .

301. The Sales Tax Act in force in Uttar Pradesh is a law of this kind. It not only imposes a tax on the sale of certain commodities but also provides for the assessment of the tax as well as for appeals, revisions etc., from the orders of assessment. It is a law as contemplated by Article 265 and it is not contended that any of its provisions infringe the petitioner under Article 19(1)(g).

302. Being an instrumentality of the State, like others charged with administrative duties, a taxing authority is not a court of law, as that expression is understood. All the same it has, in the discharge of its functions, to act judicially. Since, however, it is a tribunal of limited jurisdiction and since also it performs other functions which are administrative in character it is not a purely judicial but only a quasi-judicial tribunal.

303.The qualification ‘quasi’, however, would not make its duty to act judicially less imperative. In its role as an assessing authority is if incumbent upon it to ascertain facts and apply the taxing law to those facts. It must apply it mind to the relevant provisions of the law and to the facts of each case and arrive at its findings. It is, therefore, inevitable that the authority should have the power to construe the facts as well as the laws. In other words, it must have jurisdiction to do those things or else it decisions can never have any value or binding force.

304. A taxing authority which has the power to make a decision on matters falling within the purview of the law under which it is functioning is undoubtedly under an obligation to arrive at a right decision. But the liability of a tribunal to err is an accepted phenomenon. The binding force of a decision which is arrived at by a taxing authority acting within the limits of the jurisdiction conferred upon it by law cannot be made dependent upon the question whether its decision is correct or erroneous. For, that would create an impossible situation. therefore, though erroneous, its decision must bind the assessee. Further, if the taxing law is a valid restriction the liability to be bound by the decision of the taxing authority is a burden imposed upon a person’s right to carry on trade or business. This burden is not lessened or lifted merely because the decision proceeds upon a misconstruction of a provision of the law which the taxing authority has to construe. therefore, it makes no difference whether the decision is right or wrong so long as the error does not pertain to jurisdiction.

305. The U.P. Act empowers the sales tax officer to make the assessment, to ascertain the necessary facts for holding whether or not a person is liable to pay tax and it he is liable, to determine the turnover of his sales. Since sales tax is imposed only on certain commodities and tax at different rates is since sales chargeable an different commodities the power of the Sales Tax Officer to makes an assessment carries with it the power to determine whether the sales of particular commodities effected by the assessee fall within the ambit of the Act or not and if they do, to determine the rate or rates of tax chargeable in respect of sales of different commodities. In regard to all these matters he has to follow the procedure prescribed by the Act. If he finds upon a construction of the Act and of the rules and notifications issued thereunder that a certain commodity is liable to pay a tax then so long as the transaction is one upon which the State legislature could impose a tax and the commodity is one on which the State legislature could impose a tax it is difficult to see how the decision arrived at by the Sales Tax Officer can be said to be otherwise than within his jurisdiction even though he may have made an error in coming to a particular conclusion. If he comes to a wrong conclusion would he, in demanding the tax on the basis of such conclusion, be making an unlawful demand ? The conclusion may be obviously or palpably wrong but so long as it is not shown to be dishonest would his decision to void ? Of course, if by placing an erroneous construction on the law he holds, say that a transaction which is hit by Article 286 of the Constitution is one which can be taken into consideration for the purposes of assessing the tax or if he holds that a commodity upon which the State legislature could not impose a tax is taxable under the Act he would clearly have acted beyond his jurisdiction and his assessment with respect to such a transaction or a commodity would be void. With respect to such assessment the assessee will of course have the right to move this Court under Article 32. But where such is not the case and the error of the Sales Tax Officer lay only in holding that a tax is payable on a certain commodity, as in this case bidis, even though bidis may have been exempted from such tax by a notification made by the Government, how could he be said to have acted without jurisdiction ?

306. It was, however, contended that where the erroneous construction by the Sales Tax Officer results in the levy of a tax for which there is no authority in law the fundamental right to carry on trade or business will necessarily be breached. The answer to this contention is that since he has the power to construe the law and decide whether particular transaction or commodity is taxable his decision though erroneous must be regarded as one authorised by law and consequently the tax levied thereunder held to be one authorised by law. For, what is authorised by law is that which the appropriate authority upon consideration and construction of the law holds to be within the law.

307. It was said that the answer would take in even erroneous decisions as to commodities and transactions with respect to which the State legislature is incompetent to make laws. I have no doubt that it would not, because the power of the Sales Tax Officer to levy a tax cannot extend beyond that of the State legislature.

308. The Sales Tax Officer functioning under the Act in question has, clearly the power to summon witnesses, call documents, record evidence and so on. The Act imposes a duty on him to give an opportunity to the person sought to be assessed to be heard. His decision upon matters falling within the scope of the laws governing the proceedings before him, unless revised or modified by a tribunal or authority or a court to which he is subordinate must, therefore, be regarded as having as much validity as that of a court of law in the exercise of its judicial power subject, of course, to the limitations stated earlier. The decision may be erroneous. It may proceed upon a blatant or obvious error on the face of the record. Even so, it cannot be regarded as ‘non est’ or void or a mere nullity. If that is the correct legal position, what difference would it make if as a result of an erroneous decision arrived at by a Sales Tax Officer resulting from a misconstruction of a notification under the Sales Tax Act, a person is held liable to pay tax upon sales of a commodity which, upon a proper construction, would appear to be exempted from tax by the law like the notification in question ? Just as a person cannot complain of a breach of his fundamental right to carry on trade or business because an erroneous decision of a court of law renders him liable to pay a sum of money, so too he cannot complain against an equally erroneous decision of a Sales Tax Officer. But that does not mean that an erroneous decision can never be challenged before this Court. After exhausting the remedies provided by the taxing statute the aggrieved party can challenge it directly under Article 136 or indirectly by first moving the High Court under Article 226 or 227 and then coming up in appeal against the decision of the High Court.

309. Though this Court is the guardian of all fundamental rights the Constitution has not taken away the right of the ordinary courts of quasi-judicial tribunals administering a variety of laws to exercise their existing jurisdiction and to determine matters falling within their purview. If by reason of the decision of a tribunal a person, for instance, loses his right to occupy a house, or has to pay a tax, that decision cannot be thrown to the winds and a complaint made to this Court that a fundamental right has been violated. The decision being one made in exercise of a judicial power and in performance of a duty to make it is a valid adjudication though as a result of it a person may not be able to occupy his house or may have to pay a tax. The decision may be a right one or wrong one. If it is not a nullity when it is right I fail to see how it can be said to be a nullity because it is erroneous, so long of course, as the law is a good law, the decision is of an authority competent to act under the law, the procedure followed by it is as prescribed by the law and the error does not pertain to jurisdiction. The error may lie in the construction placed upon a statue by the tribunal. If it is that and no more, such erroneous construction cannot render the action taken thereunder arbitrary or unauthorised. The error has to be corrected in the manner permitted by law or the Constitution and until it is so corrected it would not be open to the party to say that its fundamental right is violated.

310. Looking at the matter from the aspect of the nature of the right which is capable of being enforced under Article 32 the same conclusion is reached. Thus when the provisions of a taxing law entitle a taxing authority to assess and levy a tax and for these purposes to decide certain matters judicially and give binding effect to its decision and none of the provisions of that law are void under Article 13 or otherwise invalid the right enforceable under Article 32 would be the right to carry on business subject to the payment of tax as assessed by the taxing authority and not a right to carry on trade or business free from that liability. It makes no difference even if the assessment of the tax is based upon an erroneous construction of the taxing law inasmuch as the right to have a correct determination of the tax is not part of the fundamental right to carry on business but flows only from the taxing law. It would follow therefore that in such a case nothing is left for being enforced under Article 32 when the taxing authority does no more than assess and levy a tax after determining it.

311. One more point needs to be dealt with. It was said that a quasi-judicial tribunal being an instrumentality of the State its action is State action and so it will be under the same disabilities as the State to do a thing which is incompetent or impermissible for the State to do. It is also said that what a State cannot do directly it cannot do indirectly. In so far as the incompetency of the State arises out a constitutional prohibition or lack of legal authority due to any reason whatsoever, it will attach itself to the action of the quasi-judicial tribunal purporting to act as the instrumentality of the State. Where, in such a case, any fundamental right of a person is violated by the action of the quasi-judicial tribunal that person is entitled to treat the action as arbitrary or a nullity and come up to this court under Article 32 because the action would be one which is not authorised by law. But while an erroneous action of the State in exercise of its administrative functions can be challenged directly under Article 32 if it affects a person’s fundamental right on the ground that it is not authorised by law the action of the tribunal pursuant to an erroneous order will not be open to challenge for the reason that its action arises out of the exercise of a judicial power and is thus authorised by law, State action though it be. When, under the provisions of a law the State exercises judicial power, as for instance, by entertaining an appeal or revision or assessing or levying a tax it acts as a quasi-judicial tribunal and its decision even though erroneous will not be a nullity and cannot be ignored. It can be corrected only under Article 226 or Article 227 by the High Court or under Article 136 by this Court inasmuch as the State would then be acting as a quasi-judicial tribunal.

312. To summarise, my conclusions are these :

1. The question of enforcement of a fundamental right will arise if a tax is assessed under a law which is (a) void under Article 13 or (b) is ultra vires the Constitution or (c) where it is subordinate legislation, it is ultra vires the law under which it is made or inconsistent with any other law in force.

2. A similar question will also arise if the tax is assessed and/or levied by an authority (a) other than the one empowered to do so under the taxing law or (b) in violation of the procedure prescribed by the law or (c) in colourable exercise of the powers conferred by the law.

3. No fundamental right is breached and consequently no question of enforcing a fundamental right arises where a tax is assessed and levied bona fide by a competent authority under a valid law by following the procedure laid done by that law, even though it be based upon an erroneous construction of the law except when by reason of the construction placed upon the law a tax is assessed and levied which is beyond the competence of the legislature or is violative of the provisions of Part III or of any other provisions of the Constitution.

4. A mere misconstruction of a provision of law does not render the decision of a quasi-judicial tribunal void (as being beyond its jurisdiction). It is a good and valid decision in law until and unless it is corrected in the appropriate manner. So long as that decision stands, despite its being erroneous, it must be regarding as one authorised by law and where, under such a decision a person is held liable to pay a tax that person cannot treat the decision as a nullity and contend that what is demanded of him is something which is not authorised by law. The position would be the same even though upon a proper construction, the law under which the decision was given did not authorise such a levy.

313. My answer to each of the two questions is in the negative.

BY COURT : In accordance with the judgments of the majority, Writ Petition No 79 of 1959 is dismissed, but the parties will bear their own costs C.M.P. No. 1349 of 1961 for restoration of civil Appeal No. 572 of 1960 is also dismissed, but the parties will bear their own costs.

P. A. Inamdar and others vs State of Maharashtra and others[ALL SC 2005 AUGUST]

KEYWORDS:-  RIGHTS OF EDUCATIONAL INSTITUTION-

c

DATE:-12-08-2005

Coram of 11 Judge-

  • Judicial wing of the State is called upon to act when the other two wings, the Legislature and the Executive, do not act.
  • The real purpose of Article 30 is to prevent discrimination against members of the minority community and to place them on an equal footing with non-minority. Reverse discrimination was not the intention of Article 30. If running of educational institutions cannot be said to be at a higher plane than the right to carry on any other business, reasonable restriction similar to those placed on the right to carry on business can be placed on educational institutions conducting professional courses. For the purpose of these restrictions both minorities and non-minorities can be treated at par and there would not be any violation of Article 30(1), which guarantees only protection against oppression and discrimination of the minority from the majority. Activities of education being essentially charitable in nature, the educational institutions both of non-minority and minority character can be regulated and controlled so that they do not indulge in selling seats of learning to make money. They can be allowed to generate such funds as would be reasonably required to run the institute and for its further growth.

AIR 2005 SC 3226 : (2005) 2 Suppl. SCR 603 : (2005) 6 SCC 537 : JT 2005 (7) SC 313 : (2005) 6 SCALE 471

(SUPREME COURT OF INDIA)

P. A. Inamdar and others Appellant
Versus
State of Maharashtra and others Respondent

(Before : R. C. Lahoti, C.J.I., Y. K. Sabharwal, D. M. Dharmadhikari, Arun Kumar, G. P. Mathur, Tarun Chatterjee And P. K. Balasubramanyan, JJ.)

Civil Appeal Nos. 5041 with 5042 [ SEE BELOW]

Decided on : 12-08-2005.

Constitution of India, 1950—Articles 19(1)(g), 26(a), 30(1), 30, 29(2), 142, 19(6), 51A(j), 51A, 19(6), and 142.

Judgment

R. C. Lahoti, C.J.I—Preliminary

Leave granted in all SLPs.

2. A Coram of 11 Judges, not a common feature in the Supreme Court of India, sat to hear and decide T.M.A.Pai Foundation vs. State of Karnataka (2002) 8 SCC 481 (hereinafter ‘Pai Foundation’, for short). It was expected that the authoritative pronouncement by a Bench of such strength on the issues arising before it would draw a final curtain on those controversies. The subsequent events tell a different story. A learned academician observes that the 11-Judge Bench decision in Pai Foundation is a partial response to some of the challenges posed by the impact of Liberalisation, Privatisation and Globalisation (LPG); but the question whether that is a satisfactory response, is indeed debatable. It was further pointed out that ‘the decision raises more questions than it has answered’ (see : Annual Survey of Indian Law, 2002 at p.251, 254). The Survey goes on to observe “the principles laid down by the majority in Pai Foundation are so broadly formulated that they provide sufficient leeway to subsequent Courts in applying those principles while the lack of clarity in the judgment allows judicial creativity” (ibid at p.256).

3. The prophecy has come true and while the ink on the opinions in Pai Foundation was yet to dry, the High Courts were flooded with writ petitions, calling for settlements of several issues which were not yet resolved or which propped on floor, post Pai Foundation. A number of Special Leave Petitions against interim orders passed by High Courts and a few writ petitions came to be filed directly in this Court. A Constitution Bench sat to interpret the 11-Judge Bench decision in Pai Foundation which it did vide its judgment dated 14.8.2003 (reported as – Islamic Academy of Education and Anr. vs. State of Karnataka and Ors., (2003) 6 SCC 697; “Islamic Academy” for short). The 11 learned Judges constituting the Bench in Pai Foundation delivered five opinions. The majority opinion on behalf of 6 Judges was delivered by B.N. Kirpal, CJ. Khare, J (as His Lordship then was) delivered a separate but concurring opinion, supporting the majority. Quadri, J, Ruma Pal, J and Variava, J (for himself and Bhan, J) delivered three separate opinions partly dissenting from the majority. Islamic Academy too handed over two opinions. The majority opinion for 4 learned Judges has been delivered by V.N. Khare, CJ. S.B. Sinha, J, has delivered a separate opinion.

4. The events following Islamic Academy judgment show that some of the main questions have remained unsettled even after the exercise undertaken by the Constitution Bench in Islamic Academy in clarification of the 11-Judge Bench decision in Pai Foundation. A few of those unsettled questions as also some aspects of clarification are before us calling for settlement by this Bench of 7 Judges which we hopefully propose to do.

5. Pai Foundation and Islamic Academy have set out the factual backdrop of the issues leading to the formulation of 11- Judge and 5-Judge Benches respectively. For details thereof a reference may be made to the reported decisions. A brief summary of the past events, highlighting the issues as they have travelled in search of resolution would be apposite.

                                                              BACKDROP

6. Education used to be charity or philanthropy in good old times. Gradually it became an ‘occupation’. Some of the Judicial dicta go on to hold it as an ‘industry’. Whether, to receive education, is a fundamental right or not has been debated for quite some time. But it is settled that establishing and administering of an educational institution for imparting knowledge to the students is an occupation, protected by Article 19(1)(g) and additionally by Article 26(a), even if there is no element of profit generation. As of now, imparting education has come to be a means of livelihood for some professionals and a mission in life for some altruists.

7. Education has since long been a matter of litigation. Law reports are replete with rulings touching and centering around education in its several aspects. Until Pai Foundation, there were four oft quoted leading cases holding the field of education. They were Unni Krishnan vs. State of Andhra Pradesh (1993) 1 SCC 645, St. Stephen’s College vs. University of Delhi (1992) 1 SCC 558, Ahmedabad St. Xavier’s College Society vs. State of Gujarat (1974) 1 SCC 717 and In Re: Kerala Education Bill, 1957, (1958) SCR 995. For convenience sake, these cases will be referred to as Unni Krishnan, St. Stephen’s, St. Xavier’s and Kerala Education Bill respectively. All these cases amongst others came up for the consideration of this Court in Pai Foundation.

8. Correctness of the decision in St. Stephen’s was doubted during the course of hearing of Writ Petition No. 350 of 1993 filed by Islamic Academy. As St. Stephen’s is a pronouncement of 5-Judge Bench, the matter was directed to be placed before 7-Judge Bench.

9. An event of constitutional significance which had already happened, was taken note of by the Constitution Bench. “Education” was a State Subject in view of the following Entry 11 placed in List II – State List :-

“11. Education including universities, subject to the provisions of entries 63, 64, 65 and 66 of List I and entry 25 of List III.”

10. By the Constitution (42nd Amendment) Act 1976, the abovesaid Entry was directed to be deleted and instead Entry 25 in List III – Concurrent List, was directed to be suitably amended so as to read as under :-

“25. Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I; vocational and technical training of labour.”

11. The 7-Judge Bench felt that the matter called for hearing by a 11-Judge Bench. The 11-Judge Bench felt that it was not bound by the ratio propounded in Kerala Education Bill and St. Xavier’s and was free to hear the case in wider perspective so as to discern the true scope and interpretation of Article 30(1) of the Constitution and make an authoritative pronouncement.


Eleven Questions and Five Heads of Issues in Pai Foundation

12. In Pai Foundation, 11 questions were framed for being answered. Detailed submissions were made centering around the 11 questions. The Court dealt with the questions by classifying the discussion under the following five heads:

1. Is there a fundamental right to set up educational institutions and if so, under which provision?

2. Does Unni Krishnan require reconsideration?

3. In case of private institutions, can there be government regulations and, if so, to what extent?

4. In order to determine the existence of a religious or linguistic minority in relation to Article 30, what is to be the unit – the State or the country as a whole?

5. To what extent can the rights of aided private minority institutions to administer be regulated?

13. Having dealt with each of the abovesaid heads, the Court through the majority opinion expressed by B.N. Kirpal, CJ, recorded answers to the 11 questions as they were framed and posed for resolution. The questions and the answers as given by the majority are set out hereunder :

“Q.1. What is the meaning and content of the expression “minorities” in Article 30 of the Constitution of India?

A. Linguistic and religious minorities are covered by the expression “minority” under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the whole of India. Thus, religious and linguistic minorities, who have been put on a par in Article 30, have to be considered Statewise.

Q.2. What is meant by the expression “religion” in Article 30(1)? Can the followers of a sect or denomination of a particular religion claim protection under Article 30(1) on the basis that they constitute a minority in the State, even though the followers of that religion are in majority in that State?

A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.3 (a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person(s) belonging to a religious or linguistic minority or its being administered by a person(s) belonging to a religious or linguistic minority?

A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.3 (b) To what extent can professional education be treated as a matter coming under minorities’ rights under Article 30?

A. Article 30 (1) gives religious and linguistic minorities the right to establish and administer educational institutions of their choice. The use of the words “of their choice” indicates that even professional educational institutions would be covered by Article 30.

Q.4. Whether the admission of students to minority educational institution, whether aided or unaided, can be regulated by the State Government or by the university to which the institution is affiliated?

A. Admission of students to unaided minority educational institutions viz. schools and undergraduate colleges where the scope for merit-based selection is practically nil, cannot be regulated by the State or university concerned, except for providing the qualifications and minimum conditions of eligibility in the interest of academic standards. Emphasis by us

The right to admit students being an essential facet of the right to administer educational institutions of their choice, as contemplated under Article 30 of the Constitution, the State Government or the university may not be entitled to interfere with that right, so long as the admission to the unaided educational institutions is on a transparent basis and the merit is adequately taken care of. The right to administer, not being absolute, there could be regulatory measures for ensuring educational standards and maintaining excellence thereof, and it is more so in the matter of admissions to professional institutions. Emphasis by us

A minority institution does not cease to be so, the moment grant-in-aid is received by the institution. An aided minority educational institution, therefore, would be entitled to have the right of admission of students belonging to the minority group and at the same time, would be required to admit a reasonable extent of non-minority students, so that the rights under Article 30(1) are not substantially impaired and further the citizens’ rights under Article 29(2) are not infringed. What would be a reasonable extent, would vary from the types of institution, the courses of education for which admission is being sought and other factors like educational needs. The State Government concerned has to notify the percentage of the non-minority students to be admitted in the light of the above observations. Observance of inter se merit amongst the applicants belonging to the minority group could be ensured. In the case of aided professional institutions, it can also be stipulated that passing of the common entrance test held by the State agency is necessary to seek admission. As regards non-minority students who are eligible to seek admission for the remaining seats, admission should normally be on the basis of the common entrance test held by the State agency followed by counselling wherever it exists.

Q.5 (a) Whether the minorities’ rights to establish and administer educational institutions of their choice will include the procedure and method of admission and selection of students?

A. A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to mal-administration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.

Q.5 (b) Whether the minority institutions’ right of admission of students and to lay down procedure and method of admission, if any, would be affected in any way by the receipt of State aid?

A. While giving aid to professional institutions, it would be permissible for the authority giving aid to prescribe bye – rules or regulations, the conditions on the basis of which admission will be granted to different aided colleges by virtue of merit, coupled with the reservation policy of the State qua non-minority students. The merit may be determined either through a common entrance test conducted by the university or the Government concerned followed by counselling, or on the basis of an entrance test conducted by the individual institutions – the method to be followed is for the university or the Government to decide. The authority may also devise other means to ensure that admission is granted to an aided professional institution on the basis of merit. In the case of such institutions, it will be permissible for the Government or the university to provide that consideration should be shown to the weaker sections of the society. Q.5 (c) Whether the statutory provisions which regulate the facets of administration like control over educational agencies, control over governing bodies, conditions of affiliation including recognition/withdrawal thereof, and appointment of staff, employees, teachers and principals including their service conditions and regulation of fees, etc. would interfere with the right of administration of minorities?

A. So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself.

For redressing the grievances of employees of aided and unaided institutions who are subjected to punishment or termination from service, a mechanism will have to be evolved, and in our opinion, appropriate tribunals could be constituted, and till then, such tribunals could be presided over by a judicial officer of the rank of District Judge.

The State or other controlling authorities, however, can always prescribe the minimum qualification, experience and other conditions bearing on the merit of an individual for being appointed as a teacher or a principal of any educational institution.

Regulations can be framed governing service conditions for teaching and other staff for whom aid is provided by the State, without interfering with the overall administrative control of the management over the staff.

Fees to be charged by unaided institutions cannot be regulated but no institution should charge capitation fee.

Q.6 (a) Where can a minority institution be operationally located? Where a religious or linguistic minority in State A establishes an educational institution in the said State, can such educational institution grant preferential admission/reservations and other benefits to members of the religious/linguistic group from other States where they are non-minorities?

A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q. 6. (b) Whether it would be correct to say that only the members of that minority residing in State A will be treated as the members of the minority vis-a-vis such institution?

A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.7. Whether the member of a linguistic non-minority in one State can establish a trust/society in another State and claim minority status in that State?

A. This question need not be answered by this Bench; it will be dealt with by a regular Bench.

Q.8. Whether the ratio laid down by this Court in St. Stephen’s case (St. Stephen’s College vs. University of Delhi, (1992) 1 SCC 558 is correct? If no, what order?

A. The basic ratio laid down by this Court in St. Stephen’s College case (supra) is correct, as indicated in this judgment. However, rigid percentage cannot be stipulated. It has to be left to authorities to prescribe a reasonable percentage having regard to the type of institution, population and educational needs of minorities.

Q. 9. Whether the decision of this Court in Unni Krishnan, J.P. vs. State of A.P., (1993) 1 SCC 645 (except where it holds that primary education is a fundamental right) and the scheme framed thereunder require reconsideration/modification and if yes, what?

A. The scheme framed by this Court in Unni Krishnan case (supra) and the direction to impose the same, except where it holds that primary education is a fundamental right, is unconstitutional. However, the principle that there should not be capitation fee or profiteering is correct. Reasonable surplus to meet cost of expansion and augmentation of facilities does not, however, amount to profiteering. Q. 10. Whether the non-minorities have the right to establish and administer educational institution under Articles 21 and 29(1) read with Articles 14 and 15(1), in the same manner and to the same extent as minority institutions?

and

Q. 11. What is the meaning of the expressions “education” and “educational institutions” in various provisions of the Constitution? Is the right to establish and administer educational institutions guaranteed under the Constitution?

A. The expression “education” in the articles of the Constitution means and includes education at all levels from the primary school level up to the postgraduate level. It includes professional education. The expression “educational institutions” means institutions that impart education, where “education” is as understood hereinabove.

The right to establish and administer educational institutions is guaranteed under the Constitution to all citizens under Articles 19(1)(g) and 26, and to minorities specifically under Article 30.

All citizens have a right to establish and administer educational institutions under Articles 19(1)(g) and 26, but this right is subject to the provisions of Articles 19(6) and 26(a). However, minority institutions will have a right to admit students belonging to the minority group, in the manner as discussed in this judgment.”

14. The majority led by Kirpal, CJ, in Pai Foundation did say that the expression “minorities” in Article 30 of the Constitution of India, whether linguistic or religious, has to be determined by treating the State and not the whole of India as unit. Questions such as: (i) what is religion, (ii) what is the indicia for determining if an educational institution is a minority institution, (iii) whether a minority institution can operate extra-territorially extending its activities into such States where the minority establishing and administering the institution does not enjoy minority status, (iv) the content and contour of minority by reference to territories, were not answered in Pai Foundation and were left to be determined by the regular Benches in individual cases to be heard after the decision in Pai Foundation. We also do not propose to involve ourselves by dealing with these questions except to the extent it may become necessary to do so for the purpose of answering the questions posed before us.

Pai Foundation explained in Islamic Academy

15. Pai Foundation Judgment was delivered on 31-10-2002. The Union of India, various State Governments and the Educational Institutions, each understood the majority judgment in its own way. The State Governments embarked upon enacting laws and framing the regulations, governing the educational institutions in consonance with their own understanding of Pai Foundation. This led to litigation in several Courts. Interim orders passed therein by High Courts came to be challenged before this Court. At the hearing, again the parties through their learned counsel tried to interpret the majority decision in Pai Foundation in different ways as it suited them. The parties agreed that there were certain anomalies and doubts, calling for clarification. The persons seeking such clarifications were unaided professional educational institutions, both minority and non-minority. The Court formulated four questions as arising for consideration in view of the rival submissions made before the Court in Islamic Academy :

“(1) whether the educational institutions are entitled to fix their own fee structure;

(2) whether minority and non-minority educational institutions stand on the same footing and have the same rights;

(3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100% , and if not, to what extent; and

(4) whether private unaided professional colleges are entitled to admit students by evolving their own method of admission.”


16. We could attempt at formulating the gist of the answers given by the Constitution Bench of the Court as under :

(1) Each minority institution is entitled to have its own fee structure subject to the condition that there can be no profiteering and capitation fees cannot be charged. A provision for reasonable surplus can be made to enable future expansion. The relevant factors which would go into determining the reasonability of a fee structure, in the opinion of majority, are : (i) the infrastructure and facilities available, (ii) the investments made, (iii) salaries paid to the teachers and staff, (iv) future plans for expansion and betterment of the institution etc.

S.B. Sinha, J, defined what is ‘capitation’ and ‘profiteering’ and also said that reasonable surplus should ordinarily vary from 6 per cent to 15 per cent for utilization in expansion of the system and development of education.

(2) In the opinion of the majority, minority institutions stand on a better footing than non-minority institutions. Minority educational institutions have a guarantee or assurance to establish and administer educational institutions of their choice. State Legislation, primary or delegated, cannot favour non- minority institution over minority institution. The difference arises because of Article 30, the protection whereunder is available to minority educational institutions only. The majority opinion called it a “special right” given under Article 30.

In the opinion of S. B. Sinha, J, minority educational institutions do not have a higher right in terms of Article 30(1); the rights of minorities and non-minorities are equal. What is conferred by Article 30(1) of the Constitution is “certain additional protection” with the object of bringing the minorities on the same platform as that of non-minorities, so that the minorities are protected by establishing and administering educational institutions for the benefit of their own community, whether based on religion or language.

It is clear that as between minority and non-minority educational institutions, the distinction made by Article 30(1) in the fundamental rights conferred by Article 19(1)(g) has been termed by the majority as “special right” while in the opinion of S. B.Sinha, J, it is not a right but an “additional protection”. What difference it makes, we shall see a little later.

(3)and(4). Questions 3 and 4 have been taken up for consideration together. A reading of the opinion recorded in Islamic Academy shows that paras 58, 59 and 68 of Pai Foundation were considered and sought to be explained. It was not very clear as to what types of institutions were being dealt with in the above referred to paragraphs by the majority in Pai Foundation. Certainly, distinction was being sought to be drawn between professional colleges and other educational institutions (both minority and unaided). Reference is also found to have been made to minority and non-minority institutions. At some places, observations have been made regarding institutions divided into groups only by reference to aid, that is whether they are aided or unaided educational institutions without regard to the fact whether they were minority or non-minority institutions. It appears that there are a few passages/sentences wherein it is not clear which type of institutions the majority opinion in Pai Foundation was referring to thereat. However, the majority opinion in Islamic Academy has by explaining Pai Foundation held as under :

(1) In professional institutions, as they are unaided, there will be full autonomy in their administration, but the principle of merit cannot be sacrificed, as excellence in profession is in national interest.

(2) Without interfering with the autonomy of unaided institutions, the object of merit based admissions can be secured by insisting on it as a condition to the grant of recognition and subject to the recognition of merit, the management can be given certain discretion in admitting students.

(3) The management can have quota for admitting students at its discretion but subject to satisfying the test of merit based admissions, which can be achieved by allowing management to pick up students of their own choice from out of those who have passed the common entrance test conducted by a centralized mechanism. Such common entrance test can be conducted by the State or by an association of similarly placed institutions in the State.

(4) The State can provide for reservation in favour of financially or socially backward sections of the society.

(5) The prescription for percentage of seats, that is allotment of different quotas such as management seats, State’s quota, appropriated by the State for allotment to reserved categories etc., has to be done by the State in accordance with the “local needs” and the interests/needs of that minority community in the State, both deserving paramount consideration. The exact concept of “local needs” is not clarified. The plea that each minority unaided educational institution can hold its own admission test was expressly overruled. The principal consideration which prevailed with the majority in Islamic Academy for holding in favour of common entrance test was to avoid great hardship and incurring of huge cost by the hapless students in appearing for individual tests of various colleges.

17. The majority opinion carved out an exception in favour of those minority educational professional institutions which were established and were having their own admission procedure for at least 25 years from the requirement of joining any common entrance test, and such institutions were permitted to have their own admission procedure. The State Governments were directed to appoint a permanent Committee to ensure that the tests conducted by the association of colleges is fair and transparent.

18. S. B. Sinha, J, in his separate opinion, agreed with the majority that the merit and merit alone should be the basis of selection for the candidates. He also agreed that one single standard for all the institutions was necessary to achieve the object of selection being made on merit by maintaining uniformity of standard, which could not be left to any individual institution in the matter of professional courses of study. However, the merit criterion in the opinion of Sinha, J, was required to be associated with the level of education. To quote his words : “the merit criterion would have to be judged like a pyramid. At the kindergarten, primary, secondary levels, minorities may have 100% quota. At this level the merit may not have much relevance at all but at the level of higher education and in particular, professional education and postgraduate-level education, merit indisputably should be a relevant criterion. At the postgraduation level, where there may be a few seats, the minority institutions may not have much say in the matter. Services of doctors, engineers and other professionals coming out from the institutions of professional excellence must be made available to the entire country and not to any particular class or group of people. All citizens including the minorities have also a fundamental duty in this behalf.”

19. Before we part with the task of summing up the answers given to the four questions in Islamic Academy, we would like to make a few observations of ours in this regard. First, the majority opinion spread over 30 printed pages, and the minority opinion spread over 60 printed pages, both though illuminating and instructive, have nonetheless not summed up or pointedly answered the questions. We have endeavoured to cull out and summarize the answers, noted above, as best and as briefly as we could from the two opinions. We would, therefore, hasten to add that in order to fully appreciate the ratio of the two opinions, they have to be read in detail and our attempt at finding out and placing in a few chosen words the ratio decidendi of the two separately recorded opinions, is subject to this limitation. However, we shall make a reference to relevant passages from the two opinions as and when it becomes necessary. A point of significance which we would like to briefly note here itself, a detailed discussion being relegated to a later part of this judgment, is that the opinion of S. B. Sinha, J, has examined in detail, the scope of protection conferred on minority institutions by reference to their right to seek recognition or affiliation, an aspect of wider significance which does not seem to have received consideration with that emphasis either in Pai Foundation or in the majority opinion in Islamic Academy. We shall revert to this aspect a little later.                                                   III

                                                                                                                    Issues herein

A Few Preliminary observations

20. Before we embark upon dealing with the issues posed before us for resolution, we would like to make a few preliminary observations as a preface to our judgment inasmuch as that would outline the scope of the controversy with which we are actually dealing here. At the very outset, we may state that our task is not to pronounce our own independent opinion on the several issues which arose for consideration in Pai Foundation. Even if we are inclined to disagree with any of the findings amounting to declaration of law by the majority in Pai Foundation, we cannot; that being a pronouncement by 11- Judge Bench, we are bound by it. We cannot express a dissent or disagreement howsoever we may be inclined to do so on any of the issues. The real task before us is to cull out the ratio decidendi of Pai Foundation and to examine if the explanation or clarification given in Islamic Academy runs counter to Pai Foundation and if so, to what extent. If we find anything said or held in Islamic Academy in conflict with Pai Foundation, we shall say so as being a departure from the law laid down by Pai Foundation and on the principle of binding efficacy of precedents, overrule to that extent the opinion of the Constitution Bench in Islamic Academy.

21. It is pertinent to note, vide paras 2, 3 and 35 of Islamic Academy, that most of the petitioners/applicants therein were unaided professional educational institutions (both minority and non-minority). The purpose of constituting the Constitution Bench, as noted at the end of para 1, was “so that doubts/anomalies, if any, could be clarified.” Having answered the questions, the Constitution Bench treated all interlocutory applications as regards interim matters as disposed of (see para 23). All the main matters (writ petitions, transfer petitions and special leave petitions) were directed to be placed before the regular Benches for disposal on merits.

22. Islamic Academy in addition to giving clarifications on Interlocutory Applications, directed setting up of two committees in each State: one committee “to give effect to the judgment in Pai Foundation” and to approve the fee structure or to propose some other fee which can be charged by minority institutions (vide para 7), and the other committee – to oversee the tests to be conducted by the association of institutions (vide para 19).

23. Since the direction made in Islamic Academy for appointment of the Committees has been vehemently assailed during the course of hearing before us, we would extract from the judgment in Islamic Academy the following two passages wherein, in the words of Khare, CJ, the purpose and the constitution of the Committees, the powers conferred on and the functions enjoined upon them are given :

“..we direct that in order to give effect to the judgment in T.M.A. Pai case the respective State Governments/concerned authority shall set up, in each State, a committee headed by a retired High Court Judge who shall be nominated by the Chief Justice of that State. The other member, who shall be nominated by the Judge, should be a Chartered Accountant of repute. A representative of the Medical Council of India (in short “MCI”) or the All India Council for Technical Education (in short “AICTE”), depending on the type of institution, shall also be a member. The Secretary of the State Government in charge of Medical Education or Technical Education, as the case may be, shall be a member and Secretary of the Committee. The Committee should be free to nominate/co-opt another independent person of repute, so that the total number of members of the Committee shall not exceed five. Each educational institute must place before this Committee, well in advance of the academic year, its proposed fee structure. Along with the proposed fee structure all relevant documents and books of accounts must also be produced before the Committee for their scrutiny. The Committee shall then decide whether the fees proposed by that institute are justified and are not profiteering or charging capitation fee. The Committee will be at liberty to approve the fee structure or to propose some other fee which can be charged by the institute. The fee fixed by the Committee shall be binding for a period of three years, at the end of which period the institute would be at liberty to apply for revision. Once fees are fixed by the Committee, the institute cannot charge either directly or indirectly any other amount over and above the amount fixed as fees. If any other amount is charged, under any other head or guise e.g. donations, the same would amount to charging of capitation fee. The Governments/appropriate authorities should consider framing appropriate regulations, if not already framed, whereunder if it is found that an institution is charging capitation fees or profiteering that institution can be appropriately penalised and also face the prospect of losing its recognition/affiliation. (para 7)

We now direct that the respective State Governments do appoint a permanent Committee which will ensure that the tests conducted by the association of colleges is fair and transparent. For each State a separate Committee shall be formed. The Committee would be headed by a retired Judge of the High Court. The Judge is to be nominated by the Chief Justice of that State. The other member, to be nominated by the Judge, would be a doctor or an engineer of eminence (depending on whether the institution is medical or engineering/technical). The Secretary of the State in charge of Medical or Technical Education, as the case may be, shall also be a member and act as the Secretary of the Committee. The Committee will be free to nominate/co-opt an independent person of repute in the field of education as well as one of the Vice-Chancellors of the University in that State so that the total number of persons on the Committee do not exceed five. The Committee shall have powers to oversee the tests to be conducted by the association. This would include the power to call for the proposed question paper(s), to know the names of the paper-setters and examiners and to check the method adopted to ensure papers are not leaked. The Committee shall supervise and ensure that the test is conducted in a fair and transparent manner. The Committee shall have the powers to permit an institution, which has been established and which has been permitted to adopt its own admission procedure for the last, at least, 25 years, to adopt its own admission procedure and if the Committee feels that the needs of such an institute are genuine, to admit, students of their community, in excess of the quota allotted to them by the State Government. Before exempting any institute or varying in percentage of quota fixed by the State, the State Government must be heard before the Committee. It is clarified that different percentage of quota for students to be admitted by the management in each minority or non-minority unaided professional college(s) shall be separately fixed on the basis of their need by the respective State Governments and in case of any dispute as regards fixation of percentage of quota, it will be open to the management to approach the Committee. It is also clarified that no institute, which has not been established and which has not followed its own admission procedure for the last, at least, 25 years, shall be permitted to apply for or be granted exemption from admitting students in the manner set out hereinabove. (para 19)”

24. Sinha, J. has not specifically spoken of the Committees. Nevertheless he made a reference to these Committees in his opinion and thus impliedly recorded his concurrence with the constitution of these Committees.

25. Vide para 20, the Constitution Bench has made it clear that the setting up of two sets of Committees in the States has been directed in exercise of the power conferred on this Court by Article 142 of the Constitution and such Committees “shall remain in force till appropriate legislation is enacted by Parliament”. Although the term ‘permanent’ has been used, but it appears to us that these Committees are intended to be transitory in nature.

Reference for constituting a Bench of a coram higher than Constitution Bench

26. These matters have been directed to be placed for hearing before a Bench of seven Judges under Orders of the Chief Justice of India pursuant to Order dated July 15, 2004 in P.A. Inamdar and Ors. vs. State of Maharashtra and Ors., (2004) 8 SCC 139 and Order dated July 29, 2004 in Pushpagiri Medical Society vs. State of Kerala and Ors., (2004) 8 SCC 135. The aggrieved persons before us are again classifiable in one class, that is, unaided minority and non-minority institutions imparting professional education. The issues arising for decision before us are only three:

(i) the fixation of ‘quota’ of admissions/students in respect of unaided professional institutions;

(ii) the holding of examinations for admissions to such colleges, that is, who will hold the entrance tests; and

(iii) the fee structure.

The questions spelled out by Orders of Reference

27. In the light of the two orders of reference, referred to hereinabove, we propose to confine our discussion to the questions set out hereunder which, according to us, arise for decision:-

(1) To what extent the State can regulate the admissions made by unaided (minority or non-minority) educational institutions? Can the State enforce its policy of reservation and/or appropriate to itself any quota in admissions to such institutions?

(2) Whether unaided (minority and non-minority) educational institutions are free to devise their own admission procedure or whether direction made in Islamic Academy for compulsorily holding entrance test by the State or association of institutions and to choose therefrom the students entitled to admission in such institutions, can be sustained in light of the law laid down in Pai Foundation?

(3) Whether Islamic Academy could have issued guidelines in the matter of regulating the fee payable by the students to the educational institutions?

(4) Can the admission procedure and fee structure be regulated or taken over by the Committees ordered to be constituted by Islamic Academy?

28. The issues posed before us are referable to headings 3 and 5 out of ‘five headings’ formulated by Kirpal, CJ in Pai Foundation. So also speaking by reference to the 11 questions framed in Pai Foundation, the questions and answers relevant for us would be referable to question Nos. 3 (b), 4, 5 (a) (b) (c) and (9).

   IV Submissions made

29. A number of learned counsel addressed the Court at the time of hearing raising very many issues and canvassing different view-points of law referable to those issues. We propose to place on record, as briefly as we can, the principal submissions made confined to the issues arising for decision before us.

30. The arguments on behalf of the petitioners were led by senior counsel Shri Harish Salve. Extensively reading various relevant paragraphs and observations in different opinions in Pai Foundation, learned counsel contends that the directions for setting up permanent committees for regulating admissions and fixing fee structure in unaided minority and non-minority institutions issued in the case of Islamic Academy are contrary to the ratio of judgment in Pai Foundation. According to learned counsel, the directions clearly run counter to all earlier Constitution Bench decisions of this Court in St. Stephen’s, St. Xavier’s and Kerala Education Bill.

31. It is argued that in the judgment of the eleven judges in Pai Foundation which deals with several diverse issues of considerable complexity, every observation has to be understood in its context. Paragraph 68 in Pai Foundation has wrongly been read as the ratio of the Judgment by the Bench of five judges in the case of Islamic Academy. It is submitted that paragraph 68 in the majority opinion in Pai Foundation has to be read and understood in the context of the constitutional interpretation placed on Articles 29 and 30 of the Constitution. Reading thus, the directions for setting up permanent committees, for fixing quota and fee structure seriously impinge on the constitutional guarantee of autonomy to minority institutions under Article 30 and to unaided non-minority institutions under Article 19(1)(g). It is submitted that taking over the right to regulate admission and fee structure of unaided professional institutions is not a ‘reasonable restriction’ within the meaning of Article 19(6) of the Constitution. Such restriction is virtual negation of the constitutional protection of autonomy to minorities in running educational institutions ‘of their choice’ as provided in Article 30 of the Constitution.

32. Elaborating his legal propositions, learned senior counsel Shri Salve argued that establishing and running an educational institution is a guaranteed fundamental right of ‘occupation’ under Article 19(1)(g) of the Constitution. Article 19(6) permits State to make regulations and place reasonable restrictions in public interest upon the rights enjoyed by citizens under Article 19(1)(g) of the Constitution. Any imposition of a system of selection of students for admission would be unreasonable if it deprives the private unaided institutions of the right of rational selection which it has devised for itself. Subject to the minimum qualifications that may be prescribed and to some system of computing the equivalence between different kinds of qualifications like a common entrance test, it can evolve a system of selection involving both written and oral tests based on principle of fairness. Reference is made to paragraph 40 of the judgment in Pai Foundation.

33. It is submitted that the State can prescribe minimum qualifications and may prescribe systems of computing equivalence in ascertaining merit; however, the right of rational selection, which would necessarily involve the right to decide upon the method by which a particular institution computes such equivalence, is protected by Article 19 and infringement of this right constitutes an unreasonable encroachment upon the constitutionally guaranteed autonomy of such institutions.

34. It is further argued that where States take over the right of the institution to grant admission and/or to fix the fees, it constitutes nationalization of educational institutions. Such nationalization of education is an unreasonable restriction on the right conferred under Article 19. Reliance is placed on paragraph 38 of the judgment in Pai Foundation.

35. Learned counsel further argues that schemes framed relating to grant of admission and fixing of fees in Unni Krishnan has been held to be unconstitutional by the 11-Judge Bench in Pai Foundation. Reference is made to paragraph 45 of the judgment in Pai Foundation. It is submitted that the directions to set up committees for regulation of admission and fee structure in Islamic Academy virtually do the same exercise as was done in Unni Krishnan and disapproved in the larger Bench decision in Pai Foundation. The submission in substance made is that Unni Krishnan was disapproved in Pai Foundation and has wrongly been re-introduced in Islamic Academy.

36. It is argued that State necessity cannot be a ground to curtail the right of a citizen conferred under Article 19(1)(g) of the Constitution. The Constitution casts a duty upon the States to provide educational facilities. The State is obliged to carry out this duty from revenue raised by the State. The shortfall in the efforts of the State is met by the private enterprise, that however, does not entitle the State to nationalize, whether in the whole or in part, such private enterprise. This, it is submitted, is the true ratio of the Pai Foundation in so far as Article 19 of the Constitution is concerned.

37. It is next argued that as held in St. Xavier’s and re- affirmed in Pai Foundation the right to establish and administer educational institutions by minorities under Article 30 of the Constitution is not an absolute right meaning thereby that it is subject to such regulations that satisfy a dual test that is : the test of ‘reasonableness’ and ‘any regulation regulating the educational character of the institutions so that it is conducive to making the institution an effective vehicle of education for the minority community and for the others who resort to it’. Any regulation which impinges upon the minority character of the institutions is constitutionally impermissible. It is submitted that between the right of minorities to establish and administer the educational institutions and the right of the State to regulate educational activities for maintaining standard of education, a balance has to be struck. The regulation in relation to recognition/affiliation operates in the area of standard of excellence and are unquestionable if they do not seriously curtail or destroy the right of minorities to administer their educational institutions. Only in maintaining standards of education, State can insist by framing regulations that they be followed but in all other areas the rights of minority must be protected. It is conceded that maladministration is not protected by Article 30 of the Constitution. Similarly, secular laws with secular object that do not directly impinge upon the right of minority institutions and operate generally upon all citizens do not impinge upon Article 30 of the Constitution. This has been the constitutional interpretation of Article 30 not because Article 30 admits no exception like Article 19(6) but because the right conferred under Article 30 does not extend to these areas. The laws that serve national interest do not impinge upon Article 30.

38. Learned counsel in elaborating his argument tried to make a distinction between the rights of aided institutions and unaided institutions. Article 29(2) places a limitation on the right of an aided institution by providing that if State aid is obtained, ‘no citizen shall be denied admission on grounds only of religion, race, caste, language or any of them’. It is submitted that as a necessary corollary, no such limitation can be placed while regulating admission in an unaided minority institution which may prefer to admit students of minority community. So far as unaided minority educational institutions are concerned, the submission made is that government has no right or power, much less duty, to decide as to which method of selection of students is to be adopted by minority institutions. The role of the government is confined to ensuring that there is no maladministration in the name of selection of students or in the fixation of fees. No doubt, the State is under a duty to prevent maladministration, that is to control charging of capitation fees for the seats regardless of merit and commercializing education resulting in exploitation of students, but to prevent maladministration of the above nature or on the ground that there is likelihood of such maladministration, the State cannot take over the administration of the institutions themselves into its own hands. The likelihood of an abuse of a constitutional right cannot ever furnish justification for a denial of that right. An apprehension that a citizen may abuse his liberty does not provide justification for imposing restraints on the liberty of citizens. Similarly, the apprehension that the minorities may abuse their educational rights under Article 30 of the Constitution cannot constitute a valid basis for the State to take over those rights.

39. Learned senior counsel Shri Ashok Desai appearing on behalf of unaided Karnataka Private Medical Colleges (through its Association) of both categories of minority and non-minority has questioned the correctness of the directions in the case of Islamic Academy for setting up permanent committees for fixation of quota and determination of fees. According to him, as held in Pai Foundation, in the name of controlling capitation, there cannot be indirect nationalization and complete State control of unaided professional institutes. In the case of Islamic Academy, the ratio of Pai Foundation that autonomy of unaided non-minority institutions is an important facet of their right under Article 19(1)(g) and in case of minority under Article 19(1)(g) read with Article 30 of the Constitution has been ignored.

40. On behalf of unaided private professional colleges, learned counsel further submitted that there are many private educational institutes which have been set up by people belonging to a region or a community or a class in order to promote their own groups. As long as these groups form an unaided minority institution, they are entitled to have transparent criteria to admit students belonging to their group. For instance, scheduled castes and scheduled tribes have started Ambedkar Medical College; Lingayaths have started KLE Medical College in Belgaun and people belonging to Vokalliga community have started Kempegowda Medical College. Similarly, Edava community in Kerala has started its own colleges. Sugar co-operatives in Maharashtra have started their own colleges. Learned counsel also highlighted an instance of a college opened in Tamil Nadu by State Transport Workers for the education of their children on the engineering side. He submitted that if the State is allowed to interfere in the admission procedure in these private institutions set up with the object of providing educational facilities to their own group, community or poorer sections, the very purpose and object of setting up a private medical college by a group or community for their own people would be defeated.

41. According to learned counsel, the State control in unaided private professional colleges can only be to the extent of monitoring or overseeing its working so that they do not indulge in profiteering by charging capitation fees and sacrifice merit. According to the learned counsel, in the directions contained in Islamic Academy, the main ratio of Pai Foundation that the unaided institutions should have autonomy in the matter of admission and fees structure has been totally forgotten. The learned counsel raised very serious objections to the manner in which the various permanent committees set up in several States on the directions of Islamic Academy are conducting themselves and forcing their decisions on private institutions. The proposed fee structure is required to be placed before the Committee in advance of the academic year by the institute. It is the Committee which has to decide whether the fees proposed by the institute are justified and do not amount to profiteering or charging of capitation fees. The Committee has been given liberty to approve the fee structure of the institute or to propose a different fee structure. The fee fixed by the Committee is binding for a period of three years and at the end of the said period the institute would be at liberty to apply for revision. Learned counsel gave in writing certain illustrations of decisions of the Fee Committee in few unaided colleges in the State of Karnataka and pointed out that without proper financial expertise and without studying the relevant documents and accounts, the Committee determined the fee structure by only taking into account the affordability of the parents of the students with no regard whatsoever to the viability of the institute on the basis of finances so generated. It is argued as to why private professional institutes should not be allowed to modernize its facilities and provide better professional education than government institutes. It is pointed out that in the case of non-minority unaided M.S. Ramaiaya Medical College, Bangalore, the Fee Committee initially fixed annual fee at Rs.2.55 lacs for MBBS course as against the justification shown by the institute for demanding ` 3.90 lacs. The decision of the Fee Committee led to the filing of writ petition by the institute in the High Court of Karnataka and agitation and demonstrations by the students’ union. The Committee under the pressure of the student community reduced the annual fee to Rs.1.6 lacs which was re-affirmed after the High Court directed that the management of the unaided college should be heard before reducing the annual fee.

42. Thus the learned counsel on behalf of the Karnataka Private Medical College Association questioned the correctness of the directions of the Bench in Islamic Academy. It is submitted that as decided in Pai Foundation by a larger Bench, the essence of private educational institutions is the autonomy that the institution must have in its management and administration. The ‘right to establish and administer’ particularly comprises the right a) to admit students and b) to set up reasonable fee structure. The autonomy of the institution, therefore, predicates that all seats would be filled by the management and there can be no reservations or quotas in favour of the State. In Pai Foundation, the only observations made were that some colleges may be required to admit a small percentage of students belonging to weaker sections of the society by granting them freeships or scholarships. It is conceded that autonomy of a private educational institution to admit students of its choice does not mean that there can be no insistence on transparency in the admission procedure and on merit being the criterion for admission. It is submitted that autonomy of a private educational institution could mean that they can, according to the objects and purposes of their institutions, give preference to a particular class or group of students like SC/ST in Ambedkar Medical College, students from backward area in Bijapur college and transport employees’ children in Madras State Corporation Employees’ College or the children of employees of Larson and Turbo Company in a college established by that company. The right to charge fees so as to run the college and to generate sufficient funds for its betterment and growth cannot be controlled by the State. That would seriously encroach upon the autonomy of the private unaided institution. It is submitted, by quoting Dr. S. Radhakrishnan, the then Chairman of the University Education Commission, that interests of democracy lie with the resistance of the trend towards governmental domination of the educational process. In conclusion, learned counsel representing Association of private unaided colleges in Karnataka submits that the decision in Islamic Academy and the directions made therein go far beyond the law laid down by the larger Bench in Pai Foundation. The Bench in Islamic Academy virtually reviewed the larger Bench decision in Pai Foundation in guise of implementation of the said decision and on the basis of later developments. In Islamic Academy, the Bench accepted that there could be no rigid fee structure fixed by the government for private institutions. An institute should have the freedom to fix its own fee structure for day-to-day running of the institute and to generate funds for its further growth. Only capitation and diversion of profits and surplus of the institute to any other business or enterprise was prohibited. It is submitted that Islamic Academy contrary to the legal position explained in Pai Foundation, could not set up in each State permanent committees headed by retired High Court Judges with the power to decide on the justification of the fee proposed by the institute and propose any other fees. It could also not make the fee fixed by the Committee binding for a period of three years. Learned counsel submits that once the college infrastructure and hospital facilities attached to the medical college have been approved by the Medical Council of India in accordance with its regulations, the total expenses of college and hospital could be taken into account by the institute to decide upon its own fee structure. Learned counsel, in criticizing the directions in Islamic Academy, submitted that although the scheme formulated in Unni Krishnan has been expressly overruled in Pai Foundation on the ground that it virtually nationalized education and resulted in surrendering total process of selection to the State, the Bench in Islamic Academy’s case, in an attempt to take up preventive measures to ensure merit and check profiteering in private unaided professional institutions, cannot re-introduce quota system for the management and the State and thus infringe upon the autonomy of the institute. Such an attempt, learned counsel contends, would be unconstitutional and violative of Article 19(1)(g) of the Constitution in the case of non-minority unaided institutions and also violative of Article 30 in the case of minority unaided professional institutions. Learned counsel argued that constitutionally, as held in Pai Foundation, it is not permissible for the State to impose a Government quota, its own reservation policy, a lower scale of fees etc. on a private unaided non- minority and unaided minority professional institutions, only by taking into consideration the interests of students. In the State of Karnataka for the academic year 2004-2005, by illustration, it is shown that 75% of the intake capacity is the Government quota in which are included 5% quota for sports, defence and NCC; 50% quota for Scheduled Castes/Economically backward classes/Scheduled Tribes/OBC, there is total 55% reservation quota in 75% of the government quota. The remaining 25% quota left for the management is also to be taken over by the Government insisting on admitting students from the select list prepared on the common entrance test conducted by the State.

43. Learned senior counsel Shri F. S. Nariman also supported the submissions made by other counsel on behalf of the unaided professional institutions and added that the observations of the Bench in Islamic Academy clearly go far beyond anything said by eleven judges in Pai Foundation. It is submitted that the question of quota 50:50 for State and management as referred to in St. Stephen’s was in respect of aided minority educational institutions and in Pai Foundation, the Bench never suggested fixation of quota for State and management in case of unaided professional institutions. Learned senior counsel particularly pointed out that in Islamic Academy, the observations that different percentage of quota for students to be admitted by the management in each minority and non-minority unaided professional institutions shall be separately fixed on the basis of their need by the respective State Government, was a totally new direction, nowhere to be found or supported by any of the observations in any of the opinions of the 11-Judge Bench in Pai Foundation. With regard to the most controversial observations contained in paragraph 68 of the opinion prepared by Justice Kirpal (the then CJI) in Pai Foundation, learned counsel contended that the decision in Unni Krishnan having been overruled by 11-Judge Bench in Pai Foundation, the observations in paragraph 68 which are more in tune with Unni Krishnan should not be read as the ratio of the case. Senior counsel was also critical of all the observations in fixing quota for the State in unaided institutions on the basis of local needs and not the needs of the community for which the institution was set up. Learned counsel also criticized the directions in Islamic Academy which according to him are contrary to the findings in Pai Foundation that certain unaided private educational institutions which had been adopting its own admission procedure for the last 25 years be allowed to continue to do so. It is submitted that as a part of autonomy of the private unaided institution, the quantum of fees to be charged must be left to the institution and except for checking profiteering and capitation fees, the State can have no say in fixation of fees. The scheme of setting up permanent committees for even unaided minority and non-minority institutions was not at all envisaged in Pai Foundation. The Islamic Academy which was the case before a smaller Bench could not do anything beyond and contrary to what has been stated in Pai Foundation.

44. Learned senior counsel Shri R.F. Nariman in supporting the argument advanced against the directions in Islamic Academy submitted that any interference with the autonomy of the institution, other than to prevent maladministration, would not be saved by Article 19(6) of the Constitution. The concept of administration includes choice in admitting students and fixing a reasonable fee structure. In the matter of admission, if objective criteria are adopted so as to reflect the merit, it would be unexceptionable. So far as fee structure is concerned, no institution can be allowed to charge capitation fees which only means something taken over and above what the institution needs by way of revenue and capital expenditure plus a reasonable surplus. Once Unni Krishnan was overruled, private education cannot be allowed to be nationalized. It is submitted that it may be possible for the State to scrutinize the expenditure of revenue and capital expenditure of an aided and unaided institution to ensure good administration but the State cannot devise its own admission procedure and determine in advance a fee structure for the unaided private institutions. On the question of deducing ratio in Pai Foundation, learned counsel referred to Halsbury Laws of England, Vol. 37 page 378 in which the meaning of ratio decidendi has been explained. It is submitted that it is only the essence of the reason or principle upon which the question before a court has been decided which is alone binding as a precedent. It is dangerous to take one or two observations out of a long judgment and to treat them as if they give the ratio decidendi of the case.

45. Dr. Rajiv Dhawan, learned senior counsel in assailing directions issued in Islamic Academy for setting up permanent committees to fix quota and fee structure highlighted that the State of Maharashtra has encroached upon the rights of unaided institutions by directing in one of its Government Memoranda dated 13-02-2003 that even in the quota of seats fixed for management, the unaided non-minority institutions should implement the rule of reservation (communal reservation) of the State Government.

46. Learned senior counsel contends that the net result of such illegal directions is that the reservation policy for scheduled castes, scheduled tribes and OBCs is to be applied not only for 50% seats of government quota but also for the remaining 50% of management quota of unaided non-minority institutions. Virtually, the management of non-aided institutions has been completely taken over by the State and as a result of communal reservations, the quota of seats fixed for government and quota fixed for the management may be filled by granting admissions to students of non-minority communities.

47. Learned senior counsel contends that in Pai Foundation, maximum autonomy is conceded in favour of unaided institutions. The only insistence is on maintenance of transparency in method of admission and fixation of such fee structure that does not permit charging of capitation fee. Interpreting provisions of Article 19(6) and Article 30 it is contended that constitutional limitation necessarily would vary in imposing reasonable restriction where the institution is unaided or aided.

48. On the issue of constitutional protection to the unaided minority institutions, the contention advanced that general restrictions permissible under Article 19(6) can also be applied to unaided minority institutions, it is submitted, is misconceived. The submission is that education is a recognized head of charity. The object of establishing educational institution is not to make profit. Imparting education is essentially charitable in nature. The charitable nature of the occupation of establishing and running an educational institution has been recognized in Pai Foundation. Therefore, all restrictions, which are permissible under Article 19(6) in case of other kind of professions and occupations, cannot apply to educational activities. It is submitted that restrictions imposed should satisfy the requirements of Article 30 and not only of Article 19(6).

49. In Pai Foundation, for determining linguistic and religious minorities, the unit to be taken is State. Therefore, when Tamilians, who are in majority in Tamil Nadu, establish an institution for Tamil students in Karnataka, it would be a minority institution in Karnataka. What would be the rights of such an institution of linguistic minority has not been answered either in Pai Foundation or in Islamic Academy. Therefore, this Bench should decide what are the rights of such cross- border institutions.

50. In short, the submission made by Sr. Counsel Dr. Rajiv Dhawan is that there is nothing in Pai Foundation, which permits fixation of quotas for government seats, fixation of fee structure by the State, imposition of its reservation policy and imposition of candidates on the basis of common entrance test conducted by the State. In Pai Foundation, the State can have some controlling influence on unaided institutions for the purpose of ensuring transparency in admissions and checking the collection of capitation fee. In Pai Foundation, no pre-emptive action by setting up permanent committees by the State was envisaged or even indirectly approved.

51. The decision in Islamic Academy, it is submitted, is contrary to the decision by the larger Bench in Pai Foundation, and deserves therefore to be so declared by this Bench.

52. Learned senior counsel Shri U.U. Lalit appears for the sole Dental College established by Muslims in the State of Maharashtra. Apart from supporting the contention advanced by other counsel against the scheme of committees evolved in Islamic Academy, learned counsel submitted that the judgment of the Bombay High Court against which they have filed an appeal before this Court has resulted in a situation where affluent students are getting admission at lesser fee and poorer students are kept out of college. It was submitted that the petitioner institute being the sole institute set up for Muslim community, their desire to cater to the educational needs of Muslim students from all over cannot be discouraged. Objecting to the fee structure prescribed by the committees in Maharashtra, the suggestion made on behalf of the institute is as under :-

(a) 25% students will be charged five times of the average fee, which was in vogue before TMA Pai’s judgment.

(b) 50% students will be charged average fee.

(c) Remaining 25% will be charged 1/4th of the average fee.

53. It is submitted that in the above proposed fee structure, meritorious students coming from all sections of society will be able to take admissions. At the same time, the educational institutions will be able to recover the amount required for running the educational institution in the best possible manner. It is, therefore, prayed that Bombay High Court judgment dated 23-08-2003 prescribing uniform fee structure for all the students be set aside and minority educational institutions be allowed in the exercise of their fundamental right, to prescribe fee under a three-tier system subject to the rider of non-profiteering and not charging capitation fee.

54. In reply, on behalf of the respondents, senior counsel, Shri K.K. Venugopal, who appeared for the State of Kerala led the arguments. It may be noted at this stage that after the decisions in Pai Foundation and Islamic Academy, in the States of Kerala, Karnataka, Maharashtra and Tamil Nadu, their respective legislatures have passed Acts regulating admissions and charging of fee in both aided and unaided minority and non- minority private educational institutions engaged in imparting education in professional, medical, engineering and allied courses.

55. On behalf of the State of Kerala, it is pointed out that only 25% seats in private professional colleges have been reserved to be filled on the basis of central entrance test and remaining 75% seats are to be filled by the management. It is submitted that the group of paragraphs starting with 67 and ending with 70 in the majority opinion in Pai Foundation carries the title “Private Unaided Professional Colleges.” This heading covers both unaided minority and non-minority professional colleges. Since paragraph 68 in the majority opinion in Pai Foundation has been differently understood by the High Court of Karnataka and Kerala, an occasion has arisen to resolve the controversy by a Bench of the present combination of seven judges.

56. To justify fixation of quota for seat sharing between State and the private management and fixing a reasonable fee structure to avoid profiteering and capitation, the learned counsel highlighted certain illicit practices, which are being resorted to, by the private institutions to exploit the student community. It is submitted both the judgments in Pai Foundation and Islamic Academy, profiteering, commercialization of education and the collection of capitation fee have been condemned. This court had expressly held that it would be open to the government to make regulations for the purpose of preventing commercialization of professional education. It is on the line suggested by this court that the Government of Kerala had made regulations both for the purpose of admissions as well as for fixing reasonable fee which will cover not only the expenditure incurred by the institution but also give them a reasonable revenue surplus for further growth and betterment of the institution.

57. The High Court of Kerala by its judgment of 23.08.2003 has fixed rupees 1.50 lacs provisionally per annum as the fee. The Government has fixed 1.76 lacs. What is being disclosed by Pushpgiri Medical College itself is that they had collected rupees 4.38 lacs and rupees 22 lacs from different students. The explanation given is that these collections are for the whole period of five years to prevent the students from leaving the college mid-way. This explanation on the face of it is disingenuous as rupees 22 lacs was not collected uniformly from all the students. Despite the students leaving the course mid- way, the seats would still be filled. It is due to this menace and evil practice of exploiting parents and students that a Committee was required to be set up for restricting admissions in proportion to the need of the peculiar character of the institution and to check profiteering.

58. It is submitted that if the scheme as evolved in Islamic Academy of setting up of permanent Committees is not allowed, education which is already commercialized to some extent would be wholly inaccessible to students coming from middle classes, lower-middle classes and poor sections of the society. To provide access to professional education even to weaker sections of the society in fifty per cent quota of seats to be filled by the government, the reservation policy of the government has been applied. The fifty-fifty per cent quota between government and management fixed by the government has been changed to twenty five-seventy five per cent by the court. Similarly, the court has struck down Regulation 11 framed by the State on the ground that the State cannot foist fee of students on the institution and it would be left to the management to make provisions for poorer sections of the society through freeships or scholarships.

59. In the abovementioned background, learned counsel Shri Venugopal submits that this Bench is not considering the correctness of judgment in Islamic Academy. It will not and cannot go into the question of correctness of judgment in Pai Foundation which is of a larger Bench. This Bench has a limited jurisdiction to examine whether the 5-Judge Bench decision in Islamic Academy is in any manner inconsistent with 11-Judge Bench judgment in Pai Foundation. It is submitted that if there are certain inherent inconsistencies between various paragraphs particularly 59 and 68 of the judgment in Pai Foundation, they have to be resolved and that was exactly what was done by the five judges in Islamic Academy.

60. In Pai Foundation, observation in paragraph 68 under the heading “Private Unaided Professional Colleges” read with para 69 indicates appropriate machinery to be evolved to regulate admissions in both categories of private institutions to check exploiters who are charging capitation fee.

61. It is submitted that if the attempt by the Bench in Islamic Academy to resolve the apparent inconsistency in the judgment of Pai Foundation, indicated a reasonable and plausible interpretation of the 11-Judge Bench judgment in Pai Foundation, this court should refrain from substituting another interpretation.

62. It is for the first time in Pai Foundation that the question of application of Article 30 to minority professional colleges arose. All earlier judgments of this court were only concerning education in schools and colleges other than those imparting professional education. For the first time in Pai Foundation, the court held that running an educational institution is an ‘occupation’ and Article 19(1) (g) guarantees it as a fundamental right.

63. It is submitted that regulation of non-minority unaided professional institution is permissible under Article 19(6) of the Constitution to prevent profiteering, levy of capitation fee and selection of non-meritorious candidates. Such regulation also does not violate right of minority professional institutions under Article 30, which this Court has repeatedly held, is not an absolute right but is merely a protection extended to minorities against oppression by the majority.

64. The issue relating to reservation of seats for schedule castes, schedule tribes or OBCs, either in management quota or in Government quota did not come up for consideration either in Pai Foundation or Islamic Academy. This has to be separately dealt with by the present Bench

65. Similarly, it is submitted that right of minority institutions to admit students from all over the country, irrespective of their religion and community and also from abroad such as NRIs never arose directly for consideration either in Pai Foundation or Islamic Academy. In this respect, it is submitted that the status of minority both religious and linguistic is to be determined at the state level. The minority institutions cannot claim a right to cater to the educational needs of their community from all over the country and even from abroad.

66. In paragraph 68 of the judgment in Pai Foundation the use of the phrase ‘certain percentage based on local needs’ and further phrase ‘different percentages can be fixed’ for minority unaided and non-minority unaided professional colleges’ clearly convey that quotas can be fixed based on local needs for management and for the Government. Meritorious students from weaker sections are not to be sidelined from higher and professional education. It is argued that the phrase ‘local need’ as used in paragraph 68 in the judgment of Pai Foundation cannot be read to mean the needs of the institution concerned. So far as the selection based on merit is concerned, common entrance test has been suggested both for aided and non-aided professional colleges. When there is no common entrance test, merit becomes the casualty and the rich and the affluent corner the seats.

67. So far as the right to fix a fee structure for unaided minority or non-minority colleges or institutes is concerned, the argument that pre-fixation of fee is a serious encroachment on the rights of minority and non-minority, it is submitted, is not valid as full discretion is given to the management in fixing their fee structure. However, they would not be allowed to fix such high fee as would deny many meritorious students a chance of admission only because they come from economically weaker sections. It would be of no consolation to them to find that after admissions are over and classes have started, the fee has been lowered by the monitoring committee. If the committee is allowed to scrutinize the justification of fee fixation after the admissions and the fee is lowered, it would not be possible for the meritorious students to again seek admission. Through the Committees set up in Islamic Academy, the fee structure would be known before hand and would serve the interest of the institution as also the students seeking admission. The Committee has to fix fee for each college depending upon its peculiar conditions and its assets and availability of funds. Coming to the question of cross subsidy, it is submitted that in Pai Foundation, cross-subsidizing the weaker sections by the more affluent ones has not been held to be impermissible. The Bench in Pai Foundation overruled the judgment in Unni Krishnan. The latter provided for “marginally less merited rural or poor students bearing the burden of rich and urban students.” The learned counsel suggests that solution can be to set apart fifteen per cent of total seats in a local college to be filled by NRI/ person of independent origin/ foreign students who would volunteer to fill up the allotted seats on the management quota but on inter se merit. Each NRI student would subsidize two other students belonging to the economically and socially weaker sections based on an annual income of say less than rupees 2.5 lacs. This would cater to the financial needs of at least 30 out of 50 students selected on merit forming part of the Government quota and this would be a constitutionally permissible solution.

68. To streamline and further improve the admission procedure and fixation of fee structure, learned counsel has made the following proposals in writing submitting that they may be of practical value to the Committees directed to be set up by Islamic Academy :-

A. ADMISSION :

Six months prior to the commencement of the academic year, the Government would fix the percentage of students to be admitted by a minority (religious/linguistic) professional college (other than engineering ), taking into account the local needs of the State, the region as well as that of the minority- community. It would be a huge and cumbersome exercise in practice, to fix a percentage for each one of the institutions separately and it would be a pragmatic approach to have a fixed percentage for all the minority institutions which is fair and reasonable. A practical approach to the problem would require a very definite percentage to be fixed for minority institutions, say, 50% so that even if candidates of their choice, belonging to the minority institutions, are only 25% they would still have the right to select non-minority students to make up the 50%, of course, from the CET held by the Government.

1. The CET held by Government would ensure that the various devices adopted by professional colleges to secretly demand capitation fees and take the same in black money, thus resulting in merit being the casualty, would not take place. No prejudice will be caused to the management of the professional colleges as they could select the minority students based on inter se merit in the CET held by the Government.

2. There would equally be no disadvantage to any particular section or to Government if the same 50% rule is applied even to unaided non-minority professional colleges as well.

3. The result of following this procedure is that a consortium holding the tests for admissions is done away with and a monitoring committee, preferably headed by a retired High Court or Supreme Court judge would ensure fairness and transparency both in the minority and non-minority professional institutions.

4. and 5 . . . . . . . . . . . . . . . . . . . . . . . . ..

B. FEES :

The Committee suggested by Islamic Academy and the procedure mentioned therein, appears to be the only safe method of ensuring that extortionate fees are not charged by the medical colleges. At the same time, it would be wrong to deny expenditure which the institution undertakes for ensuring excellence in education. Equally, a reasonable surplus should be permitted so that the fees charged cover the entire revenue expenditure and in addition leaves a reasonable surplus for future expansion. This alone would prevent the clandestine collection of capitation fees and would result in entrepreneurs investing in new medical colleges.

The Committee suggested by Islamic Academy appears to be the ideal one consisting of a chartered accountant, a representative of the MCI or AICTE as the case may be, with a retired judge of the High Court or the Supreme Court as the head.

The fee is to be fixed on the proposal of the institution supported by documents and the procedure of fee finalization should commence at least 6 months in advance of the commencement of the academic year.

These proposals should all be by way of an interim arrangement as held by Islamic Academy in para 20 with the Parliament bringing in a law, as suggested by Islamic Academy without dragging its feet any longer.”

69. With regard to the ambit of the constitutional guarantee of protection of educational rights of minorities under Article 30, learned counsel submits that both religious and linguistic minority, as held in Pai Foundation, are to be determined at the State level. On this understanding of the concept of ‘minority’, Article 30 has to be harmoniously construed with Article 19(1)(g) and in the light of the Directive Principles of the State Policy contained in the Articles 38, 41 and 46. Rights of minorities cannot be placed higher than the general welfare of the students and their right to take up professional education on the basis of their merit.

70. The real purpose of Article 30 is to prevent discrimination against members of the minority community and to place them on an equal footing with non-minority. Reverse discrimination was not the intention of Article 30. If running of educational institutions cannot be said to be at a higher plane than the right to carry on any other business, reasonable restriction similar to those placed on the right to carry on business can be placed on educational institutions conducting professional courses. For the purpose of these restrictions both minorities and non-minorities can be treated at par and there would not be any violation of Article 30(1), which guarantees only protection against oppression and discrimination of the minority from the majority. Activities of education being essentially charitable in nature, the educational institutions both of non-minority and minority character can be regulated and controlled so that they do not indulge in selling seats of learning to make money. They can be allowed to generate such funds as would be reasonably required to run the institute and for its further growth.

71. On behalf of the State of Karnataka, learned senior counsel Shri T.R. Andhyarujuna supported the judgment in Islamic Academy of setting up permanent Committees for regulating admission and fee structure. Learned senior counsel submitted that relevant parts of paragraphs 58, 59 and 68 and answer to question no. 4 in Pai Foundation have to be read and reconciled. They cannot be ignored simply as obiter. A combined reading of the relevant paragraphs and the answer to question no.4 makes it clear that regulations can be made by the State for admission in minority and non-minority private educational institutions and more so in professional institutions. The merit for admission to professional courses is generally determined by Government agencies. In Pai Foundation the reservation on certain percentage of seats by the Government to be filled up by counselling by state agency, is held permissible.

72. With regard to the quota fixation, learned counsel submits that paragraph 68 in Pai Foundation allows reservation of quota for management and for the Government for available seats. It is submitted that the educational institutions cannot merely read the answer to question no.4 given by judgment in Pai Foundation and ignore the other observations in other paragraphs of the judgment.

73. So far as the case of minority and non-minority unaided institutions is concerned, learned counsel submits that the balancing act has been performed in the judgment of Pai Foundation by regulating the economy of educational institutions moderated by necessary State legislation. Observation in paragraph 68 in Pai Foundation does not amount to permitting nationalization or takeover of the private institutions which was the main feature found foul in the decision in Unni Krishnan and was consequently overruled. The observation in Pai Foundation in paragraph 68 strikes the balance between the academy and education. To read paragraph 68 as merely giving an instance would be to ignore the concern of the Bench in Pai Foundation of providing reservation to poorer or backward sections of society even in private institutions. The description of percentage of reservation in paragraph 68 is different from reservation policy of the State for State institutions and in State quota.

74. It is submitted that the reservation spoken of in paragraph 68 of Pai Foundation is to cater to the needs of poorer and weaker sections and also other students depending upon the local needs.

75. So far as the regulation of fee structure is concerned, it is submitted that in paragraph 69 in Pai Foundation there is a mention of “appropriate machinery to be devised by the State or University to ensure that no capitation fee is charged and profiteering is checked.” The judgment in Islamic Academy merely implements the legal position explained by Pai Foundation by providing a fee determination committee. In reply to the argument that post-fixation audit may be permitted to check profiteering and capitation, the learned counsel answers that if the role of the Committee is limited to supervisory post fixation audit, it would amount to denying credible restriction to the charging of capitation fee. It is chimerical to suggest that the student should first pay the exorbitant fee fixed by the institution and later on complain about it to the post audit machinery to recover the excess through court of law. The controlling of the fee fixing machinery is necessarily to be done before it is charged otherwise it is meaningless to the benefit of the students for whom it is suggested in paragraph 69. The general principle for scrutinizing the fee structure is two-fold; (1) that education is a charity, (2) that educational institutions cannot charge such fee as is not required for the purpose of fulfilling that object which means cost plus reasonable surplus for expansion and growth of the institution. These are the parameters before the Committee whose decisions, in any case, are subject to judicial review.

76. So far as the admissions based on common entrance test are concerned, it is submitted that paragraphs 58 and 59 of Pai Foundation permit regulations to be framed for admission in professional institutions by State agency to ensure admission on merit. In the absence of CET and centralized counselling, private educational institutions would pick and choose candidates ignoring merit, as has been evident from the Karnataka experience. If the private professional educational institutions conceive that merit cannot be ignored in granting admission, direction to make selection based on CET does not in any manner adversely affect the character of the minority institution. The State regulation providing for CET is a reasonable restriction and it will pass the test of Article 19(6) both in respect of aided and unaided non-minority institutions. Private unaided institutions have also to admit students on the basis of merit in a fair and transparent manner in the interest of student community. Right of private educational institutions to admit students can be regulated. Such regulations if in national and public interest do not in any manner impinge on the right of minority.

77. Learned counsel points out that so far as the State of Karnataka is concerned, no reservation policy is being insisted upon in the seats or quota given to the management.

78. Arguments were also advanced supporting the directions in Islamic Academy by learned senior counsel Shri P.P. Rao appearing for the State of Tamil Nadu. It is submitted that already a statement had been made in the High Court that the State of Tamil Nadu would not be insisting on communal reservation based on State policy in the minority institution.

79. Learned counsel pressed into service Article 51-A(j) providing for Fundamental Duties in the Constitution. It is submitted that fundamental duty is enjoined on citizens to so direct their individual and collective activities that the nation constantly rises to higher levels of endeavour and achievement. This duty implies that the State on its part is to facilitate discharge of duties by the citizen in relation to the professional education. The State is bound to ensure admission to colleges that are made purely on relative merit to be objectively assessed by a responsible agency. The decisions of this court rendered from time to time consistently and unanimously held that regulation could be made for achieving standards of excellence in education. Reliance is placed on Dr. Prithvi vs. State of MP (1999) 7 SCC 120 at 153 and 155; Professor Yashpal vs. State of Chhattisgarh (2005) 2 SCC 61 at 79 paragraph 90.                                          V

                                                                                                                A few concepts

80. There are a few concepts which should be very clear in our minds at the very outset, as these are the concepts which flow as undercurrents in the sea of issues surfacing for resolution in all educational cases. These concepts are referable to : (i) What is ‘education’? (ii) What is the inter-relationship of Articles 19(1)(g), 29 and 30 of the Constitution? (iii) In the context of minority educational institutions, what difference does it make if they are aided or unaided or if they seek recognition or affiliation or do not do so? (iv) Would it make any difference if the instructions imparted in such educational institutions relate to professional or non-professional courses of study?

Education

81. ‘Education’ according to Chambers Dictionary is “bringing up or training; strengthening of the powers of body or mind; culture.”

82. In Advanced Law Lexicon (P. Ramanatha Aiyar, 3rd Edition, 2005, Vol.2) ‘education’ is defined in very wide terms. It is stated : “Education is the bringing up; the process of developing and training the powers and capabilities of human beings. In its broadest sense the word comprehends not merely the instruction received at school, or college but the whole course of training moral, intellectual and physical; is not limited to the ordinary instruction of the child in the pursuits of literature. It also comprehends a proper attention to the moral and religious sentiments of the child. And it is sometimes used as synonymous with ‘learning’.”

83. In The Sole Trustee, Lok Shikshana Trust vs. C.I.T., (1976) 1 SCC 254, the term ‘education’ was held to mean – “the systematic instruction, schooling or training given to the young in preparation for the work of life. It also connotes the whole course of scholastic instruction which a person has received…. What education connotes is the process of training and developing the knowledge, skill, mind and character of students by formal schooling.”

84. In ‘India – Vision 2020’ published by Planning Commission of India, it is stated (at p.250) – “Education is an important input both for the growth of the society as well as for the individual. Properly planned educational input can contribute to increase in the Gross National Products, cultural richness, build positive attitude towards technology and increase efficiency and effectiveness of the governance. Education opens new horizons for an individual, provides new aspirations and develops new values. It strengthens competencies and develops commitment. Education generates in an individual a critical outlook on social and political realities and sharpens the ability to self- examination, self-monitoring and self-criticism.”

85. “The term ‘Knowledge Society’, ‘Information Society’ and ‘Learning Society’ have now become familiar expressions in the educational parlance, communicating emerging global trends with far-reaching implications for growth and development of any society. These are not to be seen as mere cliche or fads but words that are pregnant with unimaginable potentialities. Information revolution, information technologies and knowledge industries, constitute important dimensions of an information society and contribute effectively to the growth of a knowledge society.” (ibid, p.246)

86. “Alvin Toffler (1980) has advanced the idea that power at the dawn of civilization resided in the ‘muscle’. Power then got associated with money and in 20th century it shifted its focus to ‘mind’. Thus the shift from physical power to wealth power to mind power is an evolution in the shifting foundations of economy. This shift supports the observation of Francis Bacon who said ‘knowledge itself is power’; stressing the same point and upholding the supremacy of mind power, in his characteristic expression, Winston Churchill said, “the Empires of the future shall be empires of the mind”. Thus, he corroborated Bacon and professed the emergence of the knowledge society.” (ibid, p.247)

87. Quadri, J. has well put it in his opinion in Pai Foundation (para 287) – “Education plays a cardinal role in transforming a society into a civilised nation. It accelerates the progress of the country in every sphere of national activity. No section of the citizens can be ignored or left behind because it would hamper the progress of the country as a whole. It is the duty of the State to do all it could, to educate every section of citizens who need a helping hand in marching ahead along with others”.

88. According to Dr. Zakir Hussain, a great statesman with democratic credentials, a secularist and an educationist, a true democracy is one where each and every citizen is involved in the democratic process and this end cannot be achieved unless we remove the prevailing large-scale illiteracy in our country. Unless universal education is achieved which allows every citizen to participate actively in the processes of democracy, we can never claim to be a true democracy. Dr. Zakir Hussain sought to ensure that the seeds of knowledge were germinated in the minds of as many citizens as possible, with a view to enabling them to perform their assigned roles on the stage of democracy. Dr. Zakir Hussain, as quoted by Justice A.M. Ahmadi, the then Chief Justice of India, (1996) 2 SCC (J) 1, at 2-3.

89. Under Article 41 of the Constitution, right to education, amongst others, is obligated to be secured by the State by making effective provision therefor. Fundamental duties recognized by Article 51A include, amongst others, (i) to develop the scientific temper, humanism and the spirit of inquiry and reform; and (ii) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement. None can be achieved or ensured except by means of education. It is well accepted by the thinkers, philosophers and academicians that if JUSTICE, LIBERTY, EQUALITY and FRATERNITY, including social, economic and political justice, the golden goals set out in the Preamble to the Constitution of India are to be achieved, the Indian polity has to be educated and educated with excellence. Education is a national wealth which must be distributed equally and widely, as far as possible, in the interest of creating an egalitarian society, to enable the country to rise high and face global competition. ‘Tireless striving stretching its arms towards perfection’ (to borrow the expression from Rabindranath Tagore) would not be successful unless strengthened by education.

90. Education is “-continual growth of personality, steady development of character, and the qualitative improvement of life. A trained mind has the capacity to draw spiritual nourishment from every experience, be it defeat or victory, sorrow or joy. Education is training the mind and not stuffing the brain.” (See Eternal Values for A Changing Society, Vol. III Education for Human Excellence, published by Bharatiya Vidya Bhavan, Bombay, at p. 19)

91. “We want that education by which character is formed, strength of mind is increased, the intellect is expanded, and by which one can stand on one’s own feet.” “The end of all education, all training, should be man-making. The end and aim of all training is to make the man grow. The training by which the current and expression of will are brought under control and become fruitful is called education.” (Swami Vivekanand as quoted in ibid, at p.20)

92. Education, accepted as a useful activity, whether for charity or for profit, is an occupation. Nevertheless, it does not cease to be a service to the society. And even though an occupation, it cannot be equated to a trade or a business.

93. In short, education is national wealth essential for the nation’s progress and prosperity.

Articles 19(1)(g), 29(2) and 30(1): inter-relationship between

94. The right to establish an educational institution, for charity or for profit, being an occupation, is protected by Article 19(1) (g). Notwithstanding the fact that the right of a minority to establish and administer an educational institution would be protected by Article 19(1)(g) yet the Founding Fathers of the Constitution felt the need of enacting Article 30. The reasons are too obvious to require elaboration. Article 30(1) is intended to instill confidence in minorities against any executive or legislative encroachment on their right to establish and administer educational institution of their choice. Article 30(1) though styled as a right, is more in the nature of protection for minorities. But for Article 30, an educational institution, even though based on religion or language, could have been controlled or regulated by law enacted under Clause (6) of Article 19, and so, Article 30 was enacted as a guarantee to the minorities that so far as the religious or linguistic minorities are concerned, educational institutions of their choice will enjoy protection from such legislation. However, such institutions cannot be discriminated against by the State solely on account of their being minority institutions. The minorities being numerically less qua non-minorities, may not be able to protect their religion or language and such cultural values and their educational institutions will be protected under Article 30, at the stage of law making. However, merely because Article 30(1) has been enacted, minority educational institutions do not become immune from the operation of regulatory measure because the right to administer does not include the right to mal-administer. To what extent the State regulation can go, is the issue. The real purpose sought to be achieved by Article 30 is to give minorities some additional protection. Once aided, the autonomy conferred by the protection of Article 30(1) on the minority educational institution is diluted as provisions of Article 29(2) will be attracted. Certain conditions in the nature of regulations can legitimately accompany the State aid.

95. As an occupation, right to impart education is a fundamental right under Article 19(1)(g) and, therefore, subject to control by clause (6) of Article 19. This right is available to all citizens without drawing a distinction between minority and non- minority. Such a right is, generally speaking, subject to laws imposing reasonable restrictions in the interest of the general public. In particular, laws may be enacted on the following subjects: (i) the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business; (ii) the carrying on by the State, or by a corporation owned or controlled by the State of any trade, business, industry or service whether to the exclusion, complete or partial of citizens or otherwise. Care is taken of minorities, religious or linguistic, by protecting their right to establish and administer educational institutions of their choice under Article 30. To some extent, what may be permissible by way of restriction under Article 19(6) may fall foul of Article 30. This is the additional protection which Article 30(1) grants to the minorities.

96. The employment of expressions ‘right to establish and administer’ and ‘educational institution of their choice’ in Article 30(1) gives the right a very wide amplitude. Therefore, a minority educational institution has a right to admit students of its own choice, it can, as a matter of its own freewill, admit students of non-minority community. However, non-minority students cannot be forced upon it. The only restriction on the freewill of the minority educational institution admitting students belonging to non-minority community is, as spelt out by Article 30 itself, that the manner and number of such admissions should not be violative of the minority character of the institution.

97. Aid and affiliation or recognition, both by State, bring in some amount of regulation as a condition of receiving grant or recognition. The scope of such regulations, as spelt out by 6-Judge Bench decision in Rev. Sidhrajbhai case, AIR 1963 SC 540 and 9-Judge Bench case in St. Xavier’s must satisfy the following tests: (a) the regulation is reasonable and rational; (b) it is regulative of the essential character of the institution and is conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it; (c) it is directed towards maintaining excellence of the education and efficiency of administration so as to prevent it from falling in standards. These tests have met the approval of Pai Foundation. However, Rev. Sidhrajbhai’s case and St. Xavier’s go on to say that no regulation can be cast in ‘the interest of the nation’ if it does not serve the interest of the minority as well. This proposition (except when it is read in the light of the opinion of Quadri, J.) stands overruled in Pai Foundation where Kirpal, CJ, speaking for majority has ruled (vide para 107) – “any regulation framed in the national interest must necessarily apply to all educational institutions, whether run by the majority or the minority. Such a limitation must necessarily be read into Article 30. The right under Article 30(1) cannot be such as to override the national interest or to prevent the Government from framing regulations in that behalf”. (Also see, paras 117 to 123 and para 138 of Pai Foundation where Kirpal, CJ has dealt with St. Xavier’s in details). No right can be absolute. Whether a minority or a non- minority, no community can claim its interest to be above the national interest.

‘Minority’ And ‘Minority Educational Institutions’

98. The term ‘minority’ is not defined in the Constitution. Chief Justice Kirpal, speaking for the majority in Pai Foundation, took clue from the provisions of the State Reorganisation Act and held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for determining linguistic minority viz-a-viz Article 30. Inasmuch as Article 30(1) places on par religions and languages, he held that the minority status, whether by reference to language or by reference to religion, shall have to be determined by treating the State as unit. The principle would remain the same whether it is a Central legislation or a State legislation dealing with linguistic or religious minority. Khare, J. (as His Lordship then was), Quadri, J. and Variava and Bhan, JJ. in their separate concurring opinions agreed with Kirpal, CJ. According to Khare, J., take the population of any State as a unit, find out its demography and calculate if the persons speaking a particular language or following a particular religion are less than 50% of the population, then give them the status of linguistic or religious minority. The population of the entire country is irrelevant for the purpose of determining such status. Quadri, J. opined that the word ‘minority’ literally means ‘a non-dominant’ group. Ruma Pal, J. defined the word ‘minority’ to mean ‘numerically less’. However, she refused to take the State as a unit for the purpose of determining minority status as, in her opinion, the question of minority status must be determined with reference to the country as a whole. She assigned reasons for the purpose. Needless to say, her opinion is a lone voice. Thus, with the dictum of Pai Foundation, it cannot be doubted that minority, whether linguistic or religious, is determinable only by reference to the demography of a State and not by taking into consideration the population of the country as a whole.

99. Such definition of minority resolves one issue but gives rise to many a questions when it comes to defining ‘minority educational institution’. Whether a minority educational institution, though established by a minority, can cater to the needs of that minority only? Can there be an enquiry to identify the person or persons who have really established the institution? Can a minority institution provide cross-border or inter-State educational facilities and yet retain the character of minority educational institution?

100. In Kerala Education Bill, the scope and ambit of right conferred by Article 30(1) came up for consideration. Article 30(1) does not require that minorities based on religion should establish educational institutions for teaching religion only or that linguistic minority should establish educational institution for teaching its language only. The object underlying Article 30(1) is to see the desire of minorities being fulfilled that their children should be brought up properly and efficiently and acquire eligibility for higher university education and go out in the world fully equipped with such intellectual attainments as will make them fit for entering public services, educational institutions imparting higher instructions including general secular education. Thus, the twin objects sought to be achieved by Article 30(1) in the interest of minorities are: (i) to enable such minority to conserve its religion and language, and (ii) to give a thorough, good general education to the children belonging to such minority. So long as the institution retains its minority character by achieving and continuing to achieve the abovesaid two objectives, the institution would remain a minority institution.

101. The learned Judges in Kerala Education Bill were posed with the issue projected by Article 29(2). What will happen if the institution was receiving aid out of State funds? The apparent conflict was resolved by the Judges employing a beautiful expression. They said, Articles 29(2) and 30(1), read together, clearly contemplate a minority institution with a ‘sprinkling of outsiders’ admitted in it. By admitting a member of non-minority into the minority institution, it does not shed its character and cease to be a minority institution. The learned Judges went on to observe that such ‘sprinkling’ would enable the distinct language, script and culture of a minority being propagated amongst non-members of a particular minority community and that would indeed better serve the object of conserving the language, religion and culture of that minority.

102. Chief Justice Hidayatullah, speaking for the Constitution Bench in State of Kerala, Etc. vs. Very Rev. Mother Provincial, Etc., (1970) 2 SCC 417, has not used the expression ‘sprinkling’ but has explained the reason why that was necessary. He said – “It matters not if a single philanthropic individual with his own means, founds the institution or the community at large contributes the funds. The position in law is the same and the intention in either case must be to found an institution for the benefit of a minority community by a member of that community. It is equally irrelevant that in addition to the minority community others from other minority communities or even from the majority community can take advantage of these institutions. Such other communities bring in income and they do not have to be turned away to enjoy the protection”. (para 8)

103. Much of controversy can be avoided if only the nature of the right conferred by Articles 29 and 30 is clearly understood. The nature and content of these articles stands more than clarified and reconciled inter se as also with other articles if only we understand that these two articles are intended to confer protection on minorities rather than a right as such. In St. Stephen’s, their Lordships clearly held (vide para 28) that Article 30(1) is “a protective measure only” and further said (vide para 59) that Article 30(1) implied certain ‘privilege’. Articles 29 and 30 can be better understood and utilized if read as a protection and/or a privilege of minority rather than an abstract right.

104. In this background arises the complex question of trans-border operation of Article 30(1). Pai Foundation has clearly ruled in favour of the State (or a province) being the unit for the purpose of deciding minority. By this declaration of law, certain consequences follow. First, every community in India becomes a minority because in one or the other State of the country it will be in minority – linguistic or religious. What would happen if a minority belonging to a particular State establishes an educational institution in that State and administers it but for the benefit of members belonging to that minority domiciled in the neighbouring State where that community is in majority? Would it not be a fraud on the Constitution? In St. Stephen’s, their Lordships had ruled that Article 31 is a protective measure only for the benefit of religious and linguistic minorities and “no illfit or camouflaged institution should get away with the constitutional protection” (para 28). The question need not detain us for long as it stands answered in no uncertain terms in Pai Foundation. Emphasising the need for preserving its minority character so as to enjoy the privilege of protection under Article 30(1), it is necessary that the objective of establishing the institution was not defeated. “If so, such an institution is under an obligation to admit the bulk of the students fitting into the description of the minority community. Therefore, the students of that group residing in the State in which the institution is located have to be necessarily admitted in a large measure because they constitute the linguistic minority group as far as that State is concerned. In other words, the predominance of linguistic students hailing from the State in which the minority educational institution is established should be present. The management bodies of such institutions cannot resort to the device of admitting the linguistic students of the adjoining State in which they are in a majority, under the facade of the protection given under Article 30(1).” (para 153). The same principle applies to religious minority. If any other view was to be taken, the very objective of conferring the preferential right of admission by harmoniously constructing Articles 30(1) and 29(2), may be distorted.

105. It necessarily follows from the law laid down in Pai Foundation that to establish a minority institution the institution must primarily cater to the requirements of that minority of that State else its character of minority institution is lost. However, to borrow the words of Chief Justice S.R. Das (in Kerala Education Bill) a ‘sprinkling’ of that minority from other State on the same footing as a sprinkling of non-minority students, would be permissible and would not deprive the institution of its essential character of being a minority institution determined by reference to that State as a unit.

Minority educational institutions: classifiable in three

106. To establish an educational institution is a Fundamental Right. Several educational institutions have come up. In Kerala Education Bill, ‘minority educational institutions’ came to be classified into three categories, namely, (i) those which do not seek either aid or recognition from the State; (ii) those which want aid; and (iii) those which want only recognition but not aid. It was held that the first category protected by Article 30(1) can “exercise that right to their hearts’ content” unhampered by restrictions. The second category is most significant. Most of the educational institutions would fall in that category as no educational institution can, in modern times, afford to subsist and efficiently function without some State aid. So is with the third category. An educational institution may survive without aid but would still stand in need of recognition because in the absence of recognition, education imparted therein may not really serve the purpose as for want of recognition the students passing out from such educational institutions may not be entitled to admission in other educational institutions for higher studies and may also not be eligible for securing jobs. Once an educational institution is granted aid or aspires for recognition, the State may grant aid or recognition accompanied by certain restrictions or conditions which must be followed as essential to the grant of such aid or recognition. This Court clarified in Kerala Education Bill that ‘the right to establish and administer educational institutions’ conferred by Article 30(1) does not include the right to maladminister, and that is very obvious. Merely because an educational institution belongs to minority it cannot ask for aid or recognition though running in unhealthy surroundings, without any competent teachers and which does not maintain even a fair standard of teaching or which teaches matters subversive to the welfare of the scholars. Therefore, the State may prescribe reasonable regulations to ensure the excellence of the educational institutions to be granted aid or to be recognized. To wit, it is open to the State to lay down conditions for recognition such as, an institution must have a particular amount of funds or properties or number of students or standard of education and so on. The dividing line is that in the name of laying down conditions for aid or recognition the State cannot directly or indirectly defeat the very protection conferred by Article 30(1) on the minority to establish and administer educational institutions. Dealing with the third category of institutions, which seek only recognition but not aid, their Lordships held that ‘the right to establish and administer educational institutions of their choice’ must mean the right to establish real institutions which will effectively serve the needs of the community and scholars who resort to these educational institutions. The dividing line between how far the regulation would remain within the constitutional limits and when the regulations would cross the limits and be vulnerable is fine yet perceptible and has been demonstrated in several judicial pronouncements which can be cited as illustrations. They have been dealt with meticulous precision coupled with brevity by S. B. Sinha, J. in his opinion in Islamic Academy. The considerations for granting recognition to a minority educational institution and casting accompanying regulation would be similar as applicable to a non-minority institution subject to two overriding considerations: (i) the recognition is not denied solely on the ground of the educational institution being one belonging to minority, and (ii) the regulation is neither aimed at nor has the effect of depriving the institution of its minority status.

107. Article 30(1) speaks of ‘educational institutions’ generally and so does Article 29(2). These Articles do not draw any distinction between an educational institution dispensing theological education or professional or non-professional education. However, the terrain of thought as has developed through successive judicial pronouncements culminating in Pai Foundation is that looking at the concept of education, in the backdrop of constitutional provisions, the professional educational institutions constitute a class by themselves as distinguished from the educational institutions imparting non- professional education. It is not necessary for us to go deep into this aspect of the issue posed before us inasmuch as Pai Foundation has clarified that merit and excellence assume special significance in the context of professional studies. Though merit and excellence are not anathema to non-professional education, yet at that level and due to the nature of education which is more general, merit and excellence do not stand in need of that degree thereof, as is called for in the context of professional education.

Difference between professional and non-professional education institutions

108. Dealing with unaided minority educational institutions, Pai Foundation holds that Article 30 does not come in the way of the State stepping in for the purpose of securing transparency and recognition of merit in the matter of admissions. Regulatory measures for ensuring educational standards and maintaining excellence thereof are no anathema to the protection conferred by Article 30(1). However, a distinction is to be drawn between unaided minority educational institution of the level of schools and undergraduate colleges on one side and the institutions of higher education, in particular, those imparting professional education on the other side. In the former, the scope for merit based selection is practically nil and hence may not call for regulation. But in the case of latter, transparency and merit have to be unavoidably taken care of and cannot be compromised. There could be regulatory measures for ensuring educational standards and maintaining excellence thereof. (See para 161, Answer to Q.4, in Pai Foundation). The source of this distinction between two types of educational institutions referred to hereinabove is to be found in the principle that right to administer does not include a right to maladminister.

109. S.B. Sinha, J. has, in his separate opinion in Islamic Academy, described (in para 199) the situation as a pyramid like situation and suggested the right of minority to be read along with fundamental duty. Higher the level of education, lesser are the seats and higher weighs the consideration for merit. It will, necessarily, call for more State intervention and lesser say for minority.

110. Educational institutions imparting higher education, i.e. graduate level and above and in particular specialized education such as technical or professional, constitutes a separate class. While embarking upon resolving issues of constitutional significance, where the letter of the Constitution is not clear, we have to keep in view the spirit of the Constitution, as spelt out by its entire scheme. Education aimed at imparting professional or technical qualifications stand on a different footing from other educational instructions. Apart from other provisions, Article 19(6) is a clear indicator and so are clauses (h) and (j) of Article 51A. Education up to undergraduate level aims at imparting knowledge just to enrich mind and shape the personality of a student. Graduate level study is a doorway to admissions in educational institutions imparting professional or technical or other higher education and, therefore, at that level, the considerations akin to those relevant for professional or technical educational institutions step in and become relevant. This is in national interest and strengthening the national wealth, education included. Education up to undergraduate level on one hand and education at graduate and post-graduate levels and in professional and technical institutions on the other are to be treated on different levels inviting not identical considerations, is a proposition not open to any more debate after Pai Foundation. A number of legislations occupying the field of education whose constitutional validity has been tested and accepted suggest that while recognition or affiliation may not be a must for education up to undergraduate level or, even if required, may be granted as a matter of routine, recognition or affiliation is a must and subject to rigorous scrutiny when it comes to educational institutions awarding degrees, graduate or post-graduate, post-graduate diplomas and degrees in technical or professional disciplines. Some such legislations are found referred in paras 81 and 82 of S. B. Sinha, J’s opinion in Islamic Academy.

111. Having so stated and clarified these principles which would be germane to answering the four questions posed before us, now we take up each of the four questions seriatim and answer the same.


112. And yet, before we do so, let us quote and reproduce paragraphs 68, 69 and 70 from Pai Foundation to enable easy reference thereto as the core of controversy touching the four questions which we are dealing with seems to have originated therefrom. These paragraphs read as under:

“68.(I) It would be unfair to apply the same rules and regulations regulating admission to both aided and unaided professional institutions. It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while, at the same time, they do not forego or discard the principle of merit. It would, therefore, be permissible for the university or the Government, at the time of granting recognition, to require a private unaided institution to provide for merit-based selection while, at the same time, giving the management sufficient discretion in admitting students. This can be done through various methods.

(II) For instance, a certain percentage of the seats can be reserved for admission by the management out of those students who have passed the common entrance test held by itself or by the State/university and have applied to the college concerned for admission, while the rest of the seats may be filled up on the basis of counselling by the State agency. This will incidentally take care of poorer and backward sections of the society. The prescription of percentage for this purpose has to be done by the Government according to the local needs and different percentages can be fixed for minority unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-professional but unaided educational institutions viz. graduation and postgraduation non-professional colleges or institutes.

69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or university to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. Conditions granting recognition or affiliation can broadly cover academic and educational matters including the welfare of students and teachers.

70. It is well established all over the world that those who seek professional education must pay for it. The number of seats available in Government and Government-aided Colleges is very small, compared to the number of persons seeking admission to the medical and engineering colleges. All those eligible and deserving candidates who could not be accommodated in Government Colleges would stand deprived of professional education. This void in the field of medical and technical education has been filled by institutions that are established in different places with the aid of donations and the active part taken by public-minded individuals. The object of establishing an institution has thus been to provide technical or professional education to the deserving candidates, and is not necessarily a commercial venture. In order that this intention is meaningful, the institution must be recognized. At the school level, the recognition or affiliation has to be sought from the educational authority or the body that conducts the school-leaving examination. It is only on the basis of that examination that a school-leaving certificate is granted, which enables a student to seek admission in further courses of study after school. A college or a professional educational institution has to get recognition from the university concerned, which normally requires certain conditions to be fulfilled before recognition. It has been held that conditions of affiliation or recognition, which pertain to the academic and educational character of the institution and ensure uniformity, efficiency and excellence in educational courses are valid, and that they do not violate even the provisions of Article 30 of the Constitution; but conditions that are laid down for granting recognition should not be such as may lead to Governmental control of the administration of the private educational institutions”.

113. In Islamic Academy the majority has (vide para 12) paraphrased the contents of para 68 by dividing it into seven parts. S.B. Sinha, J has read the same para 68 by paraphrasing it in five parts (vide para 172 of his opinion). However, we have reproduced para 68 by dividing it into two parts. A reading of the majority judgment in Pai Foundation in its entirety supports the conclusion that while the first part of para 68 is law laid down by the majority, the second part is only by way of illustration, tantamounting to just a suggestion or observation, as to how the State may devise a possible mechanism so as to take care of poor and backward sections of the society. The second part of para 68 cannot be read as law laid down by the Bench. It is only an observation in passing or an illustrative situation which may be reached by consent or agreement or persuasion.

A Comment

114. It was submitted at the Bar that a flourish of language or just a flow of thoughts placed on paper when read in isolation gives an impression as if such is the law laid down though in reality even the author of the judgment had not intended to do so. A mere observation or a reasoning leading to formulation of ultimate opinion on a disputed question of law cannot be read as a ratio of the decision. Such submissions forcefully advanced at the Bar, have been kept in view by us while reading the several opinions in Pai Foundation and Islamic Academy. In Islamic Academy the petitioners-applicants were private unaided institutions (minority and non-minority both) and the petitioners-applicants before us are also private unaided institutions, non-minority and minority (religions and linguistic) both. It was submitted that the majority opinion in Islamic Academy has, while embarking upon clarifying the law laid down in Pai Foundation, not only reiterated some of the propositions of law laid down in Pai Foundation but has also added something more which was not said in Pai Foundation and the two have been so intertwined as to become inseparable and that has been the reason for a spate of litigation post Islamic Academy. S.B. Sinha, J., writing his separate opinion in Islamic Academy, has not himself chosen to say whether his is a concurring opinion or a dissenting one. However, it was pointed out that S.B. Sinha, J’s opinion is analytical, clear and more in consonance with the majority opinion of Pai Foundation. It was urged that the task was difficult and unwittingly, for the sake of aiming at brevity, certain omissions have taken place. Illustratively it was pointed out that vide para 59 of Pai Foundation Kirpal, C.J., has said –

“Merit is usually determined, for admission to professional and higher education colleges, by either the marks that the student obtains at the qualifying examination or school-leaving certificate stage followed by the interview, or by a common entrance test conducted by the institution, or in the case of professional colleges, by government agencies.”

                                                                                                             (Emphasis by us)

115. In Islamic Academy, vide para 70, sub-para (2)(i)(a), the abovesaid passage has been quoted as under:-

“Admission to professional colleges should be based on merit by a common entrance test conducted by the government agencies”.

                                                                                                             (Emphasis by us)

116. It was pointed out that Pai Foundation vide para 59 was just making a note of what is ‘prevailing as the usual systems’ for admitting students but Islamic Academy vide para 70 gives an impression that the view taken in Pai Foundation is to confine to common entrance test conducted by the government agencies as the only source of admission to professional colleges.

117. While expressing their appreciation of the task performed in Islamic Academy of attempting resolution of several issues raised post Pai Foundation, the learned counsel addressing us have tried to put across and demonstrate several such anomalies which Islamic Academy read in juxta position with Pai Foundation has raised.

118. Having generally dealt with the several legal propositions, relevant for our purpose, now we come to specifically dealing with the questions before us.

Q.1. Unaided educational institutions; appropriation of quota by State and enforcement of reservation policy

119. First, we shall deal with minority unaided institutions.

120. We have in the earlier part of this judgment referred to Kerala Education Bill and stated the three categories of minority educational institutions as classified and dealt with therein. The 7-Judge Bench decision in Kerala Education Bill still holds the field and has met the approval of 11-Judge Bench in Pai Foundation. We cull out and state what Pai Foundation has to say about such category of institutions :-

(i) Minority educational institution, unaided and unrecognized

Pai Foundation is unanimous on the view that the right to establish and administer an institution, the phrase as employed in Article 30(1) of the Constitution, comprises of the following rights: (a) to admit students; (b) to set up a reasonable fee structure; (c) to constitute a governing body; (d) to appoint staff (teaching and non-teaching); and (e) to take action if there is dereliction of duty on the part of any of the employees. (para 50)

A minority educational institution may choose not to take any aid from the State and may also not seek any recognition or affiliation. It may be imparting such instructions and may have students learning such knowledge that do not stand in need of any recognition. Such institutions would be those where instructions are imparted for the sake of instructions and learning is only for the sake of learning and acquiring knowledge. Obviously, such institutions would fall in the category of those who would exercise their right under the protection and privilege conferred by Article 30(1) “to their hearts content” unhampered by any restrictions excepting those which are in national interest based on considerations such as public safety, national security and national integrity or are aimed at preventing exploitation of students or teaching community. Such institutions cannot indulge in any activity which is violative of any law of the land.

They are free to admit all students of their own minority community if they so choose to do. (para 145, Pai Foundation)

(ii) Minority unaided educational institutions asking for affiliation or recognition

Affiliation or recognition by the State or the Board or the University competent to do so, cannot be denied solely on the ground that the institution is a minority educational institution. However, the urge or need for affiliation or recognition brings in the concept of regulation by way of laying down conditions consistent with the requirement of ensuring merit, excellence of education and preventing mal-administration. For example, provisions can be made indicating the quality of the teachers by prescribing the minimum qualifications that they must possess and the courses of studies and curricula. The existence of infrastructure sufficient for its growth can be stipulated as a pre-requisite to the grant of recognition or affiliation. However, there cannot be interference in the day-to-day administration. The essential ingredients of the management, including admission of students, recruiting of staff and the quantum of fee to be charged, cannot be regulated. (para 55, Pai Foundation)

Apart from the generalized position of law that right to administer does not include right to mal-administer, an additional source of power to regulate by enacting condition accompanying affiliation or recognition exists. Balance has to be struck between the two objectives: (i) that of ensuring the standard of excellence of the institution, and (ii) that of preserving the right of the minority to establish and administer its educational institution. Subject to reconciliation of the two objectives, any regulation accompanying affiliation or recognition must satisfy the triple tests: (i) the test of resonableness and rationality, (ii) the test that the regulation would be conducive to making the institution an effective vehicle of education for the minority community or other persons who resort to it, and (iii) that there is no in-road on the protection conferred by Article 30(1) of the Constitution, that is, by framing the regulation the essential character of the institution being a minority educational institution, is not taken away. (para 122, Pai Foundation)

(iii) Minority educational institutions receiving State aid

Conditions which can normally be permitted to be imposed on the educational institutions receiving the grant must be related to the proper utilization of the grant and fulfillment of the objectives of the grant without diluting the minority status of the educational institution, as held in Pai Foundation (See para 143 thereof). As aided institutions are not before us and we are not called upon to deal with their cases, we leave the discussion at that only.

121. So far as appropriation of quota by the State and enforcement of its reservation policy is concerned, we do not see much of difference between non-minority and minority unaided educational institutions. We find great force in the submission made on behalf of the petitioners that the States have no power to insist on seat sharing in the unaided private professional educational institutions by fixing a quota of seats between the management and the State. The State cannot insist on private educational institutions which receive no aid from the State to implement State’s policy on reservation for granting admission on lesser percentage of marks, i.e. on any criterion except merit.

122.As per our understanding, neither in the judgment of Pai Foundation nor in the Constitution Bench decision in Kerala Education Bill, which was approved by Pai Foundation, there is anything which would allow the State to regulate or control admissions in the unaided professional educational institutions so as to compel them to give up a share of the available seats to the candidates chosen by the State, as if it was filling the seats available to be filled up at its discretion in such private institutions. This would amount to nationalization of seats which has been specifically disapproved in Pai Foundation. Such imposition of quota of State seats or enforcing reservation policy of the State on available seats in unaided professional institutions are acts constituting serious encroachment on the right and autonomy of private professional educational institutions. Such appropriation of seats can also not be held to be a regulatory measure in the interest of minority within the meaning of Article 30(1) or a reasonable restriction within the meaning of Article 19(6) of the Constitution. Merely because the resources of the State in providing professional education are limited, private educational institutions, which intend to provide better professional education, cannot be forced by the State to make admissions available on the basis of reservation policy to less meritorious candidate. Unaided institutions, as they are not deriving any aid from State funds, can have their own admissions if fair, transparent, non-exploitative and based on merit.

123. The observations in paragraph 68 of the majority opinion in Pai Foundation, on which the learned counsel for the parties have been much at variance in their submissions, according to us, are not to be read disjointly from other parts of the main judgment. A few observations contained in certain paragraphs of the judgment in Pai Foundation, if read in isolation, appear conflicting or inconsistent with each other. But if the observations made and the conclusions derived are read as a whole, the judgment nowhere lays down that unaided private educational institutions of minorities and non-minorities can be forced to submit to seat sharing and reservation policy of the State. Reading relevant parts of the judgment on which learned counsel have made comments and counter comments and reading the whole judgment (in the light of previous judgments of this Court, which have been approved in Pai Foundation) in our considered opinion, observations in paragraph 68 merely permit unaided private institutions to maintain merit as the criterion of admission by voluntarily agreeing for seat sharing with the State or adopting selection based on common entrance test of the State. There are also observations saying that they may frame their own policy to give free-ships and scholarships to the needy and poor students or adopt a policy in line with the reservation policy of the state to cater to the educational needs of weaker and poorer sections of the society.

124. Nowhere in Pai Foundation, either in the majority or in the minority opinion, have we found any justification for imposing seat sharing quota by the State on unaided private professional educational institutions and reservation policy of the State or State quota seats or management seats.

125. We make it clear that the observations in Pai Foundation in paragraph 68 and other paragraphs mentioning fixation of percentage of quota are to be read and understood as possible consensual arrangements which can be reached between unaided private professional institutions and the State.

126. In Pai Foundation, it has been very clearly held at several places that unaided professional institutions should be given greater autonomy in determination of admission procedure and fee structure. State regulation should be minimal and only with a view to maintain fairness and transparency in admission procedure and to check exploitation of the students by charging exorbitant money or capitation fees.

127. For the aforesaid reasons, we cannot approve of the scheme evolved in Islamic Academy to the extent it allows States to fix quota for seat sharing between management and the States on the basis of local needs of each State, in the unaided private educational institutions of both minority and non-minority categories. That part of the judgment in Islamic Academy, in our considered opinion, does not lay down the correct law and runs counter to Pai Foundation. NRI seats

128. Here itself we are inclined to deal with the question as to seats allocated for Non-Resident Indians (‘NRI’, for short) or NRI seats. It is common knowledge that some of the institutions grant admissions to certain number of students under such quota by charging a higher amount of fee. In fact, the term ‘NRI’ in relation to admissions is a misnomer. By and large, we have noticed in cases after cases coming to this Court, neither the students who get admissions under this category nor their parents are NRIs. In effect and reality, under this category, less meritorious students, but who can afford to bring more money, get admission. During the course of hearing, it was pointed out that a limited number of such seats should be made available as the money brought by such students admitted against NRI quota enables the educational institutions to strengthen its level of education and also to enlarge its educational activities. It was also pointed out that people of Indian origin, who have migrated to other countries, have a desire to bring back their children to their own country as they not only get education but also get reunited with Indian cultural ethos by virtue of being here. They also wish the money which they would be spending elsewhere on education of their children should rather reach their own motherland. A limited reservation of such seats, not exceeding 15%, in our opinion, may be made available to NRIs depending on the discretion of the management subject to two conditions. First, such seats should be utilized bona fide by the NRIs only and for their children or wards. Secondly, within this quota, the merit should not be given a complete go-by. The amount of money, in whatever form collected from such NRIs, should be utilized for benefiting students such as from economically weaker sections of the society, whom, on well defined criteria, the educational institution may admit on subsidized payment of their fee. To prevent misutilisation of such quota or any malpractice referable to NRI quota seats, suitable legislation or regulation needs to be framed. So long as the State does not do it, it will be for the Committees constituted pursuant to Islamic Academy’s direction to regulate.

129. Our answer to the first question is that neither the policy of reservation can be enforced by the State nor any quota or percentage of admissions can be carved out to be appropriated by the State in a minority or non-minority unaided educational institution. Minority institutions are free to admit students of their own choice including students of non-minority community as also members of their own community from other States, both to a limited extent only and not in a manner and to such an extent that their minority educational institution status is lost. If they do so, they lose the protection of Article 30(1).

Q.2. Admission procedure of unaided educational institutions.

130. So far as the minority unaided institutions are concerned to admit students being one of the components of “right to establish and administer an institution”, the State cannot interfere therewith. Upto the level of undergraduate education, the minority unaided educational institutions enjoy total freedom.

131. However, different considerations would apply for graduate and post-graduate level of education, as also for technical and professional educational institutions. Such education cannot be imparted by any institution unless recognized by or affiliated with any competent authority created by law, such as a University, Board, Central or State Government or the like. Excellence in education and maintenance of high standards at this level are a must. To fulfill these objectives, the State can and rather must, in national interest, step in. The education, knowledge and learning at this level possessed by individuals collectively constitutes national wealth.

132. Pai Foundation has already held that the minority status of educational institutions is to be determined by treating the States as units. Students of that community residing in other States where they are not in minority, shall not be considered to be minority in that particular State and hence their admission would be at par with other non-minority students of that State. Such admissions will be only to a limited extent that is like a ‘sprinkling’ of such admissions, the term we have used earlier borrowing from Kerala Education Bill, 1957. In minority educational institutions, aided or unaided, admissions shall be at the State level. Transparency and merit shall have to be assured.

133. Whether minority or non-minority institutions, there may be more than one similarly situated institutions imparting education in any one discipline, in any State. The same aspirant seeking admission to take education in any one discipline of education shall have to purchase admission forms from several institutions and appear at several admission tests conducted at different places on same or different dates and there may be a clash of dates. If the same candidate is required to appear in several tests, he would be subjected to unnecessary and avoidable expenditure and inconvenience. There is nothing wrong in an entrance test being held for one group of institutions imparting same or similar education. Such institutions situated in one State or in more than one State may join together and hold a common entrance test or the State may itself or through an agency arrange for holding of such test. Out of such common merit list the successful candidates can be identified and chosen for being allotted to different institutions depending on the courses of study offered, the number of seats, the kind of minority to which the institution belongs and other relevant factors. Such an agency conducting Common Entrance Test (CET, for short) must be one enjoying utmost credibility and expertise in the matter. This would better ensure the fulfillment of twin objects of transparency and merit. CET is necessary in the interest of achieving the said objectives and also for saving the student community from harassment and exploitation. Holding of such common entrance test followed by centralized counseling or, in other words, single window system regulating admissions does not cause any dent in the right of minority unaided educational institutions to admit students of their choice. Such choice can be exercised from out of list of successful candidates prepared at the CET without altering the order of merit inter se of the students so chosen.

134. Pai Foundation has held that minority unaided institutions can legitimately claim unfettered fundamental right to choose the students to be allowed admissions and the procedure therefor subject to its being fair, transparent and non- exploitative. The same principle applies to non-minority unaided institutions. There may be a single institution imparting a particular type of education which is not being imparted by any other institution and having its own admission procedure fulfilling the test of being fair, transparent and non-exploitative. All institutions imparting same or similar professional education can join together for holding a common entrance test satisfying the abovesaid triple tests. The State can also provide a procedure of holding a common entrance test in the interest of securing fair and merit-based admissions and preventing mal- administration. The admission procedure so adopted by private institution or group of institutions, if it fails to satisfy all or any of the triple tests, indicated hereinabove, can be taken over by the State substituting its own procedure. The second question is answered accordingly.

135. It needs to be specifically stated that having regard to the larger interest and welfare of the student community to promote merit, achieve excellence and curb mal-practices, it would be permissible to regulate admissions by providing a centralized and single window procedure. Such a procedure, to a large extent, can secure grant of merit based admissions on a transparent basis. Till regulations are framed, the admission committees can oversee admissions so as to ensure that merit is not the casualty.

Q. 3 Fee, regulation of

136. To set up a reasonable fee structure is also a component of “the right to establish and administer an institution” within the meaning of Article 30(1) of the Constitution, as per the law declared in Pai Foundation. Every institution is free to devise its own fee structure subject to the limitation that there can be no profiteering and no capitation fee can be charged directly or indirectly, or in any form (Paras 56 to 58 and 161 Answer to Q.5(c) of Pai Foundation are relevant in this regard).

Capitation Fees

137. Capitation fee cannot be permitted to be charged and no seat can be permitted to be appropriated by payment of capitation fee. ‘Profession’ has to be distinguished from ‘business’ or a mere ‘occupation’. While in business, and to a certain extent in occupation, there is a profit motive, profession is primarily a service to society wherein earning is secondary or incidental. A student who gets a professional degree by payment of capitation fee, once qualified as a professional, is likely to aim more at earning rather than serving and that becomes a bane to the society. The charging of capitation fee by unaided minority and non-minority institutions for professional courses is just not permissible. Similarly, profiteering is also not permissible. Despite the legal position, this Court cannot shut its eyes to the hard realities of commercialization of education and evil practices being adopted by many institutions to earn large amounts for their private or selfish ends. If capitation fee and profiteering is to be checked, the method of admission has to be regulated so that the admissions are based on merit and transparency and the students are not exploited. It is permissible to regulate admission and fee structure for achieving the purpose just stated.

138. Our answer to Question-3 is that every institution is free to devise its own fee structure but the same can be regulated in the interest of preventing profiteering. No capitation fee can be charged.

Q.4. Committees formed pursuant to Islamic Academy

139. Most vehement attack was laid by all the learned counsel appearing for the petitioner-applicants on that part of Islamic Academy which has directed the constitution of two committees dealing with admissions and fee structure. Attention of the Court was invited to paras 35,37, 38, 45 and 161 (answer to question 9) of Pai Foundation wherein similar scheme framed in Unni Krishnan was specifically struck down. Vide para 45, Chief Justice Kirpal has clearly ruled that the decision in Unni Krishnan insofar as it framed the scheme relating to the grant of admission and the fixing of the fee, was not correct and to that extent the said decision and the consequent directions given to UGC, AICTE, MCI, the Central and the State Governments etc. are overruled. Vide para 161, Pai Foundation upheld Unni Krishnan to the extent to which it holds the right to primary education as a fundamental right, but the scheme was overruled. However, the principle that there should not be capitation fee or profiteering was upheld. Leverage was allowed to educational institutions to generate reasonable surplus to meet cost of expansion and augmentation of facilities which would not amount to profiteering. It was submitted that Islamic Academy has once again restored such Committees which were done away with by Pai Foundation.

140. The learned senior counsel appearing for different private professional institutions, who have questioned the scheme of permanent Committees set up in the judgment of Islamic Academy, very fairly do not dispute that even unaided minority institutions can be subjected to regulatory measures with a view to curb commercialization of education, profiteering in it and exploitation of students. Policing is permissible but not nationalization or total take over, submitted Shri Harish Salve, the learned senior counsel. Regulatory measures to ensure fairness and transparency in admission procedures to be based on merit have not been opposed as objectionable though a mechanism other than formation of Committees in terms of Islamic Academy was insisted on and pressed for. Similarly, it was urged that regulatory measures, to the extent permissible, may form part of conditions of recognition and affiliation by the university concerned and/or MCI and AICTE for maintaining standards of excellence in professional education. Such measures have also not been questioned as violative of the educational rights of either minorities or non- minorities.

141. The two committees for monitoring admission procedure and determining fee structure in the judgment of Islamic Academy, are in our view, permissive as regulatory measures aimed at protecting the interest of the student community as a whole as also the minorities themselves, in maintaining required standards of professional education on non- exploitative terms in their institutions. Legal provisions made by the State Legislatures or the scheme evolved by the Court for monitoring admission procedure and fee fixation do not violate the right of minorities under Article 30(1) or the right of minorities and non-minorities under Article 19(1)(g). They are reasonable restrictions in the interest of minority institutions permissible under Article 30(1) and in the interest of general public under Article 19(6) of the Constitution.

142. The suggestion made on behalf of minorities and non- minorities that the same purpose for which Committees have been set up can be achieved by post-audit or checks after the institutions have adopted their own admission procedure and fee structure, is unacceptable for the reasons shown by experience of the educational authorities of various States. Unless the admission procedure and fixation of fees is regulated and controlled at the initial stage, the evil of unfair practice of granting admission on available seats guided by the paying capacity of the candidates would be impossible to curb.

143. Non-minority unaided institutions can also be subjected to similar restrictions which are found reasonable and in the interest of student community. Professional education should be made accessible on the criterion of merit and on non-exploitative terms to all eligible students on an uniform basis. Minorities or non-minorities, in exercise of their educational rights in the field of professional education have an obligation and a duty to maintain requisite standards of professional education by giving admissions based on merit and making education equally accessible to eligible students through a fair and transparent admission procedure and on a reasonable fee-structure.

144. In our considered view, on the basis of judgment in Pai Foundation and various previous judgments of this Court which have been taken into consideration in that case, the scheme evolved of setting up the two Committees for regulating admissions and determining fee structure by the judgment in Islamic Academy cannot be faulted either on the ground of alleged infringement of Article 19(1)(g) in case of unaided professional educational institutions of both categories and Article 19(1)(g) read with Article 30 in case of unaided professional institutions of minorities.

145. A fortiori, we do not see any impediment to the constitution of the Committees as a stopgap or ad hoc arrangement made in exercise of the power conferred on this Court by Article 142 of the Constitution until a suitable legislation or regulation framed by the State steps in. Such Committees cannot be equated with Unni Krishnan Committees which were supposed to be permanent in nature.

146. However, we would like to sound a note of caution to such Committees. The learned counsel appearing for the petitioners have severely criticised the functioning of some of the Committees so constituted. It was pointed out by citing concrete examples that some of the Committees have indulged in assuming such powers and performing such functions as were never given or intended to be given to them by Islamic Academy. Certain decisions of some of the Committees were subjected to serious criticism by pointing out that the fee structure approved by them was abysmally low which has rendered the functioning of the institutions almost impossible or made the institutions run into losses. In some of the institutions, the teachers have left their job and migrated to other institutions as it was not possible for the management to retain talented and highly qualified teachers against the salary permitted by the Committees. Retired High Court Judges heading the Committees are assisted by experts in accounts and management. They also have the benefit of hearing the contending parties. We expect the Committees, so long as they remain functional, to be more sensitive and to act rationally and reasonably with due regard for realities. They should refrain from generalizing fee structures and, where needed, should go into accounts, schemes, plans and budgets of an individual institution for the purpose of finding out what would be an ideal and reasonable fee structure for that institution.

147. We make it clear that in case of any individual institution, if any of the Committees is found to have exceeded its powers by unduly interfering in the administrative and financial matters of the unaided private professional institutions, the decision of the Committee being quasi-judicial in nature, would always be subject to judicial review.

148. On Question-4, our conclusion, therefore, is that the judgment in Islamic Academy, in so far as it evolves the scheme of two Committees, one each for admission and fee structure, does not go beyond the law laid down in Pai Foundation and earlier decisions of this Court, which have been approved in that case. The challenge to setting up of two Committees in accordance with the decision in Islamic Academy, therefore, fails. However, the observation by way clarification, contained in the later part of para 19 of Islamic Academy which speaks of quota and fixation of percentage by State Government is rendered redundant and must go in view of what has been already held by us in the earlier part of this judgment while dealing with Question No.1.

Epilogue

149. We have answered the four questions formulated by us in the manner indicated hereinabove. All other issues which we leave untouched, may be dealt with by the regular Benches which will take up individual cases for decision.

150. We have placed on record in the earlier part of this judgment and, yet, before parting we would like to reiterate, that certain recitals, certain observations and certain findings in Pai Foundation are contradictory inter se and such conflict can only be resolved by a Bench of a coram larger than Pai Foundation. There are several questions which have remained unanswered and there are certain questions which have propped up post Pai Foundation and Islamic Academy. To the extent the area is left open, the Benches hearing individual cases after this judgment would find the answers. Issues referable to those areas which are already covered by Pai Foundation and yet open to question shall have to be answered by a Bench of a larger coram than Pai Foundation. We leave those issues to be taken care of by posterity.

151. We are also conscious of the fact that admission process in several professional educational institutions has already commenced. Some admissions have been made or are in the process of being made in consonance with the schemes and procedures as approved by Committees and in some cases pursuant to interim directions made by this Court or by the High Courts. This judgment shall not have the effect of disturbing the admissions already made or with regard to which the process has already commenced. The law, as laid down in this judgment, shall be given effect to from the academic year commencing next after the pronouncement of this judgment.

152. It is for the Central Government, or for the State Governments, in the absence of a Central legislation, to come out with a detailed well thought out legislation on the subject. Such a legislation is long awaited. States must act towards this direction. Judicial wing of the State is called upon to act when the other two wings, the Legislature and the Executive, do not act. Earlier the Union of India and the State Governments act, the better it would be. The Committees regulating admission procedure and fee structure shall continue to exist, but only as a temporary measure and an inevitable passing phase until the Central Government or the State Governments are able to devise a suitable mechanism and appoint competent authority in consonance with the observations made hereinabove. Needless to say, any decision taken by such Committees and by the Central or the State Governments, shall be open to judicial review in accordance with the settled parameters for the exercise of such jurisdiction.

153. Before parting, we would like to place on record our appreciation of the valuable assistance rendered by all the learned senior counsel and other counsel appearing in the case and who have addressed us, highlighting very many aspects of the ticklish issues in the field of professional education which have propped up for decision in the light of the 11-Judge Bench decision in Pai Foundation and Constitution Bench decision in Islamic Academy. But for their assistance, the issues would have defied resolution.

154. All the petitions, Civil Appeals and IAs shall now be listed before appropriate Benches for hearing.


and 5043 of 2005 (arising out of SLP (C) Nos. 9932 with 9935 and 9936 of 2004) and W.P. (C) Nos. 276, 330 and 357 of 2004 and I.A. Nos. 26, 27, 30, 31 and 33 in W.P. (C) No. 350 of 1993; C.A. No. 5035 of 2005 (arising out SLP (C) No. 11244/2004; W.P. (C) No. 302/2004; W.P. (C) No. 347/2004; W.P. (C) No. 349/2004; W.P. (C) No. 350/2004; W.P. (C) No. 387/2004; W.P. (C) No. 423/2004; W.P. (C) No. 480/2004; W.P. (C) No. 19/2005; W.P. (C) No. 261/2004; W.P. (C) No. 265/2004; W.P. (C) No. 380/2004; W.P. (C) No. 358/2004; W.P. (C) No. 359/2004; W.P. (C) No. 360/2004; W.P. (C) No. 361/2004; W.P. (C) No. 362/2004; W.P. (C) No. 363/2004; C.A. Nos. 5257-5258/2004; C.A. No. 5259/2004; C.A. No. 5260-5261/2004; C.A. No. 5262-5263/2004; C.A. No. 5996/2004; C.A. No. 5992/2004/C.A. No. 5997-5998/2004; C.A. No. 7969-7971/2004; C.A. No. 7972/2004; C.A. No. 7973/2004; C.A. No. 7974/2004; C.A. No. 7975/2004; W.P. (C) No. 371/2004; W.P. (C) No. 368/2004; C.A. No. 7117-7119/2004; C.A. No. 7124-7126/2004; Conmt. Pet. (C) Nos. 561-563/2004 in C.A. Nos. 7117-7119/2004; Conmt. Pet. (C) Nos. 564-566/2004 in C.A. Nos. 7124-7126/2004; W.P. (C) No. 251/2004; C.A. No. 5036 of 2005 (arising out of SLP (C) No. 17464/2004); C.A. No. 5037 of 2005 (arising out of SLP (C) No. 17549/2004); W.P. (C) No. 318/2004; C.A. No. 5038 of 2005 (arising out SLP (C) No. 17930/2004; C.A. No. 5039 of 2005) (arising out of SLP (C) No. 17931/2004); C.A. No. 5040/2005 (arising out of SLP (C) No. 17326/2003); W.P. (C) No. 386/2004; W.P. (C) No. 397/2004, Decided on : 12-08-2005.


Counsel for the Parties:

G. E. Vahanvati, Solicitor General, K. P. Pathak, Addl. Solicitor General, Harish N. Salve, Ashok H. Desai, M. Rama Jois, K. Parasaran, Mukul Rohtagi, Dr. Rajeev Dhavan, K. Radhakrishnan, Soli J. Sorabjee, F. S. Nariman, Altaf Ahmad, K. K. Venugopal, Vivek K. Tankha, S. K. Gambhir, S. K. Dholakia, Dr. N. M. Ghatate, Jaideep Gupta, R. F. Nariman, P. P. Rao, K. Ramamoorthy, Uday U. Lalit, T. R. Andhyarujina, T. L. V. Iyer, R. N. Trivedi, Arun Jaitely, Dr. Abhishek Manu Singhvi, Sunil Kumar, Sr. Advocate, Satyajit Saha, Vijay Kumar, Ms. Meenakshi Grover, Yatindra Sharma, Ms. Niranjana Singh, Ms. V. D. Khanna, Ms. Roxna Swamy, Naveen R. Nath, Ms. Anitha Shenoy, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, Sharan Dev Singh Thakur, S. Uday K. Sagar, Ms. Beena Madhavan, Ms. Susan Zachariah, Ms. Pooja Nanekar, Vinayagam, Ms. Kiran Shetty Naik, S. E. Auhad, B. E. Auhad, Akhil Sibal, G. Uma Pathy, S. Jayakumar, Rakesh K. Sharma, Senthil Velan, Bharat Sangal, Subhash Sharma, Ashim Sood, M. Qamaruddin Ms. M. Qamaruddin, Ambar Qamaruddin, Wahid Hussain, C. M. Zafarullah, Ms. Ritu Bhardhwaz, B. P. Sarangi, Romi Chacko, Tufail Ahamed Khan, Giriash Pandey, Sushil Kumar Jain, H. D. Thanvi, Sarad Singhania, Ms. Hari Priya Padmanabhan, Krishnan Venugopal, K. R. Sasiprabhu, John Mathew, Ms. Indira, G. Prakash, Gaurav Agarawal, Arvind Choudhry, Kuldip Singh, B. K. Sharma, H. K. Puri, Ujjawal Banerjee, S. K. Puri, Shiv Gupta, Ms. Priya Puri, V. M. Chauhan, U. A. Rana, Arvind Kumar, Viju Mattam, Rohit Singh, Sakesh Kumar, Satish K. Agnihotri, Dayan Krishnan, Nikil Nayyar, Gautam Narain, Tharachandra Sharma, Ms. Neelam Sharma, Rajiv Sharma, Ajay Sharma, Rupesh Kumar, Tharun Sharma, Rana Mukherjee, Siddharth Gautam, Goodwill Indeevar, Suchit Mohanty, Sanjeev Sen, Partha Sil, Ghanshyam Joshi, P. H. Parekh, E. R. Kumar, Rohit Alex, Sunit Goyal, Rajeev Mishra, Ms. Ameet Hariyani, Ms. Jayamala Godwale, Ashiesh Kumar, Hare Krishna Upadhyaya, Siddharth S. Chauhan, Satyanarayan Prajapathi, Harsh Pathak, S. Wasim A. Qadri, Ms. Rameeza Hakeem, Deva Datt Kamat, Ms. Sushma Suri, Chava Badri Nath Babu, C. M. Anangadi, Ms. Ranjana, Vimal Rai Jat, R. Ayyam Perumal, S. Vallinayagam, Ms. Mahalakshmi Bhavani, G. Balaji Iyer, Sewa Ram, Ashutosh Kumbhakuni, Ravindra, Keshavrao, Adsure, Gautam Godra, Mukesh K. Giri Sanjay R. Hegde, Anil K. Mishra, A. Rohan Singh, Ashish Chugh, S. M. Bhat, Arun K. Sinha, Rakesh Singh, Sandeep Bhargava, Ms. B. Bharathi Reddy, B. Vikash, Ms. Sneha Bhaskaran, Satish K. Agnihotri, W. A. Nomani, Rohit K. Singh, Ms. Shweta Garg, M. Shoeb Alam, Neeraj Jain, Nikil Goyar, Kavita Wadia, Maninder Singh, Ms. Pratibha M. Singh, Angad Mirdha, Saurabh Mishra, Ejaz Maqbool, D. Mahesh Babu, Anil Kumar Tandale, G. Ramakrishna Prasad, Mohd. Wasay Khan, T. V. Ratnam, Naresh Kumar, Rajjash Aggrawal, Ashok Mathur, Ms. V. Mohana, P. P. Singh, G. Sivabalamurrugan, Y. Aruna Giri, L. K. Pandey, P. V. Yogeswaran, Bhawani Shanker, V. Gadnis, Shiv Kumar Suri, Ms. A. Subhashini, A. Mariarputham, Ms. Aruna Mathur, K. N. Madhusoodhanan, R. Sathish, Ms. H. Wahi, Ms. Sadhana, Sandhu, Guntur Prabhakar, Ashok K. Mahajan, B. S. Banthia, Sanjeev Saxana, Amit Bhandari, Yash Anand, Ms. Pramila, A. P. Sahaya, Hemansh Shekhar, Gopal Singh, Anurag Sharma, Amitash Kumar, A. V. Rangam, A. Ranganadhan, Buddy Ranganadhan, Dr. Sushil Balwada, Devendra Singh, U. Hazarika, Satya Mittra, Sumita Hazarika, Aruneshwar Gupta, Naveen Kumar Singh, Ms. Shivangi, Ms. Sheela Goyal, Krishna Srinivasan, M. P. Vinood, Ajay K. Jain, Arvind Kumar, Chandraveer Singh-in-person, Hemanshu Munshi, Ms. Anuradha Rustagi, Nitin S. Tambweker, Sunil Badekar, B. S. Sai, C. Ravi Chandran Iyer, R. Jaganath Goulay, Baldev Atreya, R. C. Iyer, Advocates with them, for the Appearing Parties.