Smt Ujjam Bai vs State Of U.P

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Writ Petition (civil) 79 of 1959

Decision Date: 10 April 1962

Coram: S.K. Das, J. L. Kapur, A.K. Sarkar, K. Subba Rao, M. Hidayatullah, N.R. Ayyangar, J.R. Mudholkar

The Supreme Court of India delivered its judgment in the matter of Smt Ujjam Bai versus the State of Uttar Pradesh on the tenth day of April, 1962. The petition was filed as Writ Petition (civil) number 79 of 1959, with Smt Ujjam Bai appearing as the petitioner and the State of Uttar Pradesh as the respondent. The judgment was pronounced by a larger Bench consisting of Justice S.K. Das, Justice J.L. Kapur, Justice A.K. Sarkar, Justice K. Subba Rao, Justice M. Hidayatullah, Justice N.R. Ayyangar and Justice J.R. Mudholkar. The award of the decision was later reported in the 1963 volume of the Supreme Court Reports, page 778. These introductory details set the stage for the substantive considerations that followed, which centered on the scope of the constitutional remedy provided under Article 32 of the Constitution of India in the context of tax assessment orders.

Justice S.K. Das, delivering his opinion, observed that the factual background of the case had been thoroughly set out in the earlier judgment of his learned brother, Justice Kapur, and therefore there was no need to repeat those facts. He stated that he reached the same conclusion as Justice Kapur, but, given the significance of the legal questions involved, he chose to articulate his reasoning in his own words. He identified two inter‑related questions that had been referred to the larger Bench. The first question asked whether an order of assessment issued by an authority under a taxing statute that is intra vires—meaning it is within the legal powers of that authority—could be challenged on the ground that it contravenes Article 19(1)(g) of the Constitution, solely because the order was based on a mis‑construction of a provision of the Act or a notification issued thereunder. The second question concerned whether the validity of such an assessment order could be examined in a petition filed under Article 32 of the Constitution. Justice Das explained that these questions essentially examined whether an order, which was made under a statute and a notification that were both valid and properly enacted, could be subject to scrutiny in a constitutional petition on the sole basis that the statutory or notification language had been interpreted incorrectly. To answer these questions, he noted that it was necessary to begin with a careful reading of Article 32 itself. He reproduced the text of Article 32, which provides: “(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.” He then observed that this article forms part of Part III of the Constitution, which is titled “Fundamental Rights”, and that it guarantees the fundamental right to approach the Supreme Court for the enforcement of the rights enumerated in that part. This foundation would guide the Court’s analysis of whether the assessment order could be attacked under Article 32 on the grounds alleged by the petitioner.

In this case the Court observed that the series of constitutional provisions dealing with the “Right to Constitutional Remedies” constitute a guaranteed fundamental right, because clause (1) of Article 32 expressly provides a right to move the Supreme Court for enforcement of the rights conferred by Part III of the Constitution. The Court further noted that clause (2) empowers the Supreme Court to issue directions, orders or writs—including habeas corpus, mandamus, prohibition, quo warranto and certiorari—whichever is appropriate for the enforcement of any of those rights. Clause (4) was cited to underline that the guaranteed right cannot be suspended except as the Constitution itself provides. Accordingly, the Court referred to Article 359, which authorises the President, during a proclamation of emergency, to issue an order declaring that the right to approach any court for enforcement of specified rights under Part III is suspended and that all proceedings pending in any court for the enforcement of those rights shall remain suspended. From this the Court concluded that, in the absence of a presidential order under Article 359, every person in India—whether citizen or otherwise—retains an unqualified constitutional right to move the Supreme Court for enforcement of the rights enumerated in Part III, and the Supreme Court retains the power to issue whatever directions, orders or writs are necessary to give effect to those rights. The Court also recalled its own earlier decisions, stating that the Constitution imposes upon it a privilege and a duty to protect fundamental rights whenever an individual seeks their enforcement, and that the oath taken by a Supreme Court judge includes an explicit affirmation to uphold the Constitution and the law. The dispute before the Court centred on the meaning of the expression “enforcement of the rights conferred by this Part” that appears in clauses (1) and (2) of Article 32. The Court affirmed that it is not bound by technical limitations concerning the traditional English writs of habeas corpus, mandamus, prohibition, quo warranto or certiorari. Quoting the decision in T C Basappa v T Nagappa (1955 SCR 230, 256), the Court held that because the Constitution provides an express grant of power, it need not refer back to the early history or procedural technicalities of those writs in English law, nor be constrained by any differing opinions expressed by English judges in earlier cases. The Court therefore asserted that it may make an order or issue a writ of certiorari in any appropriate case, provided it adheres to the broad and fundamental principles that govern the exercise of its jurisdiction.

The Court observed that, setting aside all technical considerations, the essential issue before it was to determine the circumstances in which the question of enforcing the rights guaranteed by Part III of the Constitution arose under Article 32, while remembering that the remedy provided by Article 32 itself constituted a fundamental right. The petitioner’s counsel argued that whenever a prima facie violation of a fundamental right was established, the question of enforcement necessarily arose. The counsel illustrated this proposition with three situations: first, when a statute was ultra vires and an action was taken under that statute; second, when an action was taken under a statute that was intra vires but the particular action was exercised without jurisdiction, so that the statute, though valid, did not support the action; and third, when a statute that was intra vires was misinterpreted, and the misinterpretation led to an action that violated a fundamental right. Further, the petitioner’s side contended that administrative bodies did not cease to fall within the definition of “State” in Article 12 when they performed quasi‑judicial functions, and that, given the true scope of Article 32, any action of such bodies that infringed or threatened to infringe a fundamental right raised the question of enforcement of that right, without any distinction among the three classes of cases just described.

Regarding the specific matter under consideration, the petitioner’s counsel argued that the tax authorities had misinterpreted the terms of a notification issued by the State Government on 14 December 1957 under section 4(1)(b) of the United Provinces Sales Tax Act, U.P. Act No. XV of 1948. As a consequence of this misinterpretation, the authorities had assessed the petitioner to pay sales tax amounting to Rs 4,71,541.75. The petitioner asserted that this assessment violated the fundamental rights guaranteed under Article 19(1)(f) and (g) as well as Article 31 of the Constitution. The counsel explained that such a misinterpretation could transgress constitutional limits in different ways. For example, an inter‑State sale could be wrongly taxed as if it were an intra‑State transaction, thereby contravening the constitutional prohibition contained in the earlier version of Article 286. Similarly, if a quasi‑judicial authority made an error of fact or issue within its full jurisdiction under the statute, and that error affected a fundamental right, it would likewise represent a breach of constitutional limits. The petitioner’s position was that, in principle, there was no distinction among these various forms of statutory misinterpretation, and that the proper test should be the nature of the error itself—specifically, whether the error impinged upon a fundamental right. If such an impingement existed, the aggrieved person, according to the petitioner, had a right to approach the Court by filing a petition under Article 32.

The Court observed that the critical issue for determining the maintainability of a petition under Article 32 of the Constitution is the character of the alleged mistake, specifically whether that mistake infringes upon a fundamental right. If the mistake does indeed encroach upon a fundamental right, the aggrieved individual is entitled to approach the Supreme Court by lodging a petition under Article 32. In contrast, the respondents advanced a preliminary objection, contending that, based on the facts set out in the present petition, no question of enforcement of any fundamental right arises, and consequently the writ petition is not maintainable. Their submission further asserted that the validity of the impugned Act has not been challenged in any manner, and that every provision of the Act remains good law. Accordingly, the clause that authorises the Sales‑tax Officer to act as a quasi‑judicial tribunal for assessing tax is a valid provision, and any decision rendered by that tribunal while exercising the quasi‑judicial powers conferred upon it must be regarded as a fully valid and legal act. The respondents also emphasised that there is no allegation of a misconstruction that would result in a transgression of constitutional limits, nor is there any claim of an error relating to a collateral fact. They argued that the alleged error, assuming it exists, concerns a matter within the complete jurisdiction of the assessing authority; therefore, the decision is legally valid irrespective of whether it is factually correct. The respondents maintained that a legally valid act cannot offend a fundamental right, and that the appropriate remedy for correcting the type of error complained of is an appeal, or, where the error is apparent on the face of the record, a petition under Article 226 of the Constitution. Before addressing these contentions, the Court felt it necessary to clarify that several broader constitutional questions were also raised before it, but it deemed them unnecessary to examine or decide in the present case. The broader questions mentioned were: (1) whether taxation statutes are subject to the limitations imposed by Part III, particularly Article 19; (2) whether the expression “the State” in Article 12 also embraces “courts”; and (3) whether fundamental rights can be enforced against judicial decisions or the actions of private persons. The Court explicitly stated that these larger issues do not fall for decision in the present matter and that it would be improper to consider them here, adding that nothing expressed in the judgment should be taken as an opinion on those points. Finally, the Court noted that the writ petition could have been dismissed on the short ground that there was no misconstruction of the notification dated 14 December 1957 and that the assessing authority’s action did not affect any fundamental right of the petitioner, a view that had been expressed in the related appeal of M/s Chhotabhai Jethabhai Patel & Co.

The present judgment also addresses the appeal titled “Sales Tax Officer, Agra and another” bearing Civil Appeal No 99 of 1961, the decision of which is being delivered today. The writ petition that has been filed in this matter was referred to a larger Bench for determination of two significant constitutional questions concerning the scope of Article 32, questions that were previously outlined in this judgment. Consequently, it is necessary and appropriate to resolve those two questions, as they constitute a preliminary objection to the maintainability of the writ petition. The Court now turns to a consideration of the principal arguments that have been presented before it.

On several aspects of the issue that have been debated, the parties have shown only minimal disagreement. The Court therefore proposes first to delineate the points on which there is agreement between the parties, and thereafter to address the areas that remain contested. It is not disputed that when a statute or any provision thereof is ultra vires, any action taken under that ultra vires provision by a quasi‑judicial authority which infringes or threatens to infringe a fundamental right gives rise to a question of enforcement of that right, and consequently a petition under Article 32 of the Constitution is maintainable. Numerous decisions of this Court have articulated this principle; it is unnecessary to enumerate them all. A reference to one of the earliest authorities on this point suffices, namely Himmatlal Harilal Mehta v. State of Madhya Pradesh (1954 SCR 1122). A comparable, though not identical, position was expressed in Bengal Immunity Company Limited v. State of Bihar (1955 (2) SCR 603, 619, 620).

The factual backdrop of the Bengal Immunity case involved the appellant company filing a petition under Article 226 in the Patna High Court seeking a writ of prohibition to restrain the Sales Tax Officer from making a sales‑tax assessment based on a notice issued by him. The appellant contended that the sales in question were part of inter‑State trade and that the provisions of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) authorising tax on such sales were repugnant to Article 286(2) and therefore void. Accordingly, the appellant prayed that the proceedings instituted by the Sales Tax Officer be set aside.

The High Court dismissed the petition, holding that if the Sales Tax Officer made an erroneous assessment, the assessee could challenge it by way of appeal or revision under sections 24 and 25 of the Act, and that because the matter lay within the jurisdiction of the Sales Tax Officer, a writ of prohibition or certiorari could not be issued. An appeal against this dismissal was taken to this Court, wherein a preliminary objection was raised that a writ under Article 226 was not the appropriate remedy available to an assessee for contesting the legality of the Sales Tax Officer’s proceedings. In

In rejecting the respondent’s submission, the Court observed that Article 265 makes it clear that a tax may be levied or collected only when authorised by a law that is sound and valid. The appellant company argued that the statute empowering the assessment, levy and collection of sales tax on inter‑State trade violated Article 286, rendering it ultra vires, void and unenforceable. The Court held that, if that contention were well‑founded, a writ would be the appropriate remedy for the aggrieved party, based on established principle and authority. Addressing the respondent’s suggestion that the petitioner should resort to appeal or revision under the statute, the Court responded succinctly that such a remedy could not be deemed adequate, and would in fact be nugatory, if the statute providing for it were itself ultra vires and void. The Court explained that a legal principle cannot be applied where a party alleges that a law, beyond the legislature’s powers, threatens to infringe a right, and therefore the party is entitled to seek appropriate relief under Article 226.

The Court further explained that the issue in the earlier case concerned a provision in the taxing statute that was ultra vires, and the decision was that any action taken under that provision lacked legal authority and amounted to an unconstitutional interference with the right to carry on business guaranteed by Article 19(1)(f). The Court noted that in similar circumstances, other decisions have treated the violation of a fundamental right as established when an assessing authority attempted to tax a transaction that fell within a constitutional prohibition, treating such cases on par with those where the statutory provision itself was ultra vires. The Court then referred to the decision in Bidi Supply Co. v. Union of India (1956 (2) SCR 67), which involved different facts. In that case, the Central Board of Revenue had issued a general order transferring certain cases under section 5(7‑A) of the Income‑Tax Act, Calcutta, to the Income‑Tax Officer, Special Circle, Ranchi. The Court held that the omnibus order was not contemplated by the subsection, was expressed without reference to any particular case, and contained no time limitation, thereby exceeding the Board’s competence. Moreover, the order was found to be discriminatory against the petitioner and in violation of the fundamental right guaranteed by Article 14. The decision was based on the principle that an executive body cannot, without authority of law, take action that infringes a fundamental right; when such an unlawful action occurs, a petition under Article 32 becomes appropriate.

The Court noted that whenever an authority, without any legal power, undertakes an act that infringes a fundamental right, the aggrieved party may invoke the remedy of an application under Article 32. In such circumstances, the issue is not whether the authority was exercising a quasi‑judicial function within an undisputed jurisdiction; rather, the judgment clarified that the order issued by the Central Board of Revenue was beyond its jurisdiction. The Court later revisited this principle in Pannalal Binjraj v. Union of India (1957 SCR 233) after section 5(7‑A) of the India Income‑tax Act, 1922, had been amended. It was observed that the amended provision served merely as a measure of administrative convenience, was constitutionally valid, and therefore an order issued under it could not be challenged on the ground of unconstitutionality. The Court further explained that other decisions have adopted a similar approach, holding that when a quasi‑judicial body either acts without jurisdiction or mistakenly assumes jurisdiction because of an error concerning a collateral fact, and the resulting action endangers or violates a fundamental right, the enforcement of that right becomes a question of law, and a petition under Article 32 is maintainable. This view was endorsed in Tata Iron and Steel Co. Ltd. v. S. R. Sarkar (1961 (1) SCR 379, 383) and in Madan Lal Arora v. The Excise and Taxation Officer, Amritsar (1962 (1) SCR 823).

The Court also referred to earlier rulings such as Tata Iron and Steel Co. Ltd. v. S. R. Sarkar (1955 (2) SCR 603, 619, 620) and State of Bombay v. United Motor (India) Ltd. (1953 SCR 1969). In those cases, which arose from appeals against orders passed by High Courts under Article 226, the Supreme Court held that an attempt to levy a tax under a statute that was ultra vires infringed the citizens’ fundamental right. Consequently, seeking protection of that right before the High Court was not barred by the provisions of Article 265. In the case presently before it, the Court observed that the validity of the Central Sales Tax Act, 1956, was not being challenged; however, it cited Kailash Nath v. State of Uttar Pradesh (1957 AIR (SC) 790), where a petition contesting the levy of a tax was entertained even though the statute authorising the tax was not alleged to be ultra vires. The Court indicated that it was unnecessary for the present case to resolve the principle articulated in Kailash Nath.

The learned Judge then held that, because the Act imposes a single liability which had already been satisfied, no subsequent assessment of the same sales for tax could be instituted. The ratio of that decision appears to be that the law does not permit the imposition of tax a second time on sales on which tax has already been levied and collected; therefore, any proceeding for a second assessment is without jurisdiction. In Madan Lal Arora’s case (1962 (1) SCR 823) a notice for assessment was issued after the period prescribed by the statute had expired. The assessee consequently applied to this Court under Article 32 to have the assessment proceedings quashed on the ground of lack of jurisdiction. The Court held that, since the taxing authority lacked power under the statute to issue the notice, the proceedings were indeed without jurisdiction and must be set aside. This illustrates that an authority’s lack of jurisdiction, even if based on a misinterpretation of the statutory provision, invalidates the proceedings.

In that case the notice of assessment was issued after the period prescribed by the relevant statute had already expired. The taxpayer then filed an application before this Court under Article 32 seeking to have the assessment proceedings set aside on the ground that the proceedings were beyond the authority of the tax department. The Court held that the taxing authority did not possess the power, under the statute, to issue the notice in question; consequently the assessment proceedings were without jurisdiction and had to be quashed. The decision therefore reaffirmed that where a statutory provision does not confer jurisdiction on a tax authority to initiate assessment, any assumption of jurisdiction that arises from a mis‑interpretation of that provision does not change the conclusion that the authority acted without power. It is also appropriate to refer to a further group of decisions that have been described as cases of procedural ultra vires. When a statute prescribes a particular manner or form for the performance of a duty or for the exercise of a power, it usually does not specify the legal consequences of non‑compliance with that prescription. In such situations the courts must develop criteria to decide whether the procedural requirement is mandatory, so that any breach would render the action void or voidable, or whether it is merely directory, so that a breach would be treated as an irregularity that does not affect the validity of the act. A quasi‑judicial authority is required to act in a judicial manner. If it fails to do so and passes an order that contravenes the principles of natural justice, the legal position is that the order is effectively without jurisdiction. Certain decisions, especially those involving customs authorities, have held that an order issued in violation of natural‑justice principles is ultra vires procedurally and consequently lacks jurisdiction; where such an order infringes a fundamental right, an application under Article 32 is permissible. (See Sinha Govindji v. The Deputy Controller of Imports & Exports, Madras (1962 (1) SCR 540).) These rulings form a distinct category, proceeding on the basis that the order was procedurally ultra vires and therefore invalid.

The discussion up to this point has identified three principal categories of cases that attract very little disagreement: first, cases where action is taken under a statute that is itself beyond the legislature’s power; second, cases where the statute is within the legislature’s competence but the authority acting under it exceeds its jurisdiction; and third, cases where the authority’s action, although founded on a valid statute, violates mandatory procedural requirements and is thus procedurally ultra vires. In each of these categories the enforcement of a fundamental right may become an issue, and when such an issue arises an application under Article 32 will unquestionably lie. The parties before us have largely agreed on the characterization of these three classes. The present analysis now moves to a more controversial question: what is the legal position when a quasi‑judicial authority makes an order in the clear exercise of its jurisdiction, pursuant to a provision of law that is unquestionably intra vires? Before addressing that question, it is necessary to clarify the meaning of jurisdiction. Jurisdiction denotes the authority conferred upon a body to decide a matter.

The Court explained that jurisdiction means the authority to decide a matter. Whenever a judicial or quasi‑judicial tribunal is empowered or required to investigate a question of law or fact in order to render a decision, the tribunal’s findings on that question cannot be challenged by a collateral attack or by an application for certiorari; such findings remain binding until they are reversed on appeal. The Court further noted that a quasi‑judicial authority does not lose its jurisdiction simply because it reaches an erroneous conclusion, whether the error relates to law or fact. The existence of jurisdiction depends not on the truth or falsity of the facts examined or on the correctness of the tribunal’s findings, but on the nature of the matter before it, and this jurisdictional scope is determined at the commencement of the inquiry, not at its conclusion, as affirmed in Rex v. Bolten ([1841] I Q.B. 66, 74). For example, a tribunal authorized to determine claims for compensation for loss of office possesses jurisdiction to decide all questions of law and fact concerning the amount of compensation and the tenure of the office. The tribunal does not exceed its jurisdiction by deciding any of those questions incorrectly; however, it lacks jurisdiction to entertain a claim for reinstatement or for damages for wrongful dismissal, and it would exceed its jurisdiction if it issued an order on such matters because it has no legal power to decide them. The Court observed that a tribunal may lack jurisdiction if it is improperly constituted or if it fails to observe essential preliminaries to the inquiry. Nevertheless, the tribunal does not exceed its jurisdiction merely by basing its decision on an incorrect determination of any question that it was authorized to consider. The Court described this theory of jurisdiction as logically consistent. Yet the Court recognized that Parliament, when empowering an inferior tribunal to investigate certain facts, may intend to draw a line between two areas of inquiry: the tribunal’s findings in one area are conclusive, while findings in the other area are subject to impeachment. The jurisdiction of an inferior tribunal may depend on the fulfillment of a condition precedent or on the existence of a particular fact. Such a fact is collateral to the substantive matter before the tribunal, and its existence must be resolved before the tribunal can address the main question. Consequently, when a challenge to the tribunal’s jurisdiction arises at the inception of an inquiry, the tribunal itself must determine the collateral fact and decide whether it has jurisdiction to proceed. In some statutes, tribunals are granted the power to finally determine the preliminary facts upon which the further exercise of their jurisdiction depends; however, subject to that limitation, an inferior tribunal cannot acquire jurisdiction it does not possess by making an erroneous decision on a collateral fact.

In discussing collateral facts, the Court observed that a tribunal cannot confer upon itself a jurisdiction that it would not otherwise possess. The Court quoted a passage from Halsbury’s Laws of England, third edition, volume eleven, page fifty‑nine to illustrate this principle. It then explained that the defining characteristic of a judicial act or decision is its binding effect, regardless of whether the decision is right or wrong. An error of law or fact made by a judicial or quasi‑judicial body, the Court held, may generally be attacked only by way of appeal, unless the error concerns a matter on which the very jurisdiction of that body depends. These rules apply not only to the findings of lower courts in the strict sense but also to the determinations of administrative bodies that function in a judicial capacity. Such bodies are considered to possess a limited power to err within the scope of their jurisdiction, and, provided they remain within those limits, their decisions must be regarded as valid until set aside on appeal. The Court noted that the doctrine of res judicata has been extended to these decisions, referring to authorities such as Livingstone v. Westminster Corporation ([1904] 2 K.B. 109), Re Birkenhead Corporation ([1952] Ch. 359), Re 56 Denton Road Twickenham ([1953] Ch. 51), and Society of Medical Officers of Health v. Hope ([1959] 2 W.L.R. 377, 391, 396, 397, 402). In Burn & Co., Calcutta v. Their Employees (1956 SCR 781) the Court observed that although section eleven of the Code of Civil Procedure does not expressly cover awards made by an industrial tribunal, the underlying principle of res judicata—grounded in sound public policy and of universal application—must nevertheless apply. The Court further cited Daryao v. The State of U.P. (1961 (2) SCR 591), where it applied the doctrine of res judicata to an application under article thirty‑two of the Constitution. The Court then turned to a specific instance in which the Allahabad High Court was approached by a petitioner under article twenty‑six of the Constitution against an assessment order based on an alleged misinterpretation of the notification dated fourteen December 1957. The High Court dismissed the petition on two grounds. First, it held that the petitioner could correct the error by filing an appeal. Second, after hearing counsel for the petitioner on the merits, the High Court expressed that it was not convinced that the interpretation given by the Sales Tax Officer contained any obvious error, noting that the circumstances made the petitioner’s interpretation unlikely. The Court further observed that even handmade biris had been subject to sales tax long before the issuance of the notification, and that the purpose of 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 while, with the concurrence of the State Legislature, abolishing sales tax on those articles.

In this matter, the Court examined the argument presented by counsel for the petitioner that, during the period from 14 December 1957 to 30 June 1958, the petitioner was exempt from both excise duty and Sales Tax. The Court observed that there was no explanation offered for why such an exemption should have existed. It noted that the wording of the notification could reasonably be interpreted to mean that the notification applied only to goods on which an additional Central excise duty had been imposed and paid. The Court further considered whether the observations quoted above indicated that the High Court had rejected the petition on its merits in addition to the other ground it had given. If that were the case, the Court explained, the principle articulated in Daryao v. The State of U.P. (1961 2 S.C.A. 591.) would be applicable, rendering the petition under Article 32 untenable on the ground of res judicata. However, the Court found it unnecessary to pursue the issue of res judicata because it based its decision on a more fundamental principle: an error of law or fact made by a judicial body could generally be challenged only by way of appeal, unless the mistaken determination concerned a matter on which the body’s jurisdiction itself depended.

The Court then referred to the decision in Malkarjun Narhari ([1950] 279 LR(A) 216, 225), where the Privy Council dealt with a case in which a sale had taken place after a notice had been wrongly served on a person who was not the legal representative of the judgment‑debtor’s estate. The executing court had erroneously concluded that the person was the legal representative. The Privy Council held that the court was exercising its jurisdiction, even though it had made a “sad mistake.” It stated that a court has jurisdiction to decide both correctly and incorrectly, and that when a court decides wrongly, the aggrieved party may correct the error only by following the procedure prescribed by law; if that procedure is not pursued, the erroneous decision cannot be disturbed. The Court observed that this view was supported by several decisions of this Court.

One such decision was Aniyoth Kunhamina Umma v. Ministry of Rehabilitation (1962 (1) SCR 505). In that case, under the Administration of Evacuee Property Act, 1950, a certain person was declared an evacuee and certain plots of land belonging to that person were deemed evacuee property and vested in the Custodian of Evacuee Property. A transferee of the land filed a petition under Article 32 seeking restoration of the lands and alleged infringement of fundamental rights guaranteed under Article 19(1)(f) and Article 31 of the Constitution by the orders made under the Act. The Court noted that the petitioner had been a party to the proceedings that resulted in the declaration under the Act. It held that as long as the decision rendered under the Administration of Evacuee Property Act remained final, the petitioner could not claim any violation of a fundamental right. The Court therefore dismissed the petition on the ground that the competent authorities had arrived at a final decision, which the petitioner had not challenged through the appropriate court or appropriate proceedings; consequently, no fundamental‑right infringement could be claimed while that decision stood.

In this case the Court dismissed the petition, stating that the decision taken by the competent authorities under the relevant Act had become final because the petitioner had not challenged that decision in an appropriate court by the proper proceedings. The Court explained that as long as the final decision remained in force, the petitioner could not allege an infringement of any fundamental right, because she did not possess such a right. The Court then referred to several earlier decisions to illustrate its reasoning. In Gulabdas and Co. v. Assistant Collector of Customs (1957 AIR (SC) 733, 736), the Court observed that when a tariff assessment order is issued by a law‑ful authority, the existence of jurisdiction, whether the assessment is factually correct or not, does not give rise to a violation of a fundamental right; any error in fact or merit must be corrected by an appeal. Similarly, in Bhatnagar and Co. Ltd. v. The Union of India (1957 SCR 701, 702), the Court held that a grievance concerning an erroneous view taken by the appropriate authority could not be properly presented in a petition under Article 32. The Court also cited The Parbhani Transport Co‑operative Society Ltd. v. Regional Transport Authority, Aurangabad (1960 (3) SCR 177), where it was held that a decision of a quasi‑judicial body, even if wrong, could not be said to offend Article 14 of the Constitution.

The Court then noted that two decisions stood out as contrary to the view expressed above. In Kailash Nath v. The State of U.P. (1957 AIR (SC) 790) a similar question arose: a trader who had been assessed sales tax claimed exemption under a notification, which the assessing authority rejected, prompting the trader to file a petition under Article 32. The trader argued that a right to be exempted from tax was not a fundamental right and therefore the petition was not maintainable. The Court rejected this argument, relying on the authority of Bengal Immunity Company (1955 (2) SCR 603, 619, 620) and Bidi Supply Co. (1956 SCR 267). Those cases demonstrated that the Court did not accept the view that a claim of tax exemption could be dismissed simply because it was not a fundamental right, and they were distinguished from the present matter because the statutes challenged in those earlier cases were alleged to be ultra vires, a point not applicable in the present petition.

The Court observed that the authorities on which the earlier decisions were based did not relate to the issue presently before it. It pointed out that, in both of those earlier cases, the statutory provision under which the action had been taken was itself challenged as being beyond the power of the law. In the case of Kailash Nath the Court noted that the matter before it was whether betel leaves were exempt from sales tax under certain provisions of the C.P. & Berar Sales Tax Act. The Court agreed with the assessing authority that the leaves were not exempt. The question of whether an application under Article 32 of the Constitution was maintainable was neither raised nor decided in that case. Consequently, the decision could not be treated as authority for the proposition that a petition under Article 32 is maintainable against orders that are plainly within the jurisdiction of a quasi‑judicial body. The Court also referred to several other decisions that had been cited before it, namely Thakur Amar Singhji v. State of Rajasthan (1955 (2) SCR 303), M/s Mohanlal Hargovind Dass v. State of Madhya Pradesh (1955 (2) SCR 509), Y. Mahaboob Sheriff v. Mysore State Transport Authority (1960 (2) SCR 146), J.V. Gokal & Co. (Private) Ltd. v. Assistant Collector of Sales Tax (Inspection) (1960 (2) SCR 852), and Universal Imports Agency v. Chief Controller of Imports and Exports ([1960] I S.C.R. 305). The Court explained that each of those cases fell into the category where an executive authority acted without legal authority, or a quasi‑judicial authority acted in violation of a constitutional prohibition and without jurisdiction. Accordingly, those precedents did not support the petitioner's contention.

The Court concluded that the correct answer to the two questions referred to the larger Bench must be negative. It held that an assessment order issued by an authority under a taxing statute, when the statute is intra vires and the authority is exercising undoubted jurisdiction, cannot be challenged solely on the ground that the order is based on a misinterpretation of the Act or a notification made thereunder. Furthermore, the validity of such an order cannot be questioned in a petition under Article 32 of the Constitution. The appropriate remedy for correcting an error in the order is to pursue an appeal, or, if the error is evident on the face of the record, to file an application under Article 226 of the Constitution. The Court emphasized that Article 32 does not confer appellate jurisdiction as Articles 132 to 136 do; rather, Article 32 guarantees a constitutional remedy for the enforcement of rights conferred by Part III. Unless a question arises concerning the enforcement of a fundamental right, Article 32 is inapplicable. Since the order under challenge was a valid and legal order, no fundamental‑right issue arose, and therefore the writ petition could not be entertained.

In this case the Court observed that the order under challenge was a valid and legal order, despite the allegation that it was erroneous. Consequently the Court concluded that no question concerning the enforcement of a fundamental right arose and therefore the writ petition could not be entertained. The Court then turned to a further point. The petitioner’s firm had earlier filed an appeal, on a certificate issued by the Allahabad High Court, against that Court’s order dismissing the petitioner's earlier application under Article 226 of the Constitution. That appeal was itself dismissed by this Court for non‑prosecution on 20 February 1961. Following that dismissal the petitioner’s firm filed an application seeking restoration of the appeal, contending that it had been advised that, because a rule had been issued under Article 32 of the Constitution, prosecution of the appeal was unnecessary. The petitioner’s firm also prayed for condonation of the delay in filing the restoration application. The Court expressed the view that no sufficient cause had been shown to justify granting the restoration. It held that the petitioner’s firm had deliberately allowed the appeal to be dismissed for non‑prosecution and could not now seek to set aside that dismissal on the basis of alleged erroneous advice. The Court further noted that, 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), the merits had already been decided and it had been held that the assessing authorities had not made an incorrect construction of the notification in question. Subsequently, Justice Kapur narrated the details of the present petition under Article 32 of the Constitution, which was directed against an order dated 20 December 1958 issued by the Sales Tax Officer, Allahabad. The petition sought a writ of certiorari, or any order of similar effect, to quash that order, as well as a writ of mandamus directing the respondents to refrain from realizing the sales tax imposed pursuant to the order, and any other relief to which the petitioner might be entitled. The petitioner was identified as a partner in the firm M/s Mohanlal Hargovind Das, engaged in the manufacture and sale of handmade biris, with its head office in Jubbalpore, Madhya Pradesh, and its principal place of business in Allahabad, Uttar Pradesh. Under section 4(1) of the Uttar Pradesh Sales Tax Act (Act XV of 1948), hereinafter referred to as “the Act”, the State Government was authorised, by notification, to exempt specified goods either unconditionally under clause (a) or conditionally under clause (b). Accordingly, on 14 December 1957 the Uttar Pradesh Government issued a notification under section 4(1)(b) of the Act exempting cigars, cigarettes, biris and tobacco, provided that the additional Central Excise Duties payable under the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957) had been paid. That notification was later modified, and on 25 November 1958 another notification was issued.

In this case a notification dated 25 November 1958 was issued that unconditionally exempted both handmade and machine‑made biris from the Uttar Pradesh sales tax, effective from 1 July 1958. Earlier, the notification of 14 December 1957 had provided a conditional exemption that applied only for the period from 14 December 1957 to 30 June 1958 and was subject to the payment of the additional Central Excise duties prescribed under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The petitioner’s firm, a partner in M/s Mohanlal Hargovind Das, filed a sales‑tax return for the quarter beginning 1 April 1958 and ending 30 June 1958. That return showed a gross turnover of Rs 75,44,633 and a net turnover of Rs 111. The firm contended that, because the biris had been exempted from sales tax by the 14 December 1957 notification and that exemption had been replaced by the additional central excise duty, no sales tax could be levied on the sale of biris during that quarter. Accordingly, the firm deposited the statutory sales‑tax amount of Rs 3.51 as required on the net turnover of Rs 111. The firm also submitted returns for the periods 14 December 1957 to 31 December 1957 and 1 January 1958 to 31 March 1958. Returns for the later periods were also filed, but those were not disputed because they fell within the unconditional exemption created by the November 1958 notification.

On 28 November 1958 the Sales Tax Officer issued a notice to the petitioner’s firm demanding assessment of sales tax on biris for the assessment period 1 April 1958 to 30 June 1958. On 10 December 1958 the firm lodged an application before the Officer asserting that, pursuant to the 14 December 1957 notification, no sales tax was payable on the sale of biris. The Officer rejected this contention and, on 20 December 1958, made an assessment imposing sales tax of Rs 4,71,541.75 on the firm’s sales. In the assessment order the Officer observed that the exemption contemplated in the 14 December 1957 notification was available only to dealers who had paid the additional Central Excise duties that became payable on the closing of business on 13 December 1957. Since the assessees had not paid any such excise duties, the Officer concluded that the sales of biris by the assessees remained liable to sales tax. The firm appealed this order under section 9 of the Uttar Pradesh Sales Tax Act to the Judge (Appeals) of the Sales Tax Court in Allahabad, identified as Appeal No. 441 of 1959, but the appeal was dismissed on 1 May 1959. The petitioner’s firm then filed a petition under Article 226 of the Constitution in the Allahabad High Court, numbered Civil Miscellaneous Writ No. 225 of 1959, challenging the validity of the assessment and demand. That petition was dismissed on 27 January 1959 on the ground that an alternative remedy existed under the Act. The High Court further observed that it found no apparent or obvious error in the Sales Tax Officer’s interpretation of the 14 December 1957 notification.

After the order of the High Court, the respondent filed an appeal in this Court on a certificate under Article 133(1)(a). While that appeal was pending, the petitioner instituted a petition under Article 32, and a rule relating to that petition was issued on 20 May 1959. The appeal, identified as C‑A 572/60, was later dismissed by a Divisional Bench of this Court on the ground of non‑prosecution. Subsequently, an application seeking restoration of the dismissed appeal and condonation of the delay was filed, and the Court indicated that it would consider that application in a separate proceeding.

In the petition under Article 32, the petitioner challenged the validity of the assessment order dated 20 December 1958. The petitioner contended that the levy of the tax infringed the fundamental right guaranteed by Article 19(1)(g) to carry on trade and business, and further alleged that the levy amounted to an illegal confiscation of property without compensation, thereby violating the provisions of Article 31 of the Constitution. The specific reliefs sought were set out in the petition and have been referred to earlier in the judgment.

Before the Constitution Bench took up the petition, a preliminary objection was raised concerning the petitioner’s competence to approach this Court under Article 32. The objection also questioned the correctness of the decision in Kailash Nath v. State of U.P., 1957 AIR (SC) 790. Because that decision, together with several other judgments of this Court, touched upon an issue of considerable importance, the Constitution Bench issued an order directing that the matter be placed before the Chief Justice for the constitution of a larger Bench. The larger Bench was to decide two specific questions: (1) whether an assessment order made by an authority under a taxing statute that is intra vires can be challenged as repugnant to Article 19(1)(g) solely on the ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder; and (2) whether the validity of such an assessment order may be questioned in a petition filed under Article 32 of the Constitution.

The matter therefore reached the present Bench. Before examining the rival contentions and the controversy between the parties, the Court noted that it was not called upon to decide (i) whether clauses (f) and (g) of Article 19 apply to a taxing statute, nor to express a preference between the line of cases beginning with Ramjilal v. Income‑Tax Officer, Mohindergarh (1951 SCR 127) and the later approach adopted in Kochunni (1960 (3) SCR 887) and K.T. Moopil Nair v. State of Kerala (1961 (3) SCR 77); (ii) whether the word “State” in Article 12 includes the judicial power exercised by courts; and (iii) the broader question of whether Article 32 is applicable in cases of infringement of rights by private parties.

In this case, the Court considered three broader issues: whether the fundamental right to trade under Article 19 (1)(g) extends to actions of private parties, whether the right can be infringed by an erroneous assessment order issued by a quasi‑judicial authority such as the Sales Tax Officer, and whether a petition under Article 32 may be entertained when the alleged infringement arises from such an order. The petitioner argued that an assessment order based on a misinterpretation of a notification issued under a statute, even if the statute itself is within the legislature’s power, violates the essential freedom to carry on trade guaranteed by Article 19 (1)(g). The petitioner maintained that this freedom is intended to be exercised without undue hindrance and that it can be curtailed not only by legislative measures but also by executive actions of an administrative tribunal or quasi‑judicial decisions of a tribunal. To support this view, the petitioner relied primarily on the decision of this Court in Kailash Nath v. State of U.P. (1951 SCR 127). The respondent, on the other hand, raised a preliminary objection concerning the maintainability of the petition. The respondent contended that the impugned decision of the Sales Tax Officer did not infringe any fundamental right because the constitutionality of the underlying Act had not been challenged; consequently, all its provisions, including those concerning tax imposition, assessment, and appeals, must be presumed valid. According to the respondent, a decision rendered by the Sales Tax Officer while exercising quasi‑judicial powers within the limits of the Act is automatically valid and lawful, irrespective of whether the decision is correct or erroneous. Therefore, even an erroneous order arising from a misreading of a notification remains a lawful tax order that cannot contravene fundamental rights and cannot be attacked under Article 32. The respondent further argued that an aggrieved party must pursue the statutory remedies of appeal, or where appropriate, invoke Article 226 of the Constitution, and ultimately may seek review by this Court only under Article 136.

The respondent explained that for an order to be insulated from challenge under Article 32, four conditions must be satisfied: first, the statute must be intra vires in every respect; second, the authority must act in a quasi‑judicial manner; third, the authority must act within the powers and jurisdiction conferred by the statute; and fourth, the authority must not violate the principles of natural justice. To illustrate this principle, the Court cited the case of Mulkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa ([1900] 27 LR(IA) 216), where Lord Hobhouse described an erroneous court order. He observed that although the court issued a notice to a party and subsequently proceeded with execution based on a mistaken belief about the party’s identity, the court nevertheless possessed jurisdiction to decide the matter. Lord Hobhouse emphasized that even when a mistake occurs, the proper remedy lies in the prescribed legal process for correction, and absent such recourse, the erroneous decision remains undisturbed. This reasoning underscores the view that an authority acting within its statutory remit, even if it makes an error, produces a decision that cannot be invalidated by a petition under Article 32, and that the appropriate avenue for redress is the ordinary appellate or revisional mechanism provided by law.

In the passage the Court explained that a decision may be both right and wrong; when a decision is wrong, the aggrieved party may only seek correction through the procedure laid down by law, and if that procedure is not pursued the erroneous decision cannot be set aside. The Court then quoted an earlier decision on the revisional powers of the courts, referring to Sir Barnes Peacock’s remarks in Rajah Amir Hassan Khan v. Sheo Baksh Singh (1884) 11 LR(IA) 237, 239, where the question posed was whether the lower‑court judges had acted illegally or with material irregularity while exercising jurisdiction. Sir Barnes observed that the judges possessed full jurisdiction to hear the issue before them and that they indeed exercised that jurisdiction. Whether the conclusion reached was correct or not, the judges still acted within their jurisdiction and did not act illegally or with material irregularity. The Court noted that this principle has been affirmed in later decisions cited later in the judgment. Although the cited cases concerned decisions of courts, the Court held that the same principle applies to quasi‑judicial tribunals, because whenever an authority has jurisdiction to decide a matter, it also has the power to decide it correctly or incorrectly; and if the decision is erroneous, the aggrieved party may resort to the remedial procedure prescribed by the governing statute.

The Court then turned to Article 32 of the Constitution, describing it as a remedial provision that itself constitutes a fundamental right, permitting a citizen to file an original petition before the Supreme Court whenever a fundamental right is or may be infringed. The relevant text of Article 32(1) guarantees the right to move the Supreme Court for enforcement of the rights conferred by Part III of the Constitution, and Article 32(2) empowers the Court to issue appropriate directions, orders, or writs such as habeas corpus, mandamus, prohibition, quo warranto, and certiorari for the enforcement of those rights. Consequently, a citizen may invoke Article 32 only when a fundamental right guaranteed under Part III has been violated; the remedy under Article 32 is unavailable in the absence of such an invasion. The Court expressed the view that the respondents’ contention was well‑founded. It held that if the statute and its constitutional validity are not challenged, then every part of the statute—including the provisions authorising the levying of tax, the mode and procedure for assessment, and the appellate process—is constitutionally valid. Accordingly, a determination made by a Sales Tax Officer acting within the scope of his statutory jurisdiction is likewise valid and legal. Even if the construction of the statute is erroneous, that error pertains to a matter over which the statute confers complete jurisdiction on the officer; therefore the decision remains a valid act.

The Court explained that an assessment order issued by a quasi‑judicial tribunal while acting under a statute that is ultra vires cannot be treated the same as an assessment order issued by the same tribunal when it is acting under a statute that is intra vires, even if the latter order contains an error. The former order is issued without any legal authority, is wholly unauthorised, has no existence in law, and consequently violates the fundamental rights guaranteed by Article 19(1)(f) and Article 19(1)(g). Such an order may therefore be challenged under Article 32 of the Constitution. In contrast, an assessment order made under a valid, intra‑vires statute is not unconstitutional, enjoys the protection of law, does not infringe any fundamental right, and cannot be questioned under Article 32. To assert that the performance of a legal act infringes a fundamental right would be contradictory.

The Court observed that an erroneous decision of a quasi‑judicial authority does not leave the aggrieved party without remedy. The statute requires that, before an assessment is made, the Sales Tax Officer must issue a notice, hear the taxpayer’s objections, and render a decision after considering those objections and any evidence presented. Section 9 of the Act provides an appeal against the assessment order; Section 10 allows a revision of the appellate order; and Section 11 permits a reference to the High Court on a question of law. If the revising authority declines to make such a reference, the High Court may be approached to direct the revising authority to state a case, after which an appeal lies under Article 136 of the Constitution. Additionally, a petition under Article 226 may be filed in the High Court where appropriate, and any decision of that Court can be appealed to this Court under Article 136.

The Court further noted that the procedural scheme of the Act demonstrates that the Sales Tax Officer must determine turnover only after giving the taxpayer a reasonable opportunity to be heard, making the assessment a quasi‑judicial act as explained in Province of Bombay v Kusaldas S Advani (1950 (1) SCR 621, 725). Consequently, when the Sales Tax Officer functions as a quasi‑judicial authority, the decision—whether correct or erroneous—carries the full force of an intra‑vires statute and does not impinge upon any fundamental right of the petitioner; therefore, a challenge to it under Article 32 is untenable.

Finally, before expressing any opinion, the Court referred to the constitutional provision on the power to tax. Part XII of the Constitution, specifically Article 265, states: “No tax shall be levied or collected except by authority of law.” Thus, a taxing law must be enacted by a legislature with competent authority; otherwise, it lacks legal existence.

The Court explained that a law which the legislature is not authorised to enact would lack any legal existence and would contravene Article 19(1)(g). The same consequence would follow where a statute is merely a colourable piece of legislation, for example a law presented as a taxing measure but in reality a confiscatory device whose purpose is not to raise revenue but to seize property. In a similar vein, a tax imposed by an authority that does not possess jurisdiction to levy it would be outside the protection of law because it would be without legislative authority. The situation would be analogous where an executive authority levies a tax without legal sanction. The Court then noted that the present case fell within the category wherein a quasi‑judicial tribunal imposed a tax by interpreting a notification issued under a taxing provision, and the objection raised was that the tribunal’s interpretation was erroneous. The authorities cited by counsel for both parties were identified as falling within one of these categories. The Court affirmed that the argument advanced by the learned Additional Solicitor General was well founded and backed by several precedents of this Court, which it proceeded to consider. In the decision of Gulabdas v. Assistant Collector of Customs (1957 AIR SC 733, 736), the Court held that when an order is made under a statute that is intra vires and the order lies within the jurisdiction of the authority that issued it, the correctness or incorrectness of the order does not amount to an infringement of fundamental rights; such an order must be challenged through the remedies provided by the statute rather than by way of an Article 32 petition. In that case the petitioner had complained about an assessment by the Assistant Collector of Customs who, on the basis of a licence, classified imported goods under a different entry and therefore imposed a higher excise duty. The aggrieved petitioners filed a petition under Article 32, but the Court rejected the maintainability of that petition on the ground that no fundamental right had been violated because the order had been made by authorities competent to do so. The petitioners further contended that the imported items, described as “Lyra” brand crayons, were not crayons and that imposing a higher duty on them infringed Article 19(1)(f) and (g). That contention was dismissed. Justice S. K. Das, delivering the judgment, observed that the petitioners did not challenge any provision of the India Stamp Act, 1934 (XXXII of 1934) or the Sea Customs Act, 1878 (VIII of 1878). He explained that it is the role of the customs authorities, exercising the powers conferred by those Acts, to determine the duty payable on a particular imported article, and that the petitioners’ grievance related merely to a decision—right or wrong—by those authorities, for which the proper remedy is an appeal, not a claim of violation of Article 19.

The petitioners had pursued their remedy by filing an appeal before the Central Board of Revenue, and that Board subsequently dismissed the appeal. The Court observed that, unless the statutory provisions governing the levy of duty were contested on the ground of unconstitutionality, or unless the specific orders were alleged to exceed the statutory powers of the Customs authorities and therefore to be void for lack of jurisdiction, it was difficult to see how any violation of the fundamental right guaranteed under Article 19(1) clauses (f) and (g) of the Constitution could arise. The Court further explained that if the statutory provisions on the basis of which the impugned orders were made were valid, and if the orders themselves were issued within the scope of the authority conferred upon the Customs officials, then, regardless of whether those orders were factually correct or erroneous, there could be no infringement of a fundamental right. When a decision is erroneous in fact or on the merits, the appropriate remedy is an appeal, not a claim of constitutional violation. The petitioners’ contention was essentially that the orders were erroneous on the merits, a contention that, in the Court’s view, did not give rise to any breach of Article 19 of the Constitution. The Court then referred to the second precedent, Bhatnagar Co. Ltd. v. The Union of India (1957 SCR 701, 712). In that case the Sea Customs authorities had ordered the confiscation of goods on the basis that the petitioner had been trafficking in licences under which the goods had been imported. That order was challenged under Article 32. The Court held that a confiscation order issued as a result of an investigation, which the Customs authorities were competent to make, could not be challenged in proceedings under Article 32 on the ground that the factual conclusions were improperly drawn. The Court quoted the observation made in that case: “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 in 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.” The Court then turned to the third precedent, The Parbhani Transport Co‑operative Society Ltd. v. The Regional Transport Authority, Aurangabad (1960 (3) SCR 177, 188). In that case the decision of a Transport Authority to grant a motor‑carriage permit was challenged on the ground that it violated Article 14. The Court held that the Regional Transport Authority functioned in a quasi‑judicial capacity in the matter of granting permits, and that even if its decision was erroneous, the …

In the present case the Court observed that a decision taken by a quasi‑judicial authority could not be subjected to scrutiny under Article 32 of the Constitution merely because the decision might be right or wrong. The Court explained that the correctness of the decision of respondent No 1, the Regional Transport Authority, could not be said to offend Article 14 or any other fundamental right of the petitioner. The judgment of Sarkar J., reported at page 188, expressly stated that although the decision of the Regional Transport Authority might have been erroneous, it did not constitute a violation of Article 14. The Court further noted that the Regional Transport Authority was functioning as a quasi‑judicial body and, if it committed a mistake, the petitioner had appropriate statutory remedies available for obtaining relief. Consequently, the petitioner could not complain of a breach of a fundamental right on the ground of the authority’s decision.

The Court also referred to an unreported decision of this Court in Aniyoth Kunhamina Umma v. The Ministry of Rehabilitation, Government of India, New Delhi (1962 (1) SCR 505). In that case the petitioner, who represented the interests of her husband declared an evacuee by the Custodian of Evacuee Property, had first appealed to the Deputy Custodian and then to the Custodian General without success. She subsequently filed a petition under Article 32 of the Constitution. The Court held that once the competent authorities under the Administration of Evacuee Property Act, 1950 had determined that the husband was an evacuee and that the property fell within the scope of evacuee property, the petitioner could not challenge the Custodian General’s decision under Article 32. Justice S. K. Das, delivering the judgment, observed that when an authority of competent jurisdiction finds that the right alleged by the petitioner does not exist, no question of infringement of a fundamental right arises for a petition under Article 32, unless that decision is a nullity or can be set aside. As long as the decision remains in force, the petitioner cannot claim infringement of any fundamental right. The alleged right of the petitioner depended on whether Kunhi Moosa Haji's property was classified as evacuee property; if the competent authorities’ decision could not be overturned, the petitioner could not invoke her rights under Articles 19(1)(f) and 31. From these authorities the Court drew three principles: (1) a statute that is intra vires renders any order made by a quasi‑judicial authority under that statute also intra vires; (2) the correctness of a decision, whether right or wrong, does not on its own violate a fundamental right; and (3) an erroneous order may be challenged only under the provisions of the relevant statute, and it does not amount to a breach of a fundamental right while the statute remains constitutional. The Court added that in appropriate cases such an order may be contested under Article 226, with an appeal thereafter lying to this Court.

In this matter the Attorney General referred to a decision of this Court that examined whether the operation of taxation statutes could be characterised as a violation of Article 19(1)(g) of the Constitution and also explained the procedural route by which the Court was approached. To support his submission the Attorney General principally cited the case of Kailash Nath v. State of Uttar Pradesh, reported in 1957 AIR (S.C.) 790, and attempted to reinforce that judgment by pointing to several authorities decided both before and after it. He argued that even when a quasi‑judicial tribunal misinterprets a statutory provision, such a misconstruction amounts to an infringement of the fundamental rights guaranteed under Articles 19(1)(f) and 19(1)(g), because the erroneous construction effectively results in an illegal tax being imposed. In the case of Kailash Nath, the assessee contended before the Sales Tax Authorities that cloth on which excise duty had already been paid, and which was subsequently processed, hand‑printed and exported, should be exempt from sales tax under the notification issued pursuant to section 4 of the Uttar Pradesh Sales Tax Act. The Sales Tax Authorities, however, held that the exemption applied only to cloth that remained unprocessed, unprinted and in its original condition. Consequently, a petition under Article 32 of the Constitution was filed against the order, asserting that the assessee’s right to carry on trade under Article 19(1)(g) was infringed by the erroneous interpretation of the notification. The Court observed that where a tax is levied without proper legal authority on any trade or business, an aggrieved citizen may approach this Court for a writ of remedy under Article 32, because his constitutional right to conduct trade is violated and therefore Article 19(1)(g) becomes relevant. The State, on the other hand, objected by maintaining that the imposition of an illegal tax does not confer a right to invoke Article 32; instead, the aggrieved party must resort to remedies provided by ordinary law or proceed under Article 226, since the entitlement to be exempt from tax does not constitute a fundamental right falling within the scope of Article 32. This objection was rejected, the Court relying on observations made in Bengal Immunity Co. Ltd. v. State of Bihar (1955 (2) S.C.R. 603, 618), wherein it was noted that the High Court had erred by overlooking that the principal grievance of the appellant was that the statute, insofar as it sought to tax a non‑resident dealer in respect of an inter‑state sale or purchase, was ultra vires the Constitution and wholly illegal. The judgment also referred to other authorities such as Mohammad Yasin v. Town Area Committee, Jalalabad (1952 S.C.R. 572); State of Bombay v. United Motors (1953 S.C.R. 1069, 1077); and Himmatlal Harilal Mehta v. State of Madhya Pradesh (1954 S.C.R. 1122), all of which were considered in evaluating the applicability of Article 32 in cases of tax imposition.

The Court referred to the decision in Bidi Supply Co. v. Union of India (1956 SCR 257, 271, 277). It observed that that decision relied on earlier cases, none of which supported the view that a misinterpretation by a quasi‑judicial tribunal of a notification issued under a statute that is intra vires would amount to a violation of Article 19(1)(g). In contrast, all of the cited cases involved situations where the tax, licence fee, or executive action was attempted to be justified on the basis of a provision that was ultra vires, and consequently such provisions were held void and in breach of Article 19(1)(g). Because this important distinction was not considered, the remedy of a petition under Article 32 was held to be available. The question presently being raised had not been argued in Kailash Nath ’s case. The Court explained that a clear difference must be drawn between an assessment order issued under a provision that is intra vires, even if the assessment is erroneous, and an order issued under a provision that is ultra vires. When the provision is intra vires, the law is valid, and the order is protected by the authority of a valid law; consequently it does not violate Article 19(1)(g) and Article 32 cannot be invoked to challenge it. Conversely, when the provision is ultra vires, the law offers no protection, and the order represents an unauthorised interference with a citizen’s rights under Article 19(1)(g), making it open to challenge under Article 32. The Court noted that this distinction had not been observed in Kailash Nath ’s case (1957 AIR SC 790). Moreover, that case was criticized for being based on decisions that did not involve erroneous interpretations of notifications issued under intra vires statutes, but rather on cases where an unconstitutional provision was used to support a tax.

For the reasons outlined, the Court turned to another case where a remedy under Article 32 was sought to contest a decision of a Sales Tax Officer: Ramavtar Budhaiprasad etc. v. Assistant Sales Tax Officer, Akola (1962 (1) SCR 279). In that matter, the Sales Tax Officer, applying a schedule of the Sales Tax Act, held that betel leaves were liable to sales tax because they were not classified as vegetables, which were exempt. The Court upheld that assessment, and the issue of whether Article 32 was available was not raised. The Court further observed that, aside from Kailash Nath ’s case, the other authorities cited by the learned Attorney General fell into categories where the question now argued did not arise or was not considered. Those categories included: (1) situations where the tax or action was taken under a statute that is unconstitutional; (2) instances where the executive action lacked authority of law; and (3) cases where the taxing authority imposed a tax or acted without legal authority. The Court indicated that the present argument does not fit within any of these categories.

In this part of the judgment, the Court listed categories of situations where a tax or act was done without legal authority. The categories mentioned were: (1) where the tax imposed or the action taken was under a statute that was unconstitutional; (2) where the executive acted without any legal authority; (3) where the taxing authority imposed a tax or acted without legal authority; and (4) where a quasi‑judicial body, lacking jurisdiction, determined a fact or issued a decision. The Court then said it would examine the cases that belong to the first category, namely actions taken under an unconstitutional statute. The Court explained that any action taken under such a statute must itself be unconstitutional and therefore could be challenged by an aggrieved party under Article 32 of the Constitution. The Court referred to the case of Himmatlal Harilal Mehta v. State of Madhya Pradesh (1954 SCR 1122). In that case, no sales tax had actually been levied or demanded, but the petitioner feared that an illegal sales tax might be imposed. Accordingly, the petitioner filed a petition under Article 226 in the High Court, which was dismissed, and the petitioner appealed to this Court. The Court noted that the petition was not filed under Article 32. The Court held that the sales tax provision, namely explanation II to section 2(g) of the Central Provinces & Berar Sales Tax Act (Act 2 of 1947), was ultra vires of the State Legislature because it violated Article 286(1)(a). The Court concluded that the imposition or threatened imposition of such a tax was without authority of law and infringed the constitutional right guaranteed under Article 19(1)(g), thereby permitting the petitioner to approach the High Court under Article 226. From this decision, the Court derived that a tax levied under an act that is unconstitutional, ultra vires and void, is without authority of law under Article 265 and constitutes an infringement of Article 19(1)(g). The Court observed that the reasoning in Himmatlal Harilal Mehta’s case and in Ramjilal’s case (1951 SCR 127) had been approved in The Bengal Immunity Co. case (1953 (2) SCR 603, 618). In the Bengal Immunity case, the right that was infringed arose from an act that was ultra vires, and the remedy provided by that act was held to be inadequate, nugatory or useless. The facts were that the appellant company filed a petition under Article 226 in the Patna High Court seeking a writ of prohibition to stop the Sales Tax Officer from assessing sales tax based on a notice he had issued. The appellant contended that the sales in question were part of inter‑State trade, that the provision of the Bihar Sales Tax Act, 1947 (Bihar Act 19 of 1947) authorising tax on such sales was repugnant to Article 286(2) and therefore void, and that consequently the proceedings of the Sales Tax Officer should be set aside. The High Court dismissed the application, holding that even if the assessment made by the Sales Tax Officer was erroneous, the assessee could challenge it by appeal or revision under sections 24 and 25 of the Act, and that because the matter fell within the jurisdiction of the Sales Tax Officer, no writ of prohibition or certiorari could be issued. An appeal was taken to this Court, and a preliminary objection was raised that a writ under Article 226 was not the appropriate remedy for an assessee to challenge the legality of the proceedings before a Sales Tax Officer.

The Court examined the argument that the proceedings before the Sales Tax Officer were unlawful. In rejecting that contention, the Court observed that Article 265 of the Constitution makes it clear that no tax may be levied or collected except under a valid law. The appellant company argued that the statute empowering the assessment, levy and collection of sales tax on inter‑State trade violated Article 286, rendering the statute ultra vires, void and unenforceable. The Court held that, if such a contention were proven to be well founded, a party whose rights were infringed would be entitled, on principle and authority, to the remedy of a writ. Turning to the petitioner's suggestion that the matter should be pursued only by way of appeal or revision under the Act, the Court described the response as short and simple. It stated that a remedy provided by an Act cannot be considered adequate when the very Act that creates that remedy is itself ultra vires and void. Consequently, the principle that a statutory appeal or revision would suffice has no application where a party alleges that his right is threatened by a law that exceeds the legislature’s competence. In such circumstances, the party may rightly seek appropriate relief under Article 226 of the Constitution.

The Court noted that the issue in the case concerned a provision of a taxing statute that was ultra vires, and it held that any action taken under that provision lacked legal authority and thus amounted to an unconstitutional interference with the right to carry on business under Article 19(1)(g). The judgment referred to the earlier decision in Mohammad Yasin v. The Town Area Committee, Jalalabad (1952 SCR 572), where the imposition of a licence fee without legal authority was held challengeable under Article 32 because it deprived the licence holder of property and imposed an unreasonable restriction on the right to conduct business. The Court also cited Balaji v. The Income Tax Officer, Special Investigation Circle, Akola (1952 (2) SCR 983). In that case, the Income Tax Officer, after a firm’s registration, had included the income of the wife and minor children admitted to the partnership. The assessee contested the constitutionality of section 16(3)(a)(i)(ii) of the Income‑Tax Act. The Court first examined whether Parliament possessed the legislative competence to enact the provision and held that it did. It then considered the challenge on the ground of violation of the equality principle under Article 14. That ground was rejected, with the Court observing that the legislature had selected a specific classification of persons solely as a means to conceal fraud. These authorities were used to illustrate that when a taxing statute is beyond legislative power, actions taken under it are void and may be attacked through constitutional remedies.

The third ground of attack was premised upon the guarantee of liberty of trade and profession contained in Article 19 (1)(f) and the freedom to carry on any occupation, trade or business in Article 19 (1)(g) of the Constitution. The petitioners relied upon the decision in Mohd Yasin v. Town Area Committee (1952 SCR 572), a case that dealt with the imposition of licence fees, and also on Himmatlal Hiralal Mehta & Co. (1954 SCR 1122), a case in which no tribunal had made any determination but where a threat of an illegal levy was asserted. The Court observed that for a law to be valid it must first possess legislative competence, and secondly it must not infringe the fundamental rights guaranteed by the Constitution. Consequently, the matter before the Court was not a question of a taxing authority deciding a dispute in a quasi‑judicial capacity; rather, the challenge was directed at the constitutionality and the vires of the statutory provision itself.

The second class of cases identified by the Court involved situations where the Taxing Authority either imposed a tax without statutory authority or made an assessment beyond its jurisdiction. In Tata Iron & Steel Co., Ltd. v. S. R. Sarkar (1961 (1) SCR 379, 402), the dispute arose under the Central Sales Tax Act, which provides that inter‑State sales are to be taxed only once and by a single State on behalf of the Central Government. The petitioner company was first assessed by the Central Sales Officer of Bihar on certain sales made under the Act and the tax was paid. Subsequently, the Central Sales Tax Office of West Bengal also levied tax on the same sales, claiming that, under the statute, West Bengal was the “Appropriate State” because the place of sale was within its territory. The petitioner challenged the second assessment by invoking Article 32 of the Constitution. The Court rejected the contention that the petition was non‑maintainable on the ground that an appeal could be taken under the statutory scheme and that Article 32 proceedings were incompetent.

Justice Shah, delivering the majority opinion, referred to earlier pronouncements of this Court, including Himmatlal Harilal Mehta & Co. (1954 SCR 1122), The Bengal Immunity Co. case (1955 (2) SCR 603, 618), and State of Bombay v. United Motors India Ltd. (1953 SCR 1069, 1077). He noted that in those cases, hearing appeals from orders passed by High Courts under Article 226, the Court had held that an attempt to levy tax under a statute that was ultra vires constituted a violation of a citizen’s fundamental right, and that seeking protection of that right in the High Court was not barred by the provisions of Article 265. In the present matter, the Court observed that the validity of the Central Sales Tax Act, 1956, was not itself under challenge; however, it cited Kailash Nath v. State of Uttar Pradesh (1957 AIR SC 790), where a petition questioning the levy of a tax was entertained even though the statute’s constitutionality had not been contested as ultra vires. This illustrates that the Court may entertain a petition under Article 32 when the imposition of tax infringes fundamental rights, irrespective of whether the statute’s validity is directly challenged.

The Court explained that it was not necessary, for the resolution of the present dispute, to determine whether the principle laid down in Kailash Nath’s case conflicted with the view expressed earlier by this Court in Ramjilal’s case, reported in 1951 SCR 127. The learned judges had also observed that the statute under consideration rendered it impossible to impose two different taxes on the same transaction; only one tax could be payable, and that tax could be collected by a single State acting on behalf of the Government of India, so that a single sale could not be taxed twice. Once the tax had been collected, any attempt to recover it again would, on its face, constitute an infringement of the petitioner’s fundamental right. Justice Sarkar, who delivered the minority opinion, remarked that in Kailash Nath v. The State of U‑P, 1947 AIR (SC) 790, this Court had held that the illegal levy of sales tax on a trader under an enactment whose validity was not challenged violated the trader’s fundamental right under Article 19(1)(g), and that a petition under Article 32 was therefore permissible. He noted that the earlier decision in Ramjilal v. Income‑Tax Officer, Mohindergarh, 1951 SCR 127, had not been taken into account. It was submitted that the decision in Kailash Nath’s case ought to be reconsidered. However, the Court expressed the view that the present case was not suitable for examining whether the two authorities were irreconcilable, nor for deciding the preliminary issue that had been raised. The point had been taken at a very late stage of the proceedings after considerable costs had already been incurred. The matter raised by the petition was of general importance, and a decision on the issue would be desirable for the benefit of all parties concerned. Since there existed at least one authority supporting the competence of the petition, the Court considered it appropriate to decide the petition on its merits, holding that it was indeed competent. The Court further observed that it could not be said that the case before it served as an authority supporting the petitioner’s contention. Apart from the fact that Kailash Nath’s case, reported in 1957 AIR (SC) 790, had not received approval, the decision in that case was based on the premise that the Central Sales Tax was a tax that could be collected only once on a sale, by a single State on behalf of the Government of India, and once imposed and paid could not be levied a second time. In other words, the tax was considered to be outside the jurisdiction of the State and therefore fell within the ambit of Article 12(1)(f). The petitioner also relied upon a similar decision, J. V. Gokal & Co. (Private) Ltd. v. The Assistant Collector of Sales Tax (Inspection), 1957 AIR (SC) 790. In that case, the petitioner had entered into contracts with the Government of India for the supply of certain quantities of foreign sugar. While the goods were still on the high seas, the petitioner delivered the shipping documents to the Government and received payment. Upon the arrival of the goods, the Government of India took possession after the requisite customs duty had been paid. For the assessment year 1954‑55, the petitioner was assessed to

The Assistant Collector of Sales Tax issued a notice to the petitioner proposing a review of the assessment that had been passed by the Sales Tax Officer, an assessment in which the price of the sales made to the Government of India had been deducted when calculating the tax. The petitioner filed objections to the notice, but those objections were rejected, and the Assistant Collector held that sales tax was payable in respect of the two transactions concerned. Consequently, a petition was filed under Article 32 of the Constitution, with the Union Government supporting the petition. The petitioner contended that the sales in question should not be liable to sales tax because they occurred in the course of the import of goods into India. The Court held that the ownership of the goods passed to the Government of India when the shipping documents were delivered against payment, and that the sale of the goods by the petitioner to the Government took place while the goods were still on the high seas. Accordingly, the transactions were exempt from sales tax under Article 286(1)(b) of the Constitution, and the case also illustrated a lack of legislative authority and jurisdiction to impose the sales tax.

There are also instances where executive action is taken without any authority of law. One such example is the case of Bombay Dyeing Manufacturing Co. Ltd. v. The State of Bombay (1958 SCR 1122), which was not a petition under Article 32 but an appeal against an order under Article 226. In that matter, the Bombay Labour Welfare Fund Act, which authorized the creation of a fund for financing labour welfare, issued notices to the appellant company directing it to remit fines and unpaid accumulations held in its custody to the Welfare Commissioner. The appellant company questioned, in a petition under Article 226, the validity of the Act on the ground that it contravened Article 31(2). The High Court held the Act intra vires and dismissed the petition. On appeal, this Court held that the unpaid accumulations of wages and fines were the property of the company and that any direction for the payment of those sums violated Article 31(2) and was therefore invalid. The Court further observed that even if the money were not considered property within the meaning of Article 31(2) and Article 19(1)(f) applied, Article 19(5) would offer no assistance, and that the situation did not involve a determination by a quasi‑judicial tribunal but rather an executive action lacking legal authority.

In the case of Bidi Supply Co. v. The Union of India (1956 SCR 257, 271, 277), an order issued by the Central Board of Revenue transferred the assessment records and proceedings of the petitioner from Calcutta to Ranchi under section 5(7A) of the Income‑Tax Act. The petitioner challenged the order under Article 32, alleging infringement of the fundamental rights guaranteed under Articles 14, 19(1)(g) and 31 of the Constitution. The impugned order was made by the Central Board of Revenue in its executive capacity.

The Court noted that it did not decide whether the order could be justified on the basis of reasonable classification. Instead, it observed that the order was framed in very general terms, did not refer to any specific case, and contained no time limitation. Because such an order was not contemplated or sanctioned by sub‑section 7(A) of section 5, the Court held that the petitioner was entitled to rely on the provisions of sub‑sections 1 and 2 of section 64 of the Income Tax Act. Consequently, the Court concluded that the Central Board of Revenue, while acting under section 5(7A), lacked the authority to issue an “omnibus wholesale order of transfer”. This was not a quasi‑judicial order issued by an administrative tribunal within its jurisdiction; rather, it was an unauthorised executive order issued by the tribunal in its administrative capacity. The Court further recorded that section 5(7A) was later amended, and in a similar matter, Pannalal Binjraj v. Union of India (1957 SCR 233) held that the amended provision represented a measure of administrative convenience, was constitutional, and any order made under it was likewise constitutional. The Court also referred to Thakur Amar Singhji v. State of Rajasthan (1955 (2) SCR 303), where the State of Rajasthan issued orders assuming certain jagirs under the Rajasthan Land Reforms and Resumption of Jagirs Act. The Court declared that the notification effecting resumption of one jagir was invalid with respect to the properties involved because those properties were not covered by the impugned Act and, being devoted to religious purposes, were exempt under section 20 of that Act. This situation, too, was characterised as a notification issued by the executive government concerning properties outside the Act, rather than a quasi‑judicial decision.

The petitioner also relied heavily on M/s. Mohanalal Hargovind Das, Jabalpur v. State of Madhya Pradesh (1955 (2) SCR 509). In that case, the petitioners were required to file returns showing the total purchase of tobacco made from Madhya Pradesh for the purpose of assessment and levy of purchase tax. The returns were filed under protest, and the sales‑tax authorities, as mandated by law, demanded deposit of the purchase tax. No quasi‑judicial determination was made, and no decision followed a hearing of the taxpayer; the deposit was simply required pursuant to the statutory provision. The petitioners filed a petition under Article 32 of the Constitution seeking a writ of mandamus to restrain the State of Madhya Pradesh from enforcing the Madhya Pradesh Act against them. They contended that the transactions involved constituted inter‑State trade. The factual matrix was that finished tobacco supplied to the petitioners by their suppliers moved from the State of Bombay to the State of Madhya Pradesh, and the transactions that the State sought to tax therefore occurred in the course of inter‑State trade.

The Court observed that the transaction in question was not liable to tax by the State. This situation was not a result of any misinterpretation of a statute by a quasi‑judicial authority; rather, the transaction itself fell outside the legislative competence of the State to impose tax. Consequently, any action taken by the State’s taxing officials was without legal authority. The statute under consideration did not confer on the Authority the power to treat an inter‑State transaction as an intra‑State sale. Had the statute permitted such a conversion, it would have been in conflict with Article 286(1)(a) of the Constitution.

In Madanlal Arora v. The Excise Taxation Officer, Amritsar (1962 (1) SCR 823), notices were issued to the assessee requesting that he attend with the documents and other evidence in support of his returns. The final notice warned that if he failed to produce the documents and evidence, the case would be decided on a “best‑judgment assessment” basis. The assessee did not comply with the notices and instead filed a petition under Article 32 of the Constitution challenging the authority’s right to make a “best‑judgment assessment.” The petitioner contended that, on the date of the last notice, the sales‑tax authority no longer had the statutory power to proceed with such an assessment because the three‑year period within which a best‑judgment assessment could be made had expired. The Court held the contention to be well founded, noting that the respondent conceded that it could not argue otherwise. Accordingly, the taxing authority lacked jurisdiction to commence proceedings for assessment of tax, the three‑year limitation being counted from the end of each quarter to which the return pertained. The Court emphasized that the defect was one of jurisdiction and that any misinterpretation of the provision by the sales‑tax officer did not alter the conclusion.

Y. Mahaboob Sheriff v. Mysore State Transport Authority (1960 (2) SCR 146) dealt with the Motor Vehicles Act. The petitioners’ application for renewal of permits was granted by the Regional Transport Authority, which was empowered to grant renewal for a period of one year. After the usual appeals had been taken and proved unsuccessful, the petitioners filed a writ petition under Articles 226 and 227 of the Constitution against the renewal order; that petition was summarily dismissed. Thereafter, the petitioners filed a petition under Article 32 of the Constitution in this Court. The issue for determination was whether, on a proper construction of the provisions of section 58(1)(a) and section 58(2) of the Motor Vehicles Act, the period of renewal, as in the case of the original permit, had to be not less than three years and not more than five years. The Court held that the renewal period indeed had to be within that three‑to‑five‑year range as provided in subsection (1)(a) read with subsection 2 of section 58. This, it was submitted, was an authority for the proposition that where a provision is misconstrued by an authority having jurisdiction to

The Court observed that a petition filed under Article thirty‑two of the Constitution is competent to interpret a statutory provision. It noted firstly that the question of whether Article thirty‑two was applicable to the present dispute had never been raised before the Court, and therefore that issue was not decided. Secondly, the Court held that when the transport authority renews a permit, the renewal must be for the period prescribed by section fifty‑eight of the Motor Vehicles Act and cannot be for a shorter term; consequently the matter involved a question of jurisdiction. The Court then referred to the decision in Universal Imports Agency v. The Chief Controller of Imports and Exports (1961 (1) SCR 305). In that case the petitioners, who were located in Pondicherry before its merger with India, had entered into firm contracts with foreign sellers; the goods agreed to be imported were shipped both before and after the merger. The customs controller confiscated the goods on the ground that they had been imported without a licence, but allowed the goods to be released upon the payment of a fine as an alternative to confiscation. In a petition under Article thirty‑two, a majority of the Court held that paragraph six of the French Establishments (Application of Laws) Order 1954 placed the transactions within the words “things done” in the saving clause of that Order, and therefore the transactions were not subject to tax. The saving clause was part of the Order that applied Indian law in place of the formerly applicable French law. The Court explained that the interpretation required was not of the taxing statute itself but of the Orders by which the taxing statute had been extended to Pondicherry. It was held that the Taxing Officer had no authority to construe those Orders and that no legal basis existed for the Collector’s order. This situation was described as a lack of jurisdiction to levy tax on transactions that the law expressly excluded from the taxing power of the authority. The Court further noted that, again, the question of the applicability of Article thirty‑two to a quasi‑judicial determination had not been raised. The Court then mentioned another class of cases exemplified by K. T. Moopil Nair’s case (1961 (3) SCR 77). In that matter the tax imposed was confiscatory in nature and the procedure violated the rules of natural justice. The imposition of a land tax at a flat rate of two rupees per acre under the Travancore‑Cochin Land Tax Act (Act 15 of 1955) as amended by Act 10 of 1957 was held to be violative of Articles fourteen and nineteen‑one‑f of the Constitution. A majority of the Court held that a taxing statute is not immune from attack on the ground that it infringes the equality clause of Article fourteen, and that the tax also violated Article nineteen‑one‑f because the statute was silent as to the machinery and procedure to be followed in making assessments, thereby leaving the executive to devise the requisite machinery and treating the assessment as purely administrative while ignoring its quasi‑judicial character. The Court further stated that a tax …

The Court observed that a tax fixed at Rs 2 per acre was unreasonable because it produced a confiscatory effect. The principal ground on which the statute was found to violate Article 19(1)(f) was the absence of a proper procedure for imposing the tax, which contravened the rules of natural justice. The defect lay in the wording of the Act itself rather than in any misinterpretation of its provisions. Although the amount of tax was also deemed unreasonable for being effectively confiscatory, the Court noted that it was unnecessary to examine this issue further, since the parties had not contested whether Article 19(1) applies to taxation laws. The central dispute before the Court concerned the applicability of Article 32, and the learned Attorney‑General set out the arguments on that point.

In reviewing the authorities, the Court identified several principles. First, a law that is ultra vires because of legislative incompetence or because it contravenes a constitutional prohibition is a non‑existent law, and any action taken under it—whether quasi‑judicial or otherwise—would infringe Articles 19(1)(f) and 19(1)(g), regardless of whether the law is a colourable piece of legislation. Second, proceedings that are repugnant to the rules of natural justice infringe the rights guaranteed under Articles 19(1)(f) and 19(1)(g). Third, the same result follows where a tax assessment is made by an authority lacking jurisdiction to impose the tax. Fourth, if an administrative tribunal acting in a quasi‑judicial capacity misinterprets a provision within its jurisdiction and thereby imposes a tax, such an imposition would constitute an infringement of Article 19(1)(g), as indicated in the decision of Kailash Nath & Co. case 1957 AIR(SC) 790. However, the Court found that the cases relied upon by the learned Additional Solicitor General did not demonstrate such an infringement. The Court explained that the later decisions were correct and distinguished them from the earlier Kailash Nath case. It further noted that Mr Palkhivala, who intervened in C.M.P. 1496/61 in support of the petition, argued that a misconstruction of a taxing statute could violate the fundamental right under Article 19(1)(g). He contended that an erroneous construction that transgresses constitutional limits would infringe Article 19(1)(g), and that the distinction between jurisdictional and non‑jurisdictional error was immaterial. To support this view, he cited M/s Mohanlal Hargovind Das v. State of Madhya Pradesh (1955 (2) SCR 509) concerning inter‑State sales, and R S Ram Jawaya Kapur v. State of Punjab (1955 (2) SCR 225), where the Court held that executive actions, even if seemingly sanctioned by the legislature, may be declared void if they infringe any fundamental right, although no question of judicial determination by a quasi‑judicial tribunal arose in that case.

In the case of M/s Ram Narain Sons Ltd. v. Assistant Commissioner of Sales Tax (1955 (2) SCR 498) the Court considered the meaning and scope of the proviso to Article 286(2). The matter involved an inter‑State sale, and the Court observed that no statute could be interpreted to convert such a transaction into an intra‑State sale merely by a judicial decision. Both parties contended before the Court that a decision rendered by a tribunal exercising quasi‑judicial functions should operate as res judicata. In addition, it was submitted that the judgment of the High Court of Allahabad, which had been invoked by the petitioner under Article 226 of the Constitution to challenge an assessment order on the ground of a mis‑construction of the notification dated 14 December 1957, also should be regarded as res judicata because the appeal against that decision had been withdrawn.

The High Court, however, dismissed the petition under Article 227 on two principal grounds. First, the Court held that an alternative remedy existed whereby the error could be corrected by filing an appeal. Second, the Court indicated that it had heard the petitioner’s counsel on the merits but was not convinced that the Sales Tax Officer’s interpretation of the notification contained any obvious error. The Court noted that the circumstances rendered the petitioner's proposed interpretation unlikely and that it was an established fact that even hand‑made biris had been subject to sales tax long before the issuance of the notification in question. The Court explained that the purpose of the Additional Duties of Excise (Goods of Special Importance) Central Act No. 58 of 1957 was to impose 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 petitioner’s counsel, during the period from 14 December 1957 to 30 June 1958 the petitioner was liable to pay neither excise duty nor sales tax. The Court expressed uncertainty as to why such an exemption should exist and observed that the language of the notification could be read to apply only to goods on which an additional Central excise duty had been levied and paid. The Court further remarked that it was unnecessary to decide this particular question in the present case.

The petitioner’s arguments continued by asserting that Sales Tax Authorities are officers of the State whose primary function of levying and collecting taxes is essentially administrative. When these officers act in a quasi‑judicial capacity, the Court said, such function is merely incidental to their administrative role. Accordingly, the assessment order dated 20 December 1958 was characterized as an executive order and therefore fell within the scope of Article 19(1)(g). Reference was made to Bidi Supply Co. v. the Union of India (1956 SCR 257, 271, 277), a case decided under section 5(7‑A) of the Income‑Tax Act. At page 271 of that decision the definition of the word “State” was set out, and at page 277 the Chief Justice observed that the term “State” includes the respective tax department.

The Court observed that the term “State” includes the Income Tax Department, and that the Sales Tax Department is also a department of the State. However, the issue before the Court was not merely whether the Sales Tax Department fell within the definition of State, but rather the nature and quality of the determination made by a Sales Tax Officer when he performed judicial or quasi‑judicial functions. Counsel for the State, acting as the Attorney General, argued that a Taxing Officer, even when performing quasi‑judicial functions, is not a court. Therefore, the Court held that the decision of the taxing authority in the present matter was not entitled to the protection afforded to an erroneous decision of a proper court. The Court referred to Chaparala Krishna Brahman v. Gururu Govardhaiah, 1954 AIR (Mad) 822, where it was held that an Income Tax Officer is not a court within the meaning of section 195 of the Criminal Procedure Code. The argument was further supported by Sell Co. of Australia Ltd. v. The Federal Commissioner of Taxation, [1931] A.C. 275, 298, where the House of Lords held that a Board of Revenue created to review the Commissioner’s decision is not a court exercising judicial power. Lord Sankey, L.C., observed that an administrative tribunal may act judicially but remains an administrative tribunal, distinct from a court. He further stated that mere external forms do not convert a direction issued by an ad‑hoc tribunal into an exercise of judicial power. The Court noted that the same decision also recognized that tribunals can possess many of the trappings of a court yet still not be courts in the strict sense of exercising judicial power. Consequently, the Court accepted that the Sales Tax Officer is not a court, even though he may possess powers such as summoning witnesses, receiving evidence on oath, and making judicial determinations. Nevertheless, the Court emphasized that the relevant question was whether the officer’s determination concerning the exemption claimed by the petitioners on the sale of biris was made by a quasi‑judicial authority exercising its statutory powers within its jurisdiction. If so, the determination would not be characterised as an administrative act. The Court explained that a characteristic of an administrative tribunal is the absence of ascertainable standards, operating instead on policy and expediency, which are subjective considerations. By contrast, a judicial tribunal must base its decision on legal evidence and established standards, rather than on policy preferences. The Court further observed that while administrative tribunals may consider evidence, they are not bound to let that evidence dictate the outcome; they may continue to act according to policy until they decide otherwise.

The Court explained that requiring a tribunal to receive evidence before reaching a conclusion does not mean the tribunal is restricted to deciding solely on that evidence. It noted that an administrative tribunal must nevertheless be guided by policy and expediency until it hears the evidence, but the evidence need not alter its policy beyond what the tribunal deems appropriate. The Court warned that the opposite view would imply that decisions are dictated by the evidence rather than by policy and expediency; if a particular piece of evidence forced a specific decision, that decision would involve legal rights, thereby converting the tribunal’s function into the administration of justice and rendering it a judicial rather than an administrative body. The Court cited the decision reported in 1933 LQR 424 to illustrate this point. It further referred to its own earlier rulings in which certain tribunals were held to be judicial bodies, for example Bharat Bank Ltd., Delhi v. Employees of the Bharat Bank Ltd. (1950 SCR 459, 463) and Province of Bombay v. Kusaldas S. Advani (1950 SCR 621, 725). In the latter case, Das J., then a judge, observed at page 725 that when a statutory authority possesses power to act in a way that may prejudice a subject, even though the dispute involves only the authority and the subject, the final determination of the authority constitutes a quasi‑judicial act if the statute requires the authority to act judicially. The Court also mentioned Nagendra Nath Bora v. The Commissioner of Hills Division & Appeals, Assam (1958 SCR 1240, 1257, 1258) as another illustration. It stated that it was unnecessary to examine the provisions of the Act in detail to determine the character of the Sales Tax Officer when he conducts assessment proceedings, because those provisions had already been considered. The Court observed that all the cited characteristics are those of a judicial or quasi‑judicial process and therefore give the assessment orders of the Sales Tax Officer a judicial or quasi‑judicial character. Consequently, because the assessment order was judicial or quasi‑judicial in nature, the petitioner filed a petition for certiorari in the High Court and also filed an appeal under Article 136 as well as a petition for certiorari under Article 32. The Court held that, given the nature of the determination made by the Sales Tax Officer in the present case, it could not be said that he was merely an administrative authority or that his order was an executive order; rather, when he determines the tax amount payable by a dealer, he acts in a quasi‑judicial capacity. The Court noted that Mr. Chari, intervening for the State of Bihar, submitted that Article 12 of the Constitution does not include the judicial branch of the State within the definition of “State” and that the phrase “other bodies” does not cover a tribunal having jurisdiction to decide judicially, thus such decisions could not be challenged by a petition under Article 32. In view of the Court’s decision that a quasi‑judicial order of the Sales Tax Officer is not challengeable by proceedings under Article 32, it was unnecessary to resolve the broader question of whether the definition of “State” in Article 12 embraces the judicial department of the State.

It was held that a proceeding under Article 32 could not be used to challenge the order of the Sales Tax Officer. Consequently, the Court did not feel it necessary to address the broader question of whether the definition of “State” in Article 12 includes the judicial department of the State. The Court noted that, in view of the earlier ruling on the correctness of the decision in Kailash Nath v. State of Uttar Pradesh, AIR 1957 SC 790, there was no need to examine again the merits of the Sales Tax Officer’s order. Accordingly, the petition filed under Article 32 was dismissed as failed, and no order as to costs was made. The case record shows the citation (C.M.P. No. 1349 of 1961). In a separate opinion, Justice Kapur recorded that the assessee firm, identified as Mohanlal Hargovind Das, had earlier filed an appeal on a certificate from the Allahabad High Court against the order of that Court which had dismissed their petition under Article 226 of the Constitution challenging the imposition of sales tax on the ground that an alternative remedy was available. That appeal was itself dismissed by this Court for non‑prosecution on 20 February 1961. The assessee firm subsequently made an application for restoration of the appeal, alleging that it had been advised that, because a rule had been issued under Article 32 addressing the same contentions as those raised in the appeal under Article 226, it was unnecessary to prosecute the appeal. The application also sought condonation of delay. The Court found that no sufficient cause was shown to justify restoration. It observed that the firm had deliberately allowed the appeal to be dismissed for non‑prosecution and could not now seek to set aside that dismissal on the basis of alleged incorrect advice. Accordingly, the application for restoration was dismissed with costs.

Justice Sarkar expressed agreement with the judgments recently delivered by his colleagues Justice Das and Justice Kapur. Justice Subba Rao, however, differed in view. He stated that the facts had already been fully detailed in Justice Kapur’s judgment, rendering a repetition unnecessary. He observed that the larger Bench was assembled specifically to examine the correctness of the decision in Kailash Nath v. State of Uttar Pradesh, AIR 1957 SC 790. After hearing the extensive arguments presented by counsel, he concluded that no compelling reason existed to depart from the earlier decision. The Attorney General, acting for the State, argued in favour of upholding the correctness of that decision. He broadly maintained that this Court serves as the constitutional guardian of fundamental rights, that any person whose fundamental right is infringed is entitled to approach the Court for enforcement, and that it is impermissible to curtail that jurisdiction through doctrines developed by the courts.

In this case the petitioner’s representative maintained that an executive authority exercising power under the Uttar Pradesh Sales Tax Act, 1948 (Act XV of 1948), hereinafter called the Act, had issued an order that plainly erred by levying tax on goods that the statute expressly exempted, namely bidis. The representative asserted that the imposition of tax on an exempted commodity infringed the petitioner’s fundamental right to carry on the bidi business. He further argued that whenever such a right is infringed by a State action— and the present dispute concerned only State action— it becomes the duty of this Court to grant appropriate relief and to refuse to decline relief on any extraneous ground. The Additional Solicitor General, appearing for the State, rejected this legal position. He contended that the Act represented a reasonable restriction on the petitioner’s right to engage in the bidi trade, that under the Act a Sales‑Tax Officer possessed jurisdiction to determine, correctly or incorrectly, whether bidis were exempt from sales tax, and that an order issued by such an officer, being within jurisdiction, could not amount to an infringement of the petitioner’s fundamental right. Mr Chari, appearing for the intervener, while supporting the State’s argument, emphasised that the fundamental right guaranteed by Article 19(1)(g) of the Constitution is enforceable only against State action, that the definition of “State” in Article 12 excludes authorities exercising judicial power, and that the sales‑tax authority, when making an assessment, was exercising judicial power; consequently, no writ could be issued by this Court against that authority. Before addressing the questions raised, it was necessary to precisely determine the position of fundamental rights under the Constitution and the extent of this Court’s jurisdiction in enforcing them. Fundamental rights are enshrined in Part III of the Constitution and are described as the paramount rights of the people. Article 13(2) forbids the State from making any law that takes away or abridges the rights conferred by Part III and provides that any law contravening this clause shall, to the extent of the contravention, be void. These rights may be broadly classified as follows: (i) the right to equality covered by Articles 14 to 18; (ii) the right to freedom covered by Articles 19 to 22; (iii) the right against exploitation covered by Articles 23 and 24; (iv) the right to freedom of religion covered by Articles 25 and 28; (v) cultural and educational rights covered by Articles 29 and 30; (vi) the right to property covered by Articles 31 and 31A; and (vii) the right to constitutional remedies covered by Articles 32 to 35. The Court noted that these rights are inalienable and belong to the people of the country, extending in some cases to non‑citizens as well, and that they are considered essential for the development of human personality and for enabling individuals to chart their own way of life. In theory, these rights remain with the people after the people have delegated other powers to the institutions of Government created by the Constitution, which thereby reflect the will of the people.

The Court referred to the observations made by Justice Patanjali Sastri, when he served as a judge, in the case of A. K. Gopalan v. State of Madras reported in the 1950 Supreme Court Reports at page 88. The Court then cited the decision in State of Madras v. Shrimati Champakam Dorairajan, reported in the 1951 Supreme Court Reports at pages 525 and 531, where the same principle was expressed in stronger language. In that judgment the Court declared that the chapter of Fundamental Rights is sacrosanct and cannot be abridged by any legislative or executive act or order, except to the extent that a specific provision in Part III of the Constitution permits such limitation. The Court further stated that the Directive Principles of State Policy must conform to and operate as subsidiary to the Chapter of Fundamental Rights. Turning to the broader context of fundamental rights, the Court emphasized an essential principle: the English concept of legislative supremacy does not belong to our Constitution. As the Court noted in the A. K. Gopalan case, the Constitution rejected the English doctrine of absolute parliamentary supremacy in matters of legislation. Consequently, every organ of State – whether the Executive, the Legislature, or the Judiciary – may exercise only those powers that the Constitution has conferred upon it, making the Constitution the supreme law of the land. Because the Constitution both declares fundamental rights and specifies the permissible restrictions on those rights, no institution may transgress those limits, either directly or indirectly, by encroaching upon the rights. However, merely declaring fundamental rights was deemed insufficient; a mechanism was required to give effect to those rights. Accordingly, the Constitution assigned the duty of enforcing fundamental rights to the Supreme Court, which is the highest judicial authority in the country. The Court explained that preserving the inviolable fundamental rights of the people is the most important function of the Supreme Court, for the framers of the Constitution, in their full confidence, entrusted this responsibility to the Court and provided it with all institutional conditions necessary to exercise its jurisdiction without fear or favour. The Court acknowledged that this task is delicate and sometimes difficult, but it must be performed to the best of its ability and cannot be abandoned on the false ground of inability or inconvenience. The Court also reminded that the Constitution promises to create a welfare State, and in such a State the Legislature is compelled to establish numerous administrative tribunals and assign them various functions. These tribunals will possess powers that may affect every aspect of human activity, and while their existence is essential for national progress, the misuse of such powers could lead to an authoritarian or totalitarian regime. Therefore, the power vested in the Supreme Court, and its proper exercise when occasion demands, serves as a necessary safeguard against the abuse of power by administrative tribunals. Finally, the Court observed that the scope of the Supreme Court’s power under Article 32 of the Constitution has been explained in many of its decisions, which not only defined the breadth of that power but also described the manner in which it should be exercised.

In this case, the Court explained that the power of the Supreme Court to deal with the various situations that may arise is derived from the Constitution. The Court referred to the decision in Romesh Thappar v. State of Madras (1950 SCR 594) where it was held that the Supreme Court is the protector and guarantor of fundamental rights. The Court therefore cannot refuse to entertain an application for protection of those rights simply because the application is filed directly before it, without first going to a High Court that also has jurisdiction over the matter.

The Court then cited Rashid Ahmad v. The Municipal Board, Kairana (1950 SCR 566) to stress that the powers conferred by Article 32 of the Constitution are far broader than the limited authority to issue prerogative writs. The Court further illustrated this broader scope by referring to T. C. Basappa v. T. Nagappa (1955 (1) SCR 250, 256). In that case Justice Mukherjee, speaking for the Court, stated that because the Constitution expressly provides these powers, the Court need not look back to the early history of writs in English law, nor be constrained by procedural technicalities of the English system, nor feel bound by any change of opinion expressed in earlier English decisions.

Later, the Court expanded on the same theme in Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959 (S2) SCR 316, 325, 337). Chief Justice Das, after reviewing the earlier case law, observed that even if a High Court may consider the existence of another adequate legal remedy before issuing a writ under Article 226, the Supreme Court cannot decline to entertain a petition under Article 32 on similar grounds. The right to approach the Supreme Court through appropriate proceedings for the enforcement of the rights guaranteed by Part III of the Constitution is itself a guaranteed right.

The Court then addressed a submission that the Supreme Court, while exercising its power under Article 32, should not investigate disputed questions of fact and that such investigations would create inconvenience. After examining the authorities cited in support of that contention, the Court concluded that refusing to hear a petition merely because it involved disputed facts would betray its duty as the custodian and protector of fundamental rights. The Court noted that if it were to adopt the view that it could not consider factual disputes, it might be unable to decide questions of fact on affidavits, a point highlighted by the learned Chief Justice.

The Chief Justice explained that it is often possible to decide questions of fact on the basis of affidavits. He observed that when petitions and the supporting affidavits are not convincing, and the Court is not satisfied that the petitioner has established a violation of his fundamental right, the Court may dismiss the petition on the ground that the petitioner has failed to meet the burden of proof. However, in appropriate cases the Court may give the parties an opportunity to present further affidavits, may appoint a commission, or may even set the matter for trial on evidence, as is sometimes done by the High Courts of Bombay and Calcutta, or may adopt any other suitable procedure. The Court emphasized that such occasions are rare and that rarity should not be taken as a reason to refuse to entertain a petition under Article 32 merely because it involves disputed questions of fact.

In the present case the Court explained that when the affidavits placed before it are not persuasive and the Court is not convinced that the petitioner has demonstrated the existence of a fundamental right or any violation of such right, the petition may lawfully be dismissed on the ground that the petitioner has failed to meet the burden of proof that rests upon him. Nevertheless, the Court observed that in certain suitable circumstances it may be appropriate to give the parties an additional opportunity to prove their respective positions. Such opportunities could be provided by permitting the filing of further affidavits, by appointing a commission to investigate the facts, or by directing that the application be tried on evidence, a practice that has often been followed by the High Courts of Bombay and Calcutta. The Court also indicated that it might adopt any other procedure that it considers appropriate to the facts of the case. Although the Court conceded that these kinds of interventions would be rare, it stressed that the rarity of such occasions should not be taken as a compelling reason to refuse to entertain a petition under Article 32 merely because the matter involves disputed questions of fact. Finally, the Court affirmed that, when the situation demands, it possesses the discretionary power to fashion writs or orders that are tailored to the exigencies created by statutory provisions, and that it may even issue a declaratory order together with consequential relief. In doing so, the Court recognized the full and comprehensive jurisdiction conferred upon it by Article 32 of the Constitution, and it rejected the imposition of any artificial limitations on that jurisdiction.

The Court then turned to the earlier authority of Daryao v. State of U.P. (1962 (1) SCR 574), where the doctrine of res judicata was applied and it was held that the petitioners in that case possessed no fundamental right because the High Court had already defined their right on the merits in a petition under Article 226, and no appeal had been filed, rendering that decision final. However, the learned Judges carefully delineated the scope of the res judicata doctrine when it is invoked in a petition under Article 32. Justice Gajendragadkar, 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”. The Court’s remarks underscore its intention to confine the operation of res judicata within narrowly defined limits, thereby preventing an over‑broad application that could unduly restrict the remedy available under Article 32.

In this case the Court observed that a dismissal of a petition in limine, even when no speaking order is issued, cannot automatically be treated as creating a bar or invoking the doctrine of res judicata. The Court acknowledged that, on the face of it, such a summary dismissal may appear to indicate that the Court found the petition to be without substance. However, because no detailed reasoning is recorded, it is difficult to determine which considerations influenced the Court’s decision. Consequently, it would be unsafe to conclude that the dismissal was on the merits and therefore should be considered a bar under res judicata against a later petition filed under Article 32 of the Constitution. The Court further explained that where a petition is dismissed as withdrawn, it does not preclude a subsequent petition under Article 32, since in that situation the Court has not rendered a decision on the merits. The judgment reiterated that, although the doctrine of res judicata is applied, the Court is careful to confine its operation within prescribed limits and to prevent any over‑extension. It emphasized that settled law holds that Article 32 grants this Court a broad jurisdiction to enforce fundamental rights, that the right to enforce a fundamental right is itself a fundamental right, and that the Court has a duty to entertain applications and decide them on their merits whenever a party seeks to determine whether a fundamental right exists and, if so, whether it has been violated, irrespective of whether the question presented involves only law or also facts. The Court clarified that the application of res judicata does not diminish the scope of its jurisdiction; it merely restricts a petitioner’s claim on the ground that a competent court has already issued a final decision on the same right. The decision further noted an attempt by the State to limit the Court’s jurisdiction, and, setting aside prior rulings, the Court chose to address the principle through an illustrative example drawn from the present facts.

The illustrative example presented involved a citizen of India engaged in the bidi business, a venture that the individual is entitled to pursue under his fundamental right to carry on a trade. The State Legislature had enacted a Sales Tax Act that imposed tax on the turnover and sales of various goods but expressly exempted certain items, declaring that no tax shall be levied on those exempted goods. This legislative scheme was held to be a reasonable restriction on the petitioner’s fundamental right to conduct the bidi business. Under a correct construction of the Act’s provisions, no tax would be payable on bids. Nevertheless, the Sales‑Tax Officer, applying an erroneous interpretation of the relevant provisions, assessed tax on the petitioner’s turnover from the bidi business. The petitioner challenged this assessment by filing a series of statutory appeals before the appropriate tribunals, but all his appeals failed. The Court used these facts to demonstrate that a wrong administrative order that imposes an illegal tax constitutes an infringement of the petitioner’s fundamental right, and that such an infringement must be redressed through the jurisdiction conferred by Article 32, regardless of the erroneous administrative determination. This illustration was intended to clarify the principle that the Court’s power under Article 32 cannot be curtailed by a State‑initiated attempt to invoke res judicata or to limit the scope of judicial review.

The outcome, as described, is that the petitioner was required to pay tax on the bidis business that the Act expressly exempts. Imposing such a tax on the turnover of bidis, when the law provides exemption, constitutes an unlawful levy and directly infringes the petitioner’s fundamental right to carry on his trade. Accordingly, the petitioner approached this Court seeking enforcement of his fundamental right against the Sales‑Tax Officer. The Officer replied that, although his order might be erroneous and even the Supreme Court could deem his interpretation of the statutory provision as perverse, the Act nevertheless empowers him to decide either correctly or incorrectly; therefore, his order, albeit illegal, would function as a reasonable restriction on the petitioner’s fundamental right to conduct business. The Court observed that accepting this line of reasoning would effectively render the Officer’s erroneous order binding on the Supreme Court, meaning that a fundamental right could be defeated by a mistaken executive order and the Court would be reduced to a helpless spectator, relinquishing its constitutional role in favour of a subordinate official of the Sales‑Tax Department. The Constitution, in substance, declares that neither Parliament nor the Executive may violate the fundamental rights of citizens; if they do, the aggrieved individual has an assured right to approach this Court, which in turn has a duty to enforce the right. The Executive, however, contended that it possessed the power to decide wrongly and that consequently the Supreme Court could not enforce the fundamental right. No provision of the Constitution validates such an extraordinary claim, and interpreting the constitutional provisions to allow any authority to undermine the supreme judicial power would be erroneous. It is acknowledged that where the law is unconstitutional or the officer lacks jurisdiction, the petitioner’s fundamental right can be enforced. Yet it has been suggested that when a valid law grants the officer jurisdiction to decide either correctly or incorrectly, the petitioner forfeits his fundamental right. No basis for this principle can be found in the Constitution, which contains no clause permitting the Legislature to render an executive order final in a manner that deprives the Supreme Court of jurisdiction under Article 32. The purported finality of the order is instead invoked on the doctrine of res judicata. It has been argued that Sales‑Tax Tribunals are judicial tribunals in the sense of courts and therefore their final decisions should operate as res judicata, following the principle articulated by this Court in Daryao’s case (1962 (1) SCR 574). The Court thus examined whether, under the Act, Sales‑Tax authorities can truly be regarded as courts for the purpose of invoking res judicata, especially in a welfare state where the government must perform numerous functions affecting every aspect of human activity.

In this case the Court observed that the many executive authorities entrusted with the power to decide the rights of parties are essentially extensions of the executive, created to fulfil the government’s wide‑ranging duties in a welfare state. Although these bodies are often given the outward form of courts and are required to act according to judicial procedure as far as practicable, they remain executive agencies. The officers who sit in these tribunals do not possess the professional training nor the institutional setting that characterises a judicial officer. The Court listed a variety of such bodies that have been set up by statutes aimed at promoting social and economic development or at raising revenue, including income‑tax authorities, sales‑tax authorities, town‑planning authorities, regional transport authorities and similar agencies. All of these are administrative tribunals rather than courts in the strict constitutional sense.

The Court then examined the Uttar Pradesh Sales‑Tax Act, the statute that is the subject of the present dispute. The preamble of the Act shows that its purpose is to impose a tax on the sale of goods in the State of Uttar Pradesh by levying a charge on the turnover of certain commodities and to provide a mechanism for assessment, collection and enforcement of that tax. Under the Act the State Government is empowered to appoint assessing authorities, who are officers of the Sales‑Tax Department. The legislation provides an appeal process against the order of an assessing authority, a limited provision for revision, and, in certain circumstances, a reference to the High Court for questions of law. The Act also authorises the State Government to establish a hierarchy of tribunals to hear appeals and revisions.

Importantly, the Act does not require the assessing authority or the appellate authority to possess any legal qualification. While the revising authority must have a legal qualification, the Court stressed that this requirement alone does not convert the revising authority or the lower tribunals into courts. All of these bodies are required to observe the principles of natural justice, but the observance of those principles does not transform an administrative tribunal into a judicial court. The scheme of the Act therefore creates administrative tribunals whose function is to determine the turnover of an assessee and to impose the appropriate tax, while the hierarchical structure is intended to protect the interests of both the assessee and the State by correcting erroneous orders.

The Court further explained that, following the analogy of the Income‑Tax Act, an aggrieved party may ask the reviewing authority to refer a question of law to the High Court. Such a reference is solely for the purpose of obtaining a legal interpretation; the High Court does not acquire the power to issue a final order in the tax matter. Once the High Court delivers its judgment, the revising authority must render its own order in accordance with that judgment. The Court concluded by noting that the authorities cited by counsel, including decisions on the nature of similar tribunals, support the view that while these bodies may perform judicial functions, they remain administrative tribunals and are not courts exercising judicial power.

In discussing whether section 41 of the Federal Income‑Tax Assessment Act, 1922‑25 constituted a judicial authority, the Judicial Committee in Shell Company of Australia Limited v. Federal Commission of Taxation observed that tribunals may possess many external features of a Court yet remain distinct from a Court that exercises judicial power. The Committee further explained that an administrative tribunal can perform judicial functions while still being an administrative body, and that mere external form does not transform a direction issued by an ad hoc tribunal into an exercise of judicial power by a Court. The Allahabad High Court, in Messrs Kamlapat Moti Lal v. Commissioner of Income Tax, U.P., held that income‑tax authorities are not courts and consequently their decisions cannot acquire the effect of res judicata. Chief Justice Malik observed that the income‑tax authorities cannot be treated as courts deciding a disputed point except for the limited purposes mentioned in section 37, noting that no other party appears before them and no pleadings are taken, a position echoed by Lord Herschell in Boulter v. Kent Justices, who stated that there is no truth, no lis, no controversy inter partes, and no decision in favour of one party against another unless the entire public is deemed the opposite party. The primary role of income‑tax authorities is to ascertain the assessable income for a particular year rather than to resolve questions of title; nevertheless, in doing so they may need to decide general questions that can influence the computation of assessable income not only for the current year but also for subsequent years. Because an assessment is inherently of a temporary nature, it cannot create an estoppel by res judicata in later years merely because a matter was included or excluded in an earlier assessment. An instructive discussion on whether an income‑tax officer qualifies as a court within the meaning of section 195 of the Code of Criminal Procedure appears in Krishna Brahman v. Goverdhanaiah. In that case, Justice Balakrishna Ayyar, after examining the relevant case law and the provisions of the Income‑Tax Act, concluded that an income‑tax officer is not a “court”. He rejected the view that the adoption of judicial procedural norms or the availability of appeals rendered the officer a court, and remarked that when exercising powers under Chapter IV of the Act, the income‑tax officer acts purely in an administrative capacity, tasked solely with determining the individual’s income and the tax due, and therefore “there is no ‘lis’”.

The Court observed that the same line of reasoning that applies to income‑tax officers must also apply to sales‑tax authorities. Referring to the decision in Bidi Supply Co. v. The Union of India (1954 AIR (Med) 822, 826), the Court, speaking through the Chief Justice, set aside an order of an income‑tax officer and declared that the State, including its income‑tax department, had by an unlawful order denied the petitioner the equality before the law guaranteed by article 14 of the Constitution. Although that judgment did not directly decide the precise issue raised in the present matter, it demonstrated that the Court regarded the income‑tax officer as a part of the executive branch of Government.

Subsequently, the Court, in Gullapalli Nageswara Rao v. State of Andhra Pradesh (1959 (SC) SCR 319, pages 353‑354), clarified the distinction between a quasi‑judicial act performed by an executive authority and a judicial act performed by a court. The Court explained that a quasi‑judicial act is not wholly judicial; it merely imposes on an executive body a duty to follow certain judicial procedures while exercising its executive powers. Consequently, an administrative tribunal cannot be equated with a court. Such tribunals are created to discharge functions that arise from the executive power of the State, and the fact that statutes require them to apply principles of natural justice or to use procedural forms resembling those of courts does not transform them into judicial organs. Because of this character, the principle of res judicata cannot be applied to the orders of these tribunals, as section 11 of the Code of Civil Procedure does not govern such orders and the general doctrine of res judicata outside that provision has never been extended to them. Even where statutes expressly or implicitly exclude the jurisdiction of civil courts over certain matters, that exclusion does not limit the extraordinary powers of superior courts conferred by articles 226, 227 and 32 of the Constitution.

In the case presently before the Court, the sales‑tax authority had passed an order adverse to the petitioners. The petitioners have invoked article 32 of the Constitution, seeking this Court’s assistance to enforce their fundamental rights, alleging that the said order infringes those rights. By filing the present application, the petitioners are directly challenging the order of the sales‑tax authority. The Court therefore cannot accept the argument that the order, which is now sought to be set aside, operates as a bar of res judicata that would prevent this Court from examining its correctness.

In this case, the Court explained that the doctrine of res judicata was based on the idea that no person should be disturbed twice by the same issue. This meant that two separate proceedings had to exist and that, in a prior proceeding before a court of proper jurisdiction, the matter had been finally decided between the parties, so that the same issue could not be raised again in a later case. Applying that principle, the Court observed that the order being challenged could not be used to support a claim of res judicata. The Court found the argument that the petition should be dismissed because it caused inconvenience to be unpersuasive, noting that the Court’s duty was to protect a party’s fundamental right whenever an authority had violated that right, and that considerations of inconvenience were irrelevant. It was suggested that, if the Court’s jurisdiction were not limited as described, the Court would be overwhelmed by countless petitions. The Court rejected that suggestion, pointing out that a generous reading of Article 32 had not flooded the Court with petitions during its ten‑year history, and that there was no reason to anticipate such a problem in the future. The Court also dismissed the contention that a broader interpretation would force it to resolve complicated factual questions involving oral and documentary evidence, saying that the machinery provided under Article 32 was adequate and that any difficulties could be addressed by developing appropriate procedures, either by convention or by rule‑making. The Court referenced a similar inconvenience argument raised in Kavalappara Kottarathil Kochuani Moopil Nayar v. State of Madras, which had been rejected, and noted that the Court had since created procedures to handle difficult situations that might arise in specific cases. Moreover, the Court indicated that it could further refine its practice to meet different contingencies. When a party approached the Court to enforce a fundamental right that depended on factual proof and had not yet exhausted the remedies available through the hierarchy of tribunals established by a particular Act, the Court could, with the party’s consent, allow the petition to be withdrawn with the option to refile later, or, if consent was not given, could adjourn the matter sine die until the remedies were exhausted. Conversely, if a party came after having exhausted all remedies and after tribunals had rendered findings of fact, the Court would ordinarily accept those findings, as it does in appeals under Article 136. If a party alleged that a tribunal’s order was based on an incorrect construction of a statutory provision, the Court would then examine whether, on a correct interpretation of the statute, the petitioner’s fundamental right had been violated.

The Court indicated that it could determine whether, on a proper reading of the statute, the petitioner’s fundamental right had been infringed. It acknowledged that many other factual or legal situations might arise, but expressed confidence that the Court would address each such situation as it emerged. Consequently, the Court rejected any contention that the matter should be dismissed on the ground of inconvenience. Turning to the principal contentions raised by counsel for the respondent, the Court summarized the argument as follows: the Sales‑tax Officer possessed the authority to interpret the provisions of the Act, whether the interpretation was correct or not, and that the Act itself was a valid piece of legislation. Furthermore, even if the Officer had misinterpreted a provision and consequently imposed a tax that, under a correct construction, could not be levied, the order would nevertheless not constitute a violation of the petitioner’s fundamental right. The Court noted that this line of reasoning effectively equated the constitutional guarantee of a citizen under Article 32 with the prerogative writs available in England—such as certiorari, prohibition and mandamus—issued against the orders of inferior tribunals or authorities. It observed that this comparison blurred the distinction between the substantive fundamental right codified in Article 32 and the procedural mechanisms that the Supreme Court may employ in different cases. The Court emphasized that the two questions are approached differently, and that the scope of Article 32 is far broader than the narrow procedural limits that govern English prerogative writs.

The Court explained that the jurisdiction conferred on the Supreme Court by Article 32 is expressed in comprehensive language and, as previously noted, extends to the widest possible amplitude. It is not confined solely to the issuance of prerogative writs; rather, the Supreme Court possesses the power to issue directions or orders necessary to enforce a fundamental right. Even when the Court chooses to issue writs such as certiorari, prohibition or mandamus, it is not bound by the procedural technicalities that govern those writs in English law, and it may grant relief in situations where the traditional writs would not ordinarily apply. The Court held that the limitations applicable to English prerogative writs do not restrict the authority of the Supreme Court under Article 32. For a writ of certiorari to lie against a tribunal, the tribunal must have acted without jurisdiction, exceeded the jurisdiction granted to it, or committed an error of law evident on the face of the record. Similar constraints apply to writs of prohibition and mandamus. In discussing the concept of “jurisdiction,” the Court observed that it may be territorial, pecuniary or personal, and that a tribunal may suffer from an inherent lack of jurisdiction or may exercise its jurisdiction irregularly. A tribunal might be empowered to determine collateral facts that are necessary to establish its jurisdiction, or it might have exclusive authority to decide those facts. The Court referred to Halsbury’s Laws of England (3rd edition, volume III) for an elaboration of the scope of the powers of mandamus, prohibition and certiorari.

The Court quoted a passage from page 59 of the referenced text, which observed that the main purpose of the three prerogative orders was to prevent any excess of jurisdiction in the case of prohibition and certiorari, and to ensure the proper exercise of jurisdiction in the case of mandamus. The passage explained that the jurisdiction of lower tribunals could depend on the satisfaction of a condition precedent, such as giving notice, or on the existence of a particular fact. Such a fact was described as collateral to the main issue that the tribunal had to determine, and the decision on whether the collateral fact existed was logically and temporally prior to the tribunal’s decision on the substantive question. The passage further stated that the tribunal itself had to decide the collateral fact. When a challenge to the tribunal’s jurisdiction was raised at the start of an inquiry, the tribunal had to decide whether it would proceed, which required it to first determine whether it possessed jurisdiction.

The quoted text continued by noting that some tribunals, by virtue of the statutes that created them, possessed the power to finally determine the preliminary facts on which the further exercise of their jurisdiction depended. However, subject to that statutory authority, a lower tribunal could not, by an erroneous decision on a collateral fact, create a jurisdiction it did not have, nor could it deprive itself of a jurisdiction it otherwise possessed. The Court interpreted this passage to mean that while a tribunal might need to decide collateral facts in order to exercise its jurisdiction, it could not overreach its jurisdiction unless the relevant statute expressly granted it exclusive authority to do so.

The Court then observed that the doctrine of jurisdiction and its limitations was relevant to the issuance of prerogative writs that sought to set aside orders of tribunals made without jurisdiction or in excess of jurisdiction. Nevertheless, the Court emphasized that such doctrinal restrictions could not limit the Supreme Court’s power under Article 32 of the Constitution to enforce fundamental rights, because Article 32 authorized the Court to issue directions or orders free from those limitations. The Court further clarified that even within the narrow scope of the jurisdiction doctrine, it was incorrect to limit jurisdiction solely to an inherent lack of jurisdiction. A person who, within the narrow doctrinal limits, acted under an Act without authority would issue an order that was unquestionably without jurisdiction. Likewise, an authority that misinterpreted a statutory provision and attempted to exercise jurisdiction it did not possess could also be described as acting with an inherent lack of jurisdiction.

Finally, the Court acknowledged that many cases lay on a borderline between an inherent lack of jurisdiction and the exercise of an undisputed jurisdiction. In such borderline situations, an authority might have jurisdiction to decide certain disputes under an Act, but a mistaken construction of the Act’s provisions could lead it to make an order affecting a subject‑matter that, on correct interpretation, lay outside its jurisdiction.

On a correct interpretation the authority could not reach the subject matter. To illustrate the point, imagine a slight alteration of the facts in the present case. Suppose a provision of the Sales‑tax Act states that the sale of bidis is not taxable; the statute expressly prohibits taxation of bidis. Nevertheless, the Sales‑tax Officer, by misreading the provision, concludes that hand‑made bidis are taxable. A proper reading of the Act shows that it confers no power on the Sales‑tax Officer to levy tax on such bidis. In that circumstance, because of the erroneous construction of the statute, the Officer has exercised jurisdiction over a matter that, when correctly understood, lies outside his authority. In effect, he acts without jurisdiction when he taxes goods that the Act declares non‑taxable.

The test of jurisdiction also fails when an aggrieved person approaches this Court before the Sales‑tax authority has issued its final order. The authority may at most issue a notice warning of action under the Act; at that stage no tribunal has rendered a decision. If the recipient of the notice comes before this Court and alleges that the authority, under the colour of the Act, intends to violate his fundamental right, then, upon satisfaction that such a right is indeed infringed, this Court has a duty to enforce it. Some submit that when the Sales‑tax Act provides a machinery for testing the validity of a claim before tribunals, the aggrieved party must first use that machinery. That contention may be relevant to the question of whether a civil court’s jurisdiction is ousted by a special statutory mechanism, but it cannot affect the question of enforcement of fundamental rights, because no low can exclude the jurisdiction of this Court under Article 32 of the Constitution.

Similarly, the argument that a citizen who approaches this Court while proceedings before the Sales‑tax authorities are still pending is attempting to short‑circuit the statutory procedure has no bearing on the Court’s jurisdiction under Article 32. Such a claim may be regarded as an inconvenience, and this Court, as previously indicated, may simply adjourn the matter until the entire process is completed before the highest Sales‑tax authority. That inconvenience argument does not arise when a party comes to this Court after having exhausted all remedies available under the Act.

Consequently, I hold that the principles developed by English courts and adopted by Indian courts concerning prerogative writs cannot limit the Supreme Court’s unlimited power to issue orders and directions for the enforcement of fundamental rights. Moreover, in cases analogous to the illustration above, a prerogative writ may be issued for quashing the unlawful order.

The Court observed that a decree issued by a lower tribunal may be set aside, and, with even greater authority, a decree may be issued to enforce a fundamental right under Article thirty‑two of the Constitution. Even if that legal principle were to be mistaken, the matter before the Court still falls within the narrow scope of the rule that governs the issuance of a writ of certiorari.

In the decision of Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955 (1) SCR 1104 at page 1123), the Court articulated the reach of this power when it deals with an error of law. The Court stated: “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 of the record.” The Court further explained that the real difficulty lies not in stating the principle, but in applying it to the specific facts of a case. The Court asked when a simple mistake becomes an error that is apparent on the face of the record.

The learned counsel on both sides were unable to present a clear rule that would draw a line between a mere error and an error apparent on the face of the record. Counsel for the first respondent, Mr Pathak, relied on certain observations made by Chief Justice Chagla in Batuk K. Vyas v. Surat Municipality (1953 AIR (Bombay) 133), arguing that an error could not be said to be apparent on the face of the record unless it was self‑evident and did not require any further examination or argument to establish it. The Court noted that while this test might work in most cases, there could be situations where it would break down because judicial opinions differ; an error that one judge regards as self‑evident might not appear so to another.

The Court concluded that the concept of an error apparent on the face of the record cannot be precisely or exhaustively defined because its nature contains an element of indefiniteness. Consequently, the determination of whether an error meets that standard must be left to the judicial assessment of the facts of each individual case.

The Court reiterated that whether an error of law is apparent on the face of the record can be decided only by looking at the particular facts of the case. As the Court previously observed, an error that one judge might consider self‑evident may not be regarded in the same way by another judge, and except in rare circumstances, arguments can be made on both sides of the issue. Therefore, the Court declined to impose any additional criterion beyond what has already been accepted, namely that the question must be decided judicially based on the facts of each case.

Applying this principle to the present matter, the Court found that the wording of the notification clearly reveals an error of law on the face of the order issued by the tribunals. If that error is corrected, as the Court intends to do, the result will be that the sales‑tax tribunals had imposed a tax on the sales transactions of biris without possessing the authority to do so.

In the matter before the Court, the tribunals had imposed a tax on the sales of biris even though they possessed no authority to levy such a tax. The imposition therefore constituted a direct violation of the petitioners’ fundamental right to carry on the biris business. The Court then examined its own earlier decisions to determine whether any of those cases had applied the principle of jurisdiction when enforcing a citizen’s fundamental right. One earlier case involved section 11 of the Bihar Buildings (Lease, Rent and Eviction) Control Act, 1947, which conferred on the Controller the power to decide whether rent had been unpaid and, upon finding non‑payment, to order the tenant’s eviction. In Rai Brij Raj Krishan v. S.K. Shaw and Brother (1951 SCR 145), the Court held that even if the Controller erred in deciding the existence of non‑payment, his eviction order could not be challenged in a civil court. That ruling was confined to the question of whether a special tribunal’s jurisdiction ousted the civil court’s jurisdiction and did not address the scope of the Court’s power to enforce a fundamental right. The Court further considered the case of Messrs Mohanlal Hargovind Das Biri Merchants Jabalpur v. State of Madhya Pradesh (1955 (2) SCR 509). In that matter, the Madhya Pradesh sales‑tax authorities, based on an erroneous view, treated the petitioners’ transactions as intra‑State sales and required the filing of a return for tobacco purchases. Upon reviewing the facts correctly, the Court concluded that the transactions were inter‑State in nature and consequently upheld the petitioners’ fundamental right. Although the sales‑tax authorities never formally declared the transactions intra‑State, the notice issued on that basis did not prevent the Court from reaching a different conclusion and protecting the petitioners’ right. A similar reasoning was applied in Messrs Ram Narain Sons Ltd. v. Assistant Commissioner of Sale‑tax (1955 (2) SCR 483), where the authorities had classified the petitioners’ turnover, including sales proceeds, as intra‑State. The Court, after re‑examining the nature of the transactions, held that they were not intra‑State sales but were part of inter‑State trade and commerce, and therefore enforced the petitioners’ fundamental right. Finally, in J.V. Gokul & Co. v. Assistant Collector of Sale‑tax (1960 (2) SCR 852), the Court reversed the Sales‑tax Officer’s finding that the sales were intra‑State, determining that they were made in the course of inter‑State trade, and again upheld the fundamental rights of the petitioners.

In the earlier case concerning import, the Court observed that the first decision could not be relied upon because the Sales‑tax Officer had not issued an order on the merits of the dispute. In the two subsequent decisions, however, the Sales‑tax Officer, while exercising the authority vested in him, examined the material before him and concluded that the transactions constituted intra‑State sales. On reconsideration of the same factual matrix, this Court held that the sales were in fact inter‑State or “outside” sales. The Court explained that the point at which jurisdiction is determined fails in these situations, since the Sales‑tax Officer possesses an inherent power to decide whether a particular sale is an inside sale or an outside sale. Some counsel attempted to separate these cases by arguing that, because the Officer had adopted an erroneous view of the transactions, he had contravened Article 286 of the Constitution and therefore lacked any inherent authority to impose the tax. The Court found no merit in that argument. It held that the Officer was fully empowered, under the relevant Sales‑tax Act, to determine whether a transaction is an inside or an outside sale, and that he could reach either a correct or an incorrect conclusion. Even if his finding was wrong, the tax could not be said to be exempted. The Court further observed that, had the Officer arrived at the correct conclusion on the facts, he would have been without power to levy tax on an inter‑State sale under the Act; moreover, imposing tax in that circumstance would itself have violated Article 286 of the Constitution.

The Court noted that the lack of jurisdiction or the absence of power in one situation stemmed from a statutory limitation, while in the other it arose from a constitutional prohibition. Nevertheless, the Court emphasized that this distinction does not support a different application of the jurisdictional test, because in each case the error originated from a mistaken finding of fact. The Court then referred to its earlier judgment in Kailash Nath v. State of U.P. (1957 AIR (SC) 790) as another example where it had upheld a petitioner’s fundamental right by adopting an interpretation of the Sales‑tax Act that diverged from the view of the Sales‑tax authority. In that case, as in the present matter, the dispute turned on the meaning of a notification issued under section 3 of the Sales‑tax Act, which exempted certain goods from tax. It was suggested that the Court’s position was based on prior decisions in which fundamental rights were protected because the challenged provisions imposing tax were held to be ultra vires. The objection raised before the Court in that earlier case was that a citizen could not invoke Article 32 of the Constitution against an illegal tax, but must instead seek relief under ordinary law or under Article 226 of the Constitution. The Court rejected that objection, relying on the cited precedents. Finally, the Court observed that the specific test of jurisdiction now being urged was not directly raised in the earlier case, and therefore could not be applied as a decisive factor.

It cannot be said that the Court erred by relying on decisions that were unrelated to the issue before it. The discussion demonstrates that the Court reached its conclusion because it perceived a clear infringement of a fundamental right resulting from an incorrect interpretation of the notification. The Court then turned to examine the authorities that had been alleged to depart from the view expressed in the earlier case. In the case of Gulabdas & Co. v. Assistant Collector of Customs, reported in 1957 AIR (SC) 733 and 736, the petitioners were established importers who possessed quota rights for bringing in stationery articles and whose business premises were located in Calcutta. They held a licence for a period of twelve months that authorised them to import goods described 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 listed “Crayons” as the description of the goods. Relying on their licence, the petitioners imported crayons of the brand “Lyra”. The Assistant Collector of Customs, instead of assessing duty on those crayons under item 45(A) of the Indian Customs Tariff, levied duty under item 45(4). The Central Board of Revenue affirmed this assessment on appeal. One of the contentions raised was that the Customs authorities had imposed a duty that was heavier than what the relevant provisions permitted. The Supreme Court held that no question of a fundamental right arose in this matter. In its reasoning the Court observed that when a provision of law underlying an impugned order is a valid provision and the order is issued within jurisdiction, the existence of a right‑infringement question does not arise even if the order is factually or substantively wrong. The appropriate remedy for a party aggrieved by such an order is an appeal. The Court further noted that if a party is dissatisfied with the decision of the Central Board of Revenue, it may seek revision from the Central Government. The contention that the orders were erroneous on their merits did not, in the Court’s view, amount to a violation of any fundamental right under Article 19 of the Constitution. Accordingly, the Court accepted the finding of the Customs authorities that the petitioners were liable to pay the duty assessed, and therefore concluded that no fundamental right was implicated.

The Court also considered whether the observations in Gulabdas might be read to mean that the Customs order was binding upon the Court. It found such an interpretation difficult to accept. While the Court may ordinarily accept the factual findings of administrative tribunals, it is a different proposition to hold that those findings are binding on the Court, irrespective of any error or injustice. The Court did not intend to declare that the findings of administrative tribunals have a binding effect on its own judgments.

Similarly, in Bhatnagars & Co. Ltd. v. The Union of India, reported in 1957 SCR 701 and 712, the Court accepted the factual findings recorded by the relevant Customs authorities. The Court observed that the petitioner’s grievance was directed against the conclusions of fact reached by those authorities. If those conclusions could not be challenged in the present writ petition, the petitioner would not be entitled to the relief claimed. The Customs authorities had concluded that, although the licences were obtained in the petitioner’s name, the petitioner had been trafficking in those licences, that the consignments had been ordered by another individual who possessed no licence for the import of soda ash, and that the consignments received by that individual were therefore liable to be confiscated. The Court treated this conclusion as a factual finding, accepted it as correct, and consequently held that no question of a fundamental right arose.

In the matter of Co. Ltd. v. The Union of India (1957 SCR 701, 712) the Court accepted the factual findings recorded by the Customs authorities and stated that the petitioner’s grievance concerned only the conclusions of fact reached by those authorities. The Court explained that if those conclusions could not be challenged in the present writ petition, the petitioner could not obtain the relief he claimed. The Customs authorities had found that, although the licences had been obtained in the petitioner’s name, the petitioner was trafficking in those licences; that the consignments had been ordered by another individual who did not possess a licence for the import of soda ash; and that, consequently, the consignments received by that individual were liable to be confiscated. The Court characterised this determination as a pure question of fact, held the finding to be correct, and therefore concluded that no issue of a fundamental right arose from it. The decision in The Parbhani Transport Co‑operative Society Ltd. v. The Regional Transport Authority, Aurangabad (1960 (3) SCR 177, 183) dealt with the petitioner’s alleged fundamental right to continue the business of operating motor‑bus stage carriages. The State had applied for permits for all the routes under Chapter IV of the Motor Vehicles Act, 1939, as amended by Act 100 of 1956, and the petitioner had applied for renewal of its own permit. The Regional Transport Authority rejected the petitioner’s application and granted the permit to the State. One of the petitioner’s contentions was that this denial infringed Article 14 of the Constitution. The Court held that, on the facts, the Authority had found no discrimination. Addressing the petitioner's contention, the Court observed: “This contention is in our view clearly untenable. The decision of respondent No 1 may have been right or wrong and we say nothing on that point, but we cannot see that the decision offends Article 14 or any other fundamental right of the petitioner. Respondent No 1 was acting as a quasi‑judicial body and, if it erred, appropriate remedies are available to the petitioner for relief. The petitioner cannot complain of a breach of Article 14.” Thus, the Court refused to interfere with the tribunal’s factual findings and reiterated that, so long as those findings remain, no question of a fundamental right arises. The Court further noted that the decision in A. V. Venkateswaran, Collector of Customs Bombay v. Ramchand Sobhraj Wadhwani (1962 (1) SCR 753) offered no assistance because it was rendered under Article 226 of the Constitution. Finally, in Aniyoth Kunhamina Umma v. The Ministry of Rehabilitation, Government of India, New Delhi (1962 (1) SCR 505), the petitioner had filed a writ petition seeking enforcement of a fundamental right on the ground that the property in question was not evacuee property, a matter that had been decided by the authorities under the relevant Act.

In the matter of Aniyoth Kunhamina Umma, the petitioner alleged that the property in question was not an evacuee property. The authorities, invoking the relevant Act, had decided that the property was in fact an evacuee property, and the petitioner pursued the issue before the appellate tribunals without success. When the petition was dismissed on the ground that the petitioner had no fundamental right, the Court made several observations. It noted that section 28 of the Act could not prejudice the jurisdiction of the High Court under Articles 226 and 227 of the Constitution or the jurisdiction of this Court under Articles 136 and 32. However, the Court explained that if a competent authority had already decided that the right claimed by the petitioner did not exist, it was difficult to see how an infringement of that right could become a ground for a petition under Article 32, unless the authority’s decision was a nullity or could be otherwise set aside. As long as that decision remained in force, the petitioner could not allege any infringement of a fundamental right. The Court reiterated that the petitioner’s alleged fundamental right depended on whether Kunhi Moosa Haji was an evacuee and whether his property was an evacuee property. If the determinations of the appropriate authorities on those questions had become final and could not be treated as a nullity, the petitioner could not complain of any infringement of her fundamental rights under Articles 19(1)(f) and 31 of the Constitution.

The judgment concluded by stating that the decision was based on the fact that the competent authorities under the Act had reached a certain conclusion, which had now become final because the petitioner had not challenged that conclusion in an appropriate court through a proper proceeding. As long as that decision stood, the petitioner could not claim an infringement of a fundamental right because she possessed no such right. The Court observed that the tribunals, on the facts, had found the property to be an evacuee property, and if that finding was accepted, no question of a fundamental right arose. It was noted that this Court had accepted that finding on the ground that it had become final and that the petitioner had not contested the correctness of that decision in a proper court. While the Court usually accepts the factual findings of tribunals, it warned that if a judgment were to hold that under no circumstances could this Court interfere with an administrative tribunal’s findings even where a clear infringement of a fundamental right existed, such a position would amount to an abdication of its jurisdiction in favour of administrative tribunals. The Court also mentioned that the decision in Madan Lal Arora v. The Excise & Taxation Officer, Amritsar (1962 (1) SCR 823) did not further alter this principle, where the petitioner was a dealer registered under the Punjab General Sales Tax Act.

In that case the Sales Tax authority issued a series of notices to the petitioner, the final notice warning that if the required documents were not produced by a specified date the assessment would be made on the basis of a “best judgment” determination. The petitioner argued, relying on section 11 of the Punjab General Sales Tax Act, that at the time the last notice was issued the authority no longer possessed the power to make a best‑judgment assessment because the three‑year period within which such an assessment could be undertaken had already elapsed. The Court adopted the petitioner’s construction of the statutory provision, held that the authority could not lawfully assess the petitioner, and consequently enforced the petitioner’s fundamental right. Although the Sales Tax authority possessed the jurisdiction to interpret section 11 and to decide whether the assessment could be made within the permissible time, the Court nevertheless protected the petitioner’s fundamental right. The Court observed that it is unnecessary to multiply decisions on the point, for a careful reading of the cited authorities reveals a single unifying principle: a citizen enjoys a guaranteed procedural right under Article 32 of the Constitution, and the Court has a duty to enforce that right when it is shown that the State has infringed it. The Court has approached this question from various angles, tailoring its analysis to the factual matrix of each case, but whenever a fundamental right has been violated by an officer acting under an ultra‑violet or unconstitutional provision, or by an authority exercising power without jurisdiction, the Court has invariably provided relief. Likewise, the Court has granted relief under Article 32 whenever a statutory body has infringed a petitioner’s fundamental right by misinterpreting the provision under which it claimed to act. While the Court normally accepts the factual findings of tribunals and, on that basis, may conclude that no fundamental right was breached, the Court does not see any of those decisions as limiting the breadth of the jurisdiction conferred by Article 32 or the citizen’s guaranteed right under the ancillary article. One of the interveners, counsel for an intervenor, raised a broader issue, contending that relief under Article 32 cannot be granted against an authority exercising judicial power, and that the Sales Tax authorities are such judicial bodies. The intervenor’s argument proceeded as follows: under the Constitution, institutions may exercise legislative, executive or judicial functions, and sometimes the same institution may perform more than one of these functions.

The Court explained that an institution might be required to exercise one or more of the powers enumerated in the Constitution. Institutions that exercise legislative power are responsible for making laws. Institutions that exercise judicial power are responsible for deciding disputes that arise between private citizens, between a citizen and the State, or between two State entities. The Constitution permitted the conferment of judicial power on any institution or individual officer, whether that institution is a court or not, according to the procedure prescribed in the Constitution. With that background, the Court turned to Article 12 of the Constitution. The argument presented asserted that institutions exercising judicial power were excluded from the definition of “State” in Article 12. Article 32, according to the Court, empowered the Supreme Court to enforce a fundamental right only against the action of the State. Consequently, a fundamental right could not be enforced against an officer exercising judicial power because such an officer did not fall within the definition of “State” under Article 12. The Court observed that it was unnecessary to resolve two broader questions in the present case. The first question was whether a person could approach the Supreme Court to enforce a fundamental right on the ground that it had been infringed by a decision of a court of law. The second question was whether the right guaranteed by Article 19 could be enforced under Article 32 against the actions of a private individual. The Court confined its analysis to the narrower issue of whether a fundamental right could be enforced against the action of an administrative tribunal. The Court held that such enforcement was possible if the tribunal fell within the definition of “State” under Article 12.

The Court recalled its earlier finding that an administrative tribunal is not a court but an executive authority that functions under a statute and follows judicial‑like procedures. The tribunal was described as a department of the executive Government that exercises statutory functions affecting the rights of parties. Under Article 12, the term “State” had been defined to include the Government of India, the Parliament of India, the Government and the Legislature of each State, and all local and other authorities within the territory of India or under the control of the Government of India. The Court cited a decision of a Division Bench of the Madras High Court in University of Madras v. Shanta Bai (1954 AIR (Mad) 67, 68). That decision had interpreted the words “local or other authorities” in Article 12 as being ejusdem generis with “Government” and “Legislature”, meaning that they referred only to authorities exercising governmental functions. The decision further stated that natural or juristic persons who could not be regarded as instrumentalities of the Government were not included within those words. Applying that interpretation, the Court found that authorities created under the Sales‑Tax Act for the purpose of assessing tax were “other authorities” within the meaning of Article 12 because they performed governmental functions and were instrumentalities of the Government. However, the Court noted a contention that the drafters of the Constitution, having expressly included the Government and the Parliament in the definition, would have mentioned judicial institutions if they had intended to bring authorities exercising judicial functions within the definition. The Court acknowledged that this line of argument might be relevant when determining whether a court of law is included in the definition of “State”, but it was not directly relevant to the question of whether an administrative tribunal is included.

In addressing whether a court of law falls within the definition of “State” under the Constitution, the Court distinguished that issue from the question of an administrative tribunal’s status. An administrative tribunal is an executive authority and therefore clearly falls within the phrase “other authorities.” Accepting the counsel’s argument that the Government should be excluded when it performs quasi‑judicial functions would also require excluding Parliament when it exercises a similar function, which would add words not found in the constitutional provision. Consequently, the Court held that the definition of “State” does include administrative tribunals, even if it may or may not include courts. Accordingly, when an administrative tribunal, regarded as a “State,” issues an order that infringes a citizen’s fundamental right under Article 19, that order may be challenged and enforced under Article 32 of the Constitution.

The Court then set out the legal position as follows: first, every citizen possesses the fundamental right to carry on a bidi business under Article 19(1). Second, the State may impose reasonable restrictions on that right, a fact acknowledged with respect to the Uttar Pradesh Sales Tax Act. Third, the sales‑tax authorities created by that Act may issue orders that unlawfully curtail the right. Fourth, such an order may be illegal because the authority acted without jurisdiction—either because it was not properly constituted under the Act or because it inherently lacked jurisdiction—or because it misinterpreted the Act’s provisions, reached erroneous factual conclusions, or drew improper inferences. Fifth, the Act cannot by express terms or necessary implication bar the Supreme Court from examining the correctness of an order that affects a fundamental right. Sixth, an aggrieved party may approach the Supreme Court at any stage: before the sales‑tax authority decides, after the authority decides, while an appeal is pending before an appellate tribunal, or after exhausting all statutory remedies. Seventh, irrespective of the stage at which the Court is approached, it may, at its discretion, decide jurisdictional or purely legal questions and enforce the right without awaiting the completion of the statutory procedure; however, if factual or mixed questions of fact and law arise, the Court may either allow the petitioner to re‑file after exhausting remedies, or, if the petitioner declines, adjourn the petition until those remedies are exhausted.

When all the remedies provided under the statute have been exhausted, the Court considered the situation in which a petitioner’s fundamental right relies on factual findings made by administrative tribunals exercising powers granted to them by the Act. In such circumstances, the Court stated that it may, at its discretion, ordinarily accept those tribunal findings and dispose of the petition on the basis of those findings. The Court emphasized that following this procedure preserves the jurisdiction envisioned by the Constitution and safeguards the guaranteed rights of the citizens, while at the same time allowing the administrative tribunals created under the Act to continue functioning smoothly. Conversely, the Court warned that if the alternative view were adopted, the Court would be abdicating its jurisdiction and would be handing it over to the administrative tribunals, which in a welfare State exercise control over virtually every aspect of human activity and are therefore in a position to potentially infringe the fundamental rights guaranteed to the citizens. The Court expressed a preference for the pragmatic approach rather than one based on abstract concepts unrelated to the doctrine of fundamental rights. Accordingly, the Court held that in the present case, if the Sales‑tax officer, by wrongly construing the provisions of the Act, issued an illegal order that imposed a tax on the petitioner’s fundamental right, that order must be set aside. The next issue for determination was whether the Sales‑tax officer had indeed mis‑interpreted the notification issued by the Government under section 4(1)(a) of the Act. Section 4(1) of the Act states: “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 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.” The Court then reproduced the notification dated 14 December 1957 that had been issued under the said section. The notification read: “In partial modification of notifications No. ST‑905/X, dated 31 March 1956 and ST‑418/X 902 (9)‑52, dated 31 January 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 to date, the Governor of Uttar Pradesh is pleased to order that no tax shall be payable under the aforesaid Act with effect from 14 December 1957 by the dealers in respect of the following classes of goods, provided that the Additional Central Excise Duties leviable thereon from the close of business on 13 December 1957 have been paid on such goods and that the dealers thereof furnish proof of satisfaction of the assessing authority that such duties have been paid. (1) … (2) … (3) Cigars,” thereby setting out the specific categories of goods that were exempted from tax under the conditions stated.

In the passage under consideration, the text defined “cigarettes, biris and tobacco” to mean any form of tobacco, whether it was cured or uncured, whether it had been manufactured or not, and explicitly included the leaf, stalks and stems of the tobacco plant. The definition expressly excluded any part of a tobacco plant that was still attached to the earth.

The record showed that there was no dispute about several factual matters. The first undisputed fact was that, when certain commodities were sold across State boundaries, the imposition of sales‑tax by the various States created considerable difficulties. To remove those difficulties, the Central Government and the concerned State Governments entered into an arrangement. Under that arrangement each State consented to an increase in the excise duty payable under the Central Act on specified commodities, and in return the Central Government agreed to collect the enhanced excise duty on those commodities and to distribute the additional revenue among the States in accordance with the principles of distribution recommended by the Finance Commission.

To give effect to the arrangement, Parliament enacted the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act No. 58 of 1957) on 24 December 1957. The long title of the Act indicated that it was intended to provide for the levy and collection of additional duties of excise on certain goods and for the distribution of a portion of the net proceeds among the States in line with the Finance Commission’s recommendations.

Before the amendment, the Central Act imposed an excise duty on tobacco used for a variety of purposes, including machine‑made bidis, but it did not impose any excise duty on hand‑made bidis. Consequently, when the Act was amended, the additional duty could be charged only on tobacco products that were already liable to excise duty under the original Act. As a result, the enhanced tax was imposed on the tobacco that went into the manufacture of hand‑made bidis, while no additional tax was levied on the hand‑made bidis themselves.

Against this background the Court examined the notification issued under Section 4(1) of the Act. There was a limited controversy as to whether the notification had been issued under clause (a) or clause (b) of Section 4(1). The Court resolved not to be delayed by that question and proceeded on the assumption that the notification was made under Section 4(1)(b). The notification listed certain goods that were to be exempted conditionally. The goods specified were bidis—both hand‑made and machine‑made—and the tobacco that was used in making bidis.

The first part of the notification provided that the aforesaid bidis and the tobacco used for them were exempted from the liability to pay sales‑tax effective from 14 December 1957. However, the exemption was subject to a condition. The condition required that the additional central excise duties that were payable on those bidis and that tobacco, as of the close of business on 13 December 1957, must have been paid. In simple terms, the notification exempted the bidis and the tobacco from sales‑tax provided that the applicable excise duties had already been paid during the relevant period.

Under the amended Act, no excise duty was leviable on hand‑made bidis. Consequently, the condition attached to the exemption could not apply to hand‑made bidis, because it required payment of an excise duty that did not exist for those goods. Therefore, hand‑made bidis were automatically exempted from sales‑tax under the notification. The condition did apply to machine‑made bidis, for which an excise duty was payable, and it also applied to the tobacco that was used in making hand‑made bidis, because that tobacco was subject to the additional duty. The record showed that the appellant had indeed paid the additional excise duty on the tobacco used for hand‑made bidis.

On a plain reading of the wording of the notification, the Court concluded that hand‑made bidis were exempted from sales‑tax under the Act. The exemption was further justified by the fact that merchants dealing in hand‑made bidis were not able to bear the burden of an additional tax that the statute did not impose on those goods.

In this case the Court examined the effect of the notification that related to bidis and tobacco. The notification distinguished between hand‑made and machine‑made bidis, noting that no excise duty was payable on hand‑made bidis whereas machine‑made bidis attracted excise duty. Because the condition attached to the exemption required payment of any additional excise duty that was leviable on the goods, the condition could not apply to hand‑made bidis, since no excise duty was legally chargeable on them. Consequently, hand‑made bidis fell squarely within the exemption granted by the notification. Assuming that the notification was intended to apply only to goods on which additional excise duty was payable, the requirement that such duty be paid on the tobacco used to manufacture hand‑made bidis also formed part of the exemption condition. The appellant had indeed paid the additional excise duty on the relevant tobacco, and therefore, on a plain reading of the notification’s wording, hand‑made bidis were exempt from sales tax under the Act. The Court also observed that there was a clear justification for this exemption: merchants dealing in hand‑made bidis could not compete with producers of machine‑made bidis, and before the amending Act, excise duty was imposed mainly on machine‑made bidis to protect the former class of businessmen. In those circumstances it was reasonable to conclude that the State Government, by means of the amending Act, did not intend to levy sales tax on hand‑made bidis, even though additional excise duty was imposed on the tobacco from which those bidis were produced. The overall scheme of protecting one category from unfair competition would be defeated if the Central Government could continue to levy excise on the tobacco while the State imposed sales tax on the hand‑made bidis. The State’s intention was made explicit by a later notification dated 14 December 1957, which exempted hand‑made bidis from sales tax without any condition. Accordingly, the Court held that, on a fair reading, sales of hand‑made bidis were exempt from tax under the Act. The order therefore directed that no sales‑tax be recovered from the petitioner on the basis of the order dated 20 December 1958, and the petitioner was awarded costs. Turning to Civil Appeal No. 572 of 1960, that appeal had been dismissed for non‑prosecution by an order of this Court dated 20 February 1961. The assessee firm sought restoration of the appeal on the ground that it had not pursued the appeal because of the decision in Kailash Nath v. State of Uttar Pradesh (1957 AIR SC 790). Since that decision remains good law, the Court found that the firm’s ground was unavailable and dismissed the application for restoration, also imposing costs.

The Court noted that the factual background had been comprehensively recorded in the earlier order of Justice Venkatarama Aiyar, and therefore it was not necessary to repeat those details at length. The petitioner was identified as a partner in a partnership that manufactured bidis and was registered under the Uttar Pradesh Sales Tax Act. The State Government had, under a scheme which imposed certain additional Central Excise duties on specific categories of goods through special statutes and then distributed the proceeds among the States, issued a notification on 14 December 1957. That notification provided that bidis would be exempt from sales tax under the Uttar Pradesh Sales Tax Act, but only on the condition that the additional excise duties prescribed by the scheme were paid. Subsequently, a second notification dated 25 November 1958 declared that, from 1 July 1958, all bidis—whether produced by machine or by hand—would be exempt from sales tax without any condition attached. The dispute before this Court concerned the period of the quarter ending on 30 June 1958, during which the petitioner’s firm claimed that it was entitled to the exemption. The claim was rejected on the ground that the firm had not paid the additional excise duty on bidis. The firm appealed the decision, but the appeal was dismissed. Although the Sales Tax Act allowed a revision of the order, the firm chose not to file such a revision. Instead, it instituted a petition under Article 226 of the Constitution in the Allahabad High Court. That petition was also dismissed because the Court observed that the firm had alternative remedies available under the Sales Tax Act which it had not pursued. Nevertheless, the High Court issued a certificate, and the firm then filed an appeal before this Court.

The petitioner, identified as Ujjambai, subsequently filed a petition under Article 32 of the Constitution seeking the same reliefs. After obtaining a rule in that petition, the firm failed to prosecute the appeal and the appeal was dismissed. In the present petition, the petitioner sought a writ of certiorari to set aside the order of the Sales Tax Officer and also sought a writ of mandamus directing the Department not to levy the tax. Anticipating the argument that the remedy under Article 32 might be misplaced, the firm also applied for the revival of the earlier appeal, an application that the Court indicated it would consider later. The primary issue for determination was whether the exemption provided by the 14 December 1957 notification, which made the exemption conditional upon payment of the additional excise duty, applied to the petitioner for the quarter ending 30 June 1958. Resolving that issue required an analysis of the precise wording of the notification, the schedule of articles on which the additional excise duty was payable, and whether the firm had, in fact, paid such duty. Beyond that, the case raised a preliminary question of law: whether a petition under Article 32 could be entertained when the petitioner alleged a violation of fundamental rights not because the tax was imposed under an unconstitutional statute, but because the administrative authority was alleged to have misinterpreted provisions of a valid law. The petitioner asserted that she had paid the additional duty, thereby supporting her claim of entitlement to exemption.

In this matter the petitioner argued that excise duty had been paid on tobacco that was used in the manufacture of bidis, and that the term “tobacco” was employed in a comprehensive manner in both the Central Excise and Salt Act of 1944 and in Act No. 58 of 1957, so that bidis should fall within the exemption granted by the relevant notification. The Sales Tax Officer rejected the petitioner's claim, stating that the exemption contemplated in the notification was available only to dealers who had paid the additional central excise duties that became payable on the goods after the business closed on 13 December 1957. The officer observed that the assessee had not paid any such excise duties and therefore the sales of bidis by the assessee remained liable to sales tax.

The question of whether any provision had been mis‑constructed could, according to the officer, be examined through the normal channels of revision, a reference to the High Court on a point of law arising from the final order, or ultimately by an appeal to this Court under Article 136 with special leave. Nonetheless, the petitioner maintained that a petition under Article 32 of the Constitution was appropriate because a wrongful construction of a legal provision had led to the demand of a tax that was not due. The petitioner contended that such a demand amounted to an unlawful deprivation of property and also restricted her constitutional right to carry on trade or business. Accordingly, she pleaded that the breach of fundamental rights arose under Article 31(1) and Article 19(1)(g), first due to the erroneous interpretation and second because of the resulting imposition of a tax that should not have been levied. The respondents opposed this view, arguing that a breach of fundamental rights could not be said to exist when the authorities acted under a valid law, even if they erred in interpreting a provision, provided they possessed the jurisdiction to act and observed the principles of natural justice. They asserted that any such error should be corrected by the ordinary processes of appeal or revision, not by a direct approach to the Supreme Court under Article 32. Both parties cited earlier decisions in which petitions under Article 32 had been entertained or dismissed by this Court, noting that in some cases the substantive question was examined, while in others it was not raised because no objection was made. The authorities highlighted an apparent conflict illustrated by the decision in Kailash Nath v. State of U.P. (1957 AIR SC 790), where it was held that a taxpayer’s fundamental rights were imperiled when an exemption was wrongly denied following a mis‑construction of a notification under section 4 of the Uttar Pradesh Sales Tax Act, and the Court indicated that the remedy under Article 32 was available. Justice Govinda Menon remarked that if a tax is imposed without proper legal authority on any trade or business, the aggrieved citizen may approach the Supreme Court for a writ under Article 32 because his right to carry on trade is infringed.

In this case, the Court observed that when the imposition of a tax interferes with a citizen’s right to carry on a trade, the protection afforded by Article 19 (1)(g) of the Constitution becomes relevant. This observation was originally drawn from the decision in Kailash Nath v. State of U.P., where it was held that a taxpayer whose fundamental right to conduct business is jeopardised may invoke the remedy of Article 32. The Court noted that the proposition was said to be based on the earlier Bengal Immunity Company case, but a careful reading of that decision revealed that it did not actually contain the proposition cited. In Bengal Immunity, the claim of exemption was premised on the argument that the sales in question were part of inter‑State trade and that the Bihar Sales Tax Act, which attempted to levy the tax, violated Article 286 (2) and was therefore unconstitutional. The Court further mentioned that the authority of the decision in Kailash Nath was later questioned in Tata Iron and Steel Co. Ltd. v. S. R. Sarkar, although the matter was left unresolved. The present bench has now been asked to consider this precise point of constitutional law. While the Court agrees with the interpretation of the notification given by Justice Kapur, it limits its present discussion to the constitutional issue raised, because the principles of Part III of the Constitution have been repeatedly outlined by this Court and need only a brief recapitulation before examining the scope of Article 32 in challenging actions of judicial, quasi‑judicial and administrative authorities.

The Court then turned to the broader constitutional framework, noting that the Constitution establishes a democratic system in which legislative, judicial and executive functions are distinctly divided. Because the Constitution is federal in character, there is a further allocation of powers between the Union and the States, a division that also applies within the three branches of the State. To implement this structure, legislative authority is enumerated in Part XI, taxation powers are detailed in Part XII, and specific provisions concerning trade, commerce and intercourse throughout India are contained in Part XIII. In addition to these parts, the Constitution contains numerous other articles that stipulate that certain actions may be taken only by laws that have been validly enacted by Parliament or the State legislatures. While it is impractical to list every such article, the essential principle is clear: whenever the Constitution requires a matter to be done under the authority of law, no action can be justified unless the legality of that action is backed by a law duly made. This outlines the general pattern by which legislative and executive powers are conferred by the people. The people, however, regard certain rights as supreme because they guarantee personal liberty in private life, social interaction, participation in governance and other spheres. These rights, which the people entrusted to the three limbs of government, form the core of the constitutional scheme.

In exercising their legislative and executive power, the people who established the three branches of government simultaneously reserved certain rights for citizens and, at times, for non‑citizens, making those rights inviolable except under specified conditions. Those reserved rights were placed in Part III of the Constitution, which bears the heading “Fundamental Rights.” The Constitution also set out the circumstances in which those rights could be limited, namely only by a law that serves a public interest or achieves a public purpose. This limitation framework was distinct from the Directive Principles of State Policy, which articulate the policy objectives and general pattern for state action to transform India from a condition of poverty, disease, inequality and prejudice into a welfare state. Unlike the Directive Principles, the Directive Principles are not enforceable by courts, whereas any violation of a fundamental right gives the aggrieved person a cause of action. Consequently, the Constitution required that the first step toward any state action be the enactment of a constitutionally valid law; no arbitrary or capricious measure affecting the rights of individuals could be tolerated if it lacked such legal support. Even the legislature was bound by the limits set in the Chapter on Fundamental Rights, which forbade any infringement of those rights except either absolutely or when the action was justified by an emergency or an overriding public interest. Likewise, the executive could not affect fundamental rights unless a valid law expressly authorised such action. To protect these rights, the Constitution empowered the High Courts, under Article 226, to exercise their general jurisdiction, and the Supreme Court, under Article 32, to entertain petitions concerning breaches of fundamental rights. Article 32, being part of the chapter on Fundamental Rights, expressly guarantees the remedy of approaching the Supreme Court whenever a fundamental right is infringed, and it further recognizes that the very right to move the Supreme Court constitutes a fundamental right. The Court has repeatedly affirmed this protective role. In Romesh Thappar’s case (1950 SCR 594, 596‑97) the Court declared itself the guardian and guarantor of fundamental rights. In Rashid Ahmed v. Municipal Board, Kairana (1950 SCR 566) it held that the powers under Article 32 extend beyond merely issuing prerogative writs. In A. K. Gopalan’s case (1950 SCR 88) the Court described fundamental rights as the residue of powers surrendered by the people and retained for themselves. Finally, in Champakam Doraijan’s case (1961 (3) SCR 525, 531) the Court emphasized that fundamental rights are sacrosanct and may be abridged only to the extent permitted by the specific provisions of Part III.

The Constitution permits the enactment of statutes that may escape judicial scrutiny, as illustrated by provisions such as Article 329, which allow certain laws to be made without a challenge in the courts; nevertheless, additional questions can arise concerning the operation of those statutes. Consequently, the judgment limits its discussion to those statutes and factual contexts that are undoubtedly touched by the Chapter on Fundamental Rights. The violation of fundamental rights can occur in several ways. One mode of infringement is a direct conflict between a statute and the rights expressly guaranteed by the Constitution. A second mode arises when executive action proceeds without the support of any valid law, or in spite of existing legal provisions. Both categories of infringement are recorded in the reported decisions. For example, in the case of K. T. Moopil Nair (1961 (3) SCR 77), a tax statute was found to be discriminatory and unreasonable because of the restraints it imposed, and the statute was struck down on the basis of Articles 14 and 19(1)(f) of the Constitution. Similarly, in the Tata Iron and Steel Co., Ltd. case (1961 (1) SCR 379), the prospect of imposing a tax twice on the same subject was held to offend fundamental rights, and in both of these matters Article 32 was successfully invoked. In the first category, the statutory provision itself is defective; when the law fails, any action taken under that law inevitably fails as well. In the second category, the statute remains valid, but the manner of its application by executive agencies renders the actions vulnerable to challenge. A statute can protect only those actions that fall within its own scope; it cannot protect actions that lie outside that scope. Accordingly, in Chintaman Rao (1950 SCR 759) a law was declared void because it arbitrarily and excessively infringed a fundamental right, and in Lachmandas Kewalram Ahuja v. State of Bombay (1952 SCR 710) section 12 of the Bombay Public Safety Measures Act, 1947 was held to be void after 26 January 1950 because it lacked any reasonable classification. The first of these cases was instituted as a petition under Article 32, whereas the latter originated as an appeal from the High Court on a certificate under Article 132; although the routes of approach differed, the applicability of Part III provisions was unaffected. Numerous other decisions illustrate the same principles, but these two examples suffice to convey the point. The conclusion is therefore unmistakable: the Court will intervene under Article 32 whenever a breach of fundamental rights is presented before it. This principle was reaffirmed in Romesh Thappar (1950 SCR 594, 596, 597), where the Court declared that it “cannot, consistently with the responsibility so laid upon it, refuse to entertain applications seeking protection against infringements of such rights,” even when such applications are filed directly in the Supreme Court without first approaching a High Court, and the American doctrine of exhausting alternative remedies was not adopted. In Himmatlal (1954 SCR 1122) the Court issued a writ prohibiting the assessment of a tax under an invalid law, despite the fact that no assessment had yet been initiated or even threatened.

In the case of K. K. Kochunni Moopil Nayar v. State of Madras (1959 (S2) SCR 316, 325), Chief Justice Das, after reviewing earlier judgments of this Court, laid down that even if the High Court may take into account the existence of another adequate legal remedy when deciding whether to issue a prerogative writ on an application under Article 226 of the Constitution, this Court cannot, on the same ground, decline to entertain a petition filed under Article 32, because the very right to move this Court by appropriate proceedings for the enforcement of the rights guaranteed by Part III of the Constitution is itself a guaranteed right. He further added that, if necessary, this Court may require that the material facts be proved by evidence. The view expressed by Chief Justice Das received further reinforcement from the recent observations of Justice Gajendragadkar in Daryao v. State of U.P. (1962 (1) SCR 574). Justice Gajendragadkar observed that when a writ petition filed in the High Court under Article 226 is dismissed not on the merits but on the ground of laches, because the party is deemed to have an alternative remedy, such dismissal does not constitute a bar to a subsequent petition under Article 32, except in cases where the facts found by the High Court are themselves relevant to the matter before this Court under Article 32. He then examined the issue of res judicata and held that the doctrine may apply in some cases where no appeal has been filed against the High Court order, but not in all situations. This must be so because a decision of the High Court that negates fundamental rights or finds a breach of those rights must be challenged by an appeal to a competent court in order to establish the rights or the breach. From these authorities it follows that the principle which bars a direct appeal to this Court without first pursuing intermediate steps cannot be extended to petitions under Article 32, since a party alleging a breach of fundamental rights is not required to resort to other forums for parallel relief. Of course, when a person makes an application under Article 32 he assumes the risk of either succeeding or failing on that narrow issue, and a finding of the High Court or a lower tribunal on any 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; consequently this Court cannot examine the case with the same breadth as it would in an appellate proceeding. Yet, if a party is prepared to bring the matter directly before this Court on that limited issue,

In the case at bar, the Court observed that a petitioner could not be directed to pursue alternative remedies before invoking Article 32. The Court warned that adopting a constrained interpretation of Article 32 might, in certain situations, allow the delay or expense associated with other remedies to defeat the enforcement of fundamental rights before those rights could even be asserted. Nevertheless, the Court clarified that this observation did not imply that other remedies were useless. The Court explained that the question presented for determination under Article 32 was narrowly defined, and that if the petitioner failed on that specific issue, all other relief would consequently fail as well. The Court further noted that in jurisdictions where Article 226 operates, or where appeals are filed under Articles 132 or 136, the courts are empowered not only to consider breaches of fundamental rights but also to entertain any other matters that the court may permit to be raised. Consequently, the Court held that a person who elects to invoke Article 32 could not be told that he must first approach another forum. The Court affirmed that the right to approach this Court was guaranteed, although the Court would consider the petition solely from the limited perspective of fundamental rights and not as an appellate review. While the scope of action under Article 32 was thus limited, the Court emphasized that the powers exercisable within that scope were extensive. The Court identified the five high prerogative writs—habeas corpus, mandamus, prohibition, quo warranto and certiorari—as sufficient to compel the State, as defined in Article 12, to obey the Constitution and the law whenever a breach of a fundamental right was established. The Court described mandamus as a flexible writ that had traditionally been employed to further justice and to remedy most administrative excesses. It then mentioned certiorati to set aside orders affecting fundamental rights, prohibitions to prevent the continuation of unlawful actions, quo warranto to challenge an unlawful assumption of office, and habeas corpus to secure personal liberty. The Court quoted Lord Atkin’s observation in Rex v. Electricity Commissioner, “[1924] 1 K.B. 171, 205,” that any body or persons exercising legal authority over subjects and exceeding that authority were subject to the jurisdiction of the King’s Bench Division exercised through these writs. The Court explained that the principle applied equally to other writs and to actions of administrative agencies that are executive or ministerial in nature. The Court asserted that the powers of the Supreme Court and the High Courts in India were no less than those of the King’s Bench Division, and that these superior courts possessed even broader authority to issue, in addition to the prerogative writs, directions, orders and other writs as appropriate. Finally, the Court pointed to 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),” to illustrate the wide ambit of the Court’s remedial jurisdiction.

The Court noted that the scope of the power was very wide. It referred back to the early decision in Basappa v. Nagappa (1955 (1) SCR 250, 256) where Mukherjee, had observed that, because the Constitution contained express provisions, there was no need to look to the early history or procedural technicalities of the writs in English law, nor to feel oppressed by any differences or changes of opinion expressed in particular English cases. Speaking about the writ of certiorari, the learned judge added that an order or a writ in the nature of certiorari could be made in every appropriate case and in an appropriate manner, provided that the broad and fundamental principles governing the grant of such writs in English law were respected. The Court expressed respectful concurrence with these observations and held that the same principles applied to the other prerogative writs as well.

According to the Court, these principles had become firmly established in the interpretation of Articles 32 and 226 of the Constitution. It explained that the difference between the two articles lay in two respects. First, Article 32 was available only for the enforcement of fundamental rights, whereas the High Courts could employ the power for other purposes – a power that Parliament could also confer on the Supreme Court by law, as provided in Article 139. Second, the right to move the Supreme Court was itself a guaranteed right under Article 32(1) and was not affected by the powers of the High Court under Article 226(2). The Court said that this summary of the interpretation of Article 32 was only part of the picture, because other constitutional provisions relating to the Supreme Court had to be considered, since the Court performed additional roles under the Constitution.

The Court then described those additional provisions. By Articles 133 and 134, the Supreme Court was made the final Court of appeal over the High Court in all civil and criminal matters, although the right of appeal arose only in certain classes of cases and subject to specified conditions. Under Articles 132 and 133(2), the Supreme Court was also the final Court of appeal over the High Court in all matters involving interpretation of the Constitution. Article 136 conferred on the Supreme Court the discretion to grant special leave to appeal to itself from any judgment, decree, determination, sentence or order issued by any court or tribunal in India. The Court emphasized that this power was overriding because Article 136 began with the words “notwithstanding any thing in this Chapter”. The only exemption to this power was for a court or tribunal constituted by, or ordered under, any law relating to the Armed Forces. The Court acknowledged that the Supreme Court possessed other jurisdictions, described as advisory and original, arising in special circumstances, but stated that those were not the subject of the present consideration.

In this case, the Court explained that the appellate jurisdiction of the Supreme Court placed it at the highest level of the civil and criminal judicial hierarchy. The Court noted that Articles 132, 133, 134 and 135 designated the Supreme Court as the final Court of appeal, but only for matters that had first been presented to the High Court in accordance with the procedural law applicable to those matters. Consequently, the Court observed that a party could not approach the Supreme Court directly under those articles; the proper route required a prior proceeding before the High Court, and the procedural steps could not be shortened or omitted. The Court then turned to Article 136, under which the Supreme Court possessed the power to grant special leave to appeal. It recalled that the Court had, in several earlier decisions, indicated that the discretion conferred by Article 136 would be exercised only against a final order. The Court cited the authorities of Chandi Prasad Chokhani v. State of Bihar (1962 (2) SCR 276), Indian Aluminium Co. v. Commissioner of Income Tax (Civil Appeal No. 176 of 1959 decided on 24 April 1961) and Kanhaiyalal Lohia v. Commissioner of Income‑tax (1962 (2) SCR 839). In exercising the special‑leave power, the Supreme Court now required the aggrieved party to have exhausted all remedies available under the law before seeking its intervention.

From the foregoing discussion, the Court identified three distinct avenues for approaching the Supreme Court. First, a party could file an appeal against a decision of the High Court. Second, a party could obtain special leave under Article 136 against the decision of any Court or tribunal in India. Third, a party could file a petition under Article 32 of the Constitution. The Court emphasized that, apart from the Supreme Court and the High Courts, no other Court or tribunal in India had been granted jurisdiction to adjudicate on breaches of fundamental rights, although Article 32(3) reserved to Parliament the power to confer such jurisdiction on any other Court by law. As a result, the enforcement of fundamental rights could be sought only in the High Court or the Supreme Court.

The Court observed that most tax statutes provided a right to invoke the advisory jurisdiction of the High Court, and in some cases a right of appeal or revision to the High Court. However, the Court clarified that a claim of breach of fundamental rights could not be raised in proceedings before tribunals. In its advisory capacity, the High Court could answer only the question that was referred to it or a question that arose from the order it had passed. In its appellate and revisional capacities, the High Court could examine the matter on law, on fact, or on both, but only to the extent that the tribunal itself possessed jurisdiction. Accordingly, in those limited jurisdictions, the question of enforcing fundamental rights would not normally arise.

Nevertheless, the Court stated that nothing prevented a party from moving a separate petition under Article 32 of the Constitution to raise the issue of a fundamental‑rights breach, as indeed occurred in the present matter. The Court concluded that a question of breach of fundamental rights could arise only in proceedings under Articles 226 and 32.

The Court observed that a grievance alleging a violation of the Constitution must be presented before the High Court under Article 226 or before the Supreme Court under Article 32, and that such grievance must be set out in a proper petition. The Court noted that when the High Court decides the issue on a petition under Article 226, the same question may be brought before the Supreme Court under Articles 132 and 136. Assuming that this is the correct position, and that the Supreme Court may entertain questions of breach of fundamental rights only in petitions filed under Article 32 or in appeals against High Court orders issued under Article 226, the Court held that a petition under Article 32 should always be entertained wherever a breach of a fundamental right is alleged. The Court reiterated that if a matter is brought before the Supreme Court under Article 32, the only question that the Court can consider is the alleged breach of a fundamental right and nothing else. The Court further stated that the right to approach the Supreme Court is guaranteed, and therefore such a petition may be maintained; however, the Court indicated that other considerations must be examined before determining the circumstances in which the Court will interfere. The Court then proceeded to examine the types of cases in which the powers under Article 32 would be invoked. Because the present matter arose under a taxing statute, the Court confined its analysis to taxation law, noting that other contexts may present different facts that are sometimes subtle and may escape consideration unless they are fully before the Court. The Court explained that a challenge on the ground of a breach of fundamental rights may be directed against a statute or against executive action. The Court expressly excluded actions of civil courts from its discussion and declined to decide whether the term “State” defined in Article 12 includes ordinary civil courts, observing that the issue does not arise in the present case and must be decided in a case where it properly arises. The Court observed that, irrespective of whether “State” includes ordinary courts, there is authority indicating that tribunals which exercise quasi‑judicial functions as well as act as instruments of the Government fall within the meaning of “State” in Part III of the Constitution. In Bidi Supply Co. v. Union of India (1956 SCR 267, 277), Chief Justice Das observed: “Here ‘the State’, which includes its Income‑Tax Department, by an illegal order has denied to the petitioner, as compared with other Bidi merchants similarly situated, 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.” The Court also quoted Gullapalli Nageswara Rao v. State of Andhra Pradesh (1959 (SI) SCR 319, 353‑354), wherein it was held: “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 power.” The Court concluded by noting that the taxing departments are instruments of the State.

The tax departments are neither part of the legislature nor part of the judiciary. Their primary duties consist of assessing and collecting taxes, and the assessment process must follow a pattern of action that is characterised as judicial. However, this judicial‑like procedure does not transform these departments into courts of civil jurisdiction. They continue to function as instrumentalities of the State and fall within the definition of “State” as prescribed in Article 12 of the Constitution. Viewed in this light, the actions of the tax authorities are ultimately executive in nature, because their determinations give rise to a demand for tax that neither the legislature nor the judiciary is authorized to collect. Consequently, the actions of these quasi‑judicial bodies may be subject to challenge on the ground that they infringe fundamental rights. The Court had previously observed that a breach of fundamental rights may arise either from a law or from executive action. Restricting the discussion to taxation statutes and to executive actions taken to enforce those statutes, the Court explained how violations of fundamental rights can occur and what scope the Court has to intervene under Article 32.

Taxation statutes must conform to the provisions contained in Part XII of the Constitution, are further limited by Part XIII, and may be enacted only by a legislature that is competent under Part XI. These constitutional provisions together govern the making of tax laws. Their combined effect is captured in Article 165, which provides: “No tax shall be levied or collected except by authority of law.” Thus, a law is a condition precedent to the imposition of any tax; the State may not levy a tax unless a law authorising that tax exists, and such a law must be enacted in accordance with all constitutional requirements for law‑making. In other words, the tax law must be validly enacted. Tax statutes may be defective in two principal ways: (a) they may be enacted outside the limits of the powers conferred by the Constitution on the particular legislature, or (b) they may be inconsistent with fundamental rights. A statute may be ultra vires even if it does not conflict with fundamental rights, for example when it exceeds the legislative competence, represents a colourable exercise of power, or is not passed according to the special procedure prescribed for its enactment. Illustrative examples include the imposition of a profession tax by Parliament, a power that Parliament does not possess, and the enactment by a State Legislature of a tax exceeding Rs 250 per year on a single individual, which exceeds the authority of that State Legislature. In each instance the law is invalid: in the first case because Parliament lacks the necessary power, and in the second because the State Legislature has transgressed its constitutional limit. Such statutes are deemed to be no law at all and are liable to be struck down under Article 265 read with the relevant constitutional provisions.

In this case the Court explained that a dispute arising under Article 265 of the Constitution cannot be presented to the Supreme Court on the basis of Article 32, because Article 32 is situated in the Chapter on Fundamental Rights whereas Article 265 belongs to a different part of the Constitution. Nevertheless, if an executive action is taken to enforce a law that threatens a person’s fundamental right to practice a profession, occupation, trade or business, that executive action may be subjected to judicial scrutiny under both Article 226 and Article 32. The Court further summarized the position reflected in the order of reference by stating that when a statutory provision is void, the protection afforded by Article 265 ceases to operate, leaving only unauthorized interference with property or trade by a State officer, which consequently invokes Articles 19(1)(f) and 19(1)(g). The Court added that when a law fails because it contravenes fundamental rights—for instance, when it is void on the ground of discrimination or other invasion of rights protected by Part III—the safeguard of Article 265 is also lost. In such circumstances the law is invalid not on the basis of Article 265 but because it violates Article 13, thereby giving rise to a cause of action under Article 35. This principle was recognised in the decision of K.T. Moopil Nair v. State of Kerala (1961 (3) SCR 77) where it was observed that Article 265 places a limitation on the State’s taxing power by mandating that tax may be levied or collected only by authority of law, meaning that a mere executive fiat cannot impose a tax. Consequently, a tax must be imposed by a valid law that is within the legislative competence of the enacting legislature and must satisfy the conditions laid down in Article 13 of the Constitution. One such condition, articulated in Article 13(2), prohibits the legislature from making any law that takes away or abridges the equality clause contained in Article 14, which obliges the State not to deny any person equality before the law or equal protection of the laws. The Court affirmed that any enactment infringing Article 14 must be struck down as unconstitutional. The Court noted that this issue arose in a petition filed under Article 32 of the Constitution, and it appears that attempts to challenge taxation statutes on the ground of violation of Article 31(1) through Article 32 had been unsuccessful in cases such as Ramjilal ‘s case (1951 SCR 127) and Laxmanappa Hanumantappa v. Union of India (1951 SCR 769). In the former case, the reasoning cited was that reference must be made to Article 265, which is located in Part XII, Chapter I dealing with “Finance,” and that article provides that no tax shall be levied or collected except by authority of law. The Court further observed that a comparable provision was absent in the analogous chapter of the Government of India Act, 1935.

In its discussion, the Court observed that the India Act, 1935, already provided for the principle that no tax could be levied or collected except by authority of law, as expressed in Article 265 of the Constitution. The Court reasoned that if the collection of a tax amounted to a deprivation of property within the meaning of Article 31(1), then enacting a separate provision in Article 265 would be unnecessary, because the two provisions would be addressing the same condition. Consequently, the Court held that clause (1) of Article 31 must be understood as dealing with deprivation of property other than that which occurs through the imposition or collection of tax; otherwise, Article 265 would become wholly redundant.

The Court further explained that the protection against the imposition and collection of taxes save by authority of law derived directly from Article 265 and was not secured by clause (1) of Article 31. Because Article 265 was not situated in Chapter III of the Constitution, the Court noted that its protection did not constitute a fundamental right that could be enforced through a petition under Article 32. The Court clarified that it was not suggesting that the right guaranteed by Article 265 could not be enforced; rather, the Court stated that such enforcement would have to occur through appropriate proceedings. The Court therefore concluded that the present application, which was founded on Article 32 read with Article 31(1), was misconceived and had to be dismissed.

The Court cited similar observations made in another case and agreed that the protection under Article 265 could not be sought by a petition under Article 32. However, the Court expressed difficulty with the view that a taxing law opposed to fundamental rights should be tested only under Article 265. The Court pointed out that Articles 31(1) and 265 speak of the same condition, quoting Article 31(1) as “No person shall be deprived of his property save by authority of law” and Article 265 as “No tax shall be levied or collected except by authority of law.” The Court observed that the Chapter on Fundamental Rights required little support from Article 265; if a law were void under that Chapter and property were seized to recover a tax that was void, the Court saw no reason why Article 32 could not be invoked. When the authority of law fails a tax, Article 265 is offended and the tax cannot be collected; such collection would also offend Article 32. When a law contravenes fundamental rights and its enforcement deprives a person of property, Article 31(1) is offended. The Court held that it was not possible to limit Article 32 by allowing a remedy only under Article 265. From this analysis, the Court concluded that laws which do not offend Part III and are otherwise within power are protected from challenge under either Article 265 or the Chapter on Fundamental Rights. Conversely, where laws are ultra vires but do not in themselves offend fundamental rights, they remain open to challenge under Article 265 and also under Article 32 in respect of executive action.

In this case, the Court observed that a law which is otherwise within the power of the legislature but is void because it conflicts with fundamental rights may be attacked both under Article 265 and under Article 32. However, the Court explained that the situation changes dramatically when the statute itself is valid and the challenge is directed at the action taken under that law. The crucial distinction, the Court said, is that in such circumstances the law is not being questioned; rather, the dispute concerns the way the taxing authority has interpreted the statute, and it is that mistaken interpretation that is alleged to give rise to a violation of fundamental rights. The Court then identified several categories of cases that fall within this analysis. First, where an officer of the State acts entirely without jurisdiction—for example, a sales‑tax officer attempting to levy income tax, an unlikely scenario nevertheless—such an officer has no legal basis for his action and the matter falls within the ambit of Article 32. The Court also cited instances of double recovery of a tax, where the initial levy was lawful, as illustrated in Tata Iron and Steel Company’s case (1961 (1) SCR 379), and cases where the tax demand is made beyond the prescribed limitation period, such as Madanlal Arora v. The Excise and Taxation Officer, Amritsar (1962 (1) SCR 823). In these scenarios, even if the taxing authority believed, on the basis of its own construction of the statute, that it was acting within its jurisdiction, that belief would be irrelevant; a proven lack of jurisdiction would nevertheless attract Article 32. Referring to the order in the present matter, the Court noted that the situation was “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,” echoing the observation made in Madanlal Arora’s case. By contrast, when the statute is valid, conforms to fundamental rights, and the officer acts within the scope of his authority, different considerations arise. If, in the performance of his duties, the officer misinterprets a provision of the law, the appropriate remedy is an appeal or revision, and, where applicable, recourse to Articles 226 and 227 of the Constitution, with the matter subsequently reaching this Court on further appeal. The Court emphasized that an erroneous administrative decision does not automatically constitute a breach of fundamental rights, and that the right of appeal or revision does not merge into the enforcement of those rights. Such errors are to be corrected through normal appellate and revisional procedures; Article 32 does not grant this Court an appellate or revisional jurisdiction. Consequently, provided the law is valid and the decision is made within jurisdiction, the protection afforded by Article 265 remains intact. The Court noted that only a very narrow exception exists, which also concerns jurisdiction, where a misinterpretation leads a State officer or quasi‑judicial tribunal to act wholly outside the bounds of the law, potentially giving rise to a breach of fundamental rights and permitting a petition under Article 32.

The Court observed that when a quasi‑judicial tribunal embarks upon an action wholly outside the scope of the law it is enforcing, and that action results in a breach of fundamental rights, a petition under Article 32 may be maintainable. It noted that several decisions of this Court have sanctioned interference on that basis, citing, for example, Amar Singh (1955 (2) SCR 303) and Mohanlal Hargovind’s case (1955 (2) SCR 509). The Court distinguished the first case as not involving a taxing statute, whereas the second case did involve taxation. It further remarked that the decision in Kailash Nath’s case (1957 AIR SC 79) appeared to have unduly broadened the previously narrow approach by including instances of statutory interpretation where the error was not one of jurisdiction within the meaning of Article 32. The judgment in Kailash Nath’s case relied on Bengal Immunity Company (1955 (2) SCR 603) as authority, but the Court found that the latter case did not support such a wide proposition because it concerned the interpretation of a notification to determine whether an exemption applied, without any question of jurisdiction arising. The Court stated that whether taxing statutes protected by Article 265 can be questioned under Articles 19(1)(f) and (g) is a matter that does not need to be addressed in the present case, and therefore it expressed no opinion on that issue. The Court clarified that the statutes and the notification in the present matter are not being challenged as ultra vires; instead, the claim is that a misinterpretation of the words “bidis” and “tobacco” in the notification dated 14 December 1957 denied an exemption to the petitioner, affecting her fundamental rights under Article 31(1) and Article 19(1)(g). It emphasized that this is not an error of jurisdiction. The Court held that whether the Sales Tax Officer’s interpretation is correct or the contrary interpretation pleaded by the petitioner is correct is a question for determination on the merits of the case. If an error exists, it can be remedied through the established processes of appeals, revisions, references to the High Court and, ultimately, an appeal to this Court. The Court warned that it cannot disregard these remedies and embark upon a direct examination of the law and the interpretation made by the authorities when no jurisdictional question is involved, for doing so would transform the powers under Article 32 into an appellate function. Accordingly, the Court concluded that the petition under Article 32 was misconceived in the circumstances and ordered its dismissal with costs. Regarding the application for restoration of the appeal, the Court observed that the party had been negligent in prosecuting the appeal and therefore dismissed the application for restoration without any order as to costs.

In this case, the Court noted that the first issue concerned whether an authority operating under a taxing statute that was within its legal power could be challenged on the ground that it contravened Article 19(1)(g) solely because the authority had mis‑interpreted a provision of the Act or a related notification. The second issue asked whether the validity of such an order could be questioned in a petition filed under Article 32 of the Constitution. Although the matter had not been examined in depth, the Court recalled that both questions had been answered in the affirmative in the earlier decision of Kailashnath v. State of U P (1957 AIR (SC) 79). Consequently, the present bench had been constituted to review the correctness of the decisions rendered on those points in the Kailashnath case. Before addressing the arguments advanced by counsel on either side, the Court found it necessary to highlight two preliminary considerations. First, it was agreed before the Court that, in resolving the initial question, it was not required to examine the special characteristics that are sometimes attached to taxing legislation, and in particular it was unnecessary to consider whether the constitutional validity of the statute could be assessed using the criteria laid down in Article 19(1)(f), which deals with the limits to which Article 19 may be attracted by a law imposing a tax. Accordingly, the discussion proceeded on the assumption that there was no substantive distinction between a law that imposes a tax and any other type of law. Second, the Court observed that, despite the diligence of counsel in citing a large number of Supreme Court decisions that had been referred to in the judgments of Kapur and Subba Rao, none of those authorities had addressed the issue in the precise manner presented before the Court today. Some of the cited decisions had proceeded on the basis that a fundamental right had been infringed and had therefore granted the relief sought by the petitioner, while other decisions had concluded that no fundamental right was involved in the grievance and consequently refused relief. None of the earlier cases had articulated a principled rule on when exactly a fundamental right would be considered invaded, especially whether a breach by a quasi‑judicial authority of the provisions of a law that was otherwise valid could itself constitute an invasion of a fundamental right. For that reason, the Court decided to discuss the question on a purely principled basis, without reference to the decisions that had been placed before it at the hearing. The Court felt further justified in adopting this approach because those decisions had already been examined in detail in the judgment of Kapur, J., and in the analysis of Subba Rao, J. The Court then turned to consider what it regarded as the appropriate answer to the first of the questions formulated for its decision, deliberately setting aside any reference to the specific taxing enactment and briefly recalling the relevant constitutional function.

Part III of the Constitution was drafted in contrast to the traditional rule of British constitutional law, which—according to the doctrine developed for the Dominion constitutions by the British Parliament—asserted the absolute sovereignty of the legislature. Under that doctrine, the will of the legislature, whether operating within a federal system or a unitary system, was regarded as supreme and constituted the law of the land that the courts were required to administer. As the constitutional scholar A. V. Dicey observed, there were no legal limits on the sovereignty of Parliament. Though public opinion, the fear of popular revolt, and considerations of good sense, justice, or fairness might impose practical restraints on the exercise of that sovereignty, the legal position remained that any statute enacted by Parliament was valid and enforceable. The framers of our Constitution, however, concluded that such an unfettered vesting of power in the legislatures or in the State would not be appropriate, just, or conducive to the individual liberty they deemed essential for democratic progress. Consequently, they introduced explicit restrictions on State action in Part III, which is titled “Fundamental Rights.” Article 13 of the Constitution declares that every law, whether enacted before or after the Constitution, which is inconsistent with the rights guaranteed by the subsequent articles, shall, unless expressly saved, be invalid to the extent of the inconsistency. The term “law” is defined in a broad manner so as to encompass not only statutes made by Parliament or the legislatures but also every form of subsidiary legislation, including notifications. The intent of the Constitution‑makers was therefore to prescribe a code of conduct that State action must follow if it is to satisfy the test of constitutionality.

The suite of rights enumerated in Articles 14 through 31 provides guarantees against any State action that would infringe upon the right to life, liberty, and property, as well as the right to engage in trade or occupation, and includes the freedom of thought, belief, and worship. The overall design of Part III can be summarised as follows: certain freedoms are absolute, subject only to limited qualifications such as those found in Article 17 or Article 20(1). For other freedoms, the Constitution—specifically Article 19—sets out the precise content of the guaranteed freedom and outlines the qualifications by which the exercise of that freedom may be regulated through enacted law or actions taken under such law. After delineating these freedoms and the permissible limitations, Article 32 confers upon the Supreme Court the authority and jurisdiction to ensure that the fundamental rights conferred by Part III are not violated. Article 32 also empowers individuals to approach the Court for appropriate relief whenever a violation of a fundamental right occurs.

The Court explained that when a fundamental right is acknowledged in the Constitution, that acknowledgement itself becomes a fundamental right that ordinary legislation cannot alter. The Court said it highlighted two important points: first, to stress the high importance that the framers of the Constitution gave to the freedoms that are essential for progress and to the necessity of creating a zone that the State cannot intrude upon; second, to underscore the role of the judiciary as the protector of those freedoms and as the maintainer of individual liberty guaranteed by the Constitution. In support of this view, the Court referred to its earlier observation in Daryao v. State of U.P. (1962 (1) SCR 574), stating: “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.” The Court further noted that, in Romesh Thappar v. State of Madras (1950 SCR 594), it had rejected a preliminary objection that a petition under Article 32 should first be presented to the High Court under Article 226, emphasizing that the Supreme Court is constituted as the protector and guarantor of fundamental rights and therefore cannot refuse to entertain applications seeking protection against infringements of those rights. Consequently, the Court held that the citizen’s right to approach this Court by way of a petition under Article 32 and to obtain an appropriate writ against an unconstitutional violation of his fundamental rights is itself a fundamental right. The Court therefore said that, when considering an objection based on the doctrine of res judicata, this principle must be kept firmly in mind. Before turning to the merits of the present matter, the Court recorded that certain positions were correctly conceded by the respondent: (1) that if a levy or burden is imposed on a citizen—here the petition concerns legislation imposing a tax, and the Court uses terminology appropriate to such an enactment, although as will become apparent, the principle extends beyond tax matters to other infringements of liberty and to statutes beyond the legislature’s competence—such imposition would constitute a 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, or both, thereby giving the citizen the right to invoke the jurisdiction of this Court under Article 32, even when the challenged action originates from a quasi‑judicial authority created by the same enactment.

The Court explained that the principle under discussion has a broad application and is not limited to infringements of property rights or taxation statutes. It applies whenever a statute is enacted beyond the competence of the legislature because it does not fall within any entry of the appropriate legislative list. In such a situation, any act by the government or its officers would contravene the freedoms guaranteed by Article 19(1)(f), the right to acquire, hold and dispose of property, or by clause (g), the right to carry on any trade or business, or both. Consequently, the aggrieved party could invoke the jurisdiction of this Court under Article 32, even if the challenged action was taken by a quasi‑judicial authority created under the invalid enactment. The basis for this concession is that an authority operating under a law that lacks legal foundation would itself have no lawful authority, and therefore its actions would be ultra vires.

The Court further noted that a legislature may claim to legislate under a head of power that it legally possesses, while in reality attempting to achieve indirectly what it cannot directly effect. In such circumstances the imposition of a tax would still infringe the guarantees of Article 19(1)(f) and (g). This scenario is essentially another form of the lack of legislative competence already described in the first point.

Next, the Court observed that even when the subject‑matter of a law falls within a legitimate entry of the legislative list, a breach of a fundamental right could arise if the legislation is invalid because it violates other general fundamental rights applicable to all statutes, such as the guarantee of equality before the law contained in Article 14.

The Court then considered that if, after a proper construction, the quasi‑judicial authority created by a valid enactment exercises powers wholly outside the jurisdiction conferred upon it, any action that infringes a fundamental right may be challenged by a petition under Article 32. In that event the Court would be both competent and obligated to grant appropriate relief. The reasoning supporting this concession is akin, though not identical, to the rationale applied to actions taken under an invalid statute.

Finally, the Court held that even when an officer or authority possesses jurisdiction, a breach of a fundamental right occurs if the officer adopts a procedure that contravenes either the mandatory provisions of the statute or the principles of natural justice. The resulting order and any liability imposed by such a procedurally defective action would therefore constitute a violation of the fundamental right. These exceptions were conceded by the learned counsel for the respondent.

The Court limited its consideration to the narrow issue of whether an order that is plainly erroneous because it is based on a misinterpretation of a charging provision necessarily infringes a fundamental right. The counsel for the petitioner presented a concise argument that rested on three principal propositions. First, the Constitution confers upon this Court the authority, when a petition is filed under Article 32, to guarantee that fundamental rights are not violated, and consequently imposes a constitutional duty on the Court to grant relief in every case where such a violation is established. Second, a petitioner seeking relief under Article 32 must satisfy two conditions: the petitioner must possess a fundamental right that he alleges has been infringed, and that right must have been violated by an act of the State. When both conditions are met, the petitioner is entitled to relief as a matter of right, and the Court is obligated to issue the necessary orders or directions to preserve the petitioner’s right. Third, it was uncontested that a fundamental right may be infringed by State action whether that action is legislative in nature or arises from the exercise of executive or administrative authority created under a valid statute. Having accepted these premises, the next question was whether a decision rendered by a quasi‑judicial authority established under a valid law could constitute a violation of a guaranteed freedom. The counsel submitted that a quasi‑judicial body is an integral component of the State’s machinery, and its orders constitute State action; therefore, if Part III of the Constitution protects citizens against improper State action, that protection must extend to rights infringed by orders of such bodies. The precise question for determination was thus framed: can an action of a quasi‑judicial authority that operates within the limits of its jurisdiction, follows procedural safeguards of natural justice, yet issues a decision that is manifestly erroneous and wholly unjustified on any proper construction of the relevant provision, be challenged as violating the fundamental rights of a party who is prejudicially affected by the mis‑interpretation? To illustrate, the counsel asked, if an assessing authority, by a plain misreading of the charging provision, levies tax on transaction A even though the statute, on its only possible construction, imposes no tax on that transaction, does the party subjected to such an unlawful levy suffer a violation of any fundamental right?

In order to answer the question properly, the Court said it must first set aside a matter that could obscure the issue. The Court explained that the statute under which a quasi‑judicial authority acts may contain provisions that allow its decision or order to be challenged by an appeal, or may provide a series of appeals and further revisions. However, the existence of such procedures for correcting errors or for redressing grievances is completely irrelevant when determining whether the authority’s order infringes a fundamental right. The Court referred to several earlier decisions – Union of India v. T. R. Varma (1958 SCR 499), The State of Uttar Pradesh v. Mohammad Nooh (1958 SCR 595) and A. V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobharj Wadhwani (1962 (1) SCR 753) – to illustrate that the presence of an alternative remedy does not bar the High Court from exercising jurisdiction under Article 226 of the Constitution. By the same reasoning, the Court held, the existence of an alternative remedy cannot bar the Supreme Court from exercising its jurisdiction under Article 32, which provides a guaranteed remedy.

The Court further observed that it cannot be said that a fundamental right is violated merely because the statute does not provide an appeal, while the same violation would not exist if the statute did provide other remedies. Whether a fundamental right is infringed depends on whether the action complained of has an impact on a guaranteed right, not on whether the statute supplies a procedure for correcting erroneous orders. The absence of an appeal provision may affect the reasonableness of the law, but it does not bear on the present question. Likewise, the Court rejected the notion that once the highest authority under the statute has rendered its decision and no further statutory remedy is available, a violation of a fundamental right would arise, giving the Court jurisdiction, whereas an earlier approach would not create such a violation. The Court emphasized that, in the final analysis, there is no distinction in the nature and effect of an order passed by an original authority and an order passed by an appellate or revisional authority concerning the fundamental right of the individual affected.

In this matter the Court observed that there is no material distinction between an order issued by the highest authority under a statute and an order issued by a lower appellate or revisional body when the effect of the order on the individual’s fundamental right is considered. The Court reiterated that it is well‑settled that once a petitioner demonstrates to the Court’s satisfaction that he possesses a fundamental right concerning the subject matter and that the State has infringed that right, the Court is obliged to grant the appropriate relief. In such circumstances the Court has no discretionary power to refuse relief. Consequently, the sole basis on which the Court could refuse jurisdiction is if the impugned order or decision does not have a prejudicial impact on the petitioner’s fundamental right. It would be incongruous to hold that an order of the ultimate authority under the statute could violate a fundamental right while orders of lower‑ranking authorities under the same statute could not.

The Court also noted that a separate point concerning the doctrine of res judicata could be set aside. It has previously held that the principle underlying res judicata is a rule of general law and therefore applies to relief sought under Article 32. However, that principle is not pertinent to the present issue because the challenge is directed at the very order of the authority alleged to infringe a fundamental right, not at a collateral attack on a final order between the parties. Returning to the central question, the learned Additional Solicitor General, appearing for the respondent, conceded that legislative action and executive action may both infringe fundamental rights. He then contended that a different situation arises when the impugned action is taken by a quasi‑judicial authority. He argued that if a statute is within the legislature’s competence and its provisions do not contravene any guarantee in Part III of the Constitution, then, as a matter of law, every order of a quasi‑judicial authority empowered by that Act is likewise valid and constitutional. In his view, the legality and constitutionality of the statute extend to every act or order of the quasi‑judicial body, provided the act falls within the authority’s jurisdiction, thereby barring any challenge on the ground of unconstitutionality.

The respondent’s counsel further framed the argument by stating that a quasi‑judicial authority possesses the same capacity to decide correctly as to decide wrongly. Accordingly, if an error occurs in such a decision, the only remedy available to the aggrieved citizen is to approach the tribunals established by the Act for correction of such errors. Only after the entire remedial machinery under the Act has been exhausted may the affected party seek relief from the High Court under Article 226, provided the error falls within the scope of the writ jurisdiction conferred by that article.

It was submitted that when an error is committed by a quasi‑judicial authority the aggrieved party must first use the tribunals created by the enactment to obtain correction of that error. Only after the entire remedial machinery prescribed in the statute has been exhausted does the affected person acquire a right to approach the High Court under Article 226, but only in those cases where the error falls within the category of matters that can be addressed by the remedial writs provided in that article.

Before the Court could evaluate the correctness of this submission, it was necessary to address a broader contention raised by counsel for certain interveners supporting the respondent. That counsel argued that the concept of “the State” in Part III, whose actions are subject to the guarantee of fundamental rights, is limited solely to the legislative and executive branches of governmental activity. According to that argument, the exercise of judicial power by the State would never run afoul of the fundamental rights protected by Part III. The Court noted that this position differed significantly from the argument presented on behalf of the Government by the learned Additional Solicitor‑General, and therefore it would be more convenient to consider this larger issue after resolving the arguments of counsel Sanyal.

The matter before the Court was to determine precisely what is meant when a statute is described as valid in two respects: first, that it falls within the legislative competence of the legislature to enact, and second, that it does not violate the freedoms guaranteed by Part III and is therefore constitutional. The Court observed that such a description can only mean that, when the statute is properly interpreted, it is neither legally incompetent nor constitutionally invalid. In order to illustrate this point, the Court referred to an argument made by counsel Palkhivala on behalf of some interveners supporting the petition.

Counsel Palkhivala presented a hypothetical scenario involving a sales‑tax Act that was constitutionally valid on its face. When properly construed, the Act did not purport to or authorize the imposition of tax on a sale that occurs “in the course of export or import.” If the Act had expressly authorized such a tax, that provision would be ultra vires and unconstitutional because it would contravene the prohibition contained in Article 286(1)(a). He further imagined that an authority operating under that Act, vested with the power to assess dealers for sales tax, erroneously included in the assessable turnover not only those items falling within the State’s competence to tax under the head “Taxes on the sale of goods,” but also turnover arising from transactions that were plainly sales in the course of export or import. This inclusion would represent a patent mis‑construction of the statute.

Counsel Palkhivala asked whether, under those circumstances, the fundamental right of the dealer guaranteed by Article 19(1)(f) and (g) could be said not to be violated by the imposition of the sales tax. He explained the logic behind the argument: if the legislature had, in the statute, expressly authorized the tax on such transactions, the provision would be void and illegal, and consequently the fundamental right to property and to carry on business under Article 19(1)(f) and (g) would be infringed. He further questioned how the position might improve if, without any express legislative authority, an officer acting under the statute interpreted the charging provision in a way that brought a transaction within the scope of tax, a transaction that the legislature itself was constitutionally incompetent to tax.

The Court found the reasoning compelling and noted that the learned Additional Solicitor‑General had not offered any answer to this line of argument. Consequently, the Court concluded that the mere fact that an enactment is within the legislative competence of the State and, when correctly construed, does not contain provisions that offend Part III, does not automatically protect the actions of quasi‑judicial authorities established under that enactment from constituting an infringement of a fundamental right. In other words, the competence and constitutional validity of the statute do not ipso‑jure immunise the quasi‑judicial actions taken under it from violating the rights guaranteed by the Constitution.

In the hypothetical scenario where the legislature expressly authorised the imposition of a sales tax on a particular transaction, such a provision would be plainly void and illegal. Consequently, the fundamental rights relating to property and to the conduct of business, secured under Article 19 (1) (f) and (g), would be infringed by both the levy of the tax and its subsequent collection. The question then arises as to whether the situation improves if, without any express saving clause in the legislation, an officer who claims to act under the statute interprets the charging provision in a manner that brings the same transaction within the scope of taxation, even though the Constitution renders the legislature incompetent to tax that transaction. The Court finds that the logic underlying this argument is impossible to refute, and notes that the learned Additional Solicitor‑General offered no response to the submission. It is manifest that even when a statute is legislatively competent and, on a proper construction, constitutionally valid—that is, it contains no provisions hostile to Part III of the Constitution—such validity does not ipso jure shield the actions of quasi‑judicial authorities created by the statute from constituting an invasion of a fundamental right. What the legislature could not expressly enact cannot be accomplished merely by the State vesting power in an authority it created to interpret the enactment in a way that contravenes the Constitution. While it might be suggested that an act of a quasi‑judicial authority that lies plainly beyond its jurisdiction could give rise to a violation of a fundamental right, thereby permitting relief under Article 32, the Court is not satisfied with this answer. The suggestion relies on the well‑known dictum that a tribunal may decide wrongly as much as it may decide rightly, but the illustration of unconstitutional authorities acting under valid statutes cannot be adequately addressed unless it is accepted that a plain and obvious mis‑interpretation of the statutory provisions could itself constitute a claim that the authority acted beyond its jurisdiction. Accepting such a view would stretch the concept of jurisdictional error beyond its commonly understood meaning.

The Court proceeds to consider a situation in which the mis‑interpretation by a quasi‑judicial authority does not involve the levy of a duty that exceeds the competence of the legislature that enacted the statute. In the present case, the authority, by a straightforward mis‑reading of the charging provision of a taxing enactment—used here as a convenient illustration—imposes a tax on a transaction that, under the Constitution, the legislature could have taxed had it so chosen. In other words, there are two related transactions or taxable events, labelled A and B. The taxing statute deliberately selects transaction A and imposes a tax upon that event alone. However, the authority, through its erroneous construction of the charging provision, treats both transaction A and the related transaction B as falling within the ambit of the statute and proceeds to levy tax on both. The problem now before the Court is whether the fundamental right of a citizen who has been wrongly assessed tax on transaction B—an event that, by clear legislative intent, was not meant to be taxed—has been violated. The Court concludes that the answer must be in the affirmative. Once it is accepted that a citizen cannot be deprived of his property or have the enjoyment of his property restricted except by authority of law, it becomes evident that the wrongful assessment on transaction B prejudicially affects the citizen’s fundamental right.

The authority, although vested with jurisdiction under the Act, misinterpreted the enactment in a clear and unmistakable way. It treated not only the transaction or taxable event identified as A but also the related transaction or taxable event B as falling within the charging provision, imposed a tax on B, and proceeded to collect it. The issue then arose as to whether the fundamental right of a citizen, who had been erroneously assessed tax on transaction B—a transaction that the statute had not intended to tax—had been infringed. The Court held that the answer could be given in only one manner, namely that the citizen’s fundamental right was indeed prejudicially affected. Once it was accepted that a citizen could not be deprived of his property or have his enjoyment of property restricted except by authority of law, it became evident that, in the illustration presented, there was no statutory authority supporting the tax liability imposed on the citizen by the assessing authority. The Act that created the tax, as well as the machinery for its assessment, levy and collection, was unquestionably valid; however, that validity did not confer authority to deprive property through a tax that was not authorized by the charging provision. Consequently, the imposition of a tax by reason of an order issued by an authority created by the statute, but based on a patent misinterpretation of the Act’s terms and an erroneous conclusion that the transaction was taxable, violated the fundamental right. The Court noted that the four concessions previously made by the respondent rested on the premise that, in those cases, there was no valid legislative backing for the action of the authority—whether executive, administrative, or quasi‑judicial. The same principle applied when a quasi‑judicial authority committed a blatant error in construing the enactment; such an error likewise meant that there was no legislative support for the consequent action. The Court added, however, that it was necessary to address the effect of factual findings made by quasi‑judicial authorities. When a finding was based on relevant evidence, that finding would not give rise to a violation of the fundamental right because the Court, in the absence of a duty‑determining finding, possessed the power and jurisdiction to investigate disputed facts in appropriate cases. In those circumstances, the Court would accept the factual findings of duly constituted authorities and then determine whether, on that factual basis, a fundamental right existed and was prejudicially affected by the impugned action.

The Court distinguished, for the purposes of this discussion, two separate kinds of error. The first kind is a mis‑interpretation of a statute, whereby an authority expands the scope of the enactment to cover transactions or activities that are not within its terms under any possible construction. The second kind is an erroneous factual finding, by which the authority treats a transaction as falling within the Act even though, if the statute were correctly construed, it would not. The Court then summarised the legal position. First, the fact that a statute has been validly enacted within the legislative competence of the appropriate legislature and that it does not violate any fundamental right does not mean that every act of a quasi‑judicial authority created under that statute will be free from challenge under Part III of the Constitution. The legislative competence that validates the enactment is limited to the actions that the authority may lawfully take when the statute is properly interpreted. If an authority, created under a valid and constitutional enactment, exceeds the constitutional limits on the legislature’s power, its actions become plainly unconstitutional and the consequences of unconstitutional state action necessarily follow. Consequently, if an “unconstitutional act” of the legislature infringes fundamental rights, the same result must follow when the same act is performed not by the legislature itself but by an authority constituted under that legislation. Second, where state action lacking legislative sanction would violate the rights guaranteed by Part III, the same result follows when the state acts through a quasi‑judicial authority vested with the power to interpret the statute. The absence of legislative authority for imposing an obligation or creating a liability cannot be remedied by a mis‑interpretation of the enactment by the authority created under it. Holding that a plainly excessive interpretation of a statute by a quasi‑judicial authority that imposes liability on a citizen does not violate Articles 19(1)(f) and (g) would have no effect except in two circumstances.

The first circumstance concerns the difficulty of precisely identifying an authority as “quasi‑judicial.” There is no fixed formula for deciding when an entity exercising state power falls within that category. As Professor Robson observed, “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.” This observation underlines the significance of the point, because it shows that the classification of an authority as quasi‑judicial is itself a matter of considerable uncertainty, and that uncertainty affects the analysis of whether its actions can be said to infringe fundamental rights.

It was observed that the point arose from an admitted principle: when the State’s power was placed in an executive or administrative authority by a statute that was valid and constitutional, and that authority performed an act which, upon proper construction of the relevant legislation, was not authorized, such an act could be of a character that infringed a fundamental right guaranteed by Part III of the Constitution. The infringement was deemed to occur when the impact fell within a field that the Constitution expressly protected from State interference, and any such violation could be challenged before this Court through a petition under Article 32. At the same time, the respondent maintained that a comparable act, order, or decision issued by a quasi‑judicial functionary, which likewise lacked statutory justification, did not give rise to a violation of fundamental rights. Consequently, the Court found it necessary to examine in some detail the line that separated an executive authority whose actions might breach a fundamental right from a “quasi‑judicial” authority whose actions were not considered to have that effect. The Court first noted that the nature of the act or order could be identical, yet the effect could differ depending on whether the act originated from one type of authority or from another type of authority exercising State power. To illustrate this point, the Court referred to the decision in Express Newspapers (Private) Ltd. v. The Union of India (1959 SCR 12, 113‑114), wherein it quoted with approval a passage from Halsbury’s Law of England (3rd Ed., Vol. 2, 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 partes before it.” The Court further extracted from the decision in R. v. Manchester Legal Aid Committee [1952] 2 Q.B. 413 the observation that “the true view, as it seems to us, is that the duty to act judicially may arise in widely different circumstances which it would be impossible, and indeed inadvisable, to attempt to define exhaustively.” The Court therefore concluded that the question of whether an authority created by legislation was a quasi‑judicial body, and thus bound to act judicially, could not be answered by a rigid rule but had to be determined by considering the entire statutory scheme, the purpose of the power vested in the authority, and the reasons for its creation.

In this case, the Court noted that the branch of law dealing with the classification of authorities is of little assistance, because it appears to declare that an authority is quasi‑judicial merely by virtue of not being a court yet being bound to act judicially. The Court explained that such a formulation does not help to determine, except where the statute contains explicit provisions, the circumstances in which an authority must act judicially; it simply restates that an authority identified as quasi‑judicial must act judicially. Bearing these observations in mind, the Court could not accept the contention that when the State exercises a power through an authority which, on a comprehensive reading of the statute, is deemed quasi‑judicial, and that exercise prejudicially affects life, liberty or property guaranteed by Part III, the action cannot be said to breach a fundamental right, whereas the same action would constitute a violation if the authority were characterized merely as an administrative body. The Court then turned to examine whether any rational or reasonable basis could support such a contention.

The Court explained that the argument proposing quasi‑judicial authorities as an exception to the general rule—that state action producing a prejudicial result on a person’s right to property or liberty amounts to a violation of fundamental rights—rests on the view that a quasi‑judicial authority is vested with the jurisdiction to decide and that this conferment inherently includes the right to decide both correctly and incorrectly; in other words, an erroneous decision is not considered to exceed the limits of the authority’s jurisdiction. The Court considered this reasoning to be an improper transference of a principle to an area where it has no proper relevance. In the context of a petition under Article 32, the Court held that the essential question is whether there is a valid legal sanction behind the authority’s action; without such sanction, a violation of a fundamental right must be presumed. Moreover, if the proposition were accepted, it would have to rely on the premise that the quasi‑judicial authority possesses a right to decide. The Court observed that this does not imply that executive action lacks any element of decision‑making or any right to decide. Established law indicates that a body need not be involved in a contested hearing (lis) to be classified as quasi‑judicial, and consequently many executive actions involve discretion. While administrative or executive bodies may not conduct a pre‑decision hearing as required by the maxim “Audi Alteram Partem,” the Court regarded this procedural difference as merely a matter of process and not the essence of the distinction between judicial and administrative functions.

Before a decision is finally rendered, the requirement that a hearing be held is not the core of the distinction between administrative and judicial functions. Professor Robson observed in his work Justice and Administrative Law that the administrative and judicial roles of a single office can become so thoroughly intermingled that it is almost impossible to determine which role predominates. In that situation, trying to decide whether a petition under Article 32 is maintainable by examining the character of the authority that issued the order is untenable, because, as previously noted, there is no essential difference in the nature or the extent of injury suffered by a citizen whether the order originates from an administrative or a judicial source. Such an approach cannot be justified by any sound interpretation of the Constitution or by the general principles that guide statutory construction.

The Court therefore held that the freedoms guaranteed by Part III of the Constitution may be infringed by a quasi‑judicial authority when that authority acts within its jurisdiction under a valid constitutional statute but plainly misinterprets the statutory provisions that define its powers or that it is created to enforce. Turning to the practical consequences of accepting the argument presented by the learned Additional Solicitor General, the Court highlighted a second important point. Because governmental activity has expanded enormously and the State now functions as a welfare State rather than merely a police‑State focused on law and order, a large number of new departments and agencies have been created. These agencies, in turn, have given rise to many authorities that must make decisions affecting citizens in a multitude of areas.

Consequently, in a contemporary welfare State, administrative agencies exercising quasi‑judicial powers are far more numerous, and arguably more significant, than the ordinary courts. To assert that fundamental rights are not engaged by the actions of these rapidly multiplying authorities would, in the Court’s view, deprive citizens of the effective protection that Article 32 was intended to provide in most cases. To claim at the same time that this Court is the paramount guardian of fundamental rights while maintaining that the numerous statutory bodies created to implement the law cannot encroach upon those rights would render the Court’s protective role and the guarantee of remedial relief largely meaningless.

Even if the constitutional text were entirely explicit, the argument would still fail; and even if the text were ambiguous, the Court expressed a clear opinion that rejecting the wide‑ranged contention advanced on behalf of the respondent is necessary to give effect to the intentions of the Constitution’s framers.

The Court observed that it could not be logically sustained to say that an act or order issued by a quasi‑judicial authority, even if it lacked legislative backing, could not affect a person’s fundamental right, and that an order containing a patent error would be free from any legislative sanction. The Court then turned to the argument advanced by counsel Mr Chari, who contended that “State” action that infringes a fundamental right does not encompass actions arising from what is described as “the judicial authority of the State.” This contention was principally grounded in the wording of Article 12 of the Constitution and in the definition of the term “State” contained therein. Article 12 provides that, unless the context otherwise requires, “the State” includes the Government and Parliament of India, the Government and Legislature of each State, and all local or other authorities within the territory of India or under the control of the Government of India. It was pointed out that this definition embraces the Government, the Parliament of the Union and the States, and local authorities, but it does not expressly name the “Judicial power of the State.” If the counsel’s submission were correct—that Part III of the Constitution implicitly excludes judicial and quasi‑judicial authorities because they are not specifically mentioned—then the further claim that actions of such authorities could not violate fundamental rights would appear to be supported, and in that event some of the concessions made by counsel Mr Sanyal would be unjustified. The Court indicated that several considerations immediately arose which decisively negated the inference that the omission of judicial and quasi‑judicial bodies from the explicit list in Article 12(1) means they fall outside the definition of “State.” First, the Court emphasized that the definition is expressly inclusive, suggesting that beyond the Government and Legislature there may be other instrumentalities of State action that are captured within the term “State.” Moreover, the usage of the word “includes” in this context is intended in an expansive sense rather than the restrictive sense of “means and includes,” a conclusion that can be drawn not only from other provisions of Part III but also from Article 12 itself. Article 20(1) clearly refers to a limitation imposed upon the judicial power of the State and is unmistakably addressed, at least in part, to judicial authorities. Nevertheless, Mr Chari attempted to circumvent the implication of Article 20(1) by arguing that the definition in Article 12 excludes judicial and quasi‑judicial authorities from the purview of the expression “State.”

The Court observed that the provision should be read as applying only unless there is an express provision to the contrary. It expressed complete disagreement with the method suggested for reconciling the presence of Article 20(1) with an interpretation of Article 12 that would exclude judicial and quasi‑judicial authorities. The Court noted that the definition in Article 12 begins with the words “unless the context otherwise requires,” and it held that this qualifier may actually narrow the reach of the definition rather than expand it beyond the executive and legislative fields of State action, even if the term “includes” were taken to mean “means and includes,” as counsel had contended. Further, the Court pointed out that Article 12 concludes its enumeration of authorities by referring to “other authorities” within the territory of India, and it could not be read narrowly by the doctrine of ejusdem generis in relation to the Government, the Legislatures, or local authorities. The language, the Court said, is of a very wide amplitude and is capable of embracing every authority created under a statute and functioning within the territory of India. Because the residuary clause provides no description of the nature of the “authority,” the Court held that it must include every type of authority established under a statute for the purpose of administering laws enacted by Parliament or by a State, including those vested with the duty to make decisions in order to implement those laws. The Court then considered the reliefs that may be granted under Article 32 to persons who approach the Court alleging a violation of a fundamental right, specifically mentioning the issue of a writ of certiorari, which is expressly enumerated in that article. It affirmed the common position that such a writ is available only against judicial or quasi‑judicial authorities and therefore reasoned that quasi‑judicial authorities, like other instruments of State action, can equally violate fundamental rights and can be redressed by the issuance of that writ. The Court rejected the theory advanced by counsel, describing it as based on a rigid doctrine of separation of powers that does not form a feature of the Constitution, a view repeatedly affirmed by the Court. Even on the plain words of Article 12, the Court said, the construction proposed by counsel must be discarded. The article places the Government of the Union and the Governments of the States within the definition of “State.” While it is acknowledged that both the Union Government and State Governments may function as quasi‑judicial authorities under various statutes, the Court indicated that the question immediately arises as to whether, when the “government” exercises such powers, it should be regarded as a “government” falling within the definition of “State” or be classified as a judicial authority wielding the judicial power of the State and thus placed outside the definition, which would prevent its decisions and orders from giving rise to a violation of a fundamental right. The Court concluded that, on any reasonable construction, Article 12 cannot permit the dissection of the term “government” for the purpose of separating its executive, judicial, and legislative aspects.

The Court explained that the Constitution does not permit the carving up of the nature or quality of powers exercised by the government into three separate fields—pure executive, judicial and legislative—for the purpose of a fresh classification. Whenever the government exercises any power, whether it is a pure executive function, a quasi‑judicial function created under a statute, or a quasi‑legislative function such as framing subordinate legislation, it does so in its capacity as “government”. No further subdivision of that capacity is permissible except for academic study or for determining the type of relief that might be available to persons affected by its actions in a particular field. In the same vein, the Court noted that Parliament possesses a quasi‑judicial power to punish for contempt; the existence of such power in the Parliament of the United Kingdom indicates that the Constitution does not recognise a doctrine of separation of powers. Consequently, the reference to “Government” and “Legislature” in the definition of “State” is a reference to these bodies as institutions known by those names, and not a reference intended to describe the particular functions they perform in the polity. This interpretation is reinforced by the inclusion of “Local authorities” within the definition of “State”. It is evident that municipal and local board authorities, which are described under various names in different states, fall within that term. Municipal councils, for example, are known to perform legislative, executive and quasi‑judicial functions; they frame rules and bye‑laws that constitute subordinate legislation and therefore fall within the meaning of “laws” in Article 13. They also carry out administrative duties and exercise quasi‑judicial powers when they assess taxes, hear taxation appeals and perform numerous other adjudicatory tasks. If a local authority as a whole is a “State” within the definition, there is no rule of construction that can exclude any part of its action from being considered “State action” for the purpose of a violation of a fundamental right. The Court further observed that both this Court and the High Court have been vested with the power to make rules, and such rules undeniably qualify as “laws” under Article 13. Accordingly, those rules may be subject to challenge on the ground that they violate fundamental rights, their validity depending, among other things, on whether they satisfy the test of permissible legislation under Part III. This reality directly contradicts any contention that courts and quasi‑judicial authorities lie outside the definition of “State” in Article 12, and leads to the deductions that follow.

In accordance with the Constitution, the Court found it impossible to accept the contention that the judicial power of the State, which the learned counsel said includes quasi‑judicial authorities created by statutes, does not fall within the definition of “State” and therefore their acts are not to be treated as “State action” subject to the protections guaranteed under Part III. Consequently, the Court answered the reference to the Bench by stating that the action of a quasi‑judicial authority may infringe a fundamental right when, on a plain mis‑construction of the statute or a patent mis‑interpretation of its provisions, such authority affects any right guaranteed by Part III. This possibility of infringement was placed in addition to the three recognised categories of cases where a violation of fundamental rights may arise: first, where the statute under which the authority operates is itself invalid or unconstitutional; second, where the authority exceeds the jurisdiction conferred upon it by the enactment; and third, where the authority, although functioning under a statute, contravenes a mandatory procedure prescribed in that statute or breaches the principles of natural justice, thereby passing an order or making a direction that impacts a person’s right to property or other guaranteed rights. Before concluding, the Court observed that the arguments had also touched upon another issue that might be reserved for consideration only when it actually arises—namely, whether the decision or order of a regular ordinary Court of law, as distinguished from a tribunal or a quasi‑judicial authority created under specific statutes, could be complained of as violating a fundamental right. The Court reiterated the salutary principle that it should not pronounce on points not involved in the matters presented before it, and therefore it would not discuss that issue in depth nor express a definitive opinion on it. Nevertheless, the Court made a brief observation that there is no substantial identity between a Court of law adjudicating the rights of parties before it—such as the High Courts and this Court, which are empowered to investigate whether any fundamental right has been infringed and to protect those rights—and quasi‑judicial authorities that are created by particular statutes for the purpose of implementing and administering those statutes. The Court indicated that it would be satisfied to leave that topic untouched. The discussion then returned to the question of whether a patent mis‑interpretation of the relevant statute had occurred and, if so, whether the petitioner had established a breach of a fundamental right. The Court referred to Section 4(1) of the Uttar Pradesh Sales Tax Act, which provides: “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 provision in Section 4(1)(b) of the Uttar Pradesh Sales Tax Act authorized the State Government to exempt from tax 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.” Acting under that authority, the Government of Uttar Pradesh issued a notification dated 14 December 1957, and the Court recognised that the correct construction of that notification was the pivotal issue for resolving the petition. The notification stated that, in exercise of the powers conferred by clause (b) of sub‑section (1) of Section 4 of the Uttar Pradesh Sales Tax Act, 1948, as amended, the Governor ordered that no tax under the Act would be payable, effective from 14 December 1957, by dealers in respect of the specified classes of goods, provided that the Additional Central‑Excise Duties levied on those goods from the close of business on 13 December 1957 had been paid and that the dealers furnished satisfactory proof of such payment to the assessing authority. The notification listed several categories, the third of which covered “cigars, cigarettes, biris and tobacco, that is to say any form of 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.”

The petitioners were manufacturers of hand‑made biris. They explained that no excise duty was payable on their biris under the relevant entry of the Central Excise Act, and that no fresh duty had been imposed on such biris by Central Act 58 of 1957, which was intended to levy additional duties on tobacco and tobacco products and to distribute a portion of the net proceeds among the States in place of the sales tax that the States were to forgo on those goods. In brief, the petitioners contended that the proviso in the 14 December 1957 notification—specifically the phrase “have been paid on such goods”—should be read to apply only where an additional duty was in fact payable. They argued that the proviso was meant to deny the exemption to parties who were liable to pay an additional duty but failed to do so, and that where no duty was payable at all, the proviso could not arise and therefore should not affect the exemption.

Conversely, the Sales Tax Officer interpreted the notification, including the proviso, to mean that the exemption from sales tax was available only in cases where an additional duty had become payable and that duty had subsequently been paid. According to that construction, the State intended to grant the exemption only when it received the benefit of the additional excise duty that would be distributed to it.

The Court noted that a State could be deprived of its authority to levy sales tax only in those situations where the State actually received a benefit from the additional excise duty that was subsequently distributed to it. The Court then explained that the real issue was not to decide whether the construction advocated by the petitioner was the correct or the more preferable one, but to examine whether the construction adopted by the Sales Tax Officer was a construction that a reasonable person could also have taken from the same provision. The Court observed that even if one construction might be regarded as more attractive than the other, or even if a court of construction might have been more inclined to accept one rather than the other, the officer nevertheless adopted a construction that could be reasonably arrived at. The question therefore was whether such a construction gave rise to an error apparent on the face of the record that would justify the issuance of a writ of certiorari. After considering this point, the Court held that where it is reasonably possible to uphold the construction made by an inferior tribunal, the mistake amounts only to a mere error of law and does not rise to the level of a patent error or an error apparent on the face of the record. Consequently, the Court concluded that the circumstances did not warrant the issuance of a writ of certiorari and dismissed the writ petition. Turning to the petitioner's request that the appeal be restored to the file, the Court declined to allow it for two reasons. First, the petitioner had voluntarily withdrawn the appeal, and no justification existed to accede to a new request to revive it. Second, because the Court had already held that the error in the officer’s order was not of a nature that would justify a writ of certiorari, the High Court’s judgment under Article 226 was correct, and restoring the appeal would confer no advantage on the petitioner. In view of these considerations, the Court dismissed the petition for restoration of the appeal.

Justice Mudholkar then addressed the broader constitutional question presented in the petition filed under Article 32(1) of the Constitution. The issue to be determined was whether a fundamental right guaranteed by Part III of the Constitution, specifically the right to carry on trade or business, could be infringed when a taxing authority, acting under a law that was intra vires and following a procedure that was both constitutionally and legally permissible, nevertheless made an erroneous assessment and levied a tax on that trade or business. The Court observed that unless an erroneous assessment—whether arising from a mis‑construction of the law or from a misappreciation of facts—is held to constitute an invasion of a right protected by Part III, the remedy provided by Article 32(1) would not be available. The petitioner’s substantive contention was that when a taxing authority adopts an incorrect construction of a legal provision, the tax that is then levied is not authorized by law, thereby infringing the assessee’s right under Article 19(1)(g) of the Constitution. The Court noted that the matter before it required the construction of a notification issued by the Government of Uttar Pradesh on 14 December 1957 under section 4(1) of the Uttar Pradesh Sales Tax Act, 1948, and not the construction of a statutory provision. The text ends here.

The Court observed that the matter before it concerned a notification issued by the Government of Uttar Pradesh on 14 December 1957 pursuant to section 4(1) of the Uttar Pradesh Sales Tax Act, 1948 (U.P. Act XV of 1948). The notification, together with the relevant provision of the Sales Tax Act, had already been reproduced in the opinions of several other judges, and therefore the Court did not repeat its text. According to the construction adopted by the Sales Tax Officer, the petitioner was deemed liable to pay sales tax on the turnover derived from the sale of bidis for the period extending from 1 April 1958 to 20 June 1958. The petitioner contended before the Sales Tax Officer that the said notification exempted bidis from the charge of sales tax. The Sales Tax Officer rejected that plea and upheld the assessment.

After the assessment was confirmed by the sales‑tax authorities, the petitioner challenged it before the High Court of Allahabad under article 226 of the Constitution. The High Court dismissed the petition. The petitioner then obtained a certificate from that Court indicating that the case was fit for appeal to this Court and accordingly instituted the present petition before the Supreme Court. However, the petitioner failed to take any steps to prosecute the appeal before the Supreme Court, and the appeal was consequently dismissed for non‑prosecution on 20 February 1961. The petitioner later filed an application seeking restoration of the dismissed appeal, but the Court noted that that application was unrelated to the principal issue under consideration.

When the petition was placed before a Constitution Bench, the petitioner relied on the decision of this Court in Kailash Nath v. State of U.P., AIR 1957 SC 790, in which the Court had accepted an interpretation of a provision of the Sales Tax Act that differed from the interpretation advanced by the sales‑tax authorities. In Kailash Nath, the Court had held that the petitioner was being deprived of his property without legal authority. The State of Uttar Pradesh contested the correctness of that decision, invoking a number of authorities, including several decisions of this Court itself. Because of the significance of the questions involved, the matter was directed to the Chief Justice for the constitution of a larger Bench. In the order referring the questions, the learned Judges framed two issues: first, whether an assessment order made by a body exercising powers under a valid taxing statute could be attacked as violating article 19(1)(g) of the Constitution solely on the ground that the order was based on a mis‑construction of a statutory provision or of a notification issued under that provision; and second, whether the validity of such an assessment order could be examined in a petition under article 32 of the Constitution. The Court indicated that it would not recount the earlier judgments, as those had already been examined in the opinions of its brethren, but would address the two questions directly.

Referring to the principles of law applicable to the questions placed before the Court, it was observed that the two questions initially framed are in essence one question. The single issue is whether an erroneous order of assessment issued by a taxing authority can amount to a breach of the right to carry on trade or business, thereby entitling the aggrieved person to invoke the jurisdiction of this Court under Article 32 of the Constitution. The remedy furnished by Article 32, which itself is a fundamental right, is confined to the enforcement of other fundamental rights and does not extend to the relief of having a wrong order set aside. On one side, it was contended, relying on the decisions in Ramjilal v. Income‑Tax Officer, Mohindargarh (1951 SCR 127) and Laxmanappa Hanumantappa Jamkhandi v. The Union of India (1955 (1) SCR 769), that a fundamental right is not infringed where the requirements of Article 265 are fulfilled, that is, where the tax is assessed under the authority of law. On the other side, it was argued that, in substance, an erroneous order of a taxing authority constitutes an unreasonable restriction on a person’s right to carry on trade or business and that Article 32 therefore confers upon that person a remedy before this Court. The Court has, however, made clear in several decisions that a law imposed under Article 265 must not contravene any right guaranteed in Part III of the Constitution. Relevant authorities include Mohammad Yasin v. The Town Area Committee, Jalalabad (1952 SCR 572, 578); State of Bombay v. United Motors (India) Ltd. (1953 SCR 1069); Shree Meenakshi Mills Ltd., Madurai v. A. V. Viswanatha Sastri (1955 (1) SCR 787); Ch. Tika Ramji v. The State of Uttar Pradesh (1956 SCR 393); and Balaji v. Income‑Tax Officer, Special Investigation Circle (1962 (2) SCR 983). If any such law violates a guaranteed right, the aggrieved party may resort to the provisions of Article 32 for redress.

Fundamental rights enumerated in Article 19(1) are, nevertheless, subject to reasonable restrictions imposed by laws that fall within clauses 2 to 6 of that article. Consequently, the Court must first consider the limits within which a person may assert and exercise his fundamental right. It must also keep in mind the quasi‑judicial nature of the taxing tribunal and the legal efficacy of its decisions. The right to carry on trade, business, or similar occupations, which is the focus of the present discussion, is covered by clause 19(1)(g) and may be restricted by a law permissible under clause 6. That right, however, is subordinate to the sovereign power of the State to levy a tax, a power essential for the support of the State. Article 265 of the Constitution mandates that any imposition of tax must be under the authority of law. Moreover, because the Constitution is broadly federal, the power to levy taxes has been divided between the Union and the States, each exercising supreme authority within its respective field.

The judgment explained that the Constitution separates the power to levy taxes between the Union and the States, and that the specific subjects on which each may impose taxes are listed in the Seventh Schedule. Although the two jurisdictions have distinct fields, each is supreme within its own field with respect to taxation. The Court further noted that the power of a State to enact any law, including a law that imposes a tax, is subject to the limitation imposed by clause (2) of Article 13, which provides that a State shall not make any law that takes away or abridges the rights guaranteed by Part III of the Constitution, and that any law violating this clause is void to the extent of the breach. Consequently, a statute such as the Uttar Pradesh Sales Tax Act, which is the subject of the present dispute, must also satisfy the requirement of Article 13(1). That provision declares that all laws that were in force in India before the commencement of the Constitution, and that are inconsistent with the provisions of Part III, shall be void to the extent of such inconsistency.

The Court further clarified that any provision of a tax law that is inconsistent with the fundamental rights guaranteed by Part III will be invalid. In addition, the law must not contravene any other constitutional provision, for example Article 276(2), Article 286, Article 301 and similar provisions. Moreover, the law must have been enacted after complying with all constitutional requirements applicable to the making of primary legislation, and, where the tax is imposed by subordinate legislation, it must also satisfy the procedural requirements laid down in the relevant enabling statutes.

The judgment stated that if a tax law infringes any of the rights conferred by Part III, the law is void, and a person whose right has been violated is entitled to approach the Supreme Court under Article 32 on the ground that a fundamental right has been infringed. Likewise, if a tax law is beyond the competence of the legislature that enacted it, or if it conflicts with constitutional provisions such as Article 276 or Article 286, the law is ultra vires the Constitution; consequently, the tax imposed under such a law would be unauthorised and the aggrieved party could also move the Supreme Court under Article 32, alleging a breach of the right guaranteed by Article 19(1)(g). The Court further observed that if a tax is levied by an authority that lacks legal empowerment, or if the levy is made in violation of the procedure prescribed by law or the principles of natural justice, the levy is unauthorised and the resulting decision is a nullity. In such circumstances, the taxpayer could likewise invoke Article 32.

The Court recognised that all the foregoing principles had been pleaded on behalf of the State. However, it pointed out that when a tax is imposed by a competent legislature, after full compliance with the constitutional and statutory requirements governing law‑making, and when the tax is not inconsistent with any constitutional provision, the tax operates as a reasonable restriction on the fundamental right to carry on trade, business or profession. The judgment therefore set out the framework for assessing the validity of the Uttar Pradesh Sales Tax Act in relation to the constitutional guarantees.

The Court observed that when a law, including any subordinate legislation and the requirements of other relevant statutes, does not transgress any provision of the Constitution, it functions as a reasonable restriction on the right of a person to carry on trade, business or similar activities. Although the right to engage in trade or business is recognised as a fundamental right, it is nevertheless subject to the limitations described above. Consequently, the portion of the right that remains available to an individual is that which persists after the State has validly imposed a restriction under clause (6) of Article 19. In effect, the individual’s actual right becomes the right to conduct business while bearing the imposed restriction. In the present case, the restriction imposed on the dealer takes the form of a liability to pay tax on the turnover of sales of certain commodities; therefore the dealer may continue his trade, but only subject to the obligation to pay the tax as assessed from time to time. This description captures the net content of his right to carry on trade, disregarding for the moment any other restrictions imposed by competent State legislation. Once a valid restriction has been placed upon a fundamental right, the right that can be enforced under Article 32 is not the unrestricted right but the restricted right. The Court noted that it was not contested that where a quasi‑judicial tribunal created under the Act that levies the tax, on an erroneous construction of the Constitution or of that Act, holds the tax to be within the competence of the State legislature or not in conflict with any constitutional provision, the tribunal’s decision would still affect the fundamental right of the person against whom the tax is levied. This position was correctly left undisputed, for if the Act were void, no legal liability could arise from the tribunal constituted under it. A restriction imposed by a void law, being illegal, falls outside clause (6) of Article 19. The Court further explained that when a State wishes to impose a tax on trade or business, it must necessarily provide a mechanism for assessing and collecting that tax. The assessment and collection of tax cannot be arbitrary; therefore the State must confer upon the taxing authority both the power and the duty to act judicially. The absence of such a provision would render the law invalid as violative of Article 19(1)(g), as held in K. T. Moopil Nair v. State of Kerala (1961 (3) SCR 77). The Sales Tax Act in force in Uttar Pradesh is an example of such a law. It not only imposes a tax on the sale of certain commodities but also prescribes the procedures for assessment, appeals, revisions and other remedies arising from assessment orders. Accordingly, the Act is a law contemplated by Article 265, and no contention was made that its provisions infringe the petitioner's right under Article 19(1)(g).

In this case, the Court observed that none of the provisions of the impugned law infringe the petitioner’s right under Article 19(1)(g). The Court explained that a taxing authority, although an instrumentality of the State and performing administrative duties, is not a court of law in the ordinary sense. Nevertheless, the Court held that the taxing authority must discharge its functions in a judicial manner. Because the authority is a tribunal of limited jurisdiction and also carries out administrative functions, it is characterised as a quasi‑judicial tribunal rather than a purely judicial one. The adjective “quasi‑judicial” does not diminish the obligation of the authority to act judicially. In its capacity as an assessing authority, the tribunal is required to ascertain the relevant facts and to apply the tax statutes to those facts. It must give careful consideration to the applicable provisions and to the facts of each case before reaching its findings. Consequently, the authority must possess the power to interpret both the facts and the law; without such jurisdiction its decisions would lack any value or binding effect. The Court noted that a taxing authority that has the power to decide matters within the scope of the governing law is under a duty to arrive at a correct decision, although it is recognised that tribunals may err. The Court further explained that the binding effect of a decision made by a taxing authority within its legally conferred jurisdiction cannot depend on whether the decision is correct or erroneous, because doing so would create an impossible situation. Accordingly, even a decision that is erroneous must bind the assessee. Moreover, when the tax statute constitutes a valid restriction, the obligation to follow the authority’s decision imposes a burden on the person’s right to carry on trade or business. This burden is not removed merely because the authority misconstrued a provision of the law, provided the error does not relate to jurisdiction. The Court then turned to the provisions of the Uttar Pradesh Sales Tax Act, which empower the sales tax officer to make assessments, to ascertain the necessary facts to determine liability, and, if liability exists, to calculate the turnover of sales. Because sales tax is levied only on specified commodities and at different rates for different commodities, the officer’s assessment power includes determining whether the assessee’s sales of particular commodities fall within the scope of the Act and, if so, which rate or rates of tax are applicable to the sales of those commodities.

The Court observed that the Sales Tax Officer was required to act in accordance with the procedure set out in the Act. If, after interpreting the Act, its rules and the notifications issued under it, the Officer concluded that a particular commodity was liable to tax, and the transaction involved was one that the State legislature was competent to tax, then the Officer’s decision fell within his jurisdiction even though he might have reached an incorrect conclusion on some point. The Court considered whether, when the Officer arrived at a wrong conclusion, his demand for tax would be unlawful. It held that even a conclusion that was plainly or palpably erroneous would not render the assessment void unless it could be shown that the Officer acted dishonestly. However, the Court clarified that if the Officer, by misapplying the law, treated a transaction that was prohibited by Article 286 of the Constitution as assessable, or declared a commodity that the State legislature could not tax to be taxable, then he would have acted beyond his jurisdiction and the assessment would be void. In such circumstances, the assessee could invoke Article 32 and seek relief from the Supreme Court. In the present case, the alleged error was limited to the Officer’s finding that tax was payable on bidis, although a government notification had exempted bidis from such tax. The Court therefore concluded that this error did not place the Officer outside his jurisdiction. It was further submitted that when an erroneous construction of law results in the levy of a tax for which there is no legal authority, the fundamental right to carry on trade or business would be infringed. The Court rejected this contention, stating that the Officer’s power to interpret the law and determine taxability meant that even a mistaken decision was an act authorized by law, and consequently the tax collected under that decision was also authorized. The Court explained that “authorized by law” means a determination made by the proper authority after a considered construction of the relevant legal provisions. The Court dismissed the argument that such reasoning would validate every erroneous decision concerning matters beyond the State’s legislative competence, emphasizing that the Officer’s power could not exceed the legislative power of the State.

The Tax Officer who acts under the statute in question possessed the authority to summon witnesses, to call for documents, and to record evidence, among other powers. The statute also required the Officer to give the individual who was to be assessed an opportunity to be heard. Consequently, any decision that the Officer rendered on matters that fell within the scope of the law governing his proceedings, and which had not been revised or altered by a tribunal, an authority, or a court that was superior to him, had to be regarded as having the same validity as a decision of a court exercising its judicial power, subject, of course, to the limitations previously mentioned. The Court recognised that such a decision might be erroneous and might even be based on a clear or obvious mistake evident on the record. Nevertheless, even a decision that contained such an error could not be treated as “non est,” void, or a mere nullity. The Court then asked what practical difference would arise if, because of an erroneous decision made by a Sales Tax Officer due to a mis‑interpretation of a notification under the Sales Tax Act, a person were held liable to pay tax on the sale of a commodity that, when properly construed, would be exempt from tax under that notification. Just as a person cannot claim that his fundamental right to carry on trade or business has been violated when an erroneous judgment of a court obliges him to pay a sum of money, the same principle applies to an erroneous decision of a Sales Tax Officer. However, the Court clarified that an erroneous decision is not beyond challenge before the Supreme Court. After the aggrieved party has exhausted the remedies provided by the taxing statute, it may invoke Article 136 of the Constitution directly, or it may proceed indirectly by first approaching the High Court under Article 226 or Article 227 and thereafter appealing any High Court decision. While the Supreme Court remains the guardian of all fundamental rights, the Constitution does not deprive ordinary courts and quasi‑judicial tribunals, which administer a variety of statutes, of the authority to exercise their jurisdiction and to decide matters within their competence. Therefore, if a tribunal’s decision causes a person, for example, to lose the right to occupy a house or to incur a tax liability, that decision cannot simply be dismissed as a violation of a fundamental right. Such a decision, being made in the exercise of judicial power and in performance of a statutory duty, constitutes a valid adjudication even if it results in the loss of occupation or the imposition of tax. The decision may be correct or incorrect, but unless it is a nullity, it cannot be labelled as void merely because it is erroneous.

It was observed that an error in a decision does not render that decision a nullity so long as the law applied is a valid law, the decision is made by an authority that is duly empowered under that law, the procedure followed conforms to the statutory requirements, and the mistake does not relate to the jurisdiction of the authority. An error may arise in the way the tribunal interprets a statute. If the mistake is limited to such a misinterpretation and no other defect exists, that misinterpretation alone cannot make the action taken by the tribunal arbitrary or unauthorized. The error must be rectified by the method prescribed either by the statute or by the Constitution, and until such correction is effected, the aggrieved party cannot claim that his fundamental right has been infringed. When the nature of the right that can be enforced under Article thirty‑two is examined, the same conclusion follows. Accordingly, where a taxing statute confers on a tax authority the power to assess and levy tax, and also authorises that authority to decide certain questions judicially and to give binding effect to its determinations, and none of the provisions of that statute are void under Article thirteen or otherwise invalid, the right enforceable under Article thirty‑two is the right to conduct business subject to the tax as assessed by the authority, not a right to conduct business free from any tax liability. Even if the tax assessment is founded upon an erroneous construction of the taxing law, the right to obtain a correct tax determination does not constitute a component of the fundamental right to carry on business; rather, it arises solely from the taxing legislation. Consequently, in such circumstances there is nothing left to be enforced under Article thirty‑two when the tax authority merely assesses and levies tax after making its determination. A further point was considered. It had been suggested that a quasi‑judicial tribunal, being an instrumentality of the State, acts as State action and therefore is subject to the same limitations that bind the State; that is, the State cannot do indirectly what it is prohibited from doing directly. When the State’s incapacity stems from a constitutional prohibition or a lack of legal authority for any reason, that incapacity attaches to the actions of the quasi‑judicial tribunal that purports to act on the State’s behalf. In such a scenario, if a person’s fundamental right is violated by the tribunal’s action, the person may treat the action as arbitrary or a nullity and may approach this Court under Article thirty‑two because the action would be unauthorized by law. However, an erroneous act of the State in the performance of its administrative functions may be challenged directly under Article thirty‑two if it affects a person’s fundamental right on the ground that it lacks legal authority, whereas the action of the tribunal based on an erroneous order is not open to challenge for that reason, since the tribunal’s action arises from the exercise of judicial power and is therefore authorized by law, even though it is State action.

The Court observed that a writ under Article 32 cannot be entertained merely because a tribunal’s order allegedly infringes a fundamental right on the ground that the order is not authorised by law. Even if the order is erroneous, the Court held that it arises from the exercise of judicial power and is therefore deemed to be authorised by law, regardless of the State character of the tribunal. When the State, by virtue of a statute, performs judicial functions such as entertaining an appeal, revision, assessment or levy of tax, it acts as a quasi‑judicial tribunal. Consequently, a decision issued by that tribunal, even if erroneous, is not a nullity and cannot be ignored. Such a decision may be corrected only through the remedies provided by Article 226 or Article 227 of the Constitution before the High Court, or by invoking Article 136 before this Court. The Court then proceeded to summarize its conclusions, organizing them into four distinct numbered propositions for clarity in the judgment. First, a question of enforcement of a fundamental right arises when a tax is imposed under a law that is void under Article 13. It also arises if the law is ultra vires the Constitution, or if subordinate legislation exceeds the authority of the parent law or conflicts with any other existing law. Second, a similar question arises when the tax is honestly assessed and collected by a competent authority under a valid law, following the procedure laid down by that law. This holds even when the tax is derived from an erroneous construction of the governing statute, provided the statutory authority exists. However, where such construction results in a levy that exceeds legislative competence or contravenes any constitutional provision, including those of Part III, the levy is unconstitutional. In such a situation the levy would be deemed unconstitutional and consequently the affected fundamental right would be engaged, warranting judicial protection. Fourth, the Court clarified that a mere misinterpretation of a statutory provision does not make the decision of a quasi‑judicial tribunal void for lack of jurisdiction. Such a decision remains a valid legal determination until it is corrected through the appropriate remedial process prescribed by law. Consequently, while the decision stands, even if erroneous, it must be regarded as authorised by law, and a person bound by it cannot claim that the demand is unauthorised. The same principle applies even if a correct construction of the statute would show that the underlying law did not permit such a levy. Accordingly, the Court concluded that the answer to each of the two questions presented was in the negative.

In line with the reasoning expressed by the majority of the judges, the Court issued an order that the writ petition filed as Writ Petition number 79 of the year 1959 be dismissed. The dismissal means that the relief that had been sought in that petition was not granted and that the petition stands rejected. In addition to the dismissal, the Court directed that each of the parties involved in that writ petition shall be responsible for paying its own legal expenses, meaning that no party will be required to reimburse the other for costs incurred during the proceedings. The same approach was applied to the miscellaneous petition identified as C.M.P. number 1349 of the year 1961, which concerned an application for the restoration of Civil Appeal number 572 of the year 1960. The Court likewise dismissed that miscellaneous petition, thereby refusing the request for restoration of the civil appeal, and similarly ordered that each party to that petition shall bear its own costs. Consequently, both of the matters that had been before the Court—the writ petition numbered 79 of 1959 and the miscellaneous petition numbered 1349 of 1961 seeking restoration of civil appeal 572 of 1960—were each dismissed, and the financial burden of the respective proceedings was placed on the individual parties without any award of costs to the opposite side.