COSMOPOLITAN CLUB Vs. DEPUTY COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) IN these two petitions, the Cosmopolitan Club, Madras, represented by its Honorary Secretary seeks to challenge the legality of the levy of sales tax on the supply of refreshments to the Club members. The 1st respondent impleaded is theDeputy Commercial Tax Officer of the Triplicane Division and the second respondent the State of Madras.

(2.) THE prayer in C.M.P. No. 3414 of 1951 is for the issue of a writ of certiorari or other appropriate writ or order to quash G.O. Ms. No. 2472 d/21-9-1949 of the Revenue Department, Government of Madras, which declined to grant exemption from such sales tax on a letter dated the 22nd of August, 1949, addressed to the Honourable Minister for Finance of the Government of Madras. In that letter it was represented that there were about 1, 200 members on the rolls of the Club, which afforded amenities in sports, indoor games and in various directions to its members, and that refreshments were supplied to members as an amenity and not on any commercial basis. THE letter was an appeal for exemption in the circumstances from the payment of sales tax. On this, the Government passed the G.O. sought to be quashed on the ground that they did not see sufficient justification for exempting the sale of refreshments by the Cosmopolitan Club, Madras, from liability to pay sales tax. In the original letter of the Cosmopolitan Club Ex. R-2 produced by Government, there was no specific objection to the levy of this tax as illegal under the Sales Tax Act. This allegation however appears in the common affidavit filed in support of these two petitions, C.M.P. No. 3415 of 1951 seeks for a writ by way of mandamus to direct the respondents to forbear from levying and collecting such sales tax in future.THEse two petitions were admitted by Raghava Rao and Viswanatha Sastri, JJ., sitting as a Bench on the 9th of March this year. Mr. Jayarama Ayyar, who appears for the Cosmopolitan Club, says that he had to argue at some length before he persuaded them to admit them. THEre is no order of course giving any reasons for admission. THE Government Pleader has, as may be expected, raised strenuous objections to maintainability, which I shall first consider.

(3.) IN evolving our own case law under Article 226 of the Constitution, which confers on High Courts far wider powers than those exercised by the King's Bench Division in England, it is in my view neither necessary nor is it possible to follow the precedents in English prerogative writ and other writ case law, in particular the distinction between writs of course or ex debito justitia and what are known as discretionary writs. If we follow for instance as a precedent the view of Avory, J., in The king v. Postmaster-General Ex parte Carmichael 1928 (1) KB 291) which I have referred to, our High Courts may be inundated with writ petitions to such a degree as to bring other work to a comparative stand-still with the spate of legislation which has flooded this State and discretionary rules framed under statutes having the force of law, all providing avenues for appeal and revision. The only broad criterion that we can apply is whether in view of the nature of the case and the illegality alleged and the wrong complained of, a relief by way of writ is the correct and appropriate remedy. Article 226 confers on High Courts power to issue to any person or authority including in appropriate cases any Government directions, orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them not only for the enforcement of fundamental rights in Part III of the Constitution but for any other purpose. It does not appear to be even necessary to confine and restrict a petitioner to a particular writ on English precedents nor would it be proper to dismiss a petition invoking relief by way of a writ of certiorari on the ground that the correct remedy would be a writ by way of mandamus or prohibition. I would prefer to take the view that there is no such thing in Article 226 as a writ of course or a writ by right and that the writs which lie under Article 226(1) are all discretionary writs which are dependent on the facts of each case, and the nature of the illegality and wrong alleged.