A R KRISHNA IYER Vs. STATE OF MADRAS

JUDGEMENT

(1.) THE only question that arises for consideration in this applicant under Article 226 of the Constitution is, whether the proviso to section 3(1)(b) of the Madras General Sales Tax Act (IX of 1939) (hereinafter referred to as the Act), offends Article 14 of the Constitution and is, therefore, void and unenforceable against the petitioners.

(2.) THE first petitioner is the lessee of a restaurant, the Canteens Ltd., and he is a "dealer" as defined in the Act, a dealer who sells articles of food and drink in a restaurant. THE second petitioner, the Madras Hotels Association, is an association of similar dealers in articles of food and drink.

(3.) THE learned Government Pleader took a preliminary objection to the maintainability of an application under Article 226 of the Constitution in the circumstances of this case. He pointed out that as the first petitioner had statutory remedies open to him provided by the Act itself to have the challenged assessment corrected, this Court should not in exercise of the jurisdiction vested in it under Article 226 of the Constitution issue a writ of certiorari even if the contention of the petitioners was well founded, that the impugned provision under which the first petitioner was taxed was invalid. THE learned Government Pleader urged that the validity of the impugned provision need not be investigated at this stage in proceedings initiated by the petitioners under Article 226 of the Constitution. THE existence of effective alternative remedies is by itself no bar to the assumption of jurisdiction under Article 226 of the Constitution. Normally, of course, it is a very relevant factor that the Court will take into consideration in deciding whether the jurisdiction undoubtedly vested in the Court under Article 226 of the Constitution, will be exercised in a given case. Whether the discretion should be exercised in favour of the first petitioner is the question.In the present case without availing himself of the statutory right of appeal, the first petitioner has challenged the validity of the taxing provision in an application under Article 226 of the Constitution. None of the statutory tribunals, the assessing authority, the appellate authority, and the further appellate authority, the Appellate Tribunal, all of them creatures of the statute, could have examined the validity of a taxing provision of the Act, which brought them into existence, and the provisions of which Act they have to administer. In such a case, where a person complains that the taxing provision in the statute offends a fundamental right of his guaranteed by the Constitution and is, therefore, void and unenforceable against him, the discretion of the Court should, in our opinion, be exercised even at an earlier stage, because even at the stages at which an appeal is provided for by the Act, the validity of the impugned provision cannot be adjudicated upon by the statutory tribunals. No doubt in such a case writs of prohibition have been recognised to stand on a different footing, from a case in which the relief asked for is a writ of certiorari. If before the assessment was completed the first petitioner had asked for a writ of prohibition to restrain the assessing authority under the Act from assessing the first petitioner on the basis of a taxing provision, the constitutional validity of which was challenged by the first petitioner, the validity of the taxing provision would certainly have had to be examined by the Court. That the assessment was completed in the case of the first petitioner does not, in the circumstances of this case, make any real difference to the question, should this Court exercise its discretion in favour of examining the validity of the impugned provision and pronouncing upon it at this stage, when the first petitioner has not availed himself to his statutory right of appeal, and his further statutory right of moving this Court in revision under section 12B of the Act, after the right of appeal to the Appellate Tribunal has been availed of. THE preliminary objection fails.THE relevant portion of the Act runs thus :-