UNITED MOTORS INDIA LTD Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is a petition challenging the validity of the Bombay Sales Tax Act, being Act XXIV of 1952. The Act is broadly challenged on three grounds. The first ground is that the Legislature was not competent to enact this piece of legislation. The second ground is that it contravenes Article 14 of the Constitution; and the third ground is that it contravenes Article 19(1)(g) of the Constitution. The petitioners before us carry on business of buying and selling motor cars on a large and extensive scale and they allege in the petition that the sales and purchases effected by them in the course of their business take place inter alia in and outside the State of Bombay, in the course of import of he goods into or export of the goods out of the territory of India and in the course of inter-State trade or commerce. They further allege that in a number of sales and purchases effected by them goods are actually delivered outside the State of Bombay as a direct result of such sales or purchases for the purposes of consumption outside the State of Bombay. The Advocate-General has raised various preliminary objections to the maintainability of this petition, and perhaps it would be best, before we consider the merits of this petition, to consider these objections.

(2.) The first objection is that the petitioners have an efficacious alternative remedy and therefore it would not be proper for the Court to issue a writ in such a case. It is pointed out that the substantial relief which the petitioners seek in the petition is the avoidance of assessment under the Sales Tax Act, and the Advocate-General's contention is that it is open to the petitioners to pay the tax under protest and then file a suit for the recovery of that tax on the ground that the tax was illegally recovered. For this purpose reliance is placed on a decision of this Court in Civil Application No. 735 of 1952, Walchandnagar Industries Ltd. v. The State of Bombay. In that case the petitioner company challenged the validity of the Bombay Sugarcane Cess Act of 1948 and we pointed out in that case that Article 226 was not intended to supplant the ordinary processes under the law and that it was not left to the option of the petitioner to file a suit or to approach this Court on a petition. We pointed out that the petitioner had been paying tax for several years, that he had an opportunity to challenge the validity of the Act, he had not done so, and there was no reason why any exception should be made in the case of the petitioner, and on that preliminary ground we dismissed the petition. It should be borne in mind that in this particular case the petitioners are not merely challenging the validity of the Act to the extent that it may impose upon them an illegal tax, but they are also challenging the Act on the ground that it contravenes their fundamental rights. The principle enunciated by the Advocate-General that a Court will not issue a prerogative writ when an equally adequate alternative remedy is available, has always been applied when the Court is called upon to issue writs like writs of certiorari and mandamus, but the interesting question that arises is whether the same principle would apply when a party comes to the Court with the allegation that his fundamental rights have been contravened and he wants relief from the High Court under Article 226. It is important to note that the High Courts have been entrusted with the important and responsible duty of enforcing the fundamental rights embodied in Part III of the Constitution when those rights have been contravened. It is the greatest safety that a citizen has in this country that he can approach the High Court if any of his fundamental rights have been trespassed upon, and it seems very doubtful that the High Court can ordinarily tell a citizen or even a non-citizen in certain cases not to approach it under Article 226, but to file a suit or to avail himself of some other similar remedy. The Supreme Court itself in construing Article 32 in Romesh Thappar v. State of Madras ([1950] S.C.R. 594) has taken the view that the Supreme Court was constituted the protector and guarantor of fundamental rights and it could not, consistently with the responsibilities so laid upon it, refuse to entertain applications seeking protection against infringement of such rights, and the view of the Supreme Court was that no limitation could be put upon the right of a person to approach the Supreme Court under Article 32. What was contended before the Supreme Court in that case was that the petitioner should in the first instance approach a High Court under Article 226 and then approach the Supreme Court under Article 32 and the Supreme Court negatived this contention. In our opinion, if the Supreme Court is constituted the protector and guarantor of fundamental rights, equally so is the High Court constituted the protector and guarantor of fundamental rights under Article 226. It would lead to a very curious result if a petitioner could approach the Supreme Court under Article 32 on the allegation that his fundamental rights were contravened and he could not do so as far as the High Court was concerned on an identical allegation under Article 226. The powers of the Supreme Court under Article 32 and of the High Court under Article 226 are concurrent and if the Supreme Court has held that it cannot refuse the application of any petitioner who comes before it complaining of contravention of fundamental rights, equally so the High Court cannot refuse to entertain the application of a person who comes before it under Article 226 on the ground that his fundamental rights should be protected.

(3.) The second preliminary point urged by the Advocate-General is that this is a petition by seven petitioners and according to him a petition can only be entertained by one petitioner when he complains of either a breach of statutory duty on the part of an officer of Government or a contravention of fundamental rights and a relief can only be given to one petitioner in a petition. According to the Advocate-General, the seven petitioners require seven different reliefs in this petition, each one complaining of a violation of his own right, and the seven petitioners cannot combine in presenting one petition. For this purpose reliance is placed on a statement of the law in Halsbury, Vol. 9, p. 783, paragraph 1325 : "Two or more persons cannot join in a single application for a writ of mandamus to enforce separate claims. There must be separate applications for separate writs, and this although the several applicants are successors in the office in respect of the claims arise." In support of this statement of the law reliance is placed on an old English decision reported in The King against the City of Chester, 87 English Reports 487 corresponding to 5 Modern p. 10. In that case several councilmen were removed from their offices and they came to Court for a writ for being reinstated, and what the Court held was that they could not all be reinstated by one writ. The position in this petition is entirely different. The claim made by all the petitioners is the same, viz., that the Sales Tax Act is invalid and it should not be enforced against them. Here there are not several claims made by several petitioners. Even assuming that the Advocate-General was right, at the highest the joining of more than one petitioner would be a surplusage and that surplusage could be cured by six of the petitioners being struck off the record. The petition could easily be maintained by one out of the seven petitioners.