WALCHANDNAGAR INDUSTRIES LTD Vs. STATE OF BOMBAY

JUDGEMENT

(1.) This is a petition to challenge the constitutionality of the Bombay Sugarcane Cess Act, 1948, being Act 82 of 1949. The Act was passed on 17-2-1949, and it came into force on 23-2-1949. The petitioner, which is the Walchandnagar Industries, Ltd., has been paying the cess or tax tinder the Act since 1949, and this petition has been presented on 16-4-1952, alleging that the tax is illegal and offends against Article 265 of the Constitution, in that it is a tax levied by the State of Bombay otherwise than by authority of law.

(2.) The Advocate-General has raised certain preliminary objections to the maintainability of this petition. His first objection is that the constitutionality of an Act cannot be challenged by a petition, and in support of that contention he has relied on a judgment of the Nagpur High Court in Sheoshankar v. M. P. State Govt., A. I. R. 1951 Nag. 58 (A). That judgment was mainly concerned with pointing out that a Court will not grant a merely declaratory decree to a party which was in no way aggrieved by a particular Act. The Court does not exercise an advisory jurisdiction to advise citizens as to whether a particular law is valid or not. It is only a party aggrieved or a party whose rights are affected that can come to the Court and challenge the constitutionality of a law. That decision did not consider what we have to consider in this case, whether on a petition the constitutionality of an Act can be challenged by a party who is admit-tedly aggrieved by the operation of that law.

(3.) A very interesting and a very able argument has been advanced before us both by the Advocate-General and by Mr. Joshi as to the proper construction of Article 226. On the one hand, the Advocate-General has contended on the strength of the decision of this Court in Emperor v. Jeshingbhai Ishwarlal, that inasmuch as we are being asked to issue a writ not in support of any fundamental rights under Part III, we must exercise our jurisdiction under Article 226 in conformity with well-known judicial precedents accepted by this Court. On the other hand, Mr. Joshi has contended that on a true construction of Article 226 we are not debarred by any judicial restrictions in issuing any order or direction if we are satisfied that justice demands it. It is further pointed out by the Advocate-General that if we follow the judicial precedents with regard to the issuing of writs, then in this particular case the writ cannot issue because what the Court is being asked to do is to issue a mandamus upon the State of Bombay prohibiting the State from enforcing a particular law, and the Advocate-General relies on Lady Dinbai Petit v. Noronha, A. I. R. 1946 Bom. 407 (c) for the proposition that when a writ of mandamus is asked for, the legality of the statute must be assumed and the officer must be called upon to do or forbear to do some act which is either enforced upon him or which he is bound not to do under the statute itself. When a writ of mandamus is asked for, the petitioner cannot challenge the constitutionality of the Act. It is on the assumption that the Act is valid and constitutional that the petition for mandamus can be maintained. As against this Mr. Joshi has eontended that although the decision in A. I. R. 1946 Bom. 407 (c) may have been good law before the Constitution was enacted, now by reason of Article 226 it is open to the petitioner to challenge tho constitutionality of the Act and to ask the Court to compel Government to forbear from doing something which is illegal, because what the Government is doing is under a law which is an invalid law. In our opinion it is not necessary to decide these very interesting questions, because oar decisions on the preliminary issue can be restricted to a very narrow compass.