COLLECTOR OF CUSTOMS BOMBAY Vs. RAMCHAND SOBHRAJ WADHWANI

JUDGEMENT

(1.) The appeal raises a very simple and short question, but the matter has been unnecessarily complicated by various technical objections that have been taken to the maintainability of the petition from which this appeal arises.

(2.) The petitioner imported fountain pens which were gold plated and they were assessed to duty under item 61(8) of the First Schedule to the Indian Customs Tariff at the rate of 78 3/4 per cent. His contention was that in law the articles imported fell under item 45(3) and he was liable to pay duty only at the rate of 30 per cent. The Assistant Collector having assessed them under item 61(8) the petitioner appealed to the Collector of Customs and the Collector of Customs dismissed the appeal upholding the view taken by the Assistant Collector. Mr. Justice Tendolkar has taken the view on a plain construction of the two items the only possible view that any Court can take, that is, that the case of the petitioner falls under item 45(3) and not under item 61(8) and, therefore he issued a mandamus against the Collector who had passed the above order, who happened to be B. N. Banerji directing him to release the articles of the petitioner on his paying duty at the rate of 30 per cent. The respondent has now come in appeal, and the first contention strenuously urged by the Advocate General is that the petitioner's case must fail because he has not exhausted the legal remedy which was available to him, and consistently with the well settled principles of law no relief can be granted either on a mandamus or on a certiorari to a party to whom adequate specific and alternative legal remedy is available.

(3.) It is pointed out that under the Sea Customs Act the petitioner having appealed to the Collector under section 188 he had a right to go in revision to the Central Government under section 191 and as he has not done so there is a clear objection to the maintainability of the petition in limine and the petition must be dismissed. There is considerable force in the contention put forward by the Advocate General. He has drawn our attention to various decisions of this Court where dealing with the Evacuee Property Act we took the view that where a revision lay to the Custodian General it was not open to a party to come here complaining of the order made by the Custodian, and the Advocate General says that the position here is identical and we must follow the line of decisions bearing on this point. We wish to make it clear that we adhere to the view that we have consistently taken in this Court that it is the duty of a party first to avail himself of the normal remedy which the law permits him. A petition under Article 226 or Article 227 is an exceptional remedy. If the law lays down a procedure and the law provides a remedy and the law makes it possible for a party to get relief through the ordinary channel, this Court will not permit a party to circumvent the ordinary procedure laid down by law and approach this Court for a special remedy and an order which the Court makes in its discretion. We wish to make it clear also that in this case we do not propose to dismiss the petition because it seems to us that this is an exceptional case and we are permitting the petitioner to obtain this relief strictly on the special facts of this case.