TMI Blog1961 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant now before us. 2. A few facts are necessary to be stated to understand the matters in controversy and the points raised for our decision. The respondent carries on business in Bombay and he was granted on August 18, 1954, a licence under the Imports and Exports (Control) Act, 1947, for the import of fountain pens at not less than Rs. 25 C.I.F. value each from soft currency area, up to a defined amount. He placed an order for the import of Sheaffer pens from Australia and a consignment of these was received by air in Bombay in October 1954. The fountain pens thus imported had nibs which were gold plated and also caps and clips of similar composition. The question in controversy relates to the rate of duty to be charged on these imported pens. The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relation to the article described as fountain pens complete , the rate of duty being 30 per cent ad valorem. It was the case of the respondent that the imported goods fell within this item and were liable to be charged with duty at that rate. The Customs authorities, however, considered that the consignment fell within the description articles plate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o levy duty at 78.3/4 per cent was without jurisdiction. The petition was, therefore, allowed and the Customs authorities were, by order of Court, restrained from enforcing payment of any duty higher than 30 per cent. 5. The Collector of Customs filed an appeal against this order which was disposed of by a judgment delivered on behalf of the Bench, by Chagla, C.J. The learned Chief Justice was equally emphatic that no reasonable person could, on the construction of the relevant items in the Schedule to the Tariff Act, hold that the consignment of fountain pens could fall under any item other than 45(3) or be charged a duty other than the 30 per cent provided under that item. Dealing with the other point about the writ petitioner not having exhausted his statutory remedy of Revision to the Government, the learned Chief Justice disagreed with the view of the learned Single Judge that the Customs authorities lacked or exceeded their jurisdiction in assessing duty at a higher figure than was justified by the relevant items of the Schedule to the Tariff Act. The learned Chief Justice, after pointing out that it was the settled practice of the Bombay High Court not to entertain writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he use of gold plating for nibs is therefore for increasing the utility of the nib for its primary function of writing and not with a view to enhancing its value by the cost of the metal. In the case before us it would be noticed that the pens permitted to be imported had to be not less than Rs. 25/- each C.I.F. value, presumably with a view to protect the market for cheaper pens of indigenous manufacture. Most pens of the value specified in the licence, it need hardly be added, would have gold-plated nibs. It could certainly not be that it was the intention of the authorities that notwithstanding Entry 45(3) reading fountain pens complete there could practically be no import of pens under that item, because with the limit of value prescribed in the licence, the permitted pens would mostly have gold-plated nibs. Different considerations might arise when gold or gold plating is used not for purposes essential for the utility of the pen as such, but merely as an addition to its value. These cases have been excepted by Justice Tendolkar and we endorse his remarks on this point. No such question arises on the pens imported by the respondent and it was obviously because of this, that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... should, before he approached the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases. In Union of India v. T.R. Varma, 1958 SCR 499 at pp. 503-504, Venkatarama Ayyar speaking for the Court said : It is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke that special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed v. Municipal Board, Kairana, AIR 1950 S.C. 163, `the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs. vide also K.S. rashid and Son v. The Income-Tax Investigation Commission, AIR 1954 S.C. 207. And where such remedy exists, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court. 11. The question that we have now to consider is, has the discretion which undoubtedly vested in the Court been so improperly exercised as to call for our interference with that order. We might premise this discussion by expressing our opinion on two matters merely to prevent any misunderstanding. First we entirely agree with Chagla, C.J., that the order of the Assistant Collector of Customs in assessing duty at 78.3/4 per cent or of the Collector of Customs in confirming the same, was not void for lack of jurisdiction. The interpretation they put on the relevant items ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issue of a prerogative writ is that the Court s jurisdiction ought not to be lightly invoked when the subject can have justice done to him by resorting to the remedies prescribed by statutes. (3) Lastly, the learned Solicitor-General does not dispute the correctness of the principle of law as enunciated by Chagla, C.J., his complaint is that the law is laid down by the learned Chief Justice has not been properly applied to the facts of the case before him. If the challenge to the judgment of the High Court were of the former type, this Court might have to interfere to lay down the law correctly lest error creep into the administration of justice. But where the error is only in the application of the law correctly understood to the facts of a particular case, we should be persuaded that there has been a miscarriage of justice in the case before us before being invited to interfere; and this the learned Solicitor-General has not succeeded in doing. It would be remembered that the question is not whether if the respondent s application were before us, we should have directed the writ to issue, but whether the learned Judges of the High Court having in their discretion which they adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ample jurisdiction to decide under which item in the Schedule, the fountain pens had to be assessed to duty, and if he made a mistake in his decision that did not make his order one without jurisdiction : cp. Gulabdas Co. v. Assistant Collector of Customs, AIR 1957 S.C. 733. The learned Judges of the Appellate Bench held that the writ was properly issued, not because the assessing authority had no jurisdiction to assess the goods under Item 61(8), but because at the date the matter had come before them, the other remedy had become barred. This again is, in my view, plainly erroneous for party who by his own conduct deprives himself of the remedy available to him, cannot have a better right to a writ than a party who has not so deprived himself. Normally and the present case has not been shown to be other than a normal case a writ of mandamus is not issued if other remedies are available. There would be stronger reason for following the rule where the obligation sought to be enforced by the writ is created by a statute and that statute itself provides the remedy for its breach. It should be the duty of the courts to see that the statutory provisions are observed and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the Customs Tariff was applicable to the respondent s goods and to realise the customs duty specified in that item. In so far as the statute required the officer to realise the Customs levy, I find it difficult to see how it can be said to be a public duty to the performance of which the respondent had a legal right and without this right he was not entitled to the mandamus : see Exparte Napier, (1852) 18 QB 692. In so far again, as the Act required the Customs officer to choose the proper item in the Customs Tariff for assessment of the customs levy on goods, it in my view involves performance of work of a quasi-judicial nature. The observation of Das J. in Province of Bombay v. K.S. Advani, 1950 SCR 621 at p. 725, which I am about to read, fully fits this case : If a statutory authority has power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authorities will yet be a quasi-judicial act provided the authority is required by the statute to act judicially. Now the Sea Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent could be held entitled to a mandamus and they found that the Act created such a duty. They said that Item 45(3) was a specific provision and therefore it had to be applied in preference to Item 61(8) which was a general provision. I am unable to agree with this view. 22. What, apparently, the learned Judges had in mind and applied, was the rule of construction of statutes that when two provisions in an Act are inconsistent with each other, if one is specific and the other general, the specific provision prevails over the general. Now, this rule like all other rules of construction, derives its justification from the fact that it assists in ascertaining the intention of the legislature. The reason why it so assists is this. When two provisions enacted by the legislature are inconsistent and one cannot operate at all if the other is given full effect, a question arises as to what the legislature intended. Clearly, it could not have intended that a provision that it enacted should have no operation at all. Therefore it is to be presumed that the legislature intended that both the provisions would at least have some effect, if they could not have their full effect. The rule unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the effect of each on the other, if such comparison was possible, what the intention of the legislature was. I am not aware that it has ever been said that when two provisions partially affect each other, without one completely overruling the other, the legislature intended the one less affected should yield to the other or even the other way about. To such a case the rule would, in my view, have no application. 25. The present is a case of that kind. I now confine myself only to Items 45(3) and 61(8) for, no question as to any other item in the Tariff arises for applying the rule. If gold-plated fountain pens were assessed under Item 61(8), there would still be plenty of scope left for Item 45(3) to operate upon, for, there would be many kinds of complete fountain pens without gold plating. Likewise also if gold-plated fountain pens were assessed under item 45(3), there might be many other gold-planted articles for being assessed under Item 61(8). Item 61(8) cannot be said to overrule Item 45(3) completely. Item 61(8) cannot said to be a general provision and Item 45(3) a specific one. There is no scope here of applying the rule giving effect to a specific enactment in pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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