Input:
etition (Criminal) No. 1166 of 1982.
(Under article 32 of the Constitution of India) AND Writ Petition (Criminal) No. 1167 of 1982 (Under article 32 of the Constitution of India) Gobinda Mukhoty, N.R. Choudhury and S.K. Bhattacharya for the Petitioners.
P. Ram Reddy and G.N. Rao for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
On October 8, 1982, we quashed and set aside the detention order dated December 26, 1981 in respect of detenu Merugu Satyanarayana s/o Ramchander, deferring the giving of the reasons to a later date.
On the same day we quashed the detention order dated February 13, 1982, in respect of detenu Bandela Ramulu @ Lehidas @ Peddi Rajulu @ Ramesh, s/o Venkati, deferring the giving of the reasons to a later date.
Identical contentions were raised in both these petitions and, therefore, by this common order we proceed to give our reasons on the basis of which we made the aforementioned orders.
1166/82.
Detenu M. Satyanarayana was working in Belampalli Coal Mines.
According to him he was arrested on October 22, 1981, but was kept in unlawful custody till October 31, 1981, when he was produced before the Judicial Magistrate who took him in judicial custody and sent him to Central Jail, Warangal.
According to the respondents detenu was arrested on October 30, 1981, and was produced before the Judicial Magistrate on October 31, 1981.
When he was thus confined in jail a detention order dated December 26, 1981 (in the counter affidavit the date of the detention order is shown to be December 28, 1981) made by the District Magistrate, Adilabad, in exercise of the power conferred by sub section
(2) read with sub section
(3) of section 3 of the ( 'Act ' for short) 639 was served upon him on December 29, 1981.
The District Magistrate also served upon the detenu grounds of detention on January 2, 1982.
It is not clear from the record or from the counter affidavit filed on behalf of respondents 1 to 3 whether any representation was made by the detenu and when the matter was disposed of by the Advisory Board.
1167/82.
Detenu Bandela Kamulu according to him was arrested on January 1, 1982, and he was produced before the Judicial Magistrate on January 11, 1982.
The dates herein mentioned are controverted by the respondents and they assert in the counter affidavit that the detenu was arrested on January 8, 1982, and was produced before the Judicial Magistrate on January 9, 1982.
During the period of his incarceration the District Magistrate, Adilabad in exercise of the power conferred by sub section
(2) read with sub s (3) of section 3 of the made an order of detention which was served on the detenu in District Jail, Nizamabad, on February 14, 1982.
Even in this case it is not clear from the record whether the detenu made any representation on how his case was dealt with by the Advisory Board.
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court It appears both the petitions were rejected.
Thereafter the present petitions were filed.
It may be stated at the outset that there is some dispute about the date of arrest of detenu in each case.
But in order to focus attention on the substantial contention canvassed in each case we would proceed on the assumption that the date of arrest given in each case by the respondents is correct.
We do not mean to suggest that the averment of the respondents with regard to the date of arrest is correct but that would be merely a presumption for the purpose of disposal of these petitions.
Mr. Gobinda Mukhoty, learned counsel who appeared for the detenu in each petition urged that on the date on which the detention order came to be made against each detenu he was already deprived of his liberty as he was already arrested and was confined in jail and, therefore, he was already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order.
Hence no order of detention could be made against him.
640 The impugned detention order in each case recites that the detaining authority, the District Magistrate of Adilabad, made the impugned detention order with a view to preventing the detenu from continuing to act further in the manner prejudicial to the maintenance of public order.
The fact situation in each case as transpires from the counter affidavit filed on behalf of the respondents is that detenu Merugu Satyanarayan was in jail since October 31, 1981, and the detention order in his case was made on December 28, 1981, meaning thereby that the detenu was already confined in jail for a period of nearly two months prior to the date of the detention order.
Similarly, in the case of detenu Bandela Ramulu according to the counter affidavit he was arrested on January 8, 1982, and was confined to jail under the orders of the First Class Magistrate from January 9, 1982.
The detention order in his case was made on February 13, 1982, meaning thereby that the detenu was already confined to jail for a period of one month and four days prior to the date of the detention order.
It is in the background of this fact situation in each case that the contention canvassed on behalf of the detenu by Mr. Mukhoty may be examined Sub section (2) of section 3 of the confers power on the Central Government or the State Government to make an order of detention with a view to preventing any person from acting in any manner prejudicial to the security of the State or from acting in any manner prejudicial to the maintenance of public order, etc.
In this case the detaining authority has made the order on being satisfied that it is necessary to detain the detenu with a view to preventing him from acting in any manner prejudicial to the maintenance of public order.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity pre judicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
This is the postulate of the section.
And this indubitably transpires from the language employed in sub section
(2) which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
Now, if it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section
(2) of section 3, if exercised, would imply that one who is already is sought to be further prevented which is not the mandate 641 of the section, and would appear tautologous.
An order for preventive detention is made on the subjective satisfaction of the detaining authority.
The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies or inclinations of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
(see Ujagar Singh vs State of Punjab, and Jagir Singh vs State of Punjab)(1).
Now, if the man is already detained, can a detaining authority be said to have been subjectively satisfied that a preventive detention order be made ? In Rameshwar Shaw vs District Magistrate, Burdwan & Anr.(2), this Court held that as an abstract proposition of the law detention order can be made in respect of a person who is already detained.
But having said this, the Court proceeded to observe as under: "As an abstract proposition of law, there may not be any doubt that section 3(1)(a) does not preclude the authority from passing an order of detention against a person whilst he is in detention or in jail, but the relevant facts in connection with the making of the order may differ and that may make a difference in the application of the principle that a detention order can be passed against a person in jail.
Take for instance, a case where a person has been sentenced to rigorous imprisonment for ten years.
It cannot be seriously suggested that soon after the sentence of imprisonment is pronounced on the person, the detaining authority can make an order directing the detention of the said person after he is released from jail at the end of the period of the sentence imposed on him.
In dealing with this question, again the consideration of proximity of time will not be irrelevant.
On the other hand, if a person who is undergoing imprisonment, for a very short period, say for a month or two or so, and it is known that he would soon be released from jail, it may be possible for the authority to consider the antecedent history of the said person and decide whether after he is released from jail, and if the authority is bona fide satisfied that such detention is necessary, he can make a 642 valid order of detention a few days before the person is likely to be released.
The antecedent history and the past conduct on which the order of detention would be based would, in such a case, be proximate in point of time and would have a rational connection with the conclusion drawn by the authority that the detention of the person after his release is necessary.
It may not be easy to discover such rational connection between the antecedent history of the person who has been sentenced to ten years ' rigorous imprisonment and the view that his detention should be ordered after he is released after running the whole of his sentence.
Therefore, we are satisfied that the question as to whether an order of detention can be passed against a person who is in detention or in jail, will always have to be determined in the circumstances of each case.
" One can envisage a hypothetical case where a preventive order may have to be made against a person already confined to jail or detained.
But in such a situation as held by this Court it must be present to the mind of the detaining authority that keeping in view the fact that the person is already detained a preventive detention order is still necessary.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained is already in jail or under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But as stated by this Court it will depend on the facts and circumstances of each case.
The view herein taken finds further support from the decision of this Court in Vijay Kumar vs State of J & K and Ors (1), wherein this Court recently held as under: "Preventive detention is resorted to, to thwart future action.
If the detenu is already in jail charged with a serious offence, he is thereby prevented from acting in a manner prejudicial to the security of the State.
Maybe, in a given case there yet may be the need to order preventive detention of a person already in jail.
But in such a situation the detaining authority must disclose awareness of the fact that 643 the person against whom an order of preventive detention is being made is to the knowledge of the authority already in jail and yet for compelling reasons a preventive detention order needs to be made.
There is nothing to indicate the awareness of the detaining authority that detenu was already in jail and yet the impugned order is required to be made.
This, in our opinion, clearly exhibits non application of mind and would result in invalidation of the order." Mr. Mukhoty next contended that even if a hypothetical case can be envisaged as contemplated by the decision of this Court in Rameshwar Shaw that a preventive detention order becomes necessitous in respect of a person already confined to jail, the detaining authority must show its awareness of the fact that the person in respect of whom detention order is being made is already in jail and yet a detention order is a compelling necessity.
It was urged that this awareness must appear on the face of the record as being set out in the detention order or at least in the affidavit in opposition filed in a proceeding challenging the detention order.
Otherwise, according to Mr. Mukhoty, the detention order would suffer from the vice of non application of mind.
The awareness must be of the fact that the person against whom the detention order is being made is already under detention or in jail in respect of some offence or for some reason.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequence resulting in deprivation of liberty, if mechanically passed without application of mind, is obviously liable to be set aside as invalid.
And that is the case here.
Coming to the facts of each case, the detention order refers to the name of the detenu and the place of his residence.
There is not even a remote indication that the person against whom the detention order is being made is already in jail in one case for a period of roughly two months and in another case for a period of one month and four days.
The detenu is referred to as one who is staying at a 644 certain place and appears to be a free person.
Assuming that this inference from the mere description of the detenu in the detention order is impermissible, the affidavit is conspicuously silent on this point.
Not a word is said that the detaining authority was aware of the fact that the detenu was already in jail and yet it became a compelling necessity to pass the detention order.
Therefore, the subjective satisfaction arrived at clearly discloses a non application of mind to the relevant facts and the order is vitiated.
The next contention urged by Mr. Mukhoty was that the detaining authority has not filed an affidavit in opposition but the same has been filed by one Sub Inspector of Police and it speaks about the subjective satisfaction of the detaining authority viz., the District Magistrate and this would show that the District Magistrate had completely abdicated his functions in favour of the Sub Inspector of Police.
The affidavit in opposition on behalf of respondents 1 to 3 who are the State of Andhra Pradesh, the District Magistrate, Adilabad and the Jailor, Central Prison, Hyderabad, has been filed by M. Venkatanarasayya who has described himself as Sub Inspector of Police.
The same Sub Inspector has filed affidavit in opposition in both the cases.
In para 1 of the affidavit in opposition it is stated that the deponent as a Sub Inspector of police is well acquainted with all the facts of the case.
In para 7 of the affidavit in opposition in writ petition 1166/82 he has stated that: 'Only after deriving the subjective satisfaction, the detaining authority passed order of detention against the detenu, as his being at large, will prejudice the maintenance of public order.
We are completely at a loss to under stand how a Sub Inspector of Police can arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a Sub Inspector of Police, we would not be far from a Police State.
Parliament has conferred power primarily on the Central Government and the State Government and in some specific cases, if the conditions set out in sub section (3) of section 3 are satisfied and the notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
In this case the District Magistrate, the detaining authority has not chosen to file his affidavit.
The affidavit in opposition is filed by a Sub Inspector of Police.
Would this imply that Sub Inspector of Police had access to the file of the District Magistrate or was the Sub Inspector the person who influenced the 645 decision of the District Magistrate for making the detention order ? From the very fact that the respondents sought to sustain the order by filing an affidavit of Sub Inspector of Police, we have serious apprehension as to whether the District Magistrate completely abdicated his functions in favour of the Sub Inspector of Police.
The file was not made available to the Court at the time of hearing of the petitions.
But number of inferences are permissible from the fact that the District Magistrate though a party did not file his affidavit justifying the order and left it to the Sub Inspector of police to fill in the bill.
And the Sub Inspector of Police does not say how he came to know about the subjective satisfaction of the District Magistrate.
He does not say that he had access to the file or he is making the affidavit on the basis of the record maintained by the District Magistrate.
Therefore, the inference is irresistible that at the behest of the Sub Inspector of Police who appears to be the investigating officer in some criminal case in which each of the detenu is implicated, the District Magistrate completely abdicating his responsibilities, made the detention order.
This Court in A.K. Roy vs Union of India & Ors.(1), while upholding the validity of the , repelled the contention that it is wholly unreasonable to confer upon the District Magistrate or Commissioner of Police the power to issue orders of detention for reasons mentioned in sub section
(2) of section 3, observing that the District Magistrate or the Commissioner of Police can take the action under sub section
(2) of section 3 during the periods specified in the order of the State Government only.
This Court also noticed another safeguard, namely, that the order of the State Government under sub section
(3) of section 3 can remain in force for a period of three months only and it is during this period that the District Magistrate or the Commissioner of Police, as the case may be, can exercise power under sub section
(2) of section 3.
The further safeguard noticed by this Court is that both these officers have to forthwith intimate the fact of detention to the State Government and no such order of detention can remain in force for more than 12 days after the making thereof unless, in the meantime, it has been approved by the State Government.
The Court observed that in view of these in built safeguards it can not be said that excessive or unreasonable power is conferred upon the District Magistrate or the Commissioner of Police to pass orders under sub section
(2) (see para 72).
646 If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a Sub Inspector of Police, the safeguards noticed by this Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
We only hope that in future the District Magistrate would act with responsibility, circumspection and wisdom expected of him by this Court as set out earlier.
However, the conclusion is inescapable that the errors pointed out by the petitioners which have appealed to us remain uncontroverted in the absence of an affidavit of the detaining authority.
We refuse to take any notice of an affidavit in opposition filed by a Sub Inspector of Police in the facts and circumstances of this case.
The last contention canvassed by Mr. Mukhoty is that even though assurances were given on the floor of Parliament as well as while hearing the case of A.K. Roy wherein constitutional validity of the was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents, in flagrant violation thereof the affidavit in opposition would show that the power of preventive detention was exercised on extraneous and irrelevant consideration, the detenu in each case being a member and organiser of CPI (ML) (People 's War Group), a political party operating in this country.
In the affidavit in opposition in writ petition 1166/82, the relevant averments on this point read as under : "In reply to para 7 of the petition these answering respondents submit that it is not correct to say that the grounds of detention failed to disclose any proximity with the order of detention and underlying purpose and object of the inasmuch as the detenu is one of the active organisers of CPI (ML) (People 's War Group) believing in violent activities with the main object to overthrow the lawfully established Government by creating chaotic conditions in rural and urban areas by annihilating the class enemies, went underground to preach the party ideology and to build up the cadres by indoctrinating them for armed struggle".
There is a similar averment in the affidavit in opposition in the connected petition also.
We would have gone into this contention 647 but for the fact that having found the detention order invalid for more than one reason, it is unnecessary to examine this contention on merits.
Non examination of the contention need not lead to the inference that the contention is rejected.
We keep it open to be examined in an appropriate case.
These were the reasons for which we quashed and set aside the order of detention in each case.
S.R. Petitions allowed.

Output:
In both the Writ Petitions, when the petitioners were already in judicial custody and thus have been deprived of their liberty, the District Magistrate Adilabad passed the detention orders in exercise of the power conferred under Section 3(2) read with Section 3(3) of the .
The detenu in each of these petitions filed a petition for writ of habeas corpus in the Andhra Pradesh High Court and both the petitions were rejected.
In the present petitions, it was contended as follows: (i) that in both the cases, the detenus being in judicial custody were already prevented from pursuing any activity which may prove prejudicial to the maintenance of public order and, therefore, no order of detention could be passed against each of them; (ii) that the affidavit in opposition was filed by a sub inspector of police and not by the detaining authority, i.e. the District Magistrate had completely abdicated his powers; and (iii)that in flagrant violation of the assurances given at the hearing of A.K. Roy 's case, that the drastic and draconian power of preventive detention will not be exercised against political opponents, the affidavit in opposition would show that the power of preventive detention was exercised against political opponents because the detenu in each case was a member and organizer of C.P.I. (M.L.) (Peoples War Group), a political party operating in this country.
Allowing the petition, the Court 636 ^ HELD: 1:1.
A preventive action postulates that if preventive step is not taken the person sought to be prevented may indulge into an activity prejudicial to the maintenance of public order.
In other words, unless the activity is interdicted by a preventive detention order the activity which is being indulged into is likely to be repeated.
That this is the postulate, indisputably transpires from the language employed in sub section (2) of Section 3, which says that the detention order can be made with a view to preventing the person sought to be detained from acting in any manner prejudicial to the maintenance of public order.
If it is shown that the man sought to be prevented by a preventive order is already effectively prevented, the power under sub section (2) of Section 3, if exercised, would imply that one who is already prevented is sought to be further prevented which is not the mandate of the section, and would appear tautologous.
[640 F H, 641 A] 1.2 The detaining authority before exercising the power of preventive detention would take into consideration the past conduct or antecedent history of the person and as a matter of fact it is largely from the prior events showing the tendencies of a man that an inference could be drawn whether he is likely even in the future to act in a manner prejudicial to the maintenance of public order.
If the subjective satisfaction of the detaining authority leads to this conclusion it can put an end to the activity by making a preventive detention order.
If the man is already detained a detaining authority cannot be said to have subjectively satisfied himself that a preventive detention order can be made.
[641 A C] Ujagar Singh vs State of Punjab, Jagir Singh vs State of Punjab ; and Rameshwar Shaw vs District Magistrate, Burdwan and Anr.
[1964]4 S.C.R. 921 referred to.
The subjective satisfaction of the detaining authority must comprehend the very fact that the person sought to be detained in jail is under detention and yet a preventive detention order is a compelling necessity.
If the subjective satisfaction is reached without the awareness of this very relevant fact the detention order is likely to be vitiated.
But, it will depend on the facts and circumstances of each case.
[642 D F] Vijay Kumar vs State of J & K and Ors.
A.I.R. 1982 S.C. 1023, applied.
The awareness of the detaining authority must be of the fact that the person against whom the detention order is being made is already under detention.
This would show that such a person is not a free person to indulge into a prejudicial activity which is required to be prevented by detention order.
And this awareness must find its place either in the detention order or in the affidavit justifying the detention order when challenged.
The absence of this awareness would permit an inference that the detaining authority was not even aware of this vital fact and mechanically proceeded to pass the order which would 637 unmistakably indicate that there was non application of mind to the most relevant fact and any order of such serious consequences resulting in deprivation of liberty, if mechanically passed without the application of mind is liable to be set aside as invalid.
[643 D G] 3:1.
A sub inspector of police cannot arrogate to himself the knowledge about the subjective satisfaction of the District Magistrate on whom the power of detention is conferred by the .
If the power of preventive detention is to be conferred on an officer of the level and standing of a sub inspector of police, we would not be far from a police state.
[644 E F] 3:2.
Parliament has conferred power primarily on the Central Government and in specific cases, if the conditions set out in sub section (3) of section 3 of the Act are satisfied and the Notification is issued by the State Government to that effect, this extra ordinary power of directing preventive detention can be exercised by such highly placed officers as District Magistrate or Commissioner of Police.
[644 F G] 3:3.
In this case, (a) the District Magistrate, the detaining authority has not chosen to file his affidavit, (b) the affidavit in opposition filed by the sub inspector would imply either he had access to the file of the District Magistrate or he had influenced the decision of the Magistrate for making the detention order and in any case the District Magistrate completely abdicated his functions in favour of the sub inspector of Police because (i) the sub inspector does not say in the affidavit how he came to know about the subjective satisfaction of the District Magistrate or that he had access to the file, and (ii) the file was not made available to the Court.
If the District Magistrate is to act in the manner he has done in this case by completely abdicating his functions in favour of an officer of the level of a sub inspector of Police, the safe guards noticed by the Supreme Court are likely to prove wholly illusory and the fundamental right of personal liberty will be exposed to serious jeopardy.
Hence the affidavit in opposition cannot be taken notice of, here.
[644 G H, 646 A C] A.K. Roy vs Union of India & Ors. ; , referred to.
The affidavit in opposition filed in the present case would show that the power conferred for ordering preventive detention was exercised on extraneous and irrelevant consideration in respect of each detenu he being a member of and organiser of C.P.I. (M.L.) (People War Group), a political party operating in this country which fact motivated the order and, therefore, a flagrant violation of the assurances given on the floor of Parliament and while hearing the case of A.K. Roy wherein the constitutional validity of the Act was challenged that the drastic and draconian power of preventive detention will not be exercised against political opponents.
But it is unnecessary to examine this aspect on merits, in view of the fact that the detention orders have been found to be invalid for more than one reason.
Non examination of the contention need not lead to the inference that the contention is rejected but kept open to be examined in an appropriate case.
[646 D E, 647 A B]


Input:
it Petition (Civil) No. 623 of 1989.
(Under Article 32 of the Constitution of India).
Rangarajan and San jay Parokh for the Petitioner.
G.B. Pai, V.K. Sharma and R.K. Maheshwari for the Respondents.
The Judgment of the Court was delivered by 755 OJHA, J.
The gravamen of the grievance of the petitioner is that even though she retired on 3 ist October 1977 on reaching the age of superannuation and even though she was entitled to pension, gratuity and other retirement benefits, the respondents have kept her deprived therefrom without any justification for all these long years.
She has made a prayer that the respondents may be directed to make the requisite payments to her at least now when she was almost at the fag end of her life.
Brief facts necessary for the decision of this petition are that the petitioner joined R.M. Arya Girls Patshala, New Delhi, which was an aided recognised school, as a primary teacher in the year 1952 and had been making contribution towards compulsory Provident Fund.
On 17th October, 1975, the Administrator of the Delhi Administration in consultation with the Accountant General, Central Revenues, issued a notification in exercise of the power conferred on him by Rule 126 of the Delhi School Education Rules, 1973 (hereinafter referred to as the Rules) laying down detailed procedure for disbursement of pension and gratuity and accounting of General Provident Fund to the employees of the aided schools under the Delhi Education Act 1973 (for short the Act) and the Rules flamed thereunder.
The sad notification, inter alia, provided: "Further rule 126 of the Delhi School Education Rules 1973 lays down that the Administrator shall, in consultation with the A.G.C.R. specify the detailed procedure for accounting of provident fund and payment of pension and gratuity to the employees of the aided schools.
In order to implement the provision referred to above the detailed procedure is prescribed hereafter.
In regard to matters not specified in the procedure the provi sions of the Central Civil Services (Pension) Rules, 1972 as amended from time to time and other general provisions of the Act/ Rules shall apply.
The employees of the aided schools shall be enti tled to pension and/or gratuity in accordance with the provisions and procedure applicable to the employees of the similar categories of Delhi Administration under the exist ing pension rules as contained in the Central Civil Services (Pension) Rules, 1972 as amended from time to time.
These rules shall be applicable to these employees of the aided schools who were appointed on or after the commencement of the Act/Rules and also to the existing 756 employees who opt for the pension and gratuity within the stipulated period in the prescribed proforma.
" The school in which the petitioner was working being an aided school under the Act and the notification aforesaid being applicable to its employees the petitioner made the requisite option in the prescribed proforma on 29th January 1976 which was duly countersigned by the Education Officer on 2nd April 1976.
After her retirement, the petitioner made several representations for payment of pension and gratuity etc.
to the authorities concerned but each time the peti tioner did not get any better response than an information that her case was under active consideration.
By his letter dated 27th February, 1987, i.e. after nearly 10 years of the petitioner 's retirement, the Joint Director of Education (FIN.) Old Secretariat, Delhi, conveyed to her an additional information apart from the usual one namely that her case was under active consideration, that further action in the matter will be taken by the Department soon after the pro posal is approved by the Government of India.
By a subse quent letter dated September 29, 1987, the petitioner was informed by the Education Officer that the Directorate of Education had referred the case to Government of India on 26th March, 1987 for policy decision.
Ultimately the Direc torate Of Education, Delhi Administration, promulgated the decision of pension scheme in the primary aided schools on 6th December 1988.
This decision, inter alia, provided for payment of grant in aid to the local authorities concerned for the implementation of the pension scheme already noti fied vide notification dated 17th October, 1975.
The last paragraph of the decision provides that "pensionary benefits under these orders would apply with immediate effect, i.e. from the date of issue of these orders".
The prayer made in this petition has been opposed by the New Delhi Municipal Committee by filing a counter affidavit.
The objection raised by the said Committee is that since the pension scheme was finally promulgated in 1988 and has provided therein that the pensionary benefits were to apply from the date of issue of the requisite order in this behalf namely 6th December, 1988, the petitioner who retired on 31st October, 1977 that is more than 11 years before the final promulgation of the scheme was not entitled to any of the benefits claimed by her simply on the ground that she had opted for pension before her retirement in pursuance of the scheme notified on 17th October 1975 which was in the process of finalisation at the time of her retirement.
It has also been contended on behalf of the said Committee that since modalities for grant in aid to the local authorities con 757 cerned for the implementation of the pension scheme were provided for by order dated 6th December 1988 the petitioner was not entitled to any pension before this date in any view of the matter.
Having heard learned counsel for the parties, we are of the opinion that the pleas raised on behalf of the Municipal Committee have no substance.
As seen above, the requirement under the notification dated 17th October, 1975 with regard to the school, the employees of which were entitled to the benefits of the said notification was that it should be an aided school under the Act.
The term "aided school" as defined in Section 2(d) of the Act means a recognised pri vate school which is receiving raid in the form of mainte nance grant from the Central Government, Administrator or local authority or any other authority assigned by the Central Government, Administrator or a 1ocal authority.
In paragraph 1 of the petition under the caption "Facts" it has been specifically stated that R.M. Arya Girls Patshala was granted permanent recognition on 1.4.1936 and was also given grant in aid.
The averments made in this behalf in sub paragraphs (b) and (c) ot paragraph III of the counter affidavit do not seem to seriously challenge what has been stated in paragraph 1 of the petition.
It is, therefore, apparent that the school in which the petitioner was working was such, the employees of which were entitled to the bene fits/ conferred by the notification dated 17th October, 1975.
The said notification as already pointed out above, inter alia, provided that in regard to matters not specified in the procedure the provisions of the Central Civil Serv ices (Pension), Rules, 1972 as amended from time to time shall apply.
Rule 35 of these Rules provides that a superan nuation pension shall be granted to a Government servant who is retired on his attaining the age of compulsory retire ment.
Rule 83 of these Rules, on the other hand, inter alia, lays down that the pension shall become payable from the date on which a government servant ceases to be borne on the establishment.
Since these Rules will apply to the petition er as contemplated by notification dated 17th October 1975, she is obviously entitled to get pension with effect from the date on which she/ceased to be borne on the establish ment of the school in which she was working consequent upon reaching the age of superannuation.
Rule 126 of the Rules under which the notification dated 17th October, 1975 had been issued gives the power to specify procedure for payment of pay and allowances, pension and gratuity etc.
to the Administrator in consultation with the Accountant General, Central Revenues.
The very opening words of the said notifi cation make it abundantly clear that the said notification had been issued in exercise of the powers conferred by Rule 126 of the Rules by the Administrator 758 in consultation with the Accountant General, Central Reve nues.
The notification having thus been issued by the compe tent authority and the petitioner who was an existing em ployee of an aided school on the date of the issue of the said notification having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly counter signed by the Education Officer, she obviously became entitled to the benefits conferred by the said notification.
This is so all the more in view of the fact that the notification dated 17th October, 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification.
The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October, 1975.
Such finalisation could not even defer the date of the entitlement: Likewise the said notification did not contemplate any approval by the Government of India as a condition precedent to its enforceability.
In this connection, it is also of significance that no statutory provision has been brought to our notice which made approval by the Government of India of the notification dated 17th October, 1975 issued by the competent authority as a condition precedent to the enforce ability of the said notification.
As seen above, for nearly 10 years after her retirement the petitioner was being informed in reply to her various representations that her case was under active consideration.
It is only in 1987 that the plea that further action in the matter will be taken by the Department soon after the proposal is approved by the Government of India was raised and the case was referred by the Directorate of Education to the Government of India on 26th March 1987 for policy decision.
Why it became necessary to do so in 1987 is a matter of anybody 's guess.
If, at all, it only indicates the callous attitude of the authorities concerned towards the fate of retired employees of aided schools in the matter of grant of pension and other retire ment benefits to them.
For ought we know, but for the sin cere effort made by the Indian Council for Legal Aid and Advice in this case, which apparently deserves commendation, the agony which the petitioner must have suffered during the long years after her retirement may have remained unnoticed and unmitigated.
No acceptable justification having been given for denying the pension to the petitioner from the date of her retirement as also the other retirement benefits the petitioner is obviously entitled to these benefits.
In the result, this petition succeeds and is allowed.
The respon 759 dents are directed to pay to the petitioner pension admissi ble to her in pursuance of the notification dated 17th October, 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits.
They are further directed to finalise the requisite formalities in this behalf within three months and to issue payment orders immediately thereafter.
The petitioner shall be entitled to her costs from respondents 1 and 2 which is assessed at Rs.2,000.
G.N. Petition allowed.

Output:
The petitioner joined as a primary teacher in 1952 in an aided recognised school.
She was making contribution towards compulsory provident fund.
In 1975, the Delhi Administra tion, in consultation with the Accountant General, Central Revenue, issued a notification under Rule 126 of the Delhi School Education Rules, 1973, laying down detailed procedure for disbursement of pension and gratuity as also accounting of General Provident Fund in respect of the employees of aided schools.
The petitioner opted for the aforesaid scheme in 1976, which was duly counter signed by the Education Officer.
After the petitioner retired in 1977, she made a number of representations to the authorities concerned for payment of pension and gratuity.
She got a reply in 1987 that her case had been referred to the Government for policy deci sion.
Ultimately, Delhi Administration promulgated the pension scheme in the primary aided schools on and effective from 6th December, 1988.
The petitioner in her Writ Petition before this Court relied on the scheme announced by the Delhi Administration and the option exercised by her.
She claimed that to deprive her of the pension and gratuity under the said scheme was without any justification.
On behalf of the respondents it was contended that the scheme was brought into force only in 1988 by the said notification whereby the modalities for grant in aid to the local authorities were finalised and since the petitioner retired from service in 1977, she was not entitled to pen sion prior to the said notification.
Allowing the Writ Petition, this Court, HELD: 1.
The school in which the petitioner was working was an 754 aided school within the meaning of section 2(d) of the Delhi Education Act and its employees were entitled to the bene fits conferred by the notification dated 17th October, 1975.
[757B C] 2.
Since the Central Civil Services (Pension) Rules, 1972 would apply to the petitioner as contemplated by noti fication dated 17th October, 1975, she is obviously entitled to get pension with effect from the date on which she ceased to be borne on the establishment.
of the school in which she was working consequent upon reaching the age of superannua tion.
[757F G] 3.
The said notification having been issued by the competent authority and the petitioner, who was an existing employee of an aided school on the date of the issue of the said notification, having opted for the pension and gratuity within the stipulated period in the prescribed proforma which was duly countersigned by the Education Officer, she obviously became entitled to the benefits conferred by the said notification.
This is so all the more in view of the fact that the notification dated 17th October, 1975 did not contemplate finalisation of the modalities about contribu tion towards pension fund as a condition precedent to the entitlement of the benefits under the said notification.
The finalisation of the said modalities was a matter of details among the authorities concerned and could have no bearing on the entitlement to the benefits of the notification dated 17th October, 1975.
Such finalisation could not even defer the date of the entitlement.
[758A C] 4.
The respondents are directed to pay to the petitioner pension admissible to her in pursuance of the notification dated 17th October, 1975 with effect from the date of her retirement and also to pay to her the other retirement benefits.
They are further directed to finalise the requi site formalities in this behalf within three mouths and to issue payment orders immediately thereafter.
[758H; 759A B]


Input:
Appeal No. 388 of 1956.
Appeal by special leave from the judgment and order dated the August 19, 1955, of the Bombay High Court in Appeal No. 53 of 1955.
755 C. K. Dhaphtary, Solicitor General of India, K. B. Choudhuri and B. H. Dhebar, for the appellant.
N. section Bindra and R. section Narula, for respondent No. 1.
B. H. Dhebar, for respondent No. 2. 1961.
April 4.
The Judgment of P. B. Gajendragadkar, IC.
R. Wanchoo, K. C. Das Gupta and N. Rajagopala Ayyangar, JJ., was delivered by Ayyangar, J. A. K. Sarkar, J., delivered a separate judgment.
AYYANGAR, J.
This appeal by special leave is against the judgment and order of a Division Bench of the Bombay High Court by which a writ of mandamus or certiorari granted to the respondent was confirmed on appeal preferred by the appellant now before us.
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 Octo ber 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 im. ported pens.
The Schedule to the Indian Tariff Act, 1934, has an item numbered 45(3) in relations to the article described, as "fountain pens complete", the rate of duty being 30 per cent and 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 Custom authorities, however, considered that the consignment fell within the description "articles plated with gold or silver" being item 61(8) on which duty was payable at 781 per cent.
756 The Assistant Collector of Customs adjudicated the duty on this latter basis and thereafter the respondent having filed an appeal to the Collector of Customs, the levy was upheld by order dated February 22, 1955.
Section 191 of the enables any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government.
The respondent, without resorting to this remedy, filed a writ application in the High Court of Bombay to quash the imposition of the duty at the higher rate (certiorari) and to direct the release of the goods on payment of duty at 30 per cent.
(mandamus).
The application was resisted by the Collector of Customs, who raised substantially two points: (1) that on the merits the goods imported were "gold plated articles" notwithstanding their being fountain pens and that the proper rate of duty was that which had been determined by the Assistant Customs Collector, (2) that the respondent had another remedy open to him, viz., to file a revision to the Central Government and that he was, therefore., disentitled to move the High Court under article
226 of the Constitution before availing himself of the remedy specially provided by statute.
The writ petition came on for hearing before justice Tendolkar, who by his order dated July 5, 1955, recorded that on any reasonable construction of the items in the Schedule to the Indian Customs Tariff, fountain pens did not cease to be fountain pens" because they contained parts which were plated with silver or gold and that so long as they were "fountain pens complete", subject to any exceptional cases of which this was not one, only duty at 30 per cent.
under item 45(3) could be levied.
The learned Judge further held that the interpretation that he placed upon item 45(3) in the context of the other entries in the Tariff Schedule can "only be one and it is not reasonably possible for any person to take a contrary view".
In other words, the learned Judge was of the opinion that the construction put upon the entry by the Customs authorities was unreasonable or perverse.
757 The objection to the writ petition based upon the petitioner before him not having exhausted the statutory remedies available to him was repelled by the learned Judge on the ground that on the facts the decision to levy duty at 783 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 percent.
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 petitions by parties who had not exhausted their statutory remedies, however, held that in the case before the Bench the remedy of applying in Revision to the Central: Government had become time barred by the date ' of the hearing of the appeal, and that on that ground he would not interfere with the order of the learned Single Judge.
The appeal was, therefore, dismissed.
The Collector of Customs having obtained special leave from this Court has brought this appeal before US.
The learned Solicitor General appearing for the appellant argued the appeal on the basis that the view of the learned Judges of the Bombay High Court that on any reasonable interpretation of the items in 758 the Schedule to the Tariff Act the consignment imported by the respondent could have been liable only to a duty of 30 per cent.
under item 45(3) was correct.
We might add that even apart from this concession bay for the purpose of argument, we entirely agree with the learned Judges that the tariff items in the Schedule are not reasonably capable of any other construction.
In reaching this conclusion we have taken into account the fact that "fountain pens complete" were taken out of the general item 45 'Stationery etc. ' under which they were originally included, by an amendment effected in 1949 in pursuance of an international agreement and that though the duty on stationery was thereafter increased from 30 to 37 1/2 per cent., under the provisions of the Finance Act, 1949, the duty of 30 per cent.
fixed on fountain pens re mained unchanged.
This at least showed that they were treated as a specialized class of stationery which required separate treatment.
The only question therefore is whether a fountain pen in which certain of its essential parts are gold or silver plated falls outside the category of "fountain pens complete".
It cannot be again said that anib, cap and clip are essential parts of a fountain pen and not more accessories, and that without them there would be no question of having a "fountain pen complete".
Next it is a well known and recognized fact that most fountain pens in ordinary use have nibs 'Which are gold plated.
In this connection it should not be overlooked that gold, apart from being a store of value, is a metal which has industrial uses by its malleability and its resistance to oxidation on contact with acids and chemicals which enter into the composition of ink.
The 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 759 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 poses essential for the utility of the pen as such, Purmerely 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 the learned Solicitor General did not address us on the correctness of the interpretation placed on relative scope of entries 45(3) and 61(8), by the learned Judges of the High Court.
The only point, therefore, requiring to be considered is whether the High Court should have rejected the writ petition of the respondent in limine because he had not exhausted all the statutory remedies open to him for having his grievance redressed.
The contention of the learned Solioitor General was that the existence of an alternative remedy was a bar to the entertainment of a petition under article 226 of the Constitution unless (1) there was a complete lack of jurisdiction in the officer or authority to take the action impugned, or (2) where the order prejudicial to the writ petitioner has been passed in violation of the principles of natural justice and could, therefore, be treated as void or non est.
In all other cases, he sub mitted, Courts should not entertain petitions under article 226, or in any event not grant any relief to such petitioners.
In the present case, he urged, the High Court in appeal had expressly dissented from the reasoning of the learned Single Judge as regards the lack of jurisdiction of the Customs Officers to adjudicate regarding the item under which the article imported fell and the duty leviable thereon.
Nor was there any complaint in this case that the order had been passed without an opportunity to the importer 760 to be heard, so as to be in violation of the principles of natural justice.
The learned Solicitor General questioned the correctness of the reasoning of the learned Chief Justice in condoning the conduct of the respon dent in not moving the Government in revision by taking into account the time that had elapsed between the date of the impugned order and that on which the appeal was heard.
The submission was that if this were a proper test, the rule as to a petitioner under article 226 having to exhaust his remedies before he approached the Court would be practically a dead letter because in most cases by the date the petition comes on for hearing, the time for appealing or for applying in revision to the departmental authorities would have lapsed.
We see considerable force in the argument of the learned Solicitor General.
We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches 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 vs T. R. Varma(l), Venkatarama Ayyar,J., 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 the special jurisdiction of the High Court to issue a prerogative writ.
It is true that the existence of another remedy does not affect the juris diction of the Court to issue a writ; but, as observed by this Court in Rashid Ahmed vs Municipal Board, Kairana ( 'a), 'the existence of an adequate legal remedy is a thing to be taken into consideration in the matter of granting writs '.
Vide also (1) [1958] S.C.R. 499 503,504.
(1a) ; 761 K.S. Rashid and Son vs The Income tax Investigation Commission( ').
And where such remedy exists, it will be a sound exercise of discretion to refuse to interfere in a petition under article 226, unless there are good grounds therefore.
" There is no difference between the above and the formulation by Das, C. J., in The State of Uttar Pradesh vs Mohammad Nooh (2), where he observed: ". .
It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy.
It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute.
The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any.
But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite ,of the fact that the aggrieved party had other ade quate legal remedies.
" After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added: "It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari." In the result this Court held that the existence of other legal remedies was not per se a bar to the issue (1) [1954] S.C.R 738.
96 (2) ; , 605 607.
762 Of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him.
The passages in the judgments of this Court we have extracted would indicate (,I) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested.
in the High Court to have entertained the petition and granted the petitioner 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 preeminently 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.
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 781 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 in the Tariff Schedule might be erroneous, even grossly erroneous, but this error was one committed in the exercise of their jurisdiction and had not the effect of lacing the resulting order beyond their jurisdiction.
Secondly, as we have already indicated, we must express our dissent from the reasoning by which the learned Judges of the High Court held that the writ petitioner was absolved from the normal obligation to 763 exhaust his statutory remedies before invoking the jurisdiction of the High Court under article 226 of the Constitution.
If a petitioner has disabled himself from availing himself of the statutory remedy by his own fault in not doing so within the prescribed time, he, cannot certainly be ' permitted to urge that as a ground for the Court dealing with his petition under article 226 to exercise its discretion in his favour.
Indeed, the second pass age extracted from the judgment of the learned C. J. in Mohammad Nooh 's case.
(1) with its reference to the right to appeal being lost "through no fault of his own" emphasizes this aspect of the rule.
The question, however, still remains whether in the circumstances of this ease we should interfere with the decision of the High Court.
In considering this, we cannot lose sight of three matters: (1) that the levy of the duty at 78 3/4 per cent.
was manifestly erroneous and cannot be supported on any reasonable construction of the items in the Tariff Schedule, (2) it was stated by the Customs authorities in answer to the writ petition, in the grounds of appeal to the High Court under the Letters Patent, as also in the statement of case before us, that the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold platled fell within item61(8).
This might be some indication that the adjudication by the Assistant Collector of Customs and by the Customs Collector on appeal was in pursuance of a settled policy of the entire hierarchy of the department.
Without going so far as to say that a Revision to the Central Government might in the circumstances be a mere futility, we consider that this is not a matter which would be wholly irrelevant for being taken into account in disposing of the appeal before us.
After all, the basis of the rule by which Courts insist upon a person exhausting his remedies before making application for the 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 (1) ; , 605 607.
764 Solicitor General does not dispute the correctness of the principle of law as enunciated by Chagla, C. J., his complaint is that the law as 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 admittedly possessed made an order, there is justification for our interfering with it.
The two matters set out earlier should suffice to show that no interference could be called for in this appeal.
We consider, therefore, on the whole and taking into account the peculiar circumstances of this case that the High Court has not exercised its discretion improperly in entertaining the writ application or granting the relief prayed for by the respondent and that no care for interference by us in an appeal under article 136 of the Constitution has been made out.
The appeal fails and is dismissed with costs.
SARKAR, J.
In this case the respondent had imported a certain number of fountain pens plated with gold.
The goods were assessed to import duty by an assessing officer of the Indian Customs under item 61(8) of the first schedule to the Customs Tariff which dealt with "Articles, other than cutlery and surgical instruments, plated with gold or silver" and provided for a duty of 78 3/4 per cent.
ad valorem.
The respondent appealed from this assessment to the Collector of Customs under a. 188 of the , on the ground that the assessment should have been 765 under item 45(3) of that schedule which dealt with "Fountain pens, complete" and provided for a duty of 30 percent ad valorem.
He did not dispute that the fountain pens imported by him were, gold plated.
His appeal was dismissed.
The respondent then moved the High Court at Bombay for a writ to quash the order of assessment under item 61(8).
The application was allowed by Tendolkar T. who issued a writ of mandamus directing the Collector of Customs to release the goods upon payment of the duty specified in item 45(3).
The appeal by the Collector of Customs from the order of Tendol 'kar, J., to an appellate bench of the High Court was dismissed.
The Collector has therefore filed the present appeal.
The first question is, whether the writ should have been refused on the ground that the respondent had another remedy, namely, an application to the Central Government under section 191 of the to revise the order of the Collector.
Tandolkar, J., held that the writ could issue though the other remedy had not been pursued, as the order of assessment under item 51(8) was without jurisdiction.
This was clearly wrong.
The Collector had 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. vs Assistant Collector of Customs (1).
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 a 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 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 this rule where the obligation (1) A.1,R. 1957 S C 733 766 sought to be enforced by the writ is created by a statute and that statute itself provide,% the remedy for its breach.
It should be the duty, of the courts to see that the statutory provisions are observed and, therefore, that the statutory authorities are given the opportunity to decide the question which the statute requires them to decide.
The fact that the Central Government had on a prior occasion decided, as appears in this case to have happened, that fountain pens of the kind which the respondent had imported, were liable to ditty under item 61(8) cannot furnish any reason justifying a departure from the normal rule or the issue of a writ without that government having been moved under section 191.
This prior decision of the Central Government could be a reason for such departure only on the presumption that it would not change its view even if that view was shown to be incorrect.
I cannot imagine that a court can ever make such a presumption.
Therefore, it seems to me that it would have been proper to refuse the writ on the ground that the respondent had another remedy available to him which he had not pursued.
On the present occasion, however, I do not wish ' to decide the case on that ground.
Next, I feel the gravest doubt if the case is one for the issue of a writ of mandamus.
It is of interest to observe that the respondent had in his petition to the High Court himself asked for a writ of certiorari.
A writ of mandamus issues in respect of a ministerial duty imposed by a statute; it cannot issue where the duty to be performed is of a judicial nature, except for the purpose of directing that the judicial duty should be performed, that is, a decision should be given on the question raised.
In John Shortt 's book on Informations, Mandamus and Prohibition it is stated at p. 256: "If the duty be of a judicial character a mandamus will be granted only where there is a refusal to perform it in any way; not where it is done in one way rather than another, erroneously instead of properly.
In other words, the Court will only 767 insist that the person who is the judge shall act as such; but it will not dictate in any way what his judgment should be.
If, however, the public act to be performed is of a purely ministerial kind, the Court will by mandamus compel the specific act to be done in the manner which to it seems lawful.
" It does not seem to me that the duty which the created and the performance of which was sought to be enforced by a writ in the present case, can properly be said to be a ministerial duty.
That duty was to decide which item in the Customs Tariff was applicable to the respon dent '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 Ex parte Napier( ').
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 vs K. section Advani (), 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 authority will yet be a quasi judical act provided the authority is required by the statute to act judicially." 'Now the empowers the Customs authorities to impose a certain duty on goods imported and this no doubt prejudicially affects the importer.
The Act, further clearly requires the authorities to proceed judicially in imposing that duty when a dispute arises, that is, after giving a hearing to the party affected: see as. 29, 31 and 32 of the Act.
In this case a hearing (1) ; (2) , 725.
768 was in fact given to the respondent.
This taken with the provisions as to a right of appeal from the decision Of the first assessing officer and as to the right to move the government in revision from the decision in the appeal, would clearly indicate that the authorities have to act judicially.
In Gulabdas & Co. vs Assistant Collector(1) this Court proceeded on the basis that the duty of assessing the customs levy was of a judicial nature.
Therefore I feel the gravest doubt, if the present is a case where a mandamus could at all issue.
No doubt if a mandamus could not issue because the act which the statute required to be performed was not a ministerial one but judicial in its character, the case might be a fit one for the issue of a writ of certiorari.
But that writ cannot, in any event, issue unless the proceedings disclosed an error apparent on their face.
In issuing a certiorari again, the Court does not examine the judicial act questioned as if it was hearing an appeal in respect of it: see Satyanarayan Laxminarayan Hegde vs Mallikarjun Bhavanappa Tirumale(2).
I do not propose to discuss this question further in the present case, for it was not considered by the High Court nor raised at our bar.
I proceed on the basis that it was a case where an application for a mandamus Jay.
The respondent, in substance, asked for and obtained a writ directing the Customs authorities to release the goods on payment of duty at the rate of 30 per cent.
ad valorem as prescribed by item 45(3).
This was on the basis that the duty should have been levied under that item and not under item 61(8) as the Customs authorities had done.
The question then is, was there a clear duty on the assessing authorities to assess the goods under item 45(3) dealing with "Fountain pens, completed and not to do so under item 61(8) dealing with "Articles, other than cutlery and surgical instruments, plated with gold".
All the learned Judges of the High Court agreed that this clear duty had to be established before the respondent could be held entitled to a mandamus and they found that the Act created such (1) A.I.R. 1957 S.C. 733.
(2) [1960] 1 S.C.R. 890, 901.
769 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.
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 under discussion gives effect to this presumed intention of the legislature.
In order to give effect to this intention, the rule provides that the provision with a narrower scope of operation should have effect so far as it goes, in preference to the provision with the larger scope of operation so as to restrict the operation of the latter which, without such restriction, would have wiped the narrower provision out of the statute book altogether.
This rule permits both the provisions to have effect; it reduces the scope of one and prevents the other from becoming a dead letter.
This aspect of the rule would, I believe, appear clearly from a statement of it by Sir John Romillyn pretty vs Solly(1) which I now set out: "The rule is, that wherever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general (1) ; ; 770 enactment must be taken to affect only the other parts of the statute to which it may properly apply.
" The test of the applicability of the rule, therefore, is that one enactment must overrule the other.
The one overruled is called specific only in comparison with the other which is in the same way only, called general.
There need be nothing inherent in the nature of the enactments which, apart from a consideration of their comparative scopes, mark one out as specific and the other as general.
When one overrules the other, it must include within its scope that other and so becomes general in comparison with the other.
If two provisions were merely in conflict with each other, each affecting the other and none overruling the other and itself remaining in force, no question of calling one general and the other specific would arise.
I should suppose, when Sir John Romilly talked of one enactment overruling the other.
he meant completely overruling.
That would make the rule sensible for, then it would clearly be a guide to the intention of the legislature which is that, all tile provisions are intended to have effect.
This reason to support the rule would not exist if it was applied to a case where the provisions only partially affected each other for, then, both the provisions would have at least some operation.
It would further be impossible to say from a comparison of the degrees 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 pro.
visions 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.
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 771 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 plated articles for being assessed under item 61(8).
Item 61(8) cannot be said to overrule item 45(3) completely.
Item 61(8) cannot be 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 preference to the general.
What then should be done? Under which item should the gold plated fountain pens then be assessed to duty? In my view, they were properly assessed under item 61(8).
The item is clearly intended to apply to all gold plated articles other than the two expressly excepted, namely, cutlery and surgical instruments.
There is no reason why this intention should not be given effect to.
The Customs Tariff Schedule no doubt makes separate provisions for various individual articles.
A fountain pen is one of such articles.
If a gold plated fountain pen is for the reason that fountain pens are separately provided for, to be taken out Of item 61(8), all other articles separately dealt with in the schedule would have for the same reason, to be taken out of that item even though they happen to be plated with gold.
The result of that would be that item 61(8) would apply to those articles which are not ,separately provided, and as Customs Tariff Schedules are made as exhaustive as they can be, there would be very few articles, if any, left to which item 61(8) might be applied.
It does not, seem to me that this could have been intended.
Item 61(8), as already stated, is intended to take in all gold plated articles except cutlery and surgical instruments.
A proper construction of this item must give effect to this intention.
Item 45(3) applies to fountain pens.
Now it is not necessary for a fountain pen to be gold plated at all.
Indeed the large majority of them are not gold plated.
It is true that a fountain pen does not cease to be a fountain pen because it is plated with gold.
It is, however, equally true that a gold plated fountain pen is an article plated with gold.
A fountain pen may or may not be 772 gold plated but a gold plated article can only be a gold plated article.
Therefore, it seems to me that item 45(3) was intended to apply to fountain pens simpliciter, that is, without gold plating or other embellishments which might properly bring them under another item in the schedule.
This, in my view, would best harmonise the different items in the Tariff schedule and carry out the intention of the legislature.
This can be illustrated by an example.
Suppose a fountain pen was Studded with diamonds.
Could it then be said that the legislature intended to pose on them a duty of 30 per cent.
ad valorem under item 45(3) and the diamonds were not intended to be assessed under item 61(10) which deals with jewels and provides for a higher duty.
I do not think that a possible view to take.
I think, therefore, that the assessment in the present case under item 61(8) was proper.
I would hence allow the appeal.
By COURT: In accordance with the opinion of the majority, this appeal is dismissed with costs.
Appeal dismissed.

Output:
Under a licence granted for the import of fountain pens at not less than Rs. 25 C.I.F. value, the respondent imported Sheaffer pens from Australia, which had nibs which were gold plated and also caps and clips of similar composition.
The imported goods were assessed to duty by the customs authorities under item 61(8) of the First Schedule to the Indian Tariff Act, 1934, dealing with "Articles, other than cutlery and surgical instruments, plated with gold or silver" which provided for a duty Of 781 per cent.
ad valorem, while the respondent claimed that the goods fell within item 45(3) which related to the article described as "Fountain pens, complete", the rate of duty being 30 per cent.
ad valorem.
Section 191of the , enabled any person aggrieved by an order of the Collector of Customs to file a revision to the Central Government, but the respondent, without resorting to this remedy filed a writ application in the High Court of Bombay under article 226 of the Constitution of India to quash the imposition of the duty at the higher rate and to direct the release of the goods on payment of duty at 30 per cent.
The Single judge who disposed of the application took the view that fountain pens did not cease to be fountain pens though they contained parts which were plated with gold, that so long as they were "Fountain pens, complete" only duty under item 45(3) could be levied and that, in the context of the items in the Tariff Schedule, it was not reasonably possible for any person to take a contrary view.
Accordingly, the customs authorities were restrained from enforcing payment of any duty higher than 30 per cent.
On appeal, the Appellate Bench of the High Court agreed with the interpretation of the tariff items and held that, though it was not the practice to entertain writ petitions by parties who had not exhausted their statutory remedies, as the remedy of applying in revision to the 95 754 Central Government had become time barred by the date of hearing of the appeal, it would not interfere with the order of the Single judge.
Held, that the High Court was in error in its view that though the respondent had failed to exercise his statutory remedy, the fact that it had become time barred at the date of the hearing of the appeal against the order in the petition under article 22 6, was a good ground for the Court to exercise its discretion in granting the relief prayed for by the respondent in his petition.
Held, further (Sarkar, J., dissenting): (i) that the consignment imported by the respondent was liable only to a duty of 30 per cent.
under item 45(3) in the First Schedule to the Indian Tariff Act, 1934, and that the tariff items in the Schedule were not reasonably capable of any other construction.
(2) that as in the present case the levy of the duty under entry 61(8) was manifestly erroneous, and the Central Board of Revenue had issued a ruling to the effect that fountain pens with nibs or caps which were gold plated fell with entry 61(8), it could not be said that the High Court had exercised its discretion improperly in entertaining the writ application so as to justify interference in an appeal under article I36 of the Constitution.
Per Gajendragadkar, Wanchoo, Das Gupta and Rajagopala Ayyangar, JJ.
The rule that a party who applies for the issue of a high prerogative writ should, before he approaches the court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the 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.
Union of India vs T. R. Varma, [1958] S.C.R. 499 and The State of Uttar Pradesh vs Mohammad Nook, ; , relied on.
Per Sarkar, J. Item 61(8) in the First Schedule to the Indian Tariff Act, 1934, is intended to apply to all gold plated articles other than cutlery and surgical instruments, while item 45(3) is applicable to fountain pens simpliciter, that is, without gold plating.
Such a view would harmonise the different items in the Tariff Schedule and carry out the intention of the legislature.
The customs authorities were correct in assessing gold plated fountain pens under entry 61(8).