judgement:
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.

summary/full:
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).


judgement:
Appeal No. 157 of 1959.
Appeal from the judgment and decree dated January 5, 1956, of the Allahabad High Court in Special Appeal No. 205 of 1954 and Civil Appeal No. 158 of 1959.
Appeal by special leave from the judgment and order dated January 15, 1952, of the Labour Appellate Tribunal of India, Allahabad, in Appeal No. Cal.
47 of 1951.
M.C. Setalvad, Attorney General for India and G. C. Mathur, for the appellant.
M. R. Krishna Pillai, for respondent No. 5 (In C.A. No. 157/1959).
C. P. Lal, for the State of U. P. and Respondents Nos. 2 and 4 (In C. A. No. 157/59).
O. P. Verma, for respondent No. 5 (in C. A. No. 158/59).
December 12.
The Judgment of the Court was delivered by DAs GUPTA, J.
These two appeals raise the question of the maintainability of an application made by the Employers ' Association of Northern India, Kanpur on behalf of , the J. K. Cotton and Weaving Mills 187 Co., Ltd., a member of the Association in connection with the proposed termination of service of certain members of its Watch and Ward Staff.
But before we come to the consideration of this question it is necessary to indicate in brief the long and tortuous path this matter has traveled before coming to us.
The application of the Employers ' Association purported to be under clause 5(a) of the Government order dated March 10, 1948, as amended by a later order of May 15, 1948.
This order was issued by the Governor of the United Provinces in exercise of the powers conferred on him by cl.
(b), (c), (d) and (g) of section 3 and by section 8 of the U. P.
The application after stating that a number of thefts of Dhoties had taken place in the Mill further stated that it was obvious to the management of the J. K. Cotton Spinning and Weaving Mills Co., Ltd., that this state of affairs could not exist and continue if Watch and Ward staff were carrying out their duties vigilantly, correctly and honestly.
It stated further that the management having lost confidence in the honesty of the Watch and Ward Staff had decided to terminate the services of all the per.
sons of the Watch and Ward Staff and to recruit fresh men from the employment exchange and that in lieu of notice of termination of service the management would pay to these persons 12 days ' wages in accordance with Standing Order No. 17A. The prayer made in the application was that "the Board be pleased to record the award entitling the J. K. Cotton and Weaving Mills Co., Ltd., to terminate the services of all the members of the Watch and Ward Staff whose names appear in Annexure A".
During the pendency of the application before the Board the applicant withdrew its prayer as regards 5 of the workmen.
As regards the remaining workmen, after rejecting the preliminary objection raised on their behalf that the Board had no jurisdiction to entertain the application, the Board held that "it would not be in the interests of either party or in the interest of industry to allow the remaining 27 sepoys to continue in the employment of the Mills" and the Board 188 accordingly made the award permitting the appellants to terminate the services of these 27 sepoys after giving them compensation at the rates set out by it starting with 15 days full wages and compensation for those with one year of service with additional amount of compensation on a graduated scale for longer periods of service.
Against this order both the parties appealed to the Industrial Court.
That court agreed with Board 's conclusion on the question of jurisdiction but pointed out that the "procedure adopted by the employers association was defective inasmuch as the mills did not apply to the Regional Conciliation Officer to discharge the sepoys in question".
On merits the court held that the evidence justified the conclusion of the Board that the management had lost confidence in the members of the Watch and Ward Staff and that having regard to the Standing Orders their services should be terminated in accordance with the Standing Orders.
It accordingly directed in modification of the order made by the Board "that the services of the 27 sepoys in question be terminated in accordance with the Standing Orders and that they would not be paid extra compensation as directed by the Board.
" The workmen then appealed to the Labour Appellate Tribunal of India.
The appellate tribunal held relying on an earlier decision of its own in Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India (1) that the application under cl.
5(a) of the Government Order was not maintainable.
Accordingly it allowed the appeal and set aside the award of the Board as well as the Industrial Court.
J.K. Cotton and Weaving Mills Co., Ltd., thereupon filed an application under article 226 of the Constitution to the High Court of Judicature at Allahabad praying for a writ in the nature of certiorari calling for the records of the case from the Labour Appellate Tribunal of India and quashing the order of the Tribunal which has been mentioned above.
Mr. Justice Chaturvedi, before whom this application came up for hearing held that the application under (1)(1952) 189 cl.
5(a) was maintainable and the Appellate Tribunal had erred in holding otherwise.
Being however, of opinion that there had been undue delay in making this application for a writ, he dismissed the petition on that ground.
In the Letters Patent appeal preferred by the company against this decision a preliminary objection was raised on behalf of the Union representing the workmen that the Allahabad High Court could not call for the records and quash the order of the Labour Appellate Tribunal of India as those records were in Calcutta and consequently beyond the reach of the Court.
The learned Judges who heard the appeal upheld this objection and dismissed the appeal.
They however issued a certificate under article 132(1)and article 133(1)(c) of the Constitution.
Thereafterthe company also obtained special leave from this court to appeal directly against the order of the Labour Appellate Tribunal of India.
These two appeals preferred one on the certificate granted by theHigh Court and the other on the strength of the special leave granted by this Court, have been heard together.
The main controversy, as already indicated, is on the question of the maintainability of the application under cl.
5(a) of the Government order.
This order issued by the Governor of the United Provinces in exercise of the powers conferred on him by the U. P. 'contains detailed provisions as regards the settlement of industrial disputes.
The first clause provides for the constitution of Conciliation Boards consisting of three members.
Clause 2 provides for the appointment of conciliation officers for specified areas.
Clause 5 contains the important provisions as to commencement of proceedings before the Boards.
It provides two ways of starting these proceedings: one mentioned in cl.(b) is by an order made in writing by the Provincial Government for enquiring into a matter in respect of which an industrial dispute has arisen or is likely to arise.
The other method is by means of an application by an employee or recognised association of employers or registered trade union of workers or where there is 190 no such registered trade union the representatives not more than five in number duly elected by a majority of the workmen in the industry.
Any of these may by an application in writing move the Board to inquire into an industrial dispute.
This provision is in cl.
5(a) which may be set out in full: "5(a).
Any employee or recognised association of employers or registered Trade Union of workmen or, where no registered trade union of workmen exists in any particular concern or industry, the representatives not more than five in number of the workmen in such concern or industry duly elected in this behalf by a majority of the workmen, in such concern or industry as the case may be, at a meeting held for the purpose, may by application in writing move the Board to enquire into any industrial dispute.
The application shall clearly state the industrial dispute or disputes which are to be the subject of such inquiry.
" Clause 10 provides for the constitution of industrial courts for specified areas.
Clause 12 provides for appeals to this Court against the awards made by the Board.
The other clauses up to clause 22 deal with the powers and procedure of the Board or the Industrial Court and with the duties of employers to permit certain meetings to be held.
Then comes cl. 23 which is in these words: "Save with the written permission of the Regional Conciliation Officer or the Additional Regional Conciliation Officer concerned, irrespective of the fact whether an inquiry is pending before a Regional Conciliation Board or the Provincial Concilia tion Board or an appeal is pending before the Industrial Court, no employer, his agent or manager, shall during the continuance of an inquiry or appeal, discharge or dismiss any workman.
" Section 24 provides that every order made or direction issued under the provisions of this Government order shall be final and conclusive.
Clause 26 provides for penalties for contravention or an attempt to contravene any of the provisions of the order.
A consideration of the scheme of this legislation 191 makes it clear that while two modes are provided in clauses 5(a) and 5(b) for the commencement of proceedings for settlement of industrial disputes generally, a special provision is made in clause 23 that if an enquiry is proceeding before a Regional Conciliation Board or the Provincial Conciliation Board or an appeal is pending before the Industrial Court, no workman shall be discharged except with the written permission of the Regional Conciliation Officer or the Additional Conciliation Officer concerned.
The consequence in cl. 26 is that if any workman is discharged or dismissed during the continuance of such enquiry or appeal without such permission the employer shall be liable to fine or to imprisonment not exceeding three years or both.
The heavy punishment provided for contravention of the order shows the importance attached by the legislating authority to the directions given by the Order.
In deciding whether an application under cl.
5(a) was maintainable in the facts of the present case two questions arise for consideration.
The first is whether an industrial dispute comes into existence as soon as an employer decides on the dismissal of some of the workmen and proposes to give effect to such decision.
One view is that it is only the party aggrieved by the proposed dismissal, in other words, the workmen, who by objecting to the same can raise the dispute and that the employer cannot by his own proposal to dismiss the workmen be heard to say that a dispute had come into existence even before the workmen had a chance to object to the dismissal.
The contrary view which has found favour with Mr. Justice Chaturvedi of the High Court is that even at the stage the employer proposes to dismiss his workmen it is a case of contemplated non employment which will come within the expression "industrial dispute".
The other question is whether the provisions of cl. 23 of the order bar an application under cl.
5(a) during the con tinuance of any enquiry before the Regional Conciliation Board or the Additional Conciliation Board or during the pendency of the appeal before the Industrial Court.
There is no dispute that on June 13, 192 1950 when the application under clause 5(a) was made an inquiry was in fact pending before a Conciliation Officer.
It appears that on July 9, 1949 the Governor of the United Provinces made an order directing the Labour Commissioner of the United Provinces or a Conciliation Officer nominated by him in this behalf to redstart the adjudication proceedings between the J. K. Cotton & Weaving Mills Co., and section N. Shukla, a dismissed employee of the concern.
The Adjudica tor was directed to conclude the adjudication and submit his award by August 15,1949.
The time was extended by subsequent orders first to November 15, 1949 and then to March 31, 1950, again to June 30, 1950 and thereafter to September 30, 1950.
It is true that at the time these orders extending time for submission of award were made the Governor had no authority to make these orders and these orders were invalid.
They were validated by the provisions of section 3 of the U.P. Act XXIII of 1953.
In view of this position of the law the learned Attorney General has not disputed that on June 13, 1950 when the application under cl. 5(a) was made an enquiry was actually pending before a Conciliation Officer.
Consequently, before the management could make any order discharging or dismissing any of its workmen it was required by cl. 23 to obtain permission for the same from the Regional Conciliation Officer.
The question is whether in spite of this provision in cl. 23 the employer could make and the Board entertain an application under cl.
5(a) on this question of proposed dismissal.
We propose to consider this question first and for that purpose assume that an industrial dispute comes into existence as soon as the employer decides to dismiss his workmen and proposes to do so and that ordinarily he can make an application in such a dispute to the Board under the provisions of cl. 5(a).
If such application is decided against the employer and no permission is given to make the proposed dismissal, no difficulty arises.
What however is the position if on such an application the Board makes an order granting the employer the requisite permission to 193 dismiss his workmen? Under cl. 24 this order unless modified in appeal will be final and conclusive and shall not be questioned by any party thereto.
So far as the workmen are concerned they will not be able to dispute the correctness of the order except in the mode provided in the Government order itself.
What however is the position of the employer if in pursuance of the order made on his application under cl.
5(a) he discharges or dismisses his workmen? By doing so he will have clearly contravened the provisions of cl. 23, and will become liable to the severe penalty provided in cl.
26 a, penalty which might even extend to imprisonment up to three years.
To remove this incongruity, says the learned Attorney General, apply the rule of harmonious construction and hold that cl.
23 of the order has no application when an order is made on an application under cl. 6(a).
On the assumption that under cl.
5(a) an employer can raise a dispute sought to be created by his own proposed order of dismissal of workmen there is clearly this disharmony as pointed out above between two provisions viz., cl. 5(a) and cl. 23; and undoubtedly we have to apply the rule of harmonious construction.
In applying the rule however we have to remember that to harmonise is not to destroy.
In the interpretation of statutes the court,% always presume that the legislature inserted every part thereof for a purpose and the legislative intention is that every part of the statute should have effect.
These presumptions will have to be made in the case of rule making authority also.
On the construction suggested by the learned Attorney General it is obvious that by merely making an application under cl.
(5) on the allegation that a dispute has arisen about the proposed action to dismiss workmen the employer can in every case escape the requirements of cl. 23 and if for one reason or other every employer when proposing a dismissal prefers to proceed under cl.
5(a) instead of making an application under cl. 23, cl. 23 will be a dead letter.
A construction like this which defeats the intention of the rule making authority in cl. 23 must, if possible, be avoided.
25 194 It is hardly necessary to mention that this rule in cl. 23 was made with a definite purpose.
The provision here is very similar to section 33 of the before its amendment, though there are some differences.
It is easy to see however that the rule making authority in making this rule was anxious to prevent as far as possible the recrudescense of fresh disputes between employers and workmen when some dispute was already pending and that purpose will be directly defeated if a fresh dispute is allowed to be raised under cl.
5(a) in the very cases where cl. 23 in terms applies.
There will be complete harmony however if we hold instead that cl.
5(a) will apply in all other cases of proposed dismissal or discharge except where an inquiry is pending within the meaning of cl. 23.
We reach the same result by applying another well known rule of construction that general provisions yield to special provisions.
The learned Attorney General seemed to suggest that while this rule of construction is applicable to resolve the conflict between the general provision in one Act and the special provision in another Act, the rule cannot apply in resolving a con flict between general and special provisions in the same legislative instrument.
This suggestion does not find support in either principle or authority.
The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and judges but springs from the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier direction should have effect.
In Pretty vs Solly (1) (quoted in Craies on Statute Law at p. 205, 5th Edition) Romilly, M.R. mentioned the rule thus:"The rule is, that whenever 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 (1) ; , 610. 195 must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply".
The rule has been applied as between different provisions of the same statute in numerous cases some of which only need be mentioned: De Winton vs Brecon (1), Churchill vs Crease (2), United States vs Chase (3) and Carroll vs Greenwich Ins.
Applying this rule of construction that in cases of conflict between a specific provision and a general provision the specific provision prevails over the general provision and the general provision applies only to such cases which are not covered by the special provision, we must hold that cl.
5(a) has no application in a case where the special provisions of cl. 23 are applicable.
As in the present case an inquiry was in fact pending before a Conciliation Officer, cl. 23 applied in respect of any discharge or dismissal of a workman and the employer could not take advantage of cl.
5(a) of the Government Order and such an application could not in law be entertained by the Board.
In view of this conclusion it is unnecessary for us to consider the other question that was raised, viz., whether an industrial dispute within the meaning of cl.
5(a) comes into existence as soon as an employer decides on the dismissal of some of its workmen and proposes to give effect to such a decision.
On the above conclusions we hold that the Labour Appellate Tribunal of India rightly held that the application under cl. 5(a) filed on June 13, 1950 was not maintainable and rightly set aside the awards of the Conciliation Board and the Industrial Court.
The appeal against the order of the Labour Appellate Tribunal of India is therefore dismissed.
As we have already pointed out above the order made by the appellate Bench of the High Court in the writ petition was based on its acceptance of the preliminary objection that the records of the Labour Appellate Tribunal being in Calcutta could not be (1)(1858) (2)(1828) 5 Bing.
(3)(1890) ; (4)(1905) ; 196 reached by any writ of the Allahabad High Court.
In view of our conclusion that the application under cl.
5(a) was not maintainable, the appellant was on merits not entitled to any writ and on that ground the appeal against the High Court 's order must also be dismissed.
It is unnecessary to consider the question whether the High Court was right in its view as regards the preliminary objection and we express no opinion on the same.
Both the appeals are accordingly dismissed with costs to the contesting respondent.
There will be one set of hearing fee.
Appeals dismissed.

dataset_name: IN-Abs

summary/full:
Under sections 3 and 8 of the U. P. the Governor issued an Order dated March 10, 1948, making dletailed provisions for the settlement of Industrial Disputes.
Clause 5(a) of the Government Order empowered, among others, a recognised association of employers to refer an industrial dispute for adjudication to the Conciliation Board.
Clause 23 provided that no employer shall discharge or dismiss any workman during the pendency of an inquiry except with the written permission of the Regional Conciliation Officer, and Cl. 26 provided for penalties for contravention of Cl. 23.
The appellant proposed to dismiss certain workmen.
Though at the time there was a dispute pending inquiry, the appellant did not seek permission under cl. 23 to dismiss the workmen; but the Employers ' Associa tion of Northern India made an application under cl.
5(a) to the Board to adjudicate and give an award that the appellant was entitled to dismiss the workmen.
The workmen contended that the reference under cl.
5(a) was incompetent as the appellant had ,not first taken proceedings under Cl.
Held, that the application under cl.
5(a) of the G. O. was not 24 186 maintainable, as the employer could not take advantage of cl.
5(a) during the pendency of an inquiry when Cl. 23 was applicable.
If cls.
5(a) and 23 were held to ' apply at the same time there would be disharmony as by resorting to cl.
5(a) when Cl. 23 was applicable, the employers would be contravening cl. 23 and rendering themselves liable to the penalties under section 26.
But there was complete harmony if it was held that cl.
5(a) applied in all other cases of dismissal or discharge except where an inquiry was pending within the meaning of Cl. 23.
Besides Cl. 23 was a special provision which prevailed over the general provisions in cl.
Kanpur Mill Mazdoor Union vs Employers ' Association of Northern India, , approved.
De Winton vs Brecon, , Churchill vs Crease, (182S) 5 Bing.
177 and United States vs Chase, ; , referred to.


judgement:
minal Appeal No. 192 of 1959.
Appeal by special leave from the judgment and order dated October 27, 1958, of the Andhra Pradesh High Court at Hyderabad in Criminal Revision Case No. 395 of 1958.
M. C. Setalvad, Attorney General of India, T. V. R. Tatachari and T. M. Sen, for the appellant.
R. Thiagarajan for N. section Mani, for respondent.
April 4.
The Judgment of the Court was delivered by SARKAR, J.
The respondent was convicted by the Judicial Magistrate of Adoni in the State of Andhra Pradesh, under section 14 of the .
His appeal to the Sessions Judge of Kurnool was dismissed.
He then moved the High Court of Andhra Pradesh in revision and the revision petition was allowed.
Hence the present appeal by the State of Andhra Pradesh.
The facts found were these: On January 20, 1955, the respondent had come to Adoni on a passport granted by the Government of Pakistan which bore the date January 10, 1955.
The passport had endorsed on it a visa granted by the Indian authorities which permitted the respondent to stay in India up to April 14, 1955.
The respondent continued to stay on in India after that date.
On some date, not precisely ascertainable from the record, he appears to have made a representation to the Government of India for extension of his visa till September 2, 1957, on grounds of health.
The records do not however show what order, if any, was made on this representation.
On September 3, 1957, an order dated August 9, 1957, made by the Government of Andhra, Pradesh requiring him to leave India, was served on the respondent As the respondent did not leave India as directed by this order, he was prosecuted with the result earlier stated.
The passport showed that the respondent was born at Adoni in 1924 The respondent appears to have 740 produced an extract from the municipal birth register, which is not on the record, but presumably showed that he was so born.
The only evidence on the record of the date when he left India, shows that must have been at the end of 1954 or early in 1955.
There is evidence to show that he had been paying rent for his ,hop at Adoni for about ten years prior to 1958 and his parent section brothers, wife, and children were.
and bad always been in India.
The respondent was charged with the breach of the order to leave India which had been made under section 3 (2)(c) of the .
Now the order could not be made on him, neither could he be convicted for breach of it, if lie was not a foreigner.
That was the defence of the respondent, namely that he was not a foreigner.
The question is, was a foreigner? The learned Judicial Magistrate found that by obtaining the passport from the Pakistan authorities, "he has disowned Indian nationality and has ceased to be an Indian National." He also held that section 9 of the did not apply to the case but section 8 of that Act did and that under that section a decision made by the Government that a person is a foreigner is final and such a decision had been made in this case regarding the respondent as the Government had decided not to grant him an extension of his visa.
On these grounds he found that the respondent was a foreigner.
It seems to us that both these grounds are untenable.
Section 8 applies to a case where "a foreigner is recognised as a national by the law of more than one foreign country or where for any reason, it is uncertain what nationality if any is to be ascribed to a foreigner.
" The section provides that in such cases the prescribed authority has power to decide of which country the foreigner is to be treated as the national and such decision shall be final.
The section, therefore, applies to a person who is a foreigner and the question is of which foreign country he is a national.
In the case of the respondent no such question arose and no decision could be or was made by any prescribed authority of such question.
The learned Magistrate therefore clearly went wrong in relying on section 8. 741 As regards the passport, the learned Magistrate did not come to the finding that it proved the respondent to have been a Pakistani national all along.
What he Al did was to think that the respondent who had earlier been an Indian national, had by obtaining it, disowned Indian nationality and ceased to be an Indian national.
Now, section 9(2) of the , provides that if any question arises as to whether an Indian citizen has acquired the citizenship of another country, it shall be determined by such authority and in such manner as may be prescribed.
Under r. 30 of the rules framed under that Act,, the authority to decide that question is the Central Government.
So the question whether the respondent, an Indian citizen, had acquired Pakistani citizenship cannot be decided by courts.
The learned Magistrate had no jurisdiction therefore to come to the finding on the strength of the passport that the respondent, an Indian citizen, had acquired Pakistani citizenship.
Nor was there anything before the learned Magistrate to show that the Central Government had decided that the respondent had renounced Indian citizenship and acquired that of Pakistan.
The learned Magistrate thought that the fact that the Central Government had refused to extend the respondent 's visa proved that it had decided that he had acquired Pakistani nationality.
This view again was not warranted.
There is nothing to show that the Central Government had refused to extend the respondent 's visa.
Even if it had, that would not amount to a decision by it, that the respon dent, an Indian citizen, had acquired subsequently Pakistani nationality for there may be such refusal when an applicant for the extension had all along been a Pakistani national.
Furthermore, in order that there may be a decision by the Central Government that an Indian citizen has acquired foreign nationality, an enquiry as laid down in r. 30 of the rules framed under the has to be made and no such enquiry had at all been made.
That being so, it cannot be said that the Central Government had decided that the respondent, an Indian citizen, had acquired the citizenship of Pakistan.
742 The question whether a person is an Indian citizen or a foreigner, as distinct from the question whether a person having once been an Indian citizen has renounced that citizenship and acquired a foreign nationality, is not one which is within the exclusive jurisdiction of the Central Government to decide.
The courts can decide it and, therefore, the learned Magistrate could have done so.
He, however, did not decide that question, that is, find that the respondent had been a Pakistani national all along.
On the evidence on the record such a finding would not have been warranted.
For all these reasons we think that the conviction of the respondent by the learned Magistrate was not well founded.
Coming now to the decision of the learned Sessions Judge, he seems to have based himself on the reasoning that the "conduct of the appellant" that is, the respondent before us, "in applying for extension of time shows that he is not a citizen of India and that he has acquired citizenship of Pakistan.
If he were a citizen of India, he could have raised this plea and this question could have been decided by the Central Government as envisaged by Rule 30, sub Rule I of the Rules made under the and there was no necessity to apply for extension.
" Quite plainly, the learned Sessions Judge was proceeding on the basis that the respondent had renounced his Indian citizenship and acquired Pakistani citizenship.
As we have said earlier, that is not a question which is open to a court to decide and there is no evidence to show that it has been decided by the Central Government who alone has the power to decide it.
The learned Sessions Judge did not direct himself to the question which lie could decide, namely whether the respondent had from the beginning been a Pakistani citizen.
His decision, therefore, cannot also be sustained.
We have examined the evidence on the record our.,elves and are unable to say that a conviction can be based on it.
There can be no conviction unless it can be held on the evidence that the respondent is a foreigner, that is to say, a person who is not an Indian 743 citizen: see section 2(a) of the as amended by Act 11 of 1957.
The evidence shows that the respondent did go to Pakistan, but the only evidence with regard to that is that he went there about the end of 1954 or the beginning of 1955.
This evidence also indicates that he stayed there for a short time.
He was all along paying the rent for his shop in Adoni.
His family bad always been there.
Therefore it can be said that he had never migrated to Pakistan.
Clearly, a short visit to Pakistan would not amount to migrating to that country.
The passport obtained by him from Pakistan would no doubt be evidence that he was a Pakistani national.
As on the facts of this case he must be held to have been an Indian citizen on the promulgation of the Constitution, the passport can show no more than that he renounced Indian citizenship and acquired Pakistani nationality.
Such evidence would be of no use in the present case for, in view of section 9(2) of the , a Court cannot decide whether an Indian citizen has acquired the citizenship of another country.
The position then is this.
The respondent has clearly discharged the onus that lay on him under section 9 of the to prove that he was not a foreigner, by proving that he was born and domiciled in India prior to January 26, 1950, when the Constitution came into force and thereby had become an Indian citizen under article 5(a) of the Constitution.
He has further proved that he had never migrated to Pakistan.
It has not been shown that the Central Government had made any decision with regard to him under section 9 of the that he has acquired a foreign nationality.
Therefore, it cannot be held by any court that the respondent who was an Indian citizen has ceased to be such and become a foreigner.
That being so, it must be held for the purpose of this case that the respondent was not a foreigner and no order could be made against him under section 3(l)(c) of the .
Conviction for breach of such an order by the respondent would be wholly illegal.
744 Though we are upholding the decision of the High Court, we wish to observe that we do not do so for the reasons mentioned by it.
It is unnecessary to discuss those reasons but we would like to point, out one thing, namely.
that the High Court seems to have been of the opinion that article 7 of the Constitution contemplates migration from India to Pakistan even after January 26, 1950.
We desire to make it clear that we should not be taken to have accepted or en dorsed the correctness of this interpretation of article 7.
The reference in the opening words of article 7 to articles 5 and 6 taken in conjunction with the fact that both articles 5 and 6 are concerned with citizenship (at the commencement of the Constitution) apart from various other considerations would appear to point to the conclusion that the migration referred to in article 7 is one before January 26, 1950, and that the contrary construction which the learned Judge has put upon article 7 is not justified, but in the view that we have taken of the facts of this case, namely, that the respondent had never migrated to Pakistan, we do not consider it necessary to go into this question more fully or finally pronounce upon it.
In the result we dismiss the appeal.
Appeal dismissed.

summary/full:
The respondent was born in India in 1924 and had lived there all along till about the end of 1954.
He had been paying rent for his shop in India for ten years upto about 1958 and his family was and had always been in India.
At the end of 1954 or the beginning of 1955 lie went to Pakistan from where he returned on January 20, 1955, on a passport granted by the Pakistan Government which had a visa endorsed on it by the Indian authorities permitting him to stay in India up to April, 1955.
The respondent applied to the Central Government for extension of the time allowed by the visa but the records did not Show What order, if any, had been made on it.
As the respondent had stayed beyond the time specified in the visa, he was on September 3, 1957, served with an order made by the Government of Andhra Pradesh under section 3(2)(C) Of the , i946 requiring him to leave India.
The order described him as a Pakisthan National.
on his failure to comply with this order 93 738 he was prosecuted under section 14 of the .
His defence was that he was an Indian national.
The trying magistrate rejected this defence and convicted him holding (a) that the fact that the respondent obtained a Pakistan passport proved that he had disowned Indian nationality and ceased to be an Indian national and (b) that by refusing to extend the time fixed by the visa the Central Government had decided that the respondent was a foreigner and under section 8 of the , such a decision was final.
An appeal by the respondent was dismissed by the Sessions judge on the ground that the respondent 's application for extension of the time fixed by the visa proved that he had renounced his Indian nationality and had acquired the citizenship of Pakistan.
The High Court of Andhra Pradesh set aside the conviction in revision.
On appeal by the State of Andhra Pradesh, Held, that neither the Magistrate nor the Sessions Judge was competent to come to a finding of his own that the respon dent, an Indian national, had disowned his nationality and acquired Pakistan nationality for under section 9(2) of the , that decision could only be made by the prescribed authority which under the Rules framed under the Act was the Central Government.
The fact that the Central Government had refused to extend the visa did not show that it had decided under the section that the respondent had renounced his Indian nationality and acquired Pakistan citizenship.
In any event, in order that the Central Government might come to a decision under section 9(2) of the an enquiry as laid down in r. 30 Of the Rules framed under the Act had to be made and no such inquiry had been made.
On the facts established, the respondent became an Indian citizen under article 5(a) of the Constitution when it came into force.
He thereby discharged the onus laid on him by section 9 of the to prove that he was an Indian citizen when that was in dispute.
The passport obtained by the respondent from the Pakistan Government would, therefore, only be evidence that the respondent had renounced Indian nationality and acquired Pakistan citizenship.
Such evidence was however of no use in a court for no court could in view of section 9(2) of the decide whether an Indian citizen had renounced his citizenship and acquired the citizenship of a foreign country.
Section 8 of the had no application to the case as it only applied where a foreigner is recognised as a national by the law of more than one foreign country or where it is uncertain what nationality is to be ascribed to a foreigner and in the present case that was not the question but the question was whether the respondent was an Indian or a foreigner.
The respondent 's short visit to Pakistan had not amounted to a migration to that country.
Query, whether article 7 of the Constitution contemplates migration from India to Pakistan after January 26, 1950.