Ujjam Bai v.

State of Uttar Pradesh and Another—Constitutional Law—Quasi-judicial

authorities and Fundamental Rights
Author(s): K. B. Nambyar
Source: Journal of the Indian Law Institute, Vol. 4, No. 3 (July-Sept., 1962), pp. 452-458
Published by: Indian Law Institute
Stable URL: https://www.jstor.org/stable/43949730
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 CASES AND COMMENTS

Ujjam Bai y. State of Uttar Pradesh and Another* - Constitutional

Law - Quasi-judicial authorities and Fundamental Rights.

Almost a decade and two years after the commencement of the

Constitution it looks as though the Supreme Court is finding it nece
sary to wriggle out of the role of " sentinel on the c qui vive ' " 1 it once
assumed. It was thought a settled law that the right to move t
Supreme Court under Art. 32 2 was itself a guaranteed right and th
the Court could not refuse to entertain a petition if any of the fund
mental rights was infringed by State action.3 This interpretation o
Article 32 received a jolt early in 1961 when in Dar ay o 4 the Court h
that if a petition under Art, 226 alleging breach of fundamental rig
was dismissed by the High Court on merits such a decision would b
res judicata and a similar petition under Art. 32 would not lie. Here
the Court was not prepared to prefer the high policy crystalised in
Article 32 to the public policy underlying the principle of res judicat
Recently in Ujjam Bai v. State of Uttar Pradesh the Court has made a
important pronouncement which virtually makes it impossible to ch
lenge decisions of quasi judicial authorities as offending fundament
rights.
The Uttar Pradesh Government issued a notification under the
U. P. Sales-tax Act, 1948, exempting from tax, among other goods,
Bidis, provided the central Excise duty leviable under the Additional
Duties of Excise (Goods of Special Importance) Act, 1957, had been
paid.5 This duty was in addition to the duties of excise chargeable

»Petition No. 79 of 1959. Decided April 10, 1962, A.I.R. 1962 S.G. 1621.
1 . Sastry, C. J., in State of Madras v. V, G. Row A.I.R. 1952 S.C. 196 at 199.
2. Art. 32 : (1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus , mandamus , prohibition quo
warranto and certiorari , whichever may be appropriate, for the enforcement of any of
the rights conferred by this part.
3. See Romesh Thappar v. State of Madras, [1950] S.C.R. 594 ; Rashid Ahamed v.
Municipal Board Kairala, [1950] S.C.R. 566; Basappa v. Nagappa [1955] 1 S.C.R.
250 ; KavalapparaKochunni v. State of Madras [1959] Ś.C.R. 316.
4. Daryao v. State of Uttar Pradesh , A.I.R. 1961. S.C. 1457.
5. The Notification reads :
" In partial modification of notifications No. ST. 905 /X, dated March 31,
1956, and ST-418/X 902 (9) -52, dated January 31, 1957, and in exercise of the powers

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 UJJAM BAI V . STATE OF UTTAR PRADESH 453

under the Central Excise and Salt Act, 1944. Excise duty under the
1944 Act and additional excise duty under the 1957 Act were payable
only on machine-made bidis, i.e., hand-made bidis were exempted
from any such levy. The petitioners, doing business in the manufac-
ture and sale of hand-made Bidis, were assessed to sales-tax by the
Sales-tax Officer. The Officer construed the notification and the proviso
to mean that the exemption from payment of sales-tax was granted only
in those cases where additional excise duty was due and it had actually
been paid. In the case of hand-made bidis no excise duty of any kind
was payable at all and as such no exemption from sales-tax was con-
templated under the notification. The petitioners contended that the
proviso to the notification was meant to deny the benefit of the exemp-
tion from sales-tax to those who being liable to pay the additional
excise duty failed to pay the same. Since no duty was payable on
hand-made Bidis the proviso was inapplicable. An appeal against
the order of the Sales-tax Officer was unsuccessful and though a revi-
sion also lay under the Act it was not availed of. The Act also has
provision for reference to the High Court on a question of law.
Instead, a petition was filed in the High Court under Art. 226 of the
Constitution. The High Court dismissed the petition on the main
ground that the petitioners did not exhaust all the remedies provided
under the Act. The Court was also of the view that on a reasonable
interpretation of the notification hand-made bidis were not exempt
from sales-tax.
Before the Supreme Court the validity of the order of assessment
was challenged in a petition under Art. 32 on the main ground that
the levy of the tax amounted to infringment of the fundamental right
to carry on trade and business guaranteed by Art. 19(l)(g).
A preliminary objection was raised regarding the petitioner's
right to move the court under Art. 32. The Constitution Bench, in

conferred by clause (b) of sub-section (1) of section 4 of the U.P. Sales Tax Act, 1948
(U.P. Act. No. XV of 1948), as amended up to date, the Governor of Uttar Pradesh is
pleased to order that no tax shall be payable under the aforesaid Act with effect from
December 14, 1957, by the dealers in respect of the following classes of goods provided
that the Additional Central Excise Duties leviable thereon from the closing of busi-
ness on December 13, 1957, have been paid on such goods and that the dealers thereof
furnish proof to the satisfaction of the assessing authority that such duties have been
paid.
(3) Cigars, cigarettes, biris and tobacco, that is to say any form of tobacco,
whether cured or uncured and whether manufactured or not and includes the leaf,
stalks and stems of the tobacco plant but does not include any part of a tobacco plant
while still attached to the earth."

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454 CASES AND COMMENTS

view of the importance of the Constitutional question

also doubting the correctness of the Court's earlier dec
nath v. The State of U . P.6, formulated the following que
sion by a larger Bench.
(1) Is an order of assessment made by an author
taxing statute which is intra vires open to challeng
to Art» 19(1) (g) on the sole ground that it is based
struction of a provision of the Act or of a notifi
thereunder ?
(2) Can the validity of such an order be questioned in a
petition under Art. 32 of the Constitution ?
A Bench of seven judges heard the petition. Justice S. K. Das,
Kapur, Hidayatullah and Mudholkar answered the two questions in
the negative in separate concurring opinions (Sarkar, J. agreed with the
opinions of Das and Kapur, JJ.,) and dismissed the petition. Justices
Subba Rao and Ayyangar in separate opinions answered the questions
in the affirmative. But Ayyangar, J., was of the view that since it was
possible reasonably to uphold the contention adopted by the Sales-tax
Officer there was no patent error or an error apparent on the face of
the record which would justify the issue of writ of certiorari. Subba
Rao J., was for the issue of a Writ because he found that on a plain
reading of the express terms of the notification hand-made bidis
were exempt from taxation under the Act.
The majority found that the earlier decision of the Court in
Kailashnath 7 where the construction of a notification similar to the
one in Ujjam Bai was involved, wrongly gave a wider sweep to the
scope of Art. 32 because that case did not keep in view the dis-
tinction, fundamental to the applicability of Art. 32, between a
competent though erroneous order of assessment made under a pro-
visions of law which was intra vires and an order made under a pro-
vision of law which was ultra vires . In the former case the order

6. A.I.R. 1957 S.C. 790.

7. Ibid . In Kailashnath it was contended before the sales t ax authorities that clot
on which excise duty had already been paid and which was then processed, ha
printed and exported, no sales tax was leviable as it was exempt under the noti
cation under S. 4 of the U.P. Sales tax Act. The authorities held the exemption
be applicable only to cloth which had not been processed and hand-printed and w
in the original condition. In a petition under Art. 32 against that order the Co
said : " If a tax is levied without due legal authority on any trade or any busin
then it is open to the citizen aggrieved to approach this Court for a Writ under Art
since his right to carry on trade is violated or infringed by the imposition and s
being the case, Artģ 19(1) (g) comes into play/'

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 UJ J AM BAI Ü. STATE OF UTTAR PRADESH 455

would be protected because it was made under the authority of a

valid law and no fundamental right could be invoked to challenge
the order unless such an order was one without jurisdiction or in
violation of the principles of natural justice. The latter case would
be an unauthorised intereference with the fundamental right guaran-
teed under Art. 19(l)(g) because the order was made under a void
law. The learned Judges reasoned that where the authority had juris-
diction to decide rightly or wrongly, the decision, even if it was erro-
neous, was valid because it was in respect of a matter which the statute
had given the authority complete jurisdiction to decide. Such an
erroneous decision could not be impeached on the ground of violation
of fundamental rights. The remedy was by way of appeal. Where,
however, the assessment was made by an authority which had no
jurisdiction to impose the tax the right guaranteed under Article 19(l)(g)
would be infringed.
Subba Rao and Ayyangar, JJ., held that the fundamental rights
guaranteed under Part III would be violated by the action of a quasi-
judicial authority acting within the limits of its jurisdiction under a valid
and constitutional statute where it plainly misinterpreted the provisions
of the statute under which it functioned. Both did not find it necessary
to question the correctness of the decision in Kailashnath. The majority
view meant, according to Subba Rao, J., that a f undamental right
could be defeated by a wrong order of a quasi-judicial officer and the
Supreme Court would merely be a helpless spectator abdicating its
functions in favour of a subordinate officer in the sales-tax department.
The amplitude of the jurisdiction conferred on the Supreme Court
under Art. 32, he observed, could not be restricted or limited by some
principle or doctrine not contemplated by the Constitution. Ayyangar, J. ,
reasoned that if a tax imposed by a legislature would infringe the
fundamental rights, a quasi-judicial authority, by misconstruing a
statute, could not impose what the legislature could not do. If State
action without legislative sanction behind it would violate the rights
guaranteed under Part III the result could not be different because the
State acted through the machanism of quasi-judicial authority vested
with jurisdiction to interpret the enactment.
In a petition under Art. 32 the initial enquiry of the Court should
be - so it has all along been understood - whether or not a fundamental
right is infringed. But Ujjam Bai would require the Court to embark
on a characterisation of the action complained against to find out
whether an admittedly State action falls within the classifications
imported by the Court. If it is executive the petitioner has only to

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456 GASES AND COMMENTS

show that a fundamental right is infringed. On

quasi-judicial there is no violation of fundamen
is want of jurisdiction or disregard of the r
There is nothing in the Constitution which jus
drawn between executive determination and
nation and between jurisdictional error and
misconstruction of statutes for the purpose of
mental rights. Kapur, J., distinguished Bidi
Central Board of Revenue ordered an omnibus transfer of cases under
sec. 5 (7 A) of the Income-tax Act and the order was held bad ina
petition under Art. 32, as ť 4 an unauthorised executive order of an
administrative tribunal acting in its administrative capacity This
classification inevitably leads to the conclusion that what is a violation
of fundamental right committed by an organ of the State ceases to be
one when committed by the same organ acting in a slightly different
capacity. There is then the perennial problem of characterisation of
administrative functions and no one will be able to predict with any
reasonable certainty the result of an appeal to the "cult of the
quasi."
The reasoning of the majority in support of their proposition is
that quasi-judicial bodies are deemed to have been invested with
power to err within the limits of their jurisdiction and so long as
they keep within these limits their order, however erroneous, is valid
and legal until corrected by appeal. While conceding that the
imposition of a tax without authority of law is one without jurisdic-
tion they draw a distinction between the imposition of a tax by
misconstruing a provision of law and the imposition of one without
authority of law. If on a correct interpretation of the notification in
Ujjam Bai hand-made bidis are not taxable it is difficult to concede
that a levy resulting from a misconstruction is under the authority of
law. Subba Rao, J., in his dissenting opinion correctly points out that
" [I J n such a case on a wrong interpretation of the provisions of the
Act, he has exercised jurisdiction in respect of a subject matter which
on a correct interpretation he does not possess. In a sense he acts without
jurisdiction in taxing goods which are not taxable under the Act."
Thus he brings out in bold relief the border line cases between in-
herent want of jurisdiction and the exercise of undoubted jurisdiction.
Further he makes a very pertinent point relevant for the purpose of
interpretation of Art. 32. "The doctrine of jurisdiction with its

8, Bidi Supply Co* v. Union of India [1955] S.C.R. 267.

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 UJ J AM BAI V. STATE OF UTTAR PRADESH 457

limitations ", he says, "may be relevant in the matter of issue of

prerogative writs to quash the orders of tribunals made without or in
excess of jurisdiction, but the said restrictions cannot limit the power
of the Supreme Court in enforcing the fundamental rights, for under
Art. 32 of the Constitution, for enforcing the said rights, it has
power to issue directions or orders uncontrolled by any such limi-
tations."
The limitations of the doctrine of jurisdiction which Justice
Subba Rao refers to is apparent in the effort of the majority to
distinguish some of the Court's earlier inconvenient decisions. In Mohan -
lal Hargovinddas^ the sales tax authorities came to the conclusion that the
transactions is question were intrastate. But the Court on a correct
view held that the transactions were interstate and enforced the
the fundamental rights of the petitioner. This is distinguished as
coming under the category of cases where " the authority acted in
transgression of a constitutional prohibition and without jurisdiction "
(S. K. Das J.) In Madanlal Arora 10 where a best judgment assessment
was made after the period of limitation was over a petition under
Art. 32 was competent because " the question was one of lack of
jurisdiction and it made no difference that the sales tax officer had
misconstrued the provisions " (Kapur J.) In Tata Iron and Steel Co.11
the sales tax authorities of West Bengal held that under the central
Sales-tax Act West Bengal was the appropriate State " to levy the tax
as the situs of the sale was in West Bengal and imposed a tax after
the transaction was once taxed by Bihar. The Court overruled the
objection as to the maintainability of a petition under Art. 32. This is
distinguished as coming under the category of cases "where the
taxing authority imposes a tax or acts without authority of law and
the assessment made by the authority is without jurisdiction"
(Kapur J.). In Gokal 12, where also no statute was challenged, in a
petition under Art. 32 the Court upheld the contention of the petitioner
that the sales in question were not liable to sales tax in as much as
they took place in the course of import of goods into India. This was
categorized as a " case of lack of legislative authority and jurisdiction
to impose the sales tax " (Kapur J.). The distinction sought to be
drawn between these cases and Ujjam Bai , very much less obvious than
the majority would have us believe, points to only one thing i.e., the

9. Mohanlal Hargouind das. v. State of Madhya Pradesh [19551 2. S.G R 500

10. Madanlal Aroara, v. Excise and Taxation officer A.I.R. 1961 S.C 1565
11. Tata Iron Steel Go, v. S. R. Sarkar [1961 J 1. S.C. R. 379.
12. J, R. Gokal 6* Co. v. Assistant Collector of Sales Tax [1960] 2 S.C.R. 852«

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458 CASES AND COMMENTS

convenient interchangeability of such labels a

' want of authority of law 9 and 'Jurisdiction '
Perhaps more than any constitutional compuls
with the majority was the inappropriateness of a
decisions of quasi-judicial authorities to be ch
Court under Art. 32. They significantly refer
alternative remedies under the Act. But to r
party to exhaust the statutary remedies, then in
of the High Court under Art. 226 and if still a
leave of the Supreme Court under Art. 1 36 will
tion of the litigant. A curious result of the case
fundamental right is no ground for review a
authorities even in cases where certiorari , one of the
Art. 32, will lie against such authorities. For U
mere error of law, even if apparent on the face
mitted by a quasi-judicial authority acting wi
does not violate fundamental rights. The ano
that it will be safer to invoke the discretionar
High Court under Art. 226e than the guara
Art. 32.
K. B. Nambyar .

Mannalal Jain v. State of Assam 1 - Administrative Discrimination

and Art. 14 :

Article 14 of the Indian Constitution stipulates ť equality before

the law ' and the ' equal protection of the laws 5 to every person in the
Indian Union. The principles which the courts have developed to
adjudge the validity of any legislation with reference to Art. 14 is that
of reasonable classification which means that classification made by the
impugned law should not be arbitrary ; it should be based on an intel-
ligible, real and substantial differentia, and f urther the differentiation
adopted should have a rational or reasonable relationship to the object
sought to be achieved by the statute in question. While this test has
remained constant throughout the vicissitudes of the large amount of
case-law arising under Art. 14, its application to concrete factual situa-
tions has raised difficulties many a time. It is not necessary to recapi-
tulate the case-law on the point here.2
One of the purposes for which Art. 14 has been invoked at times
has been to impugn administrative discrimination. What happens is
1. A.I.R. 1962 S.C. 386.
2. See, M. P.Jain, Indian Constitutional Law , pp. 359-377 (1962).

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