Judgement

       PATANJALI SASTRI, C.J.I. (B. K. Mukherjea & Ghulam Hasan JJ.) - This is an appeal, from the judgment and order of the High Court of Judicature at Bombay declaring the Bombay Sales Tax Act. 1952 (Act 24 of 1952), ultra vires the State Legislature and issuing a writ in the nature of mandamus against the State of Bombay and the Collector of Sales Tax, Bombay, appellants herein, directing them to forbear and desist from enforcing the provisions of the said Act against the respondents who are dealers in motor cars in Bombay.

2. The Legislature of the State of Bombay enacted the Bombay Sales Tax Act, 1952, (hereinafter referred to as "the Act") and it was brought into force on 9-10-1952, by notification issued under S. 1 (3) of the Act, except Ss. 5, 9, 10 and 47 which came into operation on 1-11-1952, as notified under S. 2 (3). On the same day the Rules made by the State Government in exercise of the power conferred by S. 45 of the Act also came into force.

3. On 3-11-1952, the respondents 1 to 6, who are companies incorporated under the Indian Companies Act, 1913, and respondent 7, a partnership firm, all of whom are carrying on business in Bombay of buying and selling motor cars, presented a petition to the High Court under Art. 226 of the Constitution challenging the validity of the Act on the ground that it is ultra vires the State Legislature, inasmuch as it purported to tax sales and purchases of goods regardless of the restrictions imposed on State legislative power by Art. 286 of the Constitution. It was also alleged that the provisions of the Act were discriminatory in their effect and, therefore, void under Art. 14 read with Art. 13 of the Constitution. The respondents accordingly prayed for the issue of a writ in the nature of mandamus against the appellants preventing them from enforcing the provisions of the Act against the respondents. A further ground of attack was added by amendment of the petition to the effect that the Act being wholly ultra vires and void, the provisions requiring dealers to apply for registration in some cases and to obtain a licence in some others as a condition of carrying on their business, infringed the fundamental rights of the respondents under Art. 19 (1) (g) of the Constitution.

4. In the affidavit filed in answer the appellants traversed the allegations in the petition and contended, inter alia, that the Act was a complete code and provided for special machinery for dealing with all questions arising under it, including questions of constitutionality, and, therefore, the petition was not maintainable, that the present case was not an appropriate one for the issue of a writ under Art. 226 as the validity of the imposition of a tax was questioned, that no assessment proceedings having been initiated against the respondents and no demand notice having been issued, the respondents had no cause of action, and that, properly construed, the Act and the Rules did not contravene Art. 286 or any other provisions of the Constitution and did not infringe any fundamental right of the respondents.

5. The petition was heard by a Division Bench of the High Court consisting of Chagla C. J. and Dixit J. Chagla C. J., who delivered the judgment, Dixit J. concurring, overruled the preliminary objection distinguishing the decisions cited in support thereof by pointing out that the principle that a Court would not issue a prerogative writ when an adequate alternative remedy was available could not apply where, as here, a party came to the Court with an allegation that his fundamental rights had been infringed and sought relief under Art. 226. The learned Judges however thought, in view of the conclusion they had come to on the question of competency of the State Legislature to pass the Act, it was "not necessary to consider the challenge that has been made to the Act under Arts. 14 and 19" and expressed no opinion on the alleged infringement of the respondents fundamental rights.

6. On the merits