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HIGH COURT OF CALCUTTA
S. C. GHOSH
KALYAN BHADRA - Appellant
Versus
UNION OF INDIA - Respondent
Matter 873 Of 1973
Decided On : NOVEMBER 19, 1973
PETROL AND KEROSENE PRICE HIKE - CONSTITUTIONAL CHALLENGE - ARTICLE 123 - ORDINANCE POWER OF PRESIDENT - JUDICIAL REVIEW - REASONABLENESS OF TAXATION - ARTICLE 19 - FUNDAMENTAL RIGHTS - APPLICABILITY.
Fact of the Case:
The petitioner, Secretary of the Automobile Association of Eastern India, challenged the Ordinance issued by the President increasing the prices of petrol, kerosene, and cylinder gas. The petitioner argued that the Ordinance was colourable, arbitrary, discriminatory, excessive, and prohibitive and violated the fundamental rights guaranteed under Article 19 of the Constitution.
Finding of the Court:
The Court held that the petitioner had no fundamental right to get petrol at a price of his choice and that the question of reasonableness was immaterial in considering the validity of a tax or duty levied by statute. The Court further held that the existence of circumstances necessitating the promulgation of the Ordinance was not justiciable and that the Court could not go into the question of whether such circumstances existed.
Issues: 1. Whether the Ordinance increasing the prices of petrol, kerosene, and cylinder gas was colourable, arbitrary, discriminatory, excessive, and prohibitive. 2. Whether the Ordinance violated the fundamental rights guaranteed under Article 19 of the Constitution. 3. Whether the existence of circumstances necessitating the promulgation of the Ordinance was justiciable.
Ratio Decidendi: 1. The Court held that the petitioner had no fundamental right to get petrol at a price of his choice and that the question of reasonableness was immaterial in considering the validity of a tax or duty levied by statute. 2. The Court further held that the existence of circumstances necessitating the promulgation of the Ordinance was not justiciable and that the Court could not go into the question of whether such circumstances existed.
Final Decision: The Court rejected the petitioner's application for a Rule nisi and held that there was no prima facie ground for issuing the Rule.
( 1 ) THIS is an application made by the Secretary of the Automobile Association of Eastern India for inter alia the issue of a Rule nisi calling upon the respondents to show cause as to why a writ in the nature of mandamus to rescind or recall or withdraw the Ordinance enhancing the prices of inter alia Petrol, Kerosene and Cylinder Gas with effect from November 3, 19-73, should not be directed to be issued. The petitioner also prays for the issue of a Rule nisi directing the respondents to show cause as to why a writ in the nature of certiorari should not issue for quashing the said impugned Ordinance.
( 2 ) THE petitioner prays for interim injunction restraining the respondents from giving any further effect to the provisions of the said impugned Ordinance.
( 3 ) WHEN the application was moved ex parte on November 13, 1973 I directed the petitioner to serve copies of the petition on the respondents through their Solicitors in Calcutta. After serving the respondent Union of India as directed aforesaid, the petitioner moved application on November 16, 1973. The counsel for the respondent Union of India also appeared and made his submissions.
( 4 ) THE petitioner is the Secretary of the Automobile Association of Eastern India herein after referred to as the said Association. The petitioner uses a motor car for attending to his place of work and coming back therefrom to his residence. The said car is used also by the members of the family of the petitioner. But for the said car. it is stated in the petition, the petitioner or the members of his family would not be able to carry on their respective occupation and thereby would suffer irreparable prejudice.
( 5 ) FROM a press notification published in the Statesman on November 3, 1and73 the petitioner came to know that the Government had increased with effect from November 3, 1973, the prices of all refined Petroleum products except Naptha. The price of petrol was increased by 1. 07 paise per litre, although the price of the crude by the suppliers was raised by only 7 paise per litre. The ostensible reason was as stated by the Government the reduction of the consumption of petrol. The additional amount of Re. 1. 00 Der litre was levied by way of basic excise duty by the respondent No. 1. The respondent State of West Bengal also levied an additional sales tax of 10 paise per litre on such petrol in addition to the existing sales tax levied thereon.
( 6 ) IN the case of Kerosene similarly although the increase in the price for crude was only 8 paise per litre by the suppliers the total increase" per litre to be payable by the consumer was fixed at 28 paise per litre. The basic excise duty was thus levied at 20 paise per litre. Since, November 3, 1973 the respondents have been giving effect to the said impugned Ordinance.
( 7 ) BECAUSE of the aforesaid enhancement of price of petrol, the petitioner has been unable to purchase the same. So has been the case also with regard to the Kerosene Oil. It has become impossible for the petitioner to purchase petrol or Kerosene Oil for the car or for doing the household cooking. This the petitioner states has infringed the fundamental right of the petitioner.
( 8 ) MR. Shiva Senti Hajra appearing for the petitioner contended that:--The Prime Minister of India declared what was published in the Statesman of October 30, 1973 that "the worst is over in our country's economy". Thus there was no reason or circumstances justifying the levy of further excise duty on petrol or the Kerosene as well as cooking gas in exercise of the extraordinary special power of legislation under Article 123 of the Constitution of India.
( 9 ) THE order enhancing the price of petrol and Kerosene is colourable, arbitrary, discriminatory, excessive and prohibitive.
( 10 ) THE impugned order of enhancing the prices of petrol and Kerosene by imposing taxes relates to the subject-matter of Article 110 of the Constitution and so requires the fulfilm
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