1952 Supreme(Raj) 111

Rajasthan High Court, Jaipur Bench
Ranawat & Sharma, JJ.
Bahadur Singh - Appellant
Versus
Shri Jaswant Raj Mehta - Respondents
D.B. Writ Petition No. 1 of 1952
Decided On : May 01, 1952

Headnote:Matsya Customs Ordinance, 194S, sec. 48—Deputy Commissioner Customs & Excise Jaipur not competent authority.Constitution of India, Art. 14—Classification to be on real and substantial basis—Matsya Customs Ordinance, 1948, sec. 48 ultra vires.Matsya Customs Ordinance, 1948, sec. 48—Section ultra vires.Constitution of India, Art, 226—Alternative remedy—Impugned order clearly without jurisdiction and made under law found ultra vires—High Court will issue writ.Ultra vires—Matsya Customs Ordinance sec. 48.Equality before law—Classification—Arbitrary distinction.Writ—Alternative remedy—Order without jurisdiction.Constitution of India, Art. 226—Article not confined to writs alone—High court may issue any direction.

       Deputy Commissioner, Customs & Excise Jaipur Division can not be considered to be the Superintendent of Customs within the meaning of the Matsya Ordinance to exercise the powers under sec. 48 of the Ordinance and deal with the offenders departmentally. (Para 4)

       While reasonable classification is permissible, such classification must be based upon some real and substantial distinction bearing a reasonable and just relation to the object sought to be attained, and the classification cannot be made arbitrarily and without any substantial basis. (Para 6)

       Sec. 48 of the Matsya Customs Ordinance, 1948 gives to the Superintendent Customs unrestricted power to send any ease he likes to a court of law and retain any case of the same type to be dealt with departmentally at his discretion by himself. There is absolutely no classification worth the name. Conse- quently sec. 48 offends against the fundamental rights of equal protection of laws and equality before the laws enshrined in Art. 14 of the Constitution and is, therefore void under Art. 13. (Para 12)

       Where it has been found that the impugned order is clearly without jurisdiction and the provisions under which it is made clearly offends against constitutional provisions of Art. 14 relating to fundamental rights of equal protection of law and equality before the laws, the High Court will not be justified in dismissing the application on the ground that the applicant had an adequate and alternative remedy by way of a regular suit. (Para 14)

       Petitioners were fined and their truck was confiscated by Deputy Commissioner Customs, Jaipur Division, under sec. 48 of the Matsya Customs Ordinance 1948 for contravening provisions of sec. 46 (1). The offence under sec. 46 (1) is triable under sec. 47 by a Magistrate of First Class but sec. 48 provides that instead of the offender being prosecuted in a court of law the offender may be dealt with departmentally, at the discretion of the Superintendent Customs In the present case the D.C. Customs Jaipur Division did not send the case to Magistrate but dealt with offenders depart- mentally under sec. 48. In the first place D. C. Customs, Jaipur Division could not be considered as "Superintendent appointed under the Matsya Customs Ordinance". He had no power to deal with the Case. Secondly, sec. 48 of the Matsya Customs Ordinance is ultra vires, inasmuch as it offends against the fundamental right of equality before law guaranteed by Constitution. There is no basis for discrimination between two offenders for offences of same type. Of course there was an alternative and effective remedy ; the petitioners could file regular civil suit ; but as impugned order was absolutely without jurisdiction and the law under which it was made was ultra vires, the High Court will issue writ