Rajagopalan, J. - The only question that arises for consideration in this application under Article 226 of the Constitution is, whether the proviso to section 3(1) (b) of the Madras General Sales-tax Act (Act IX of 1939) (herein after referred to as the Act), offends Article 14 of the Constitution and is, therefore, void and unenforceable against the petitioners.

The first petitioner is the lessee of a restaurant, the Canteens Ltd., and he is a “dealer” as defined in the Act, a dealer who sells articles of food and drink in a restaurant. The second petitioner, the Madras Hotels Association is an association of similar dealers in articles of food and drink.

In the assessment year, 1952-1953, the first petitioner was assessed on a turnover of Rs. 94322-6-3, and under the proviso to section 3(1)(b) of the Act, he was assessed to sales-tax at the rate of Rs. 0-0-4½ in the rupee on that turn-over. The assessment was completed by the assessing authority, the Deputy Commercial Tax Officer, on 4th September, 1953 and a notice of demand in the prescribed form was issued to the first petitioner to pay the assessed tax. The first petitioner did not avail himself of the statutory remedies of appeal and revision for which the Act provided. He challenged the validity of the statutory provision under which he was taxed, and he applied under Article 226 of the Constitution for the issue of a writ of certiorari or other appropriate writ to quash the order of assessment.

The learned Government pleader took a preliminary objection to the maintainability of an application under Article 226 of the Constitution in the circumstances of this case. He pointed out that as the first petitioner had statutory remedies open to him provided by the Act itself to have the challenged assessment corrected, this Court should not in exercise of the jurisdiction vested in it under Article 226 of the Constitution issue a writ of certiorari even if the contention of the petitioners was well founded, that the impugned provision under which the first petitioner was taxed was invalid. The learned Government Pleader urged that the validity of the impugned provision need not be investigated at this stage in proceedings initiated by the petitioners under Article 226 of the Constitution. The existence of effective alternative remedies is by itself no bar to the assumption of jurisdiction under Article 226 of the Constitution. Normally of course, it is a very relevant factor that the Court will take into consideration in deciding whether the jurisdiction undoubtedly vested in the Court under Article 226 of the Constitution, will be exercised in a given case. Whether the discretion should be exercised in favour of the first petitioner is the question.

In the present case without availing himself of the statutory right of appeal the first petitioner has challenged the validity of the taxing provision in an application under Article 226 of the Constitution. None of the statutory tribunals, the assessing authority, the appellate authority, and the further appellate authority, the appellate Tribunal, all of them creatures of the statute, could have examined the validity of a taxing provision of the Act, which brought them into existence, and the provisions, of which Act they have to administer. In such a case where a person complains that the taxing provision in the statute offends a fundamental right of his guaranteed by the Constitution and is, therefore, void and unenforceable against him, the discretion of the Court should in our opinion, be exercised even at an earlier stage, because even at the stages at which an appeal is provided for by the Act, the validity of the impugned provision cannot be adjudicated upon by the Statutory Tribunals. No doubt in such a case writs of prohibition have been recognised to stand on a different footing, from a case in which the relief asked for is a writ of certiorari. If before the assessment was completed the first petitioner had asked for a

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