Civil Appeal No 1868 of 1974
From the Judgment and order dated 291974 of the Madr as High Court in Writ Petition No 27291974
FS Nanman CS Vaidyanathan and KR Nambiar for t he Appellants
TS Krishnamoorthy Iyer AV Rangam and TV Ratn am for the Respondent
section Balakrishnan not present for the Intervener
The Judgment of the Court was delivered by 39 PATHAK CJ
The appellants in these two appeals a re manufacturers of Ayurvedic drugs and medicines includi ng Arishtams and Asavas
Arishtams and Asavas contain alcoho l and it is said that the presence of alcohol is essential f or the effective and easy absorption of the medicine by t he human system and also because it acts as a preservative
A ll the Ayurvedic preparations as well as Allopathic Siddha a nd Unani medicines were originally subject to a multi poi nt levy of 312  under the Tamil Nadu General Sales Tax Ac t 1959
By a notification dated 4 March 1974 the State of Tamil Nadu included a large number of items in the Fir st Schedule to the aforesaid Act in order to make them subje ct to a single point levy
While all other patent or propri e tary medicinal preparations belonging to the differe nt systems of medicines were taxed at the rate of 7 onl y Arishtams prepared under the Ayurvedic system were ma de subject to a levy of 30
It seems that representations we re made to the State Government against the high rate of tax on Arishtams and therefore a separate entry was introduced by Tamil Nadu Act No 23 of 1974 in the First Schedule as it em 135 dealing specifically with Arishtams and Asavas
Th ey were shown as attracting a rate of 30 while all oth er medicinal preparations were shown under item No 95 a nd subjected to tax at 7
The appellants filed writ petitions in the High Court of Madras challenging the levy of 30 on Arishtams and Asava s but on 2 September 1974 the High Court dismissed the wr it petitions
From the counter affidavit filed by the Government of Tamil Nadu in the writ petition out of which one of t he present appeals arises it appears that the higher levy of sales tax on Arishtams and Asavas was introduced by t he State Legislature to curb the abuse of medicinal prepar a tions for their alcoholic content by drink addicts and to eliminate the mushroom growth of Ayurvedic Pharmacies pr e paring sub standard Arishtams and Asavas for purposes oth er than medicinal use
The appellants contend that Arishta ms and Asavas manufactured by them are essentially Ayurved ic medicines and that in any event the object of controlli ng the consumption of liquor is amply served by several oth er existing statutes including the Medicinal and Toilet Prep a rations Excise Duty Act 1955 Drugs and Cosmetic Ac t 1940 as amended in the year 1964 and Spirituous Prepar a tions Inter State Trade and Commerce Control Act 1955
It is said that there are over 130 Allopathic medicines co n taining alcohol which are potable as against only thr ee Ayurvedic medicines and that therefore the levy of tax at 30 of Arishtams and Asavas alone while 40 other medicinal preparations are subjected to tax at 7 n ow increased to 8 results in an invidious discriminati on against the manufacturers of those Ayurvedic preparatio ns thus violating article 14 of the Constitution
It is contend ed that the impugned rate of tax also offend Article 191 g of the Constitution
The appellants in Civil Appeal No 18 68 of 1974 have also taken the point that the high rate of t ax on Arishtams and Asavas has been imposed by the State of Tamil Nadu with the object of discouraging the import of these Ayurvedic medicines from the neighbouring State of Kerala and consequently the measure is violative of Ar t 301 as well
While dismissing the writ petitions the High Cou rt observed that the imposition of the rate of 30 on the sa le of Arishtams and Asavas must be regarded principally as a measure for raising revenue and it repelled the argume nt that the rate of tax was discriminatory or that Ar t 191g was infringed
It rejected the plea of the appe l lants that article 301 was contravened and refused to acce pt that there was any ulterior object in imposing a high ra te of tax on those two commodities
Now there is no doubt that Arishtams and Asavas a re Ayurvedic medicinal preparations
The question is wheth er these two medicines attract different considerations fr om those applied to other medicinal preparations
Reference is made by the State to their high content of alcohol a nd that it is said attracts a class of customers who purcha se them for their alcoholic content rather than their medicin al value
On that basis it is urged there is justificati on for a higher rate of tax
We think that the appeals are entitled to succeed
It em 95 mentions the rate of 7 now 8 as the tax to be levi ed at the point of first sale in the State
Item 135 provides a rate of 30 in respect of Arishtams and Asavas at the poi nt of first sale
We see no reason why Arishtams and Asav as should be treated differently from the general class of Ayurvedic medicines covered by Item 95
It is open to t he Legislature or the State Government if it is authorised in that behalf by the Legislature to select different rates of tax for different commodities
But where the commoditi es belong  to the same class or category there must be a rational basis for discriminating between one commodity a nd another for the purpose of imposing tax
It is common ly known that considerations of economic policy constitute a basis for levying different rates of sales tax
For i n stance the object may be to encourage a certain trade or industry in the context of the State policy for econom ic growth and a lower rate would be considered 41 justified in the case of such a commodity
There may be several such considerations bearing directly on the choi ce of the rate of sales tax and so long as there is go od reason for making the distinction from other commodities no complaint can be made
What the actual rate should be is n ot a matter for the courts to determine generally but where a distinction is made between commodities fairing in the sa me category a question arises at once before a Court wheth er there is justification for the discrimination
In t he present case we are not satisfied that the reason behi nd the rate of 30 on the turnover of Arishtams and Asav as constitutes good ground for taking those two preparatio ns out from the general class of medicinal preparations to which a lower rate has been applied
In Adhyaksha Math ur Babu s Sakti Oushadhalaya Dacca P Ltd and others vs Uni on of India this Court considered whether t he Ayurvedic medicinal preparations known as Mirtasanjiban i Mritasanjibani Sudha and Mritasanjibanj Sura prepared in accordance with an acknowledged Ayurvedic formula could be brought to tax under the relevant State Excise Act wh en medicinal preparations were liable to excise duty under t he Medicinal and Toilet Preparations Excise Duty Act whi ch was a Central Act
The Court held that the three prepar a tions were medicinal preparations and observed that t he mere circumstance that they contained a high percentage of alcohol and could be used as ordinary alcoholic beverag es could not justify their being treated differently from oth er medicinal preparations
The Court said So if these preparations are medicinal preparations but a re also capable of being used as ordinary alcoholic beverage s they will fail under the Central Act and will be liable to duty under item No 1 of the Schedule at the rate of R section 1750nP per gallon of the strength of London Proof spiri t
On a consideration of the material that has been plac ed before us therefore the only conclusion to which we c an come is that these preparations are medicinal preparatio ns according to the standard Ayurvedic text books referred to already though they are also capable of being used as ordinary alcoholic beverages
They cannot however be tax ed under the various Excise Acts in force in the concern ed States in view of their being medicinal preparations whi ch are governed by the Act
 We are of opinion that similar considerations should app ly to the appeals before us
The two preparations Arishta ms and Asavas are medicinal preparations and even though th ey contain a high alcohol 42 content so long as they continue to be identified as medi c inal preparations they must be treated for the purposes of the Sales Tax Law in like manner as medicinal preparatio ns generally including those containing a lower percentage of alcohol
On this ground alone the appellants were entitl ed to succeed
In the circumstances we do not consider it necessary to enter upon the question whether there is substance in t he complaint of the appellants that there is a violation of article 301 of the Constitution
In the result the appeals must be allowed and t he appellants held entitled to a refund of the excess paid as sales tax on account of the turnover being treated und er Item 135 rather than under Item 95
Learned counsel for t he appellants states that the appellants will inform all the ir customers from whom the higher rate has been charged th at the customers are entitled to a refund of the excess paid by them and that an application will be invited for such refu nd and that if any part of the excess remains unrefunded to t he customers the appellants undertake that such balance will be paid over to the Arya Vaidya Rama Varier Educational Found a tion of Ayurveda
The appeals are allowed the judgment and order of t he High Court on each writ petition are set aside and the Sal es Tax Authorities are directed to reassess the turnover of t he Arishtams and Asavas at the rate mentioned in Item No 95 and to refund to the appellants the amount of tax paid in excess
The appellants in their turn on obtaining su ch refund will within one month thereof serve notice on t he customers from whom such excess has been recovered to obta in a refund from the appellants of such corresponding exces section In the event of any balance of the excess remaining unr e funded by the appellant to the customers upon the expiry of three months from such notice the balance will be paid ov er by the appellants to the Arya Vaidya Rama Varier Education al Foundation of Ayurveda
There is no order as to costs
HLC Appeals allowed


Summary:
Article 329 b of the Constitution of India provides that no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature
 The Representation of the People Act 1951 which made detailed provisions for election to the various Legislatures of the country also contains a provision sec 80 that no election shall be called in question except by an election petition presented in accordance with the provisions of the Act
The appellant who was a candidate for election to the Legislative Assembly of the State of Madras and whose nomi nation paper was rejected by the Returning Officer applied to the High Court of Madras under article 226 of the Consti tution for a writ of certiorari to quash the order of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to include his name in the list of valid nominations to be published Held by the Full Court PATANJALI SASTRI CJ FAZL ALl MAHAJAN MUKHERJEA DAS and CHANDRASEKHARA AIYAR JJ that in view of the provisions of article 329 b of the Constitution and sec
80 of the Representation of the People Act 1951 the High Court had no jurisdiction to interfere with the order of the Returning Officer
The word election has by long usage in connection with the process of selection of proper representatives in demo cratic institutions acquired both a wide and a narrow mean ing
In the 219 narrow sense it is used to mean the final selection of a candidate which may embrace the result of the poll when there is polling or a particular candidate being returned unopposed when there is no poll
In the wide sense the word is used to connote the entire process culminating in a candidate being declared elected and it is in this wide sense that the word is used in Part XV of the Constitution in which article 329 b occurs
The scheme of Part XV of the Constitution and the Repre sentation of the People Act 1951 seems to be that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropri ate manner before a special tribunal and should not be brought up at an intermediate stage before any court
Under the election law the only significance which the rejection of a nomination paper has consists in the fact that it can be used as a ground to call the election in question
Article 329 b was apparently enacted to prescribe the manner in which and the stage at which this ground and other grounds which may be raised under the law to call the election in question could be urged
It follows by neces sary implication from the language of this provision that those grounds cannot be urged in any other manner at any other stage and before any other court
If the grounds on which an election can be called in question could be raised at an earlier stage and errors if any are rectified there will be no meaning in enacting a provision like article 329b and in setting up a special tribunal
Any other meaning ascribed to the words used in the article would lead to anomalies which the Constitution could not have contem plated one of them being that conflicting views may be expressed by the High Court at the pre polling stage and by the election tribunal which is to be an independent body at the stage when the matter is brought up before it
There fore questioning the rejection of a nomination paper is questioning the election within the meaning of article 329 b of the Constitution and sec
80 of the Representa tion of the People Act 1951
Having regard to the important functions which the legislatures have to perform in democratic countries it has always been recognized to be a matter of first importance that elections should be concluded as early as possible according to time schedule and all controversial matters and all disputes arising out of elections should be postponed till after the elections are over so that the election proceedings may not be unduly retarded or protracted
In conformity with this principle the scheme of the election law in this country as well as in England is that no signif icance should be attached to anything which does not affect the election and if any irregularities are committed while it is in progress and they belong to the category or class which
under the law by which elections are governed would have the effect of vitiating the election and enable the person affected to 220 call it in question they should be brought up before a special tribunal by means of an election petition and not be made the subject of a dispute before any court while the election is in progress
The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it
Strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the elec tion of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction that special jurisdiction should be exercised in accordance with the law which creates it
Where a right or liability is created by a statute which gives a special remedy for enforcing it the remedy provided by that statute only must be availed of
Wolverhampton New Water Works Co vs Hawkesford 6 CB N section  336 Neville vs London Express Newspaper Limited 1910 AC 368 Attorney General of Trinidad and Tobago vs Gordon Grant  Co 1935 AC 532 Secretary of State vs Mask  Co  Hurdutrai vs Offcial Assign ee of Calcutta  The berge vs Laudry referred to
Judgment of the High Court of Madras affirmed