tition No 443 of 1988
Under Article 32 of the Constitution of India
Rajiv K Garg and ND Garg for the Petitioner
Soli J Sorabjee Attorney General M Chandrasekharan and P Parmeswaran for the Respondents
The Judgment of the Court was delivered by SABYASACHI MUKHARJI CJ
This is an application under Article 32 of the Constitution
Northern Corporation is the petitioner in the instant application and the Union of India the Collector of Customs and the Assistant Collector of Customs Bond Department are the respondents
On 11th May 1983 the licensing authority issued import licence No 2959845 for Rs20 12729 in favour of Ms Industrial Cable India Ltd Rajpura
The licence holder transferred the same in favour of Ms Metalic metal Indus tries
The transferee licence holder issued a letter of authority in favour of the petitioner for the import of MSCR defective sheets or coils
The letter of authority was issued on 21st May 1984
The petitioner herein placed order on Ms Sayani Enter prises Pvt
Ltd Singapore for the supply of MSCR defective sheets or coils on 30th May 1984
The foreign supplier shipped the material in three consignments and the goods arrived at the Bombay Port on 12th June 1984
The clearing agent of the petitioner filed bills of entry on 30th July 1984 for warehousing under section 59 of the 
1962 hereinafter referred to as the Act  and the same was allowed
The goods were bounded on 7th August 1984
It may be mentioned that the rate of duty on the day was 60  40  Rs650 per MT and 10 CVD
The total duty on the consignment was assessed as Rs262010955
624 On 21th August 1984 the petitioner s clearing agent filed six bills of entry for ex bond clearance
However the bills of entry were returned with the remark that please obtain no objection from the income tax
This was endorsed on 24th August 1984
The petitioner states that thereafter he came to know that the income tax authorities had imposed ban under section 1321 of the Income Tax Act 1961
The petitioner asserted that he was ever ready and willing rather was anxious to get the material on payment of the then prevailing customs duty
However due to circumstances beyond the control of the petitioner that it to say by the order of the Income Tax Authorities the goods could not be released
This factor was not of the petitioner s making according to the petitioner  On 30th March 1988 the Income Tax Department issued the necessary no objection certificate thus lifting the ban
On 4th April 1988 the petitioner s agent contacted the customs authority for clearance of the goods
The duty as is prevalent now is Rs5000 per MT  addl
duty 45 and CVD at Rs325 per MT
The total duty came to a very large sum of money
The demand according to the petitioner was arbitrary illegal and unconstitutional
The instant writ was filed under Article 32 of the Constitution on 16th April 1988 and on 22nd April 1988 this Court passed the following order Pending notice there will be limited stay to the extent that the goods name MSCR defective sheetscoils which have arrived at Bombay Port per SS SEA PRIMROSE will be released forthwith on petitioner s paying customs and other duties as leviable on 21884
In addition to the above payment the petitioner will deposit Rs5 lakhs and for the balance amount petitioner will furnish surety which may consist of ITC bond but excluding cashbank guaranteeNSCFDR to the satisfaction of the Collector of Customs
 We directed that the notice should be given to the revenue authority to appear before us
Learned Attorney General had appeared pursuant to the notice on behalf of the respond ents
It is contended on behalf of the respondents that for the payment of duty the liability of the petitioner to pay the duty is the duty at the time of clearance of the goods
Our attention was drawn to section 151b of the Act which postulates that the rate of duty and tariff valuation if any applicable 625 to any imported goods shall be the rate and valuation in force in case the goods are cleared from a warehouse under section 68 on the date on which the goods are actually removed from the warehouse
Section 15 of the Act reads as under section 15
Date for determination of rate of duty and tariff valuation of imported goods
1 The rate of duty and tariff valuation if any applica ble to any imported goods shall be the rate and valuation in force a in the case of goods entered for home con sumption under section 46 on the date on which a bill of entry in respect of such goods is presented under that section b in the case of goods cleared from a warehouse under section 68 on the date on which the goods are actual ly removed from the warehouse c in the case of any other goods on the date of payment of duty Provided that if a bill of entry has been present ed before the date of entry inwards of the vessel by which the goods are imported the bill of entry shall be deemed to have been presented on the date of such entry inwards
2 The provisions of this section shall not apply to bag gage and goods imported by post Learned Attorney General laid emphasis on the expression actually removed in clause b of section 151 of the Act
Our attention was also drawn to section 16 of the Act which reads as under section 16
Date for determination of rate of duty and tariff valuation of export goods
1 The rate of duty and tariff valuation if any applica ble to any export goods shall be the rate and valuation in force a in the case of goods entered for export under 626 section 50 on the dateon which the proper officer makes an order permitting clearance and loading of the goods for exportation under section 51 b in the case of any other goods on the date of payment of duty
2 The provisions of this section shall not apply to baggage and goods exported by post
 It was contended on behalf of the revenue that in view of the aforesaid it would not be possible for the petition er to clear the goods on payment of duty on the date when the petitioner was actualling expressed willingness to remove the goods
Our attention was drawn to the decision of this Court in Prakash Cotton Mills P Ltd vs B Sen  Ors 1979 2 SCR 1142
In that casethe appellant stored on December 22 1965 in the Customs warehouse goods import ed by him under a licence and cleared them on various dates between September 1 1966 and February 20 1967
Under protest they paid customs duty at the enhanced rates in accordance with the amended provisions
Later they claimed rebate alleging that since the consignments had been re ceived stored and assessed to duty much before the promul gation of the Ordinance they were liable to pay duty at the rate prevailing on the date of warehousing
Their appeals and revision were unsuccessful
In appeal to this Court it was contended that the material change in section 15 being only the substitution of the words the rate of duty the customs authorities were not entitled to take into account the new rate of exchange at the appreciated value of currency in respect of the consignments stored in the warehouse prior to the coming into force of the Ordinance
Dismissing the appeal this Court held that the customs authorities were right intaking the view that the rate of duty applicable to the imported goods should be determined according to the law prevalent on the date they were actually removed from the warehouse
Section 151b clearly requires that the rate of duty rate of exchange and tariff applicable to any imported goods shall be the rate and valuation in force on the date on which goods are actually removed from the ware house
Under section 49 and importer may apply to the Assistant Collector of Customs for permission to store the imported goods in a warehouse pending their clearance and he may be permitted to do so and section 68 provides that an importer of any warehoused goods may clear them if the import duty leviable on them has been paid
In that case it was found that as the goods were removed from the warehouse after the amending Ordinance had come 627 into force the customs authorities and the Central Govern ment were right in taking the view that the rate of duty applicable to the imported goods should be determined ac cording the law prevalent on the date these were actually removed from the warehouse
Mr Garg appearing for the petitioner on the other hand contended before us that his client was willing indeed to pay the duty when the goods crossed the customs barrier and were in the process of being cleared but could not be cleared because of the prohibitory orders of the Income Tax Department under section 102 of the 
In that light it was not possible Mr Garg contended for the Income Tax Department to claim enhanced duty due to facts which were not for the fault of the petitioner
In view of the language used in section 151b of the Act it is difficult to accept this contention specially in the light of the expression used actually removed 
It must be ac cepted that the prohibitory orders arbitrary or not would postpone the date of clearance and as such would postpone the determination of the duty
Therefore it is difficult to accept Mr Garg s contention
However there is a far more serious objection in enter taining this application under Article 32 of the Constitu tion
Article 32 of the Constitution guarantees the right to move the Supreme Court for enforcement of fundamental rights
If there is breach of the fundamental rights the petitioner can certainly have recourse to Article 32 of the Constitution provided other conditions are satisfied
But we must in all such cases be circumventive of what is the right claimed
In this case the petitioner as such has no fundamental fight to clear the goods imported except in due process of law
Now in the facts of this case such clear ance can only be made on payment of duty as enjoined by the 
In a particular situation whether customs duty is payable at the rate prevalent on a particular date or not has to be determined under the four corners of the 
The petitioner has no fundamental right as such to clear any goods imported without payment of duties in accordance with the law
There is procedure provided by law for determination of the payment of customs duty
The reve nue has proceeded on that basis
The petitioner contends that duty at a particular rate prevalent at a particular date was not payable
The petitioner cannot seek to remove the goods without payment at that rate or without having the matter determined by the procedure envisaged and enjoined by the law for that determination
The petitioner without seeking to take any relief within the procedure envisaged under the Act had moved this Court for breach of fundamental right
This is not permissible and should never be 628 entertained
In a matter of this nature where liability of a citizen to pay a particular duty depends on interpretation of law and determination of facts and the provision of a particular statute for which elaborate procedure is pre scribed it cannot conceivably be contended that enforcing of those provisions of the Act would breach fundamental right which entitle a citizen to seek recourse to Article 32 of the Constitution
We are therefore clearly of the opinion that relief under Article 32 of the Constitution is wholly inappropriate in the facts and the circumstances of this case
It has further to be reiterated that for enforce ment of fundamental right which is dependent upon adjudica tion or determination of questions of law as well as ques tion of fact without taking any resort to the provisions of the Act it is not permissible to move this Court on the theoretical basis that there is breach of the fundamental right
Whenever a person complains and claims that there is a violation of law it does not automatically involve breach of fundamental right for the enforcement of which alone Article 32 of the Constitution is attracted
It appears that the facts of this nature require elaborate procedural inves tigation and this Court should not be moved and should not entertain on these averments of the Article 32 of the Con stitution
This position is clearly well settled but some times we are persuaded to accept that an allegation of breach of law is an action in breach of fundamental right
In this connection reference may be made to the decision of this Court in Smt
Ujjam Bai vs State of Uttar Pradesh 1963 1 SCR 778 where this Court observed at p 842 of the report as under In my opinion the correct answer to the two questions which have been referred to this larger Bench must be in the negative
An order of assessment made by an authority under a taxing statute which is intra vires and in the undoubted exercise of its jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder
Nor can the validity of such an order be questioned in a petition under article 32 of the Constitution
The proper remedy for correcting an error in such an order is to pro ceed by way of appeal or if the error is an error apparent on the face of the record they by an application under article 226 of the Constitution
It is necessary to observe here that article 32 of the Constitution does not give this Court an appellate jurisdiction Such
as is given by articles 132 to 136
Article 32 guarantees the right to a constitutional remedy and relates only to the enforcement of the rights conferred 629 by Part 111 of the Constitution
Unless a question of the enforcement of a fundamental right arises article 32 does not apply
There can be no question of the enforcement of a fundamental fight if the order challenged is a valid and legal order in spite of the allegation that it is errone ous
I have therefore come to the conclusion that no question of the enforcement of a fundamental fight arises in this case and the writ petition is not maintainable
 In the aforesaid view of the matter we are clearly of the opinion that Article 32 of the Constitution should not have been resorted to and this application does not lie under Article 32 of the Constitution
However it appears that this Court has passed an order on 22nd April as indicated hereinbefore
It is stated that the goods have been cleared pursuant to that order
The revenue would be at liberty to take appropriate action in accordance with law for the recovery of the dues
This writ petition is accordingly disposed of
NPV Petition disposed of


Summary:
This appeal has been filed against the judgment of the Delhi High Court whereby the High Court gave the widow landlady the benefit of section 14 D of the Delhi Rent Control Act 1958 and accordingly granted her the Possession of the premises in question
Before this Court it was inter alia contended on behalf of the appellant that the relief under section 14 D was available only to a landlady who had become a Widow after the premises were let out either by herself or her husband
it was further contended that if the benefit given by section 14 D was allowed to be availed by all widows they may make a business of it
Dismissing the appeal this Court HELD 1 The legislature w anted to give a special privilege to the landlady who is a widow notwithstanding whether the Premises were let out before or after she became widow
Such conferment of special benefit on a widow landlady is permissible even under the provisions of Article 153 of the Constitution which is an express exception to the provisions of sub clauses 1 and 2 of that Article
A widow is undoubtedly a vulnerable person in our society and requires special protection
383H 384B 2 Section 14 D can be availed of by the widow only once
That is a sufficient guarantee against the abuse of the privilege granted by the section
Secondly she has to prove her bona fide need for the occupation of the Premises in question for her own residence like any other landlord
Thirdly the provisions of section 19 of the Delhi Rent Control Act come to play in her case also when the order for possession on the ground of bona fide requirement for occupation as residence is made in her favour
384C 382 Dr P P Kapur vs Union of India  Ors
Delhi High Court Civil Writ No 2686 of 1989 overruled