Civil Appeal No 4742 43 of 1984
a Appeal by Special leave from the Judgment and order dated the 9th August 1984 of the Calcutta High Court in FMAT No 2139 of 1984 and 2023 of 1984
K Parasaran Attorney General V J Francis Chandrasekharan NM Popli and Miss Savitha Sharma for the Appellant
F section Nariman D N Gupta and Harish Salve for the Respondent
The Judgment of the Court was delivered by CHlNNAPPA REDDY J
It is indeed a great pity and we wish we did not have to say it but we are afraidwe will be signally failing in our duty if we do not do so some courts of late appear to have developed an unwarranted tendency to grant interim orders interim orders with a great potential for public mischief for the mere asking
We feel greatly disturbed
We find it more distressing that such interim orders often ex parte and non speaking are made even by the High Courts while entertaining writ petitions under article 226 of the Constitution and in the Calcutta High Court on oral application too
Recently in Samaries Trading Company Pvt Ltd vs section Samuel  Orsl
we had occasion to condemn and prohibit this practice of entertaining oral applications under article 226 and passing interim orders thereon
In several other cases Siliguri Municipality vs Amelendu Das2 Titagur Paper Mills Co Ltd State of Orissa3 Union 1  2 3 193 Of India vs Oswal Woollen Mills Ltdl
 Union of India vs Jain Shubh A Vanaspati Ltda this Court was forced to point out how wrong it was to make interim orders so soon as an application was but presented when a second thought or a second s thought would expose the impairment of the public interest and often enough the existence of a suitable alternative remedy
Despite the fact that we have set our 8 face against interfering with interim orders passed by the High Courts and made it practically a rigid rule not to so interfere we were constrained to interfere in those cases
In Siliguri Municipality vs Amalendu Das supra A P Sen and M P Thakkar JJ had to deal with an interlocutory order passed by the Calcutta High Court restraining the Siliguri Municipality from recovering a graduated consolidate rate on the annual value of buildings in terms of the amended provisions of the Bengal Municipal Act
We reiterate the following observations made therein We are constrained to make the observations which follows as we do feel dismayed at the tendency on the part of some of the High Courts to grant interlocutory orders for the mere asking
Normally the High Court should not as a rule in proceedings under Article 226 of the Constitution grant any stay of recovery of tax save under very exceptional circumstances
The grant to stay in such matters should be an exception and not a rule
It is needless to stress that a levy or impost does not become bad as soon as a writ petition is instituted in order to assail the validity of the levy
So also there is no warrant for presuming the levy to be bad at the very threshold of the proceedings
The only consideration at that juncture is to ensure that no prejudice is occasioned to the rate payers in case they ultimately succeed at the conclusion of the proceedings
This object can be attained by requiring the body or authority levying the impost to give an undertaking to refund or adjust against future dues the levy of tax or rate or a part thereof as the case may be in the event of the entire levy or a part thereof being ultimately held l t 2 C A No 11420 of 1983 194 to be invalid by the court without obliging the tax payers to institute a civil suit in order to claim the amount already recovered from them
On the other hand the Court cannot be unmindful of the need to protect the authority levying the tax for at that stage the Court has to proceed on the hypothesis that the challenge may or may not succeed
The Court has to show awareness of the fact that in a case like the present a municipality cannot function or meet its financial obligations if its source of revenue is blocked by an interim order restraining the municipality from recovering the taxes as per the impugned provision
And that the municipality has to maintain essential civic services like water supply street lighting and public streets etc apart from cunning public institutions like schools dispensaries libraries etc
What is more supplies have to be purchased and salaries have to paid
The grant of an interlocutory order of This nature would paralyze the administration and dislocate the entire working of the municipality
It seems that these serious ramifications of the matter were lost sight of while making the impugned order
In Titaghur Paper Mills Co Ltd vs Sate of Orissa A P Sen E section Venkataramiah and R B Misra JJ
held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority a second appeal to the Tribunal and there after to have the case stated to the High Court it was not for the High Court to exercise its extra ordinary jurisdiction under article 226 of the Constitution ignoring as it were the complete statuary machinery
That it has become necessary even now to as to repeat this admonition is indeed a matter of tragic concern to us
Article 226 is not meant to short circuit of circumvent statutory procedures
It is only were statutory remedies are entirely ill suited to meet the demands of extraordinary situations as for instance where the very vires of thee statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to article 226 of the Constitution
But then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute
Surely matters involving the revenue where statutory remedies are available are not such matters
We can also take judicial notice of the fact that the vast 195 majority of the petitions under article 226 o the Constitution are filed 
solely for the purpose of obtaining interim orders and there after prolong the proceedings by one device or the other
The practice certainly needs to be strongly couraged
In Union of India vs Oswal Woollen Mills Ltd we had occasion to consider an interim order passed by the Calcutta High Court in regard to a matter no part of the cause of action relating to which appeared to arise within the jurisdiction of the Calcutta High Court
In that case the interim order practically granted the very prayers in the writ petition
We were forced to observe It is obvious that the interim order is of a drastic character with a great potential for mischief
The principal prayer in the writ petition is the challenge to the order made or proposed to be made under Clause 8 of the Import Control order
The interim order in terms of prayers j and k has the effect of practically allowing the writ petition at the stage of admission without hearing the opposite parties
While we do not wish to say that a drastic interim order may never be passed without hearing the opposite parties even if the circumstances justify it we are very firmly of the opinion that a statutory order such as the one made in the present case under Clause 8 B of the Import Control order ought not to have been stayed without at least hearing those that made the order
Such a stay may lead to devastating consequences leaving no way of undoing the mischief
Where a plentitude of power is given under a statute designed to meet a dire situation it is no answer to say that the very nature of the power and the consequences which may ensue is itself a sufficient justification for the grant of a stay of that order unless of course there are sufficient circumstances to justify a strong Prima facie inference that the order was made in abuse of the power conferred by the statute
A statutory order such as the one under Clause 8 B purports to be made in the public interest and unless there are even stronger grounds of public interest an expert interim order will not be justified
The only appropriate order to make in such cases is to issue notice to the respondent and make it returnable within a short period
This should particularly be so where the offices of the principals respondents and relevant records 196 lie outside the ordinary jurisdiction of the court
To grant interim relief straightaway and leave it to the respondents to move the court to vacate the interim order may jeopardise the public interest
It is notorious how if an interim order is once made by a court parties employ every device and tactic to ward off the final hearing of the application
It is therefore necessary for the courts to be circumspect in the matter of granting interim relief more particularly so where the interim relief is directed against orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers
On the facts and circumstance of the present case we are satisfied that no interim relief should have been granted by the High Court in the terms in which it was done We repeat and deprecate the practice of granting interim order which practically give the principal relief sought in the petition for no better reason than that a prima facie case has been made out without being concerned about the balance of convenience the public interest and a host of other relevant considerations
Regarding the practice of some clever litigants of resorting to filing writ petitions in the far away courts having doubtful jurisdiction we had this to observe  
Having regard to the fact that the registered office of the Company is at Ludhiana and the principal respondents against whom the primary relief is sought are at New Delhi one would have expected the writ petition to be filed either in the High Court of Punjab and Haryana or p in the Delhi High Court
The writ petitioners however have chosen the Calcutta High Court as the forum perhaps because one of the interlocutory reliefs which is sought is in respect of a consignment of beef tallow which has arrived at the Calcutta Port
An inevitable result of the filing of writ petitions elsewhere than at the place where the concerned offices and the relevant records are located is to delay prompt return and contest
We do not desire to probe further into the question whether the writ petition was filed by design or accident in the Calcutta High Court when the office of the Company is in the State of Punjab and all the principal respondents are in Delhi
But we do feel disturbed that such writ petitions are of ten deliberately 197 filed in distant High Courts as part of a manoeuvre in a A legal battle so as to render it difficult for the officials at Delhi to move applications to vacate stay where it becomes necessary to file such applications
In Union of India vs Jain Shudha Banaspati Ltd supra Chandrachud CJ A P Sen R N Misra JJ allowed an appeal against an interim order making the following observations After hearing learned counsel for the rival parties we are of the opinion that the interim order passed by the High Court on November 29 1983 is not warranted since it virtually grants to the respondents a substantial part of the relief claimed by them in their writ petition
Accordingly we set aside the said order
We have come across cases where the collection of public revenue has been seriously jeopardised and budgets of Governments and Local Authorities affirmatively prejudiced to the point of precariousness consequent upon interim orders made by courts
In fact instances have come to our knowledge where Governments have been forced to explore further sources for raising revenue sources which they would rather well leave alone in the public interest because of the stays granted by courts
We have come across cases where an entire Service is left in a stay of flutter and unrest because of interim orders passed by courts leaving the work they are supposed to do in a state of suspended animation
We have come across cases where buses and lorries are being run under orders of court though they were either denied permits or their permits had been canceled or suspended by Transport Authorities
We have come across cases where liquor shops are being run under interim orders of court
We have come across cases where the collection of monthly rentals payable by Excise Contractors has been stayed with the result that at the and of the year the contractor has paid nothing but made his profits from the shop and walked out
We have come across cases where dealers in food grains and essential commodities have been allowed to take back the stocks seized from them as if to permit them to continue to indulge in the very practices which were to be prevented by the seizure
We have come across cases where land reform and important welfare legislations have been stayed by courts
Incalculable harm has been done by such interim orders
All this is not to say that interim orders may never be 198 made against public authorities
There are of course cases which demand that interim orders should be made in the interests of justice
Where gross violations of the law and injustices are perpetrated or are about to be perpetrated it is the bounden duty of the court to intervene and give appropriate interim relief
In cases where denial of interim relief may lead to public mischief grave irreparable private injury or shake a citizen s faith in the impartiality of public administration a Court may well be justified in granting interim relief against public authority
But since the law presumes that public authorities function properly and bonafide with due regard to the public interest a court must be circumspect in granting interim orders of far reaching dimensions or orders causing administrative burdensome inconvenience or orders preventing collection of public revenue for no better reason than that the parties have come to the Court alleging prejudice inconvenience or harm and that a prima facie case has been shown
There can be and there are no hard and fast rules
But prudence discretion and circumspection are called for
There are several other vital considerations apart from the existence of a prima facia case
There is the question of balance of convenience
There is the question of irreparable injury
There is the question of the public interest There are many such factors worthy of consideration
We often wonder why in the case indirect taxation where the burden has already been passed on to the consumer any interim relief should at all be given to the manufacturer dealer and the like  There is just one more thing that we wish to say
In Siliguri vs Amalendu Das the Court was put to the necessity of pointing out the following We will be failing in our duty if we do not advert to feature which causes us dismay and distress
On a previous occasion a Division Bench had vacated an interim order passed by a learned single Judge on similar facts in a similar situation
Even so when a similar matter giving rise to the present appeal came up again the same learned judge whose order had been reversed earlier granted a non speaking interlocutory order of the aforesaid nature
This order was in turn confirmed by a Division Bench without a speaking order articulating reasons for granting a stay when the earlier Bench had vacated the stay
We 199 mean no disrespect to the High Court in emphasizing the necessity for self imposed discipline in such matters in obeisance to such weighty institutional considerations like the need to maintain decorum and comity
So also we mean no disrespect to the High Court in stressing the need for self discipline on the part of the High Court in passing interim orders without entering into the question of amplitude and width of the powers of the High Court to grant interim relief
The main purpose of passing an interim order is to evolve a workable formula or a workable arrangement to the extent called for by the demands of the situation keeping in mind the presumption regarding the constitutionality of the legislation and the vulnerability of the challenge only in order that no irreparable injury is occasioned
The Court has therefore to strike a delicate balance after considering the pros and cons of the matter lest larger public interest is not jeopardized and institutional embarrassment is eschewed
We desire to add and as was said in Cassel and Co Ltd vs Broomel we hope it will never be necessary for us to say so again that in the hierarchical system of Courts  which exists in our country it is necessary for each lower tier  including the High Court to accept loyally the decisions of the higher tiers 
It is inevitable in a hierarchical system of Courts that there are decisions 11 of the Supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary  
But the judicial system only works if someone is allowed to have the last word and that last word once spoken is loyally accepted2
The better wisdom of the Court below must yield to the higher wisdom of the Court above
That is the strength of the hierarchical judicial system
In Cassel vs Broome commenting on the Court of Appeal s comment that Rookes vs Barnard3 was rendered per incuriam Lord Diplock observed The Court of Appeal found themselves able to disregard the decision of this House in Rookes vs Barnard by applying to it the label per incuriam That label is relevant only to the right of an appellate court to decline to 1  2 See observations of Lord Hailsham and Lord Dipock in Broome vs Cassell
3 1984 AC 1129
200 follow one of its own previous decisions not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Court of Appeal
 It is needless to add that in India under Act
141 of the Constitution the law declared by the Supreme Court shall be binding on all courts within the territory of India and under article 144 all authorities civil and judicial in the territory of India shall act in aid of the Supreme Court
Now coming to the facts of the present case the respondent Dunlop India Limited is a manufacturer of types tubes and various other rubber products
By a notification dated April 6 1984 issued by the Government of India Ministry of Finance Department of Revenue in exercise of the powers conferred by Rule 8 1 of the Central Excise Rules 1944 types falling under item No 16 of the First Schedule to the Central Excise and Salt Act 1944 were exempt from a certain percentage of excise duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications The Department was of the view that the Company was not entitled to the exemption as it had cleared the goods earlier without paying central excise duty but on furnishing Bank Guarantees under various interim orders of courts
The Company claimed the benefit of the exemption to the tune of Rs 605 crores and filed a writ petition in the Calcutta High Court and sought an interim order restraining the central excise authorities from the levy and collection of excise duty
The learned single judge took the view that a prima facie case had been made out in favour of the Company and by an interim order allowed the benefit of the exemption to the tune of Rs two crores ninety three lakhs and eighty five thousand for which amount the company was directed to furnish a Bank Guarantee that is to say the goods were directed to be released on the Bank Guarantee being furnished
An appeal was preferred by the Assistant Collector of Central Excise under clause 10 of the Letters Patent and a Division Bench of the Calcutta High Court confirmed the order of the learned single Judge but made a slight modification in that the Collector of Central Excise was given the liberty to encash 30 of the Bank Guarantee
The Assistant Collector of Central Excise has preferred this appeal by special leaue
By our interim order dated November 15 1984 we vacated the orders granted by the learned single Judge 201 as well as by the Division Bench
We gave two weeks  time to the A respondent Company to file a counter No counter has however been filed
Shri FS Nariman learned counsel however appeared for the respondent
We do not have the slightest doubt that the orders of the learned single judge as well as Division Bench are wholly unsustainable and should never been made
Even assuming that the company had established a prima facie case about which we do not express any opinion we do not think that it was sufficient justification for granting the interim orders as was done by High Court
There was no question of any balance of convenience being in favour of the respondent Company
The balance of convenience was certainly in favour of the Government of India
Governments are not run on mere Bank Guarantees
We notice that very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice
No governmental business or for that matter no business of any kind can be run on mere Bank Guarantees
Liquid cash is necessary for the running of a Government as indeed any other enterprise
We consider that where matters of public revenue are concerned it is of utmost importance to reales that interim orders ought not to be granted merely because a prima facie case has been shown
More is required
The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest
We are very sorry to remark that these considerations have not been borne in mind by the High Court and interim order of this magnitude had been granted for the mere asking
The appeal is allowed with costs
E NVK Appeal allowed


Summary:
The Government of India by a notification dated April 61984 exempted tyres from a certain percentage of Excise Duty to the extent that the manufacturers had not availed themselves of the exemption granted under certain other earlier notifications
The Customs and Excise Department was of the view that the Respondent company who was a manufacturer of Tyres Tubes and various other rubber products was not entitled to the aforesaid exemption as it had cleared the goods earlier without paying Central Excise Duty but on furnishing Bank Guarantees under various interim orders of courts
The Company claimed the benefit of exemption to the tune of about Rs 6 crores and filed a Writ Petition in the High Court and sought an interim order restraining the Central Excise authorities from the levy and collection of excise duty
The High Court held that a prima facie case had been made out in favour of the company and by an interim order allowed the benefit of the exemption to the tune of about Rs 2 crores and directed that the goods be released on furnishing a Bank Guarantee
In the Department s appeal the Division Bench confirmed the above order with a slight modification to the effect that the Collector of Central Excise could encash 30 per cent of the Bank Guarantee
Allowing the appeals by the Department this Court  HELD 1
The orders of the Single Judge as well as the Division Bench are wholly unsustainable and should never have been made Even assuming the 191 company had established a prima facie case it was not a sufficient justification A for granting the said interim orders
There was no question of any balance of convenience being in favour of the respondent Company it was certainly in favour of the Government of India
201B C 2
Governments are not run on mere Bank Guarantees
Very often some courts act as if furnishing a Bank Guarantee would meet the ends of justice
No Governmental business for that matter no business of any kind can be run on mere Bank Guarantees
Liquid cash is necessary for the running of a Government as indeed any enterprise
201C 3
Where matters of public revenue are concerned it is of utmost importance that interim orders are not to be granted merely because prima facie case has been shown
More is required
The balance of convenience must be clearly in favour of the making of an interim order and there should not be the slightest indication of a likelihood of prejudice to the public interest
201D1 4
Article 226 is not meant to short circuit or circumvent statutory procedures
It is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to article 226
The Court must also have good and sufficient reason to by pass the alternative remedy provided by statute
Matters involving the revenue where statutory remedies are available are not such matters
The vast majority of the petitions under article 226 are filed solely for the purpose of obtaining interim orders and thereafter to prolong the proceedings by one device or the other
This practice needs to be strongly discouraged
194F H 195A E 5
There are cases which demand that interim orders should be made in the interests of justice
Where gross violations of the law and injustices are about to be or are perpetrated it is the bounden duty of the court to intervene and give appropriate interim relief
In cases where denial of interim relief may lead to public mischief grave irreparable private injury or shake a citizen s faith in the impartiality of public administration a court may well be justified in granting interim relief against public authority
Samarias Trading Company Pvt Ltd vs section Samuel and Ors
   Siliguri Municipality vs Amalendu Das  Titaghur Paper Mills Co Ltd vs State of Orissa  Union of India vs Oswal Woollen Mills Ltd  and Union of India vs Jain Shudh Vanaspati Ltd CA No 11450 of 1983 referred to
In India under article 141 the law declared by the Supreme Court shall be binding on all courts and under article 144 all authorities civil and judicial shall act in aid of the Supreme Court
200B 7
In the hierarchical system of Courts which exists in our country it is 192 necessary for each lower tier including the High Courts to accept loyally the decisions of the higher tiers
The better wisdom of the Court below must yield to the higher wisdom of the Court above
199E F 8
The label per incuriam is relevant only to the right of an appellate court to decline to follow one of its own previous decisions not to its right to disregard a decision of a higher appellate court or to the right of a judge of the High Court to disregard a decision of the Supreme Court
199H 200A Cassel and Co Ltd vs Broome  and Rookes vs Barnard   referred to