Wanchoo, C. J. - (1.) THIS is an application by Haji Abdul Ghafoor under Art. 226 of the Constitution of India.
(2.) THE case of the applicant is that he is a citizen of India and resident of Rajasthan in Bilara Tahsil, Jodhpur district. He is butcher by caste, and carries on the business of rearing sheep and goats. As is usual in Ran-sigaon, he has to carry his animals outside Marwar, and sometimes even outside Rajasthan, after the rainy season is over, in order that they may not perish for want of grazing. He had been doing so far a number of years and used to get Khali Chitthi under sec. 71 of the Marwar Customs Act, 1949. He applied again as usual in October, 1953. This time, however, he was told that he could not be given any Khali Chitthi and that he must pay the export duty in full, and reliance was placed by the Customs authorities on exception 2 to sec. 61 of the Marwar Customs Act. THE applicant, aggrieved by this order, has come to this Court, and his contention is that exception 2 to sec. 61 of the Marwar Customs Act is discriminatory and against Arts. 14 and 15 of the Constitution. He, therefore, prays for a writ, order or direction in the nature of Mandamus ordering the Customs authorities to issue a Khali Chitthi in the terms of sec. 71 of the Marwar Customs Act. The application has been opposed on behalf of the State. It is, however, unnecessary to set out the grounds of opposition in detail, for we have come to the conclusion that exception 2 to sec. 61 must fail on a ground which was not raised by the applicant in his application, but which has been urged on his behalf at the bar. This is based on sec. 3 of the Rajasthan (Regulation of the Customs Duties) Ordinance (No. XVI) of 1949, which reads as follows : - "with effect from such date as may be notified by the Government in the Rajasthan Gazette, no duties of Customs shall be levied and collected in respect of any goods transported within Rajasthan, notwithstanding anything to the contrary in any law,or rule, instrument or usage having the force of law, in any part of Rajasthan; and any such law, rule, instrument or usage shall be deemed to be repealed to that extent. " There are two provisos to this section, but we are not concerned with them. A notification was issued by the Government of Rajasthan on the 10th August, 1949, published in the Rajasthan Gazette Extraordinary of the 15th August, 1949, by which, in exercise of the powers conferred by this section, it was directed that with effect from the 15th of August, 1949, no duties of customs shall be levied and collected in respect of goods transported within the United State of Rajasthan. After this notification, all movement of goods within the State of Rajasthan is free from any kind of customs duty. Now let us took at exception 2 to sec. 61 of the Marwar Customs Act, 1949, which is in these terms : - "no Khali Chitthi shall be issued for carrying sheep and goats from one circle to another by a butcher or a member of any nomadic tribe or any person not residing in Marwar. Such goods, when to taken, shall be subject to export duty. " The words of this exception clearly show that export duty was to be levied even when goods were moved from one Customs circle in Marwar to another customs circle therein by classes of persons mentioned in the exception. Obviously this exception provides for levy of customs duty on movement of goods within areas which are now part of Rajasthan. In view of sec. 3 of the Rajasthan Ordinance and the notification thereunder, no customs duty can be levied or collected on the movement of goods from one area in Rajasthan to another area in Rajasthan. This exception only provides for duty on the movement of goods from one area in Rajasthan to another area, and must be deemed now to have been repealed under sec. 3 of the Rajasthan Ordinance. It was urged on behalf of the State that even though the words of the exception refer only to movement within Marwar, it necessarily followed from the fact that movement within Marwar was subject to duty that there could not be movement from Marwar to outside Marwar without the payment of export duty. This logical conclusion may follow; but there is no provision in the Act for such movement, namely from Marwar to outside Marwar, in so many words. The exception, as it stands, must be deemed to be repealed, and we cannot substitute in its place another exception, which we will have to do on the argument pressed on behalf of the State. We are, therefore, of opinion that this application must be allowed on this ground. It is not necessary for us under the circumstances to consider whether Arts. 14 and 15 of the Constitution also invalidate the exception. We, therefore, allow the application and order the opposite parties to grant a Khali Chitthi as provided by sec. 71 of the Marwar Customs Act to the applicant without taking into account exception 2 to sec. 61. In view of the fact that the application has been allowed on a ground other than that on which it was based, we order parties to bear their own costs of this application. . ;