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Case Number

Civil Misc. Writ No. 1636 of 1964

Advocates

Hari Swarup Standing Counsel

Judges

M.C Desai, C.J
R.S Pathak, J.

Acts

Art. 226 of the Constitution and that order II, Rule 3 of the Code
provisions of Order II, Rule 3
Sec. 34 of the Income Tax Act
Sec. 17 of the Court Fees Act
petition.4. Order II, Rule 3
rule 3 of Order II, C.P.C
CENTRAL SALES TAX ACT
U.P Sales Tax Act,
Order II, Rule 3

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Smart Summary

Structured Summary of the Opinion (Desai, C.J.)

Factual and Procedural Background

This is a petition for certiorari seeking quashing of four assessment orders and for a mandamus preventing recovery of sales tax amounts assessed. The impugned orders were:

Two assessment orders under the U.P. Sales Tax Act for assessment years 1960-1961 and 1961-1962;
Two assessment orders under the Central Sales Tax Act for assessment years 1960-1961 and 1961-1962.

The petition originally came before Justice Manchanda, who referred the following question to a Bench because the petition raised the point whether a single writ petition under Article 226 could be used to challenge distinct assessment orders for two years and under two Acts. It was noted that the fixed court-fee for a writ petition is Rs. 50 and that the petitioner had paid Rs. 50, whereas separate petitions for each assessment order would have attracted a total court-fee of Rs. 200.

The referred question (as framed by the Court) was whether more than one assessment order can be challenged by a single writ petition under Article 226, and specifically whether, in the circumstances of this case, a single petition can be filed in respect of U.P. Sales Tax and Central Sales Tax assessments for 1960-61 and 1961-62 where the points of challenge are the same. The Bench answered that question (see Holding below) and directed that the case be listed before the learned Judge with that answer.

Legal Issues Presented

Whether more than one assessment order can be challenged by means of a single writ petition under Article 226 of the Constitution.
In the facts of this petition, whether a single writ petition can be filed in respect of Sales Tax assessments for the years 1960-61 and 1961-62 under both the U.P. Sales Tax Act and the Central Sales Tax Act where the points of challenge are the same.

Arguments of the Parties

Petitioner's Arguments (as presented)

Sri Hari Swarup contended that the provisions of the Code of Civil Procedure (CPC) apply to proceedings under Article 226, and that Order II, Rule 3 of the CPC permits the joinder of several causes of action in the same suit — analogously permitting a single writ petition to challenge multiple assessment orders.
In the alternative, it was argued that even if the CPC is not directly applicable, this Court should in its discretion apply the analogy of Order II, Rule 3 and entertain the petition as a single writ challenging multiple orders.

The opinion does not contain a detailed account of the respondents' counter-arguments in the referred extract.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State of U.P. v. Mukhtar Singh, A.I.R. 1957 All. 505	Expressed the view that a proceeding under Article 226 is not a civil proceeding.	The Court noted that one of the judges had held Art. 226 proceedings are not civil proceedings and the Bench was not persuaded to change that view; this supports the conclusion that the CPC does not govern Article 226 proceedings.
Uma Shankar v. Divisional Superintendent, Northern Railway, A.I.R. 1960 All. 366	Held that Order I of the CPC does not apply to proceedings under Article 226; cited among decisions on non-applicability of certain CPC provisions.	Used as authority that provisions or principles of the CPC cannot be treated as automatically applicable to Article 226 petitions.
Muhammad Ibrahim v. Deputy Commercial Tax Officer, A.I.R. 1956 Mad. 626	Held that neither the provisions of Order I nor the principle behind them can be applied in a petition for a writ.	Cited to support the proposition that specific Orders of the CPC (and their underlying principles) are not applicable to Article 226 proceedings.
Calcutta Discount Co. Ltd. v. Income Tax Officer, A.I.R. 1961 S.C. 372	Involved one petition impugning notices for three years' assessment; the Supreme Court restored the single Judge's order without deciding the maintainability of a single petition.	The Bench treated this decision as not helpful to the petitioner because the Supreme Court did not decide the specific question whether a single petition was maintainable for multiple assessments.
State of U.P. v. Dr. Vijay Anand Maharaj, 1962 A.L.J. 819	The Supreme Court declined to decide whether an order made under Article 226 can be reviewed under Order 47, CPC.	Invoked to show that higher authority has not settled the question of applying CPC provisions (such as review under Order 47) to Article 226 petitions.
Revenue Patwaris Union v. State of Punjab, A.I.R. 1962 Punj. 55	Cited among decisions laying down that one petition impugning several orders is not maintainable.	Placed alongside other High Court decisions to support the conclusion that joinder of multiple distinct orders in a single writ petition is not permissible.
Inder Singh v. State of Rajasthan, A.I.R. 1954 Raj. 185	Cited among decisions laying down that one petition impugning several orders is not maintainable.	Used as precedent supporting the position that separate proceedings are required for distinct orders.

Court's Reasoning and Analysis

The Court's analysis proceeded step-by-step and is summarized as follows, following only the reasoning set out in the opinion:

The Court enumerated the possible combinations in which certiorari might be sought against two or more assessment orders (different years under same statute; same year different assessees; same year same assessee different statutes; same year same assessee different authorities; or combinations thereof). The Bench limited its decision to the factual combination before it: the same assessee, same assessing authority, two assessment years and two taxing statutes.
The Court examined whether the Code of Civil Procedure (CPC) governs proceedings under Article 226. It concluded that it does not. The principal statutory basis relied upon for applying the CPC — Section 141 of the CPC — was held inapplicable because Section 141 applies to proceedings in "Courts of civil jurisdiction," and a High Court exercising jurisdiction under Article 226 is not to be treated as a Court of civil jurisdiction for this purpose.
The Court observed that the jurisdiction under Article 226 is "extraordinary jurisdiction" (as described by the Supreme Court) and may not be divisible into civil and criminal categories as in ordinary jurisdiction. The Bench noted differing views in various High Courts but relied on authority (including State of U.P. v. Mukhtar Singh) supporting that Article 226 proceedings are not civil proceedings.
The Court next considered the Rules of Court (Chapter XXII, Rules of Court, 1952) framed to govern Article 226 petitions. Those rules do not import CPC provisions on joinder; indeed, the Court had deliberately refrained from making many CPC provisions applicable and sometimes applied analogies only in exercise of discretion (e.g., substitution and review principles).
The Bench rejected the submission that Order II, Rule 3 of the CPC (permitting joinder of several causes of action against the same defendant) should apply either directly or by analogy. It held that the principle behind Order II, Rule 3 is not suitable for Article 226 petitions because a fixed, low court-fee of Rs. 50 applies to writ petitions irrespective of the number of orders or parties; allowing joinder would cause fiscal loss to the State (the petitioner here would have paid Rs. 200 if separate petitions were required) and could not be permitted without express power.
The Court expressed practical and doctrinal objections: permitting joinder under Article 226 could allow unrelated and varied orders (across different acts and parties) to be combined, producing confusion and embarrassment; there is no precedent of permitting a single appeal or single revision out of multiple distinct orders merely because common points of law arise; hence the analogy to civil joinder is not of universal application.
The Bench also observed that an intended safeguard against abuse available in suit proceedings (Section 17 of the Court Fees Act) is not available in Article 226 petitions, which further counsels against permitting joinder.
On the basis of these legal and practical considerations, and relying on the cited High Court and other decisions, the Court concluded that neither Order II, Rule 3 of the CPC nor its analogy should be applied to permit a single writ petition to challenge multiple distinct assessment orders in the circumstances before it.

Holding and Implications

HOLDING: The Bench answered the referred question in the negative. Concretely, the Court held that

one writ petition for the quashing of two assessment orders pertaining to two assessment years or one petition for the quashing of two assessment orders under two different taxing statutes, even though the assessee is the same and the assessing authority is the same, cannot be entertained.

Implications and immediate effect:

The petition, insofar as it attempts to quash multiple distinct assessment orders in a single writ under Article 226 (as described), is not maintainable.
The Bench directed that the case be listed before the learned Judge with this answer (i.e., the procedural directive to proceed in accordance with the ruling).
The Court refused to apply Order II, Rule 3 of the CPC or its analogy in Article 226 proceedings in the circumstances described, citing both legal doctrine (non-applicability of CPC to Article 226 proceedings) and practical considerations (court-fee regime and potential for confusion/abuse).

The opinion does not elaborate broader novel precedential frameworks beyond the specific holding applied to the facts before the Bench; it answers the referred question and directs listing accordingly.

Question answered.

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Khurjawala Buckles Manufacturing Co. Tantanpara, Aligarh Through Amanul Haq v. Commissioner, Sales Tax, U.P, Lucknow And Another Opp.-Parties.

Desai, C.J:— This is a petition for certiorari for the quashing of two assessment orders passed by an Assistant Sales Tax Officer, Aligarh, under the U.P Sales Tax Act, one for the assessment year 1960-1961 and the other for the assessment year 1961-1962 and two more assessment orders passed by the same officer but under the Central Sales Tax Act, one for the assessment year 1960-1961 and the other for the assessment year 1961-1962, and mandamus directing the Sales Tax Officer and the Commissioner of Sales Tax, U.P not to recover from the petitioner the amounts of the sales tax imposed under the impugned assessment orders. The petition came up for hearing before our brother Manchanda, before whom there arose the question whether one petition for certiorari for the quashing of distinct assessment orders passed for two years and distinct assessment orders passed under two Acts was maintainable or not. It may be mentioned that the court-fee payable on a petition for certiorari is Rs. 50/- and that the court-fee paid on the petition by the petitioner is Rs. 50/-; it has not paid court-fee of Rs. 200/- as it would have paid if it had filed separate petitions for certiorari for the quashing of each of the assessment orders. Our learned brother considering the matter to be of importance has referred the following question to a Bench for its decision:—

“Whether more than one assessment order can be challenged by means of a single writ petition under Art. 226 of the Constitution; and in the circumstances of this case whether in respect of the Sales Tax assessments for the year 1960-1961 and 1961-1962 a single writ petition can be filed in respect of the assessments both under the U.P Sales Tax and under the Central Sales Tax Act where the points of challenge are the same?”

2. When certiorari is sought for the quashing of two or more assessment orders the following are the possible combinations:— (1) the assessment orders may relate to the same assessee and the same taxing statute but relate to different assessment years (2) they relate to the same taxing statute and the same assessment year but relate to two or more assessees, (3) they relate to the same assessee and the same assessment year but relate to two or more taxing statutes, (4) they relate to the same assessee, the same taxing statute and the same assessment year but are passed by different authorities, for example an assessing authority, an appellate authority and a revisional authority and (5) a combination of any two or more of the above. The question framed by our learned brother is wide enough to cover any of the above-mentioned combinations but we must answer it only with regard to the facts of this petition. We, therefore, proceed to decide whether one petition can be filed for the quashing of two assessment orders passed against an assessee under one taxing statute by one authority but in respect of two assessment years and two assessment orders passed against the same assessee and by the same authority and in respect of the same two assessment years but under another taxing statute. We are not concerned with any other combination in this case.

3. This Court has framed rules to govern the proceeding in a petition under Art. 226 of the Constitution, vide Chapter XXII of Rules of Court, 1952, but they do not contain any rule regarding filing of one petition against two or more orders. Sri Hari Swarup contended that the provisions of the Code of Civil Procedure apply to a proceeding under Art. 226 of the Constitution and that Order II, Rule 3 of the Code permits the joinder of reliefs such as in the present petition. In the alternative he contended that even if the Code is not applicable the analogy of Order II, Rule 3 of it should be applied by this Court in its discretion and it should entertain the petition.

4. Order II, Rule 3 is to the effect that a plaintiff may unite in the same suit several causes of action against the same defendant or the same defendants jointly and that where causes of action are united the jurisdiction of the Court as regards the suit shall depend on the amount or value of the aggregate subject-matters. There is Rule 6 in Order II laying down that when it appears to the Court that any causes of action joined in one suit cannot be conveniently tried or disposed of together, it may order separate trials. The first question is whether the Code of Civil Procedure governs a proceeding under Art. 226 of the Constitution or not and our answer is “no”. No statutory authority other than Sec. 141 of the Code of Civil Procedure was cited in support of the contention that the Code applies. What is laid down in Sec. 141 is that the procedure laid down in the Code in regard to suits is to be followed, so far as it can be, in all proceedings in any Court of civil jurisdiction. A High Court when exercising jurisdiction under Art. 225 of the Constitution cannot be said to be a Court of civil jurisdiction. There is considerable conflict about the nature of the jurisdiction conferred upon a High Court under Art. 226; some High Courts take the view that it is civil jurisdiction, some take it to be civil or criminal according to the nature of the jurisdiction exercised by the inferior Court or tribunal or authority passing the impugned order and others take the view that it is neither civil nor criminal. It has been held by the Supreme Court that it is not ordinary jurisdiction and is extraordinary jurisdiction; this observation may mean that it is neither civil nor criminal. Ordinary jurisdiction is capable of being divided into civil and criminal jurisdiction but not extraordinary jurisdiction.

5. Under Art. 133 of the Constitution an appeal lies from a judgment or order passed by a High Court in a “civil proceeding” on a certain certificate given by it. High Courts have given certificates in respect of orders passed by them on petitions under Art. 226 of the Constitution and such appeals have been entertained by the Supreme Court. This may mean that the High Courts which granted the certificates have held that the proceedings under Art. 226 are civil proceedings but it cannot be said that the Supreme Court has held so merely because it has entertained the appeals on the certificates granted by them. The question whether such a proceeding is a civil proceeding or not has not been raised before the Supreme Court in any such appeal, merely by entertaining and allowing the appeals it cannot be said to have declared that it is a civil proceeding. A High Court may be said to be a Court of civil jurisdiction when trying a suit in exercise of original jurisdiction or hearing an appeal or revision under the provisions of the Code but we do not think that it can be said to be a Court of civil jurisdiction when exercising jurisdiction under Art. 226 of the Constitution. One of us has said in State of U.P v. Mukhtar Singh A.I.R 1957 All. 505. that a proceeding under Art. 226 is not a civil proceeding and he is not persuaded that the view taken by him is incorrect. Further it appears to us that the intention behind Sec. 141 was to apply in proceedings other than those in suits the provisions applicable in suits. Certain provisions in the Code are applicable only in suits pending in Courts of civil jurisdiction and Sec. 141 was enacted to make them applicable in other proceedings also pending in Courts of civil jurisdiction so far as they can be applicable. The object was not to make its provisions applicable in Courts other than those governed by the Code; for this there exist provisions in the special and local Act. There is no provision in the Code making its provisions applicable to a High Court exercising jurisdiction under Art. 226. Not only is there no division of a proceeding under Art. 226 into suits and other proceedings but also no provision of the Code applies to any proceeding under Art. 226. Therefore, it cannot be argued that by virtue of Sec. 141 the provisions in the Code relating to suits will apply in proceedings under Art. 226.

6. This Court when making rules governing the procedure in petitions under Art. 226 has refrained from making the provisions of the Code applicable. Certain rules made by it such as rules, 8 and 9 of the Chapter XXII show that the provisions of the Code were not intended to be applicable; otherwise they would not have been made at all. It is true that this Court has made very few rules and has not made rules governing so many situations that are likely to arise when exercising jurisdiction under Art. 226 but it does not follow that the provisions of the Code were intended to be applicable. The Court has not made rules governing all situations because it has left the matter at the discretion of the Judges. It was pointed out to us that the provisions of the Code have been applied by this Court in matters concerning substitution and review but that is not on the ground that these matters are governed by the provisions in the Code. This Court has applied the analogy or the principle of the provisions relating to substitution and review contained in the Code in exercise of its discretion. In Uma Shankar v. Divisional Superintendent, Northern Railway A.I.R 1960 All. 366. V.D Bhargava and R.A Misra, JJ. held that Order I of the Code does not apply to a proceeding under Art. 226. Rajagopala Ayyangar, J. laid down in Muhammad Ibrahim v. Deputy Commercial Tax Officer A.I.R 1956 Mad. 626. that neither the provisions of Order I nor the principle behind them can be applied in a petition for a writ. In State of U.P v. Dr. Vijay Anand Maharaj 1962 A.L.J 819. the Supreme Court declined to go into the question whether an order made under Art. 226 can be reviewed under Order 47, C.P.C or not. There are a number of decisions laying down that one petition impugning several orders is not maintainable; vide Uma Shankar v. Divisional Superintendent, Northern Railway, Revenue Patwaris Union v. State of Punjab A.I.R 1962 Punj. 55., Inder Singh v. State of Rajasthan A.I.R 1954 Raj. 185. and Muhammad Ibrahim v. Deputy Commercial Tax Officer. In Calcutta Discount Co. Ltd. v. Income Tax Officer A.I.R 1961 S.C 372. one petition was filed to impugn three notices issued under Sec. 34 of the Income Tax Act in respect of three years' assessment orders and was entertained. It was granted by a single Judge but rejected by a Bench. The Supreme Court on appeal restored the order of single Judge issuing prohibition but without deciding that a single petition was maintainable. It was not argued before it that one petition was not maintainable and so it did not decide this matter. The Division Bench of the High Court had dismissed the petition but not on the ground that it was not maintainable. It has not been argued before it also that it was not. Hence this decision of the Supreme Court does not help the petitioner. In Civil Miscellaneous Petition No. 1398 of 1962 decided by the Supreme Court on 5-4-1963 the Supreme Court did not decide whether one petition impugning two or more assessment orders could validly be filed or not; all that it decided was that when one petition was filed one appeal arose out of the order and not two or more appeals.

7. Not only is rule 3 of Order II, C.P.C not applicable in a proceeding under Art. 226 but its analogy or principle also should not be applied in it. A fixed court-fee of Rs. 50/- is payable on a petition regardless of the number of the orders to be quashed and regardless of the number of the petitioners and the opposite parties. If in this case separate petitions were insisted upon the State would have recovered in the form of court-fee Rs. 200/- whereas the petitioner has paid only Rs. 50/-. Allowing one petition to be filed for impugning several distinct orders (e.g orders passed against different assessees or in respect of different assessment years or under different taxing statutes) would result in a loss of revenue to the State and there is no reason why we should permit this. We may go even further and say that we have not been given the power to permit loss to the State revenue and if this is correct, it follows that we have not the power to permit one petition for impugning several distinct orders. The number of suits in which benefit can be taken of the provisions of Order II, Rule 3 is very small but the number of petitions under Article 226 in which its benifit can be taken will be very large. In a petition under Article 226 the opposite party generally is the State Government and if a petitioner or petitioners were allowed the benefit of Order II, Rule 3 all kinds of different orders under different Acts having no connection whatever with one another would be liable to be joined in one petition causing confusion and embarrassment and this cannot be permitted. Then the principle that one proceeding may be instituted combining a number of cases in which common question of law or fact arise is not of universal application. Nobody yet has thought of filing one appeal against several orders or of filing one revision application against several appellate orders, on the ground that common questions of fact or law arise. If there are two proceedings and, therefore, two orders Court have always insisted upon two appeals and two revision applications regardless of whether they are by the same appellant or applicant or against the same respondent or opposite party or not. There is no reason why one writ petition should be entertained simply on the ground that common questions of law or fact arise or that they are by or against the same person. We are not prepared to lay down that the practice of uniting in one petition several causes of action against the same opposite party is reasonable merely because it is permitted by Order II, Rule 3 and, therefore, must be permitted as a rule of justice, enquiry and good conscience in a proceeding under Article 226. One safeguard against the abuse of the practice namely that contained in Sec. 17 of the Court Fees Act is not available in a petition under Article 226 and that itself is a sufficient reason for not allowing it.

8. Our answer to the question is that one writ petition for the quashing of two assessment orders pertaining to two assessment years or one petition for the quashing off two assessment orders under two different taxing statutes, even though the asses-see is the same and the assessing authority is the same, cannot be entertained. List the case before the learned Judge with this answer.