ALLAHABAD HIGH COURT

             Khurjawala Buckles Manufacturing Co.

             Vs.

             Commissioner, Sales Tax

               Civil Misc. Writ No. 1633 of 1964
             (M.C. Desai, C.J. and R.S. Pathak, J.)

             27.07.1964

             JUDGMENT

Desai, C.J.

1. 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 1960-61 and the other for the assessment year 1961-92 and two more
assessment orders passed by the same officer but under the Central Sales Tax Act, one
for the assessment year 1960-61 and the other for the assessment year 1961-62, 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 district 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 Article 220 of the Constitution; and in the
       circumstances of this case whether in respect of the Sales Tax assessments for
       the year 1960-61 and 1961-62 a single writ petition can he 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 abovementioned 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 Article 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 Article 226 of the Constitution and that order 2 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 2 Rule 3 of it
should be applied by this Court in its discretion and it should entertain the petition.

4. Order 2 Rule 3 is to the effect that a plain, tiff 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 2 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 Article 226 of the Constitution or not and our answer is "no." No statutory
authority other than Section 141 of the Code of Civil Procedure was cited in support of
the contention that the Code applies. What is laid down in Section 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 Article 226 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 Article 228; 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 Article 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 Article 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 Article 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 Article 226 of the Constitution.
One of us has said in State of U.P. v. Mukhtar Singh 1 that a proceeding under Article
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 Section 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 Section 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 Article 226. Not only is there no Division of a
proceeding under Article 226 into suits and other proceedings but also no provision of
the Code applies to any proceeding under Article 226. Therefore, it cannot be argued
that by virtue of Section 14 the provisions in the Code relating to suits will apply in
proceedings under Article 226.
6. This Court when making rules governing the procedure in petitions under Article
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 ma le very few rules and has not made rules governing
so many situations that are likely to arise when exercising jurisdiction under Article
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, Lucknow 2 V.D.
Bharagava and R.A. Misra, JJ. held that Order 1 of the Code does not apply to a
proceeding under Article 228. Rajgopala Ayyangar, J. laid down in Muhammad
Ibrahim v. Deputy Commercial Tax Officer, Pudukottai3 that neither the provisions of
Order 1 nor the principle behind them can be applied in a petition for a writ. In State
of U.P. v. Dr. Vijay Anand Maharaj 4 the Supreme Court declined to go into the
question whether au order made under Article 226 can be reviewed under Order 47,
C.P.C. or not.

7. There are a number of decisions laying down that one petition impugning sevaral
orders is not maintainable; vide AIR 1980 Allahabad 366 (supra), Revenue Patwaris
Union v. State of Punjab, 5 Inder Singh v. State of Rajasthan, AIR 1954 Rajasthan 185
and AIR 1953 Madras 626 (supra). In Calcutta Discount Co. Ltd. y. Income Tax
Officer, AIR 1961 Supreme Court 372, one petition was filed to impugn three notices
issued under Section 31 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 Chandra
Bhan v. State of Orissa, 6 decided by the Supreme Court on 5-4-1963 (SC) the
Supreme Court did not decide whether one petition impugning two or mote assessment
orders could validity 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.

8. Not only is Rule 3 of Order 2 C.P.C. not applicable in a proceeding under Article
223 but its analogy or principle also should not be applied in it. A fixed court fee of
Rs. 51/- 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 is 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 tint
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 2 Rule 3
ii very small but the number of petitions under Article 226 in which its benefit 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 tin benefit of
Order 2 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 maybe instituted combining a number of cases in which common
questions 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 Courts 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 2 Rule 3 and, therefore, must be permitted as a rule of justice,
equity and good conscience in a proceeding under Article 228. One safeguard against
the abuse of the practice, namely that contained in Section 17 of the Court-Fees Act is
not available in a petition under Article 228 and that itself is a sufficient reason for not
allowing it.

9. Oar answer to the question is that one writ petition far 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. List the
case before the learned Judge with this answer.

Question answered.

Cases Referred.

1. AIR 1957 All 505
2. AIR 1960 All 366
3. AIR 1956 Mad 628
4. 1992 All 819
5. AIR 1982 Pun 55
6. Civil Mis. Petn. No. 1398 of 1962