ASSESSING AUTHORITY LUDHIANA Vs. MANSA RAM

JUDGEMENT

(1.) THE question that has arisen in both these petitions (S. C. As. Nos. 92 of 1964 and 107 of 1964) under Art. 133 (c) of the Constitution of India for leave to appeal to the Supreme Court against the orders of a Bench of this Court is whether the proceedings in which the judgments were delivered by this Court are civil proceedings in respect of which alone leave can be granted under Art. 133. There are number of decisions of various High Court s namely,. Allen Berry and Court. Ltd. v. Income-tax Officer, (S) AIR 1956 Pat 175, Sriam Gulabdas v. Board of Revenue, air 1954 Nag. 1 (FB), Income-tax Officer v. Joti Prasad Agarwal, (1962) 44 I T R 574 : (AIR 1960 All 84) First Addl. Income-tax Officer v. R. Shanmugha Rajeswara sethupathi. (1963) 48 I T R 647 : (AIR 1963 Mad 190), J. P. Sharma v. Phalton sugar Works Ltd. , ( 1963) 50 ITR 72: (AIR 1964 Bom 116) and State of Madras v. Madurai Mills Co. Ltd. , ( 1964) 15 S T C 207 : (AIR 1964 Mad 494) in which the view has been expressed that an order of a High Court on a petition under Art. 226 of the Constitution praying for a writ with regard to proceeding arising out of the income-tax Act and enactments relating to sales tax is not a judgment, decree or order " in a civil proceeding" within the meaning of Art. 133 of the Constitution and the High Court has no power to issue a certificate under that Article that the case is a fit one for appeal to the Supreme Court. There is hardly any other authoritative decision to the contrary but in L. Lachman Das Nayar v. Income-tax officer, Amritsar, (1955) 28 I T R 392 (Punj) a Bench of this Court in a short order gave leave in a writ matter arising out of proceedings under the Income-tax Act under S. 109 (b) and 109 (c) of the Code of Civil Procedure. It may be mentioned that no such objection was raised before that Bench as has been taken before us and the mater does not appear to have been considered at all. In Sardar Kapur singh v. Union of India, (S) A. I. R. 1957 Punj. 173 (FB) which related to a service matter, some observations were made to the effect that although the Patna Court had drawn a distinction between revenue proceeding arising out of taxation matter and civil proceeding, no such distinction had been raised in the Supreme Court judgment in A. Thangal Kunju Musaliar v. M. Venkatachalam Potti, (S) A. I. R. 1956 s. C. 246. The Supreme Court decision arose out of a petition which had been filed in the High Court under Article 226 challenging the validity of certain provisions of the Travancore Taxation on Income (Investigation Commission) Act and raising some other points and all that happened was that when the appeals came up before their Lordships under certificates granted by the High Court, they were entertained. Strictly speaking the question in that case was of an entirely different nature and did not arise out of orders or proceedings either under the Income-tax act or the enactment's relating to sales tax. It the view of the majority of the High courts, namely Patna, Nagpur, Bombay and Madras is to be accepted, no leave can be granted in the present cases as the proceedings in which the judgments were given by this Court would be essentially revenue proceedings and not civil proceedings in respect of which alone leave can be granted under Article 133. The question raised is one of importance and should be settled authoritatively by this court. We are, therefore, of the view that it should be decided by a larger Bench. We refer the following question to the Full Bench is both the cases :--Whether the order of the High Court on the petition under Article 226 of the Constitution in the present case is a judgment, decree or order "in a civil proceeding " within the meaning of Article 133 of the Constitution and whether the High Court has the power to issue a certificate that the case is a fit one for appeal to the Supreme Court ? the order of Hon'ble the Chief Justice may be obtained for the constitution of a larger Bench at a very early date. ORDER OF THE FULL BENCH dulat, J. A petition under Article 226 of the Constitution was filed in this Court questioning the legality of an assessment made under the Punjab General Sales Tax Act, and a division Bench allowed the petition and quashed the assessment. The Assessing authority, thereupon, applied for a certificate of fitness for appeal to the Supreme court and when that matter was considered by the Division Bench, a question arose whether the order of the High Court sought to be appealed against was an order made 'in a civil proceeding in the High Court'. The Division Bench entertained some doubt about the proceedings in the High Court being civil proceedings and therefore, decided to refer the question to a Full bench. A similar question appears to have arisen in other similar cases in the High Court round about the same time (S. C. As. 28 to 33 of 1964 and S. C. A. 107 of 1964), and it is the question with which we are now concerned. The Division Bench has framed the question thus--

(2.) IT is admitted that in this Court, proceedings under Article 226 of the constitution challenging the validity of assessments made or proceedings taken under the Punjab General Sales Tax Act or for that matter under other taxing statutes including the income-tax Act, have so far been treated as civil proceedings and certificates of fitness have been freely granted. More significant perhaps is the circumstances that numerous such cases have on such certificates gone to the Supreme Court and the appeals have been decided by the Supreme court on the assumption that the fitness certificates were properly granted without any suggestion having been made that such proceedings in the High Court are not civil proceedings. The Division Bench enter tainted some doubt on this question because of certain decisions of other High Courts in India to which of course. I shall be presently referring.

(3.) BEFORE, however, I do that it is, I think, necessary to consider the rules framed by our High Court for dealing with such matters. These rules concerning writ petitions under Article 226 of the Constitution are contained in Volume v, Chapter 4-F, of the Rules and Orders of the High Court, and they fall in two parts. The first part is F (a) and contains rules for writs of habeas corpus under Article 226 of the constitution read with the Criminal Procedure Code, section 491, and they indicate the manner in which this Court should proceed with such applications. The second part called F (b) is titled 'civil' and contains rules for dealing with writs of mandamus, prohibition, quo warrant to and certiorari and for other directions. Applications for writs of habits corpus are criminal proceedings without any doubt and are consequently separately provided for by the rules. All other petitions under Article 226 are provided for in the second part called 'civil'. The two sets of rules are not identical for obvious reasons. It would, therefore, appear that as far as the rules of this High Court are concerned, petitions under Article 226 of the constitution fall into only two categories, namely, habeas corpus petitions which are criminal proceedings, and other petitions for certiorari etc. , which are civil proceedings. As far as this Court is concerned, therefore, I should think that the rules are sufficiently clear on the point that writ petitions are either criminal proceedings if they are brought for a writ of habeas corpus, or they are civil proceedings it brought with the object of obtaining any other writ or direction and as I have said, the procedure for each category is separately mentioned. It is said in support of the opposite view that this broad division made by the rules is not decisive and the main point made in support of the submission is that Article 132 of the Constitution Apparently divides proceedings in a high Court not into two but three categories, namely, civil, criminal and other proceedings, and it is sought to be inferred, therefore, that there are, in fact, other proceedings which are neither criminal nor civil, and proceedings like the present would fall in that third category. This argument, which has been used in certain decisions, appears to me to overlook two matters. The first is that Art. 132 of the Constitution is not concerned merely with proceedings under Art. 226 of the Constitution but generally with all proceedings that may happen to be taken in the High Court, and just because Art. 132 envisages a category of proceedings which may be neither criminal nor civil, it does not in any sense follow that there must be proceedings under Art. 226 of the Constitution also which fall neither in the category of criminal proceedings nor that of civil proceedings. The second and equally important fact, which the argument overlooks, is this that a Constitution like ours is not merely intended to provide for a situation which may in fact exist at present but also for situations which may at some future time arise. The assumption in the argument, therefore, that because Art. 132 of the Constitution speaks of proceedings other than civil and criminal and, therefore, there must at present be in existence some such proceedings, is in my opinion unwarranted once it is remembered that a Constitution is an instrument of Government intended to be applicable to all foreseeable contingencies. It might well be that the Constitution-makers though that some proceedings might conceivably arise in the future which may not be appropriate describable as civil of criminal and, therefore, mentioned a possible third category in Art. 132. In any case, this mention of a third category in art. 132 of the Constitution can hardly be a ground for inferring that writ proceedings under Art. 226 of the Constitution must be divided into not two but three categories. The rules of this Court divide writ petitions under Art. 226 omit two categories and there is no reason why that should not be considered exhaustive. This was the view adopted by the Rajasthan High Court in Naha Singh v. State of Rajasthan, (S) AIR 1955 Raj 56, where Wanchoo, C. J. , was considering the rules of that High Court which are in terms indentical with the rules of this Court, and he concluded that writ proceedings are under the rules either criminal or civil. I find myself in entire agreement with that view and but for certain decisions of other High Courts it should have been quite unnecessary to say anything more.