Hemraj vs Income Tax Recovery Officer, Jodhpur

M.L. Joshi, Actg. C.J.

This writ petition has been filed by the petitioner Hemraj under Article 226 of the Constitution of India for issuance of an appropriate writ, direction or order, prohibiting the respondents from recovering the amount of annuity deposit in the sum of Rs. 1,885/-in relation to the assessment year 1964-65 and also for quashing any certificate issued by the Income Tax Officer in that behalf. The petition was filed on 8-1-1976. The petition came up before the then Acting Chief Justice and Hon''ble M. L. Jain J. on 27th of January 1976, on which date the Court ordered to issue notice to show cause as to why this writ petition be not admitted. On 18-8-1977 the matter again came in the Court. On that date, the learned counsel for the petitioner informed the Court that the petitioner has died and he asked for granting time to bring the legal representatives of the deceased petitioner on the record. On 3-12-1977 an application was filed by Mr. B. L. Purohit on behalf of the legal representatives. This application was filed u/s 151 C. P. C. In this application it was stated that the petitioner Hemraj had died on 9-8-1977 at Jodhpur and so he prayed for substituting them in the place of the petitioner. This application came before Hon''ble Sen J., the then Acting Chief Justice and Justice R. L. Gupta on 26th of Jan., 1978. Shri S. K. Mal Lodha learned counsel for the Tax Recovery Officer on that date raised an objection that the application for substitution of the legal representatives being barred by time, no order of substitution can be made. The case was purely on admission stage and the Court ordered the substitution of the legal representatives, subject to objection, if any, at the time of the arguments, for admission of the petition. The substitution of the legal representatives was thus provisionally allowed. The matter ultimately came up for admission on 3-4-1978 before us. On that date Mr. Lodha reiterated his preliminary objection that the application for substitution of legal representatives on record having not been made within 90 days as provided by Article 120 of the Indian Limitation Act read with Rule 4 of Order XXII C. P. C., the petition has abated.

We have heard the learned counsel for the parties. Mr. Lodha has contended that the provisions of Order XXII, Rule 3 and Rule 4 of the C. P. C. and Article 120 of the Indian Limitation Act apply to these proceedings and application having been made more than 90 days after the death of the petitioner, the writ petition has abated. On the other hand, Mr. B. L. Purohit, learned counsel for the legal representatives, has contended that the jurisdiction, which the High Court exercises under Article 226 of the Constitution, is a special type of jurisdiction and not of ordinary type of jurisdiction exercised by a court of civil jurisdiction within the meaning of Section 141 of the C. P. C. and that consequently the provisions of Order XXII C. P. C. has no application. He further submitted that the delay in filing the application was not at all inordinate and Court should allow the substitution of the legal representative and there is no valid justification for treating the writ petition as having abated.

The aforesaid contentions resolved themselves into the issue whether an application under Article 226 of the Constitution is a proceeding in a court of civil jurisdiction within the meaning of Section 141 of the C. P. C. There was difference of opinion as to whether Section 141 C. P. C. applies to writ petition instituted under Articles 32 and 226 of the Constitution of India. According to the one set of cases a writ proceeding is one of civil jurisdiction and Section 141 C. P, C. applies to such proceedings. This set of cases comprised the decisions rendered in Gursewak Singh v. Vice-Chancellor, Gurunanak University (ILR (1973) 1 Punj 306); Ibrahimbhai Karimbhai and Others Vs. State of Gujarat, Asst. District Panchayat Officer and Others Vs. Jai Narain Pradhan, Sona Ram Bangaram v. Central Government (AIR 1963 Punj 510) and Annam Adinarayana and Another Vs. State of Andhra Pradesh and Another, The second set of decisions is represented by the decisions of Bhagwan Singh v. Addl. Director Consolidation ( AIR 1968 &hj 360) , Chandmal Naurat Mal and Others Vs. State of Rajasthan and Another, Bharat Board Mills Ltd. Vs. The Regional Provident Fund Commissioner and Others, and State of Uttar Pradesh and Others Vs. Mukhtar Singh and Others, In these sets of cases it has been held that writ proceeding is a proceeding of special nature and not one in ''a Court of civil jurisdiction'' and therefore. Section 141 C. P. C. would not apply to such proceedings. The third view has been adopted in Management of Rain Bow Dyeing Factory Salem and Others Vs. Industrial Tribunal, High Court Buildings, Madras and Another, in which it has been held that a writ proceeding is not in the nature of a civil suit and so Section 141, C. P. C. could not be invoked so as to govern proceedings under Article 226 of the Constitution. In Devendra Pratap Narain Rai Sharma Vs. State of Uttar Pradesh, the Supreme Court observed that the bar of Order 2, Rule 2 C. P. C. will not apply to a petition for a high prerogative writ under Article 226 of the Constitution. In Babubhai Muljibhai Patel Vs. Nandlal Khodidas Barot and Others, the Supreme Court has held that writ petition is essentially different from a suit and that it would be incorrect to assimilate and incorporate the procedure of a suit into proceedings under Article 226 of the Constitution. This decision has been followed in Ram Kala v. Consolidation of Holdings (AIR 1977 P&h 87 (FB)).

In Ramsingh Vs. State of Rajasthan and Others, the Division Bench of this Court has held that Article 226 of the Constitution has conferred an extraordinary jurisdiction on the High Court and the mode of exercising the same is governed by rules which the Court has framed. The provisions contained in the C. P. C. will not be attracted to this special jurisdiction in terms, because Section 4(1) of the C. P. C. provides that in the absence of any specific provision to the contrary nothing in this Code shall be deemed to limit or otherwise affect any special or local law in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time being in force. The Court further observed that special procedure has been provided in the Rules of the High Court for writ proceedings under Article 226 of the Constitution and, therefore, the provisions of the C. P. C. cannot apply in terms to such proceedings. It will thus appear from the view taken by this Court that the jurisdiction which the High Court exercises under Article 226 is a special and extraordinary jurisdiction. Section 141 of the Code therefore does not apply in terms to proceedings under Article 226 of the Constitution. The High Court, when exercises its extraordinary jurisdiction under Article 226 of the Constitution, cannot in our opinion, be said to be the Court of Civil Jurisdiction. This special jurisdiction of a High Court aims at securing a very speedy and efficacious remedy. If all the elaborate and technical rules of Civil Procedure laid down in the Code were to be imported through Section 141 of the Code into those writ proceedings, their very purpose is likely to be defeated by proceedings being delayed, Putting in a different manner, the provisions of the CPC do not in terms govern the proceedings under Article 226 of the Constitution. This appears to be, in our opinion, the correct proposition even prior to the amendment of Section 141 of the C. P. C.

Before the amendment of Section 141 C. P. C., Section 141 C. P. C. was as follows:

"The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction,"

The following explanation has been added to Section 141. It reads as follows:

"In this section, the expression "proceedings" includes proceedings under Order 9 but does not include any proceeding under Article 226 of the Constitution."

From the explanation appended to the amended Section 141 C. P. C., it will be clear that Section 141 does not apply to proceedings under Article 226 of the Constitution. As a natural corollary it follows that the CPC does not in terms apply to writ proceedings. It therefore further follows that Order XXII of the C. P. C. does not apply to the writ proceedings. Only general rules relating to substitution may be followed on the ground of equity, justice and good conscience but there is no scope for importing the technical rules of limitation contained in Article 120 read with Order 22, Rule 4 C. P. C. which provides 90 days'' time for making an application for the substitution of legal representatives. The explanation added to Section 141 C. P. C. has now settled the controversy which existed amongst the various High Courts and categorically lays down that the section does not include proceedings under Article 226 of the Constitution. We are, therefore, definitely of the opinion that the technical rules of limitations contained in Order XXII Rule 4 read with Article 120 of the Indian Limitation Act providing for making an application within 90 days are not at all applicable to writ proceedings. We, therefore, over-rule the preliminary objection of Mr. Lodha that the application for bringing the legal representatives of the petitioner is barred by time. The application has not been made with inordinate delay and we, therefore, do not see any valid justification to hold that the writ petition has abated on that account.

In the result, we hold the application for bringing legal representatives on record in order. We further direct that the case be set up for admission in due course.