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Allahabad High Court · body

1970 DIGILAW 424 (ALL)

Lalman Gupta v. State of U. P. , Lucknow

1970-10-28

R.L.GULATI, R.S.PATHAK

body1970
JUDGMENT Pathak, J. - The petitioners have joined in a single petition under Article 226 of the Constitution and pray for relief against the auctions of country liquor licences held under the U. P. Excise Act and the imposition of licence fee and excise duty. 2. An objection has been raised by the respondents that a single petition is not maintainable, and that the different petitioners should have filed separate petitions. Is this objection valid ? 3. The view originally prevailing in this Court was that a petition under Article 226 was an individual action maintainable by a single petitioner asserting his personal right to relief. The rule was relaxed in those cases only where a number of petitioners were jointly interested in the same relief. Different petitioners claiming separate reliefs, however, though of the same nature were not entitled to maintain a single petition. The plea that Order 1, Rule 1 of the Code of Civil Procedure could be called in aid by reference to Section 141 of that Code was discountenanced in K. B. MFG. Co. v. Sales Tax Commissioner, AIR 1965 Allahabad 517. a on the ground that the High Court, when exercising jurisdiction under Article 226, cannot be said to be a court of civil jurisdiction and, therefore, Section 141 could not be employed. Since then, however, the Supreme Court has laid down in Narayan Row v. Ishwar Lal, A.I.R. 1965 S.C. 1818 that proceedings before the High Court on a petition under Article 226 are "civil proceedings", if the primary impact of the impugned act or order is visited on the civil rights of the petitioner. 4. This view was reiterated by the Supreme Court in Ramesh v. Gendalal, A.I.R. 1966 S.C. 1445. Following the law laid down by the Supreme Court, a Full Bench of this Court in Mall Singh v. Smt. L. K. Khaitan, 1968 A.L.J. 210 applied Section 141 of the Code of Civil Procedure to proceedings under Article 226 and held that, therefore, Order 1, Rule I of the Code could be invoked. Following the law laid down by the Supreme Court, a Full Bench of this Court in Mall Singh v. Smt. L. K. Khaitan, 1968 A.L.J. 210 applied Section 141 of the Code of Civil Procedure to proceedings under Article 226 and held that, therefore, Order 1, Rule I of the Code could be invoked. Order 1, Rule 1 provides : "All persons may be joined in one suit as plaintiffs in whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate suits, any common question of law or fact would arise." Upon a perusal of the writ petition, it appears that although specifically relief has been sought against individual auctions held by the Excise authorities, in substance the entire auction system and licensing structure has been challenged as ultra vires. All the auction sales are governed by a single proclamation. Rules 369 and 370 of the U. P. Excise Rules contained in the Excise Manual, Vol. 1, contemplate one sale proclamation in respect of all the districts of the State. The auction sales are held pursuant to the sale proclamation and are governed by the same set of conditions which, by reason of Rule 373, are also specifically mentioned or referred to in the sale proclamation itself. The auction system of licensing commences with the sale proclamation and the attack mounted by the petitioners must, therefore, reach back as far as the sale proclamation itself. The entire auction system stems from that single act. It constitutes the foundation of all the auction sales branching from it. The levy of licence fee is related consequently. 5. It seems to us that upon an over all appreciation of the relief essentially claimed by the petitioners, and the grounds upon which it is claimed, the provisions of Order 1, Rule 1 are attracted. Inasmuch as the validity of the auction system has been assailed, it can be said that the petitioners seek relief in respect of or arising out of the same act or transaction. And there can be no doubt that common questions of law are being raised by them. Inasmuch as the validity of the auction system has been assailed, it can be said that the petitioners seek relief in respect of or arising out of the same act or transaction. And there can be no doubt that common questions of law are being raised by them. The petitioners have also referred u.i to Order 2, Rule 3, but in the circumstances it is not necessary to consider whether that provision applies. 6. In Khem Karan v. State of U. P., AIR 1966 Allahabad 255 a learned single judge has held that "In a single proceeding culminating in a single order affecting a large number of persons all such persons can raise a single complaint to this Court under Article 226 to canvass the validity of such action." 7. On behalf of the respondents reliance was placed upon Bendir v. Ansan, (1936) 3 All. E.R. 326 and Attorney-General v. Cohen, (1937) 1 K.B. 478. We have considered the observations of the learned Judges in those cases but in our opinion they do not carry the case any further nor persuade us to a different conclusion. 8. In our judgment, the writ petition is maintainable as a single proceeding by the several petitioners. The objection to the contrary is overruled.