Dwarkanath, Hindu Undivided Family v Income-Tax Officer, Special Circle, Kanpur (1965)

This is the classic statement of how wide Article 226 is. Before deciding anything about income tax, the Court had to meet a preliminary objection: that the Commissioner's order was merely administrative, so no writ could lie. In answering it, Subba Rao J said that Article 226 "is couched in comprehensive phraseology and it exfacie confers a wide power on the High Courts to reach injustice wherever it is found."

The case gives you three things for Unit 3:

• the width of Article 226 — writs "in the nature of" the English prerogative writs, and more besides;
• the tests for a quasi-judicial act (legal authority, determination of rights, duty to act judicially), and how a duty to act judicially can be inferred from a statute;
• certiorari and mandamus working together: certiorari to quash a quasi-judicial order, mandamus to compel an officer to perform a statutory duty.

The appellant, a Hindu undivided family, was one of eleven partners of a firm that was the managing agent of Gujarat Cotton Mills Co. Ltd. In 1946 the partners sold their shares in the company to another firm at Rs. 65 per share and gave up the managing agency. The appellant held 11,230 shares.

The Income-tax Officer taxed the gain as business income. On further appeal the Income-tax Appellate Tribunal held that it had to be taxed as "capital gains" under s. 12B and directed the Officer to modify the assessment. The assessee argued that only the market value of the shares should count, because the Rs. 65 price also paid for giving up the managing agency rights. The Officer rejected this and recomputed the capital gains, but he made no order under s. 23(3) and issued no notice of demand under s. 29.

Without a demand notice the assessee could not appeal. It asked the Officer to issue one; he refused. Its appeal to the Appellate Assistant Commissioner was dismissed as not maintainable. It then applied to the Commissioner for revision under s. 33A(2), and drew his attention to a Bombay High Court decision (Baijnath Chaturbhuj) which, on the very same documents and the same transaction, had held in favour of the other group of partners that the market value of the shares had to be taken into account. The Commissioner ignored that decision and dismissed the revision, both as possibly not maintainable and on the merits.

The assessee filed a writ petition in the Allahabad High Court for certiorari to quash the Commissioner's order and mandamus to compel the Officer to issue a demand notice. The High Court dismissed it in limine: the supporting affidavit was unsatisfactory, the facts were incomplete and confused, and the revision had no merit anyway. The assessee appealed by special leave.

1. Preliminary objection: was the Commissioner's order under s. 33A an administrative act, so that no writ of certiorari could lie under Article 226?
2. What is the scope of the High Court's power under Article 226?
3. Was the affidavit defective because parts of it rested on a perusal of records rather than the deponent's "own knowledge" — and if it was defective, could the petition be dismissed in limine?
4. Was the Income-tax Officer bound to issue a notice of demand under s. 29?

The appeal was allowed. The High Court's order was set aside; the Court issued a writ of certiorari quashing the Commissioner's order and a writ of mandamus directing the Income-tax Officer to pass an order and issue a notice in accordance with law, with costs throughout.

The width of Article 226

The Court took the preliminary objection first, "for if we maintain it, no other question will arise for consideration." Reading the text of Article 226, it said: "This article is couched in comprehensive phraseology and it exfacie confers a wide power on the High Courts to reach injustice wherever it is found."

The Constitution "designedly used a wide language in describing the nature of the power, the purpose for which and the person or authority against whom it can be exercised." On the writs themselves: "It can issue writs in the nature of prerogative writs as understood in England; but the scope of those writs also is widened by the use of the expression "nature", for the said expression does not equate the writs that can be issued in India with those in England, but only draws an analogy from them."

And the power goes further than writs: the article "enables the High Courts to mould the reliefs to meet the peculiar and complicated requirements of this country." Tying Article 226 to English practice would import "the Unnecessary procedural restrictions grown over the years in a comparatively small country like England with a unitary form of government" into a vast federal country, and "Such a construction defeats the purpose of the article itself."

But the power is not unlimited: "Some limitations are implicit in the article and others may be evolved to direct the article through defined channels." The Court noted that this reading had been accepted in Basappa v Nagappa and P.J. Irani v State of Madras.

The quasi-judicial test

Having said all that, the Court held that it did not need the wider reading: "we are satisfied that this case falls directly within the confines of the certiorari jurisdiction as understood in England." It restated that "a writ of certiorari can be issued only to quash a judicial or a quasi-judicial act and not an administrative act", and set out the three conditions drawn from R v Electricity Commissioners, R v London County Council and Province of Bombay v Kusaldas S. Advani: (1) the body must have legal authority; (2) the authority must be to determine questions affecting the rights of subjects; and (3) it must have a duty to act judicially.

The Court warned against confusing an administrative tribunal with an administrative act: an order that comes from an administrative authority can still be quasi-judicial if the tests are met. Where the statute does not expressly impose a duty to act judicially, the duty "may be inferred from the provisions of the statute." It may be gathered from "the cumulative effect of the nature of the rights affected, the manner of the disposal provided, the objective criterion to be adopted, the phraseology used, the nature of the power conferred or the duty imposed on the authority and other indicia afforded by the statute." There is no fixed formula: "a duty to act judicially may arise in widely different circumstances and it is not possible or advisable to lay down a hard and fast rule or an inflexible rule of guidance."

Section 33A(2) is judicial

Applying this, "Prima facie the jurisdiction conferred under s. 33A(2) of the Act is a judicial one." The order before the Commissioner affects the assessee's rights, and "It is implicit in revisional jurisdiction that the revising authority shall give an opportunity to the parties affected to put forward their case in the manner prescribed." Hence: "The nature of the jurisdiction and the rights decided carry with them necessarily the duty to act judicially in disposing of the revision." That the Commissioner cannot make an order worse for the assessee does not change the character of the proceeding.

The Revenue relied on the Privy Council's observations in CIT v Tribune Trust, Lahore that the old s. 33 was administrative machinery. The Court said those remarks were made on a different question (whether a reference lay to the High Court), and that whether the order was quasi-judicial and open to certiorari "was neither raised nor decided in that case". High Court decisions that had followed that reading — Sitalpore Colliery Concern, Cuddapah Star Transport and Suganchand Saraogi — "were decided wrongly".

Mandamus in any event

Even if the Commissioner's order were administrative, the Revenue would be no better off. The Officer's duty under s. 29 remained, and "In that event the assessee would certainly be entitled to approach the High Court under Art. 226 of the Constitution for the issue of a writ of mandamus or other appropriate direction to the Income-tax Officer to discharge his statutory duty." The preliminary objection was rejected.

The affidavit

The phrase "deponent's own knowledge" in the Allahabad High Court's rules "is wide enough to comprehend the knowledge of the appellant derived from a perusal of the relevant documents", particularly as the affidavit named the documents and annexed them. In any case, "if the affidavit was defective in any manner the High Court, instead of dismissing the petition in limine, should have given the appellant a reasonable opportunity to file a better affidavit".

The merits

The High Court was wrong to say the Bombay decision rested on different facts: it arose from the same transaction and the same documents. Without expressing any view on its correctness, the Court held that the fact that a Division Bench of a High Court had taken the appellant's view "indicates that the question raised is, in our view, an arguable one and it requires serious consideration." Since no appeal lay against the Officer's bare computation, the Commissioner had power to revise it. And because tax was due in consequence of the recomputation, the Officer was bound by s. 29 to issue a notice of demand; not having done so, "he had become amenable to a writ of mandamus directing him to do what he should have done under the ,Act." (The stray comma before "Act" is in the reported text.)

1. Article 226 is wider than the English prerogative jurisdiction. High Courts may issue writs "in the nature of" the prerogative writs — drawing an analogy from English law, not copying its procedural restrictions — as well as other directions and orders, so as to shape the relief to Indian conditions. Limits exist, but they come from the article itself and from principles the courts develop, not from English technicalities.
2. Certiorari lies against a quasi-judicial act. A duty to act judicially may be inferred from the statute as a whole, even when the body is an administrative authority. A revisional power exercised on an assessee's application under s. 33A(2) of the Income-tax Act 1922 is quasi-judicial.
3. Where an officer fails to perform a duty the statute imposes, mandamus lies to compel him, whatever the character of a superior authority's refusal to intervene.

• Direct question: Discuss the scope of the writ jurisdiction of the High Courts under Article 226. Quote the "reach injustice wherever it is found" passage and the reading of the word "nature". Then balance it with the Court's own warning that "Some limitations are implicit in the article".
• Quasi-judicial v administrative: How do courts decide whether an authority is under a duty to act judicially? Give the three conditions, the difference between an administrative tribunal and an administrative act, and the list of indicia from which the duty can be inferred. Use s. 33A(2) as the worked example.
• Problem question: an officer refuses to take a step the statute requires, and his superior refuses to intervene. Answer: certiorari against the superior's order if it is quasi-judicial; mandamus against the officer in any event.
• Procedural point: a writ petition should not be thrown out in limine for a curable defect in the affidavit; the petitioner should be given a chance to file a better one.
• Link: the width passage is often quoted in later cases on who can be sued under Article 226 — for example Anadi Mukta Sadguru Trust v V.R. Rudani (1989), which quotes it on writs against bodies other than the State.