# Track Parts of India Mazdoor Sabha v. State of U.P. and others

- **Citation:** (2005) 1 ILRA 110
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-22
- **Case number:** In Civil Misc. Writ Petition No. 44673 of 2004
- **Bench:** Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/track-parts-of-india-mazdoor-sabha-v-state-of-u-p-and-others-40303
- **Pages:** 13

## Headnote

Court fee Act 1870-Section 5-Whether
the order passed by Taxing Officer under
Section 5 of the Act is final on subject to
judicial review under Article 226 of the
Constitution
of
India?-held-order
became final only for the purposes of
court fee, but subject to judicial review
under Article 226 of the Constitution.

Held: Para 19 & 21

In view of the law laid down by the apex
Court, as noted above, the order of
Taxing Officer is not immune from
judicial review of this Court under Article
226 of the Constitution. The order of
Taxing Officer is final only for the
purposes of the Court Fees Act. The Full
Bench of this Court in Smt. Gindori Bibi's
case (supra) has also taken the view that
opinion formed by Taxing Officer with
regard to importance of the question is
subject to writ of certiorari.

From what has been said above, it is
clear that order of the Taxing Officer is
subject to scrutiny by this Court under
Article 226 of the Constitution and there
cannot be any fetter in exercise of
jurisdiction by this Court under Article
226 of the Constitution while considering
the
order
of
Taxing
Officer.
The
jurisdiction of this Court shall not
confine only to issue a writ directing the
Taxing Officer to refer the question
under Section 5 of the Court Fees Act. It
is true that this Court while exercising
jurisdiction under Article 226 of the
Constitution can always issue direction
to the Taxing Officer to make a reference
under Section 5 of the Court Fees Act but
apart from that the Court can always
set-aside
the
order
and
pass
any
appropriate order in the ends of justice
including an order setting aside the
report of the Stamp Reporter as well as
the order of the Taxing Officer and
making a declaration with regard to
sufficiency of the Court fee.
Case law discussed:
AIR 1981 SC 298
AIR 1987 SC 716
AIR 1964 SC 743
AIR 1977 Alld. 490
AIR 1998 Alld. 396
AIR 1977 Alld. 122
1997 (2) ACT 1496
AIR 1966 SC 249
AIR 1977 SC 237
AIR 1997 (3) SCC 261
2003 (6) SCC 675
1994 CRC (i) 16

(B) Court Fee Act 1870, Section 5-Court
fee-Petition filed by the sectary of Tax
part of India Mazdoor Sangh-challenging
the order passed by the Deputy Labour
Commissioner-being Regd. Trade Unionentitled to expose the right of its
member-Petition files by the petitioner
held-maintainable-hence
Single
Court
fee sufficient.
Held: Para 23, 24 & 25
In the present case there is only one
petitioner i.e. registered Trade Union.
The petitioner being one, the writ
http://www.allahabadhighcourt.nic.in
1All] Track Parts of India Mazdoor Sabha V. State of U.P. and others
111
petition is maintainable at the instance
of the Trade Union. The judgment in
Mota
Singh's
case
(supra)
is
not
attracted simply because there are not
more than one petitioner in the present
case.

When the application was filed by the
Union itself before the Deputy Labour
Commissioner which is apparent from
the impugned order itself, the writ
petition is maintainable on behalf of the
petitioner-union and only one set of
court
fee
is
liable
to
be
paid in
accordance with the proposition as laid
down in Answer-1 of the Full Bench
judgment in paragraph 45.

Only one set of court fee was payable in
the
present
case
in
view
of
the
proposition laid down by the Full Bench
in Umesh Chand Vinod Kumar's case
(supra) since the petitioner which is
registered trade union is entitled to
espouse the case of its member and the
order which was challenged was the
order passed on the applications of the
petitioner itself. The applications filed by
the petitioner before the Deputy Labour
Commissioner were annexed to the writ
petition as Annexures-1, 2 and 3. There
is a specific averment in the writ
petition, in paragraph 2, that petitionerTrade Union had right to sponsor the
case of all the members before the
Deputy Labour Commissioner under the
provisions of the U.P. Industrial Disputes
Act, 1947 and the rules and regulations
framed therein. The judgment of the
apex Court in Akhil Bhartiya Soshit
Karamchari
(Rai

## Text

_Characters 0–39,557 of 44,403. This is a partial read: ask again with offset=39557 for what follows._

http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
110
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.11.2004

BEFORE
THE HON'BLE ASHOK BHUSHAN, J.

Civil Misc. Application No. 191754 of
2004.
In
Civil Misc. Writ Petition No. 44673 of 2004

Track Parts of India Mazdoor Sabha

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri K.P. Agrawal
Miss Bushra Maryam
Anita Singh

Counsel for the Respondents:
Sri S.M.A. Kazmi
Sri K.R. Sirohi
S.C.

Court fee Act 1870-Section 5-Whether
the order passed by Taxing Officer under
Section 5 of the Act is final on subject to
judicial review under Article 226 of the
Constitution
of
India?-held-order
became final only for the purposes of
court fee, but subject to judicial review
under Article 226 of the Constitution.

Held: Para 19 & 21

In view of the law laid down by the apex
Court, as noted above, the order of
Taxing Officer is not immune from
judicial review of this Court under Article
226 of the Constitution. The order of
Taxing Officer is final only for the
purposes of the Court Fees Act. The Full
Bench of this Court in Smt. Gindori Bibi's
case (supra) has also taken the view that
opinion formed by Taxing Officer with
regard to importance of the question is
subject to writ of certiorari.

From what has been said above, it is
clear that order of the Taxing Officer is
subject to scrutiny by this Court under
Article 226 of the Constitution and there
cannot be any fetter in exercise of
jurisdiction by this Court under Article
226 of the Constitution while considering
the
order
of
Taxing
Officer.
The
jurisdiction of this Court shall not
confine only to issue a writ directing the
Taxing Officer to refer the question
under Section 5 of the Court Fees Act. It
is true that this Court while exercising
jurisdiction under Article 226 of the
Constitution can always issue direction
to the Taxing Officer to make a reference
under Section 5 of the Court Fees Act but
apart from that the Court can always
set-aside
the
order
and
pass
any
appropriate order in the ends of justice
including an order setting aside the
report of the Stamp Reporter as well as
the order of the Taxing Officer and
making a declaration with regard to
sufficiency of the Court fee.
Case law discussed:
AIR 1981 SC 298
AIR 1987 SC 716
AIR 1964 SC 743
AIR 1977 Alld. 490
AIR 1998 Alld. 396
AIR 1977 Alld. 122
1997 (2) ACT 1496
AIR 1966 SC 249
AIR 1977 SC 237
AIR 1997 (3) SCC 261
2003 (6) SCC 675
1994 CRC (i) 16

(B) Court Fee Act 1870, Section 5-Court
fee-Petition filed by the sectary of Tax
part of India Mazdoor Sangh-challenging
the order passed by the Deputy Labour
Commissioner-being Regd. Trade Unionentitled to expose the right of its
member-Petition files by the petitioner
held-maintainable-hence
Single
Court
fee sufficient.
Held: Para 23, 24 & 25
In the present case there is only one
petitioner i.e. registered Trade Union.
The petitioner being one, the writ
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1All] Track Parts of India Mazdoor Sabha V. State of U.P. and others
111
petition is maintainable at the instance
of the Trade Union. The judgment in
Mota
Singh's
case
(supra)
is
not
attracted simply because there are not
more than one petitioner in the present
case.

When the application was filed by the
Union itself before the Deputy Labour
Commissioner which is apparent from
the impugned order itself, the writ
petition is maintainable on behalf of the
petitioner-union and only one set of
court
fee
is
liable
to
be
paid in
accordance with the proposition as laid
down in Answer-1 of the Full Bench
judgment in paragraph 45.

Only one set of court fee was payable in
the
present
case
in
view
of
the
proposition laid down by the Full Bench
in Umesh Chand Vinod Kumar's case
(supra) since the petitioner which is
registered trade union is entitled to
espouse the case of its member and the
order which was challenged was the
order passed on the applications of the
petitioner itself. The applications filed by
the petitioner before the Deputy Labour
Commissioner were annexed to the writ
petition as Annexures-1, 2 and 3. There
is a specific averment in the writ
petition, in paragraph 2, that petitionerTrade Union had right to sponsor the
case of all the members before the
Deputy Labour Commissioner under the
provisions of the U.P. Industrial Disputes
Act, 1947 and the rules and regulations
framed therein. The judgment of the
apex Court in Akhil Bhartiya Soshit
Karamchari
(Railway)
Sangh's
case
(supra) do support the contention of
counsel for the petitioner that writ
petition filed by petitioner-union is fully
maintainable.

(Delivered by Hon'ble Ashok Bhushan, J.)

1. This is an application filed by the
petitioner praying for setting aside the
report of Stamp Reporter dated 5th
October, 2004 and the order of the Taxing
Officer
dated
12th
October,
2004
upholding the deficiency in the stamp
amounting to Rs.16,065/-.

2. Heard Sri K.P. Agarwal, learned
Senior
Advocate
appearing
for
the
petitioner, Sri S.M.A. Kazmi, learned
Chief Standing Counsel appearing for the
State and Sri K.R. Sirohi, learned counsel
appearing for respondent No.4.

3. The writ petition has been filed by
Track Parts of India Mazdoor Sabha,
which is a registered trade union under
the Trade Union Act, 1926, praying for a
mandamus commanding respondent No.3
to pay the workman the money that they
had claimed in their applications filed
under the Uttar Pradesh Industrial Peace
(Timely Payment of Wages) Act, 1978
which was rejected by the Deputy Labour
Commissioner vide order dated 23rd
September, 2003. It has further been
prayed that a writ be issued for quashing
the order dated 23rd September, 2003
passed by Deputy Labour Commissioner,
Kanpur Region, Kanpur (Annexures 10,
11 and 12) and direction be issued for
issuing recovery certificate in respect of
the wages of the workmen for the period
January, 2003 to June, 2003.

4. The Stamp Reporter vide his
report dated 5th October, 2004 reported
deficiency
of
stamp
amounting
to
Rs.16,065/- in the writ petition. The writ
petition has been filed paying stamp duty
of Rs.100/- only. Against the report of the
Stamp Reporter, the petitioner filed an
objection before the Taxing Officer. The
objection filed by the petitioner against
the report of the Stamp Reporter has been
rejected by the Taxing Officer vide its
order dated 12th October, 2004. The
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
112
Taxing
Officer
while
rejecting
the
objection gave following reasons:-

"The contention of the learned
counsel for the petitioner is that a single
set of Court fees is payable. In my
opinion, every member of the petitioner
has a separate and individual cause of
action. Hence a single set of Court fees is
not payable as directed by Hon'ble
Supreme Court in the case of Mota Singh
Vs. State of Haryana, AIR 1981 Supreme
Court 484.

The petitioner to make good the
deficiency of Court fees."

5. Learned counsel for the petitioner,
challenging the aforesaid order of Taxing
Officer, contended that the view of
Taxing Officer that every member of the
petitioner's Trade Union is liable to pay
separate court fee for entertainment of the
writ petition is erroneous and is not in
accordance with law laid down by the
Full Bench of this Court in AIR 1984
Alld. 46; Umesh Chand Vinod Kumar
and others Vs. Krishi Utpadan Mandi
Samiti and another, AIR 1981 S.C. 298;
Akhil Bhartiya Soshit Karamchari
(Railway) Sangh Vs. Union of India
and others, AIR 1987 S.C. 716; A.N.
Pathak and others Vs. Secretary to the
Government, Ministry of Defence and
another.

6. Learned counsel for the petitioner
submitted that the order of Taxing Officer
has been passed in exercise of jurisdiction
conferred on Taxing Officer by Section 5
of the Court Fees Act, 1870. The
contention is that decision of the Taxing
Officer being not in accordance with law,
this Court in exercise of its jurisdiction
under Article 226 of the Constitution may
quash the report, hold the Court fees
already paid in the writ petition as
sufficient and entertain the writ petition.
Learned counsel for the petitioner further
contended that this Court has also
jurisdiction to determine the question of
payment of court fees, which is incidental
to giving relief to the petitioner as
claimed in the writ petition. Reliance has
also been placed by counsel for the
petitioner on AIR 1964 S.C. 743; Central
Bank
of
India
Ltd.
Vs.
P.S.
Rajagopalan etc.

7. Learned Chief Standing Counsel,
Sri S.M.A. Kazmi, appearing for the
State, has submitted that the question
regarding payment of court fees in the
writ petition is to be determined by the
Taxing Officer and in case his order is
being contested, at best, direction can be
issued to the Taxing Officer to refer the
question of any general importance to the
Judge nominated by Hon'ble the Chief
Justice under Section 5 of the Court Fees
Act. Sri Kazmi contended that although
the order of the Taxing Officer is subject
to jurisdiction of this Court under Article
226
of
the
Constitution
but
the
jurisdiction by this Court can be exercised
only to the extent of directing the Taxing
Officer to refer any question of general
importance to the Judge nominated under
Section 5 of the Court Fees Act. Reliance
was placed by Sri Kazmi on Full Bench
judgment of this Court in AIR 1973 Alld.
490; Smt. Gindori Bibi Vs. The Taxing
Officer and others, AIR 1998 Allahabad
396; Sushmakar Dubey Vs. Taxing
Officer and others, AIR 1977 Alld. 122;
Om Prakash and another Vs. State of
U.P. and another and 1997 (2) Alld.
Civil Journal 1496; Shyam Singh and
others Vs. Meerut Mandal Vikas
Nigam and others. Sri Kazmi has also
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113
placed reliance on the Full Bench
judgment of this Court in Umesh Chand
Vinod
Kumar's
case
(supra)
and
contended that according to principles
laid down by the Full Bench each member
of the petitioner-Union is liable to pay
court fee and Taxing Officer has rightly
placed reliance on the judgment of the
apex Court in Mota Singh's case (supra).

Sri K.R. Sirohi, learned counsel
appearing for the High Court has adopted
the arguments of Sri Kazmi in support of
his submission.

I have considered the submissions of
both the parties and perused the record.

8. From the facts of the present case
and submission made by counsel for the
parties, following questions arise for
decision in the present case:-

(i) Whether the order of Taxing Officer
passed under Section 5 of the Court
Fees Act, 1870 can be challenged
only by a reference before the Judge
nominated by Hon'ble the Chief
Justice or judicial review of the said
order is also permissible by this Court
under Article 226 of the Constitution
of India?

(ii) Even if the order of Taxing Officer is
subject to judicial review by this
Court under Article 226 of the
Constitution, judicial review by this
Court shall confine only to the
question as to whether the Taxing
Officer has erred in forming his
opinion as to whether the question is
one of the general importance which
require
reference
to
the
Judge
nominated under Section 5 of the
Court Fees Act?
(iii) Whether the present writ petition
filed by Track Parts of India Mazdoor
Sabha, which is a registered trade
union, can be entertained only when
each workman who is member of the
trade union for whose benefit the
application was made before the
Deputy Labour Commissioner, pays
separate court fees?

9. The first and second questions
being interrelated are being considered
together.

Section 5 of the Court Fees Act provides:-

"5. Procedure in case of difference
as to necessity or amount of fee- When
any difference arises between the officer
whose duty it is to see that any fee is paid
under this Chapter and any suitor or
attorney, as to the necessity of paying a
fee or the amount thereof, the question
shall, when the difference arises in any of
the said High Courts, be referred to the
taxing-officer, whose decision thereon
shall be final, except when the question is,
in his opinion, one of general importance,
in which case he shall refer it to the final
decision of the Chief Justice of such High
Court, or of such Judge of the High Court
as the Chief Justice shall appoint either
generally or specially in this behalf."

10. Section 5 of the Court Fees Act
lays down that decision of the Taxing
Officer, in the event of any difference
between the report of the stamp reporter
and the petitioner or his counsel arises,
shall be final. The section further provides
that there is only one exception regarding
finality of the order of Taxing Officer,
i.e., except when the question is, in the
opinion of Taxing Officer, one of general
importance, in which case he shall refer it
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
114
to the final decision of the Chief Justice of
such High Court, or of such Judge of the
High Court as the Chief Justice shall
appoint either generally or specially in
this behalf. The order of Taxing Officer,
thus, is final except when he makes a
reference to the Judge nominated by the
Chief Justice when he is satisfied that the
question which has arisen in the case is of
general importance. In the present case,
no reference has been made by the Taxing
Officer to the Judge nominated by
Hon'ble the Chief Justice. The order of the
Taxing Officer, thus, is final under
Section 5 of the Court Fees Act. The
opinion which has to be formed by the
Taxing Officer as to whether the question
is one of general importance although is
subjective opinion but while forming the
said opinion the Taxing Officer has to act
judicially. In case while forming the
opinion the Taxing Officer disregard any
statutory provision governing the field or
his opinion is contrary to law laid down
by this Court and the apex Court, the said
opinion can be put to scrutiny. The Full
Bench of this court in Smt. Gindori
Bibi's case (supra) while analysing the
provisions of Section 5 of the Court Fees
Act made following observations in
paragraph 13:-
"13. ............Once a question is
referred to the Taxing Officer on a
difference arising between the Stamp
Reporter and the suitor, it is the duty of
the former to render a decision thereon
irrespective of the fact whether the
question was of ordinary importance or of
general importance. The Taxing Officer is
under a duty to render his decision on
merits. Having done that the Taxing
Officer has to consider whether the
question is one of general importance and
once he is of opinion that the question is
one of general importance, then the
decision rendered by him on merits will
not be final and he will be under a duty to
refer the question for the final decision of
the Taxing Judge. Thus the procedural
scheme under the section is that the
Taxing Judge will get the jurisdiction to
render a final decision on the question of
the Court-fee only when the Taxing
Officer refers the question."

11. The Full Bench in Smt. Gindori
Bibi's case (supra) also laid down that
there is nothing in the scheme of Section
5 preventing a suitor to invite by
application the Taxing Officer to form an
opinion as to the importance of the
question. In
the present
case,
the
petitioner is not praying for a direction to
the Taxing Officer to form an opinion
with regard to importance of question
involved in the case. The prayer of the
petitioner is that order be quashed and it
be held that Court fee already paid is
sufficient. The Full Bench in Smt. Gindori
Bibi's case (supra) laid down following in
paragraph 16:-

"16. The Taxing Officer has to
perform a judicial function under Section
5. In forming an opinion as to the
importance of the question he is under a
duty to act judicially and not arbitrarily.
We think any opinion rendered by him on
the importance of the question may be
amenable to a writ of certiorari if in
forming his opinion the Taxing Officer
proceeded
arbitrarily
and
against
established judicial principles. It is not
open to the Taxing Officer to decline at
his sweet will forming of an opinion on
the importance of the question ........."

12. The question which arises for
consideration is as to whether the order of
Taxing Officer passed under Section 5 of
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115
the Court Fees Act is final and only
subject to decision by Judge nominated by
Hon'ble the Chief Justice under Section 5
of Court Fees Act on a reference made by
Taxing Officer or such decision can be
subject to judicial review by this Court
under Article 226 of the Constitution.
From the scheme of the Court Fees Act, it
is clear that for the purposes of the Act
the order of Taxing Officer is final. The
only exception provided under Section 5,
on which finality of the order of Taxing
Officer is put in jeopardy, is when a
reference is made by the Taxing Officer
after forming an opinion that question is
of general importance and in that case
decision given on the reference of Taxing
Officer by the Judge nominated under
Section 5 is final. Now taking a situation
when after order of the Taxing Officer no
reference is made by the Taxing Officer
to the Judge nominated under Section 5
whether the order of the Taxing Officer is
final and cannot be even challenged in
proceeding under Article 226 of the
Constitution,
is
question
for
consideration. At this stage, it is relevant
to note the Division Bench judgment of
this Court in Shyam Singh's case (supra)
where this Court observed that the order
of Taxing Officer was final and could not
be questioned either in the Court or by
filing
special
appeal.
The
relevant
observations were made in paragraph 10
of the judgment which is extracted
below:-

"10. In the present case, the taxing
officer by his order dated 19th January,
1993, rejected the objection of the
appellants and upheld the report of the
office showing deficiency of Rs.1785 in
the writ petition in terms of Section 5.
This order of the Taxing Officer was final
and could not be questioned either in the
Court or by filing Special appeal. The
question has been examined by learned
Single Judge and he also agreed with the
report of the Taxing Officer. However, in
our opinion, as the decision of the Taxing
Officer was final it could not be subjected
to scrutiny of the Court. Since incidentally
in this case the learned Judge has not
reversed the order of the taxing Officer
and the learned Judge has simply upheld
the same, no order is required to be
passed by this Bench in this behalf. The
legal position about the maintainability of
the special appeal against the decision of
the Taxing Officer or Taxing Judge under
Section
5
of
the
Act
arose
for
consideration before the Division Bench
of this Court in case of Om Prakash and
another v. State of U.P. and another,
A.I.R. 1977, All. 122 (D.B). The Division
Bench has held that the decision of the
Taxing Officer or the Taxing Judge under
Section 5 of the Court Fees Act shall be
final and conclusive for all purposes and
the decision shall not be open to revision
or appeal. The Division Bench has placed
reliance in the judgment of the Full Bench
of this court in Balkaran Rai v. Gobind
Nath Tiwary (1890) I.L.R. 12 All 129,
Kunwar Karan Singh v. Gopal Rai
(1910) I.L.R. 32 All. 59, Lurkhur Chaube
v. Ram Bhajan Chaube, (1903) All.W.C.
214
and
Sathappa
Chettiar
v.
Ramanathan Chettiar (A.I.R. 1958 SC
245)."

13. The above judgment was
rendered by Division Bench of this Court
in special appeal filed against order of
learned single Judge in a writ petition in
which legality of the order of Taxing
Officer was challenged. The Division
Bench ultimately found the special appeal
not maintainable and made following
observations in paragraph 13:-
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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"13. For the reasons stated above, in
our opinion, this special appeal is not
legally maintainable and is liable to be
dismissed as such. In the circumstances, it
is not necessary for us to examine other
questions raised by learned counsel for
the parties on merits of the appeal. The
appeal is, accordingly, dismissed as not
maintainable."

14. From above observations made
by the Division Bench of this Court in
Shyam Singh's case (supra), it appears
that Division Bench took the view that
order of the Taxing Officer being final
under Section 5 of the Court Fees Act
could not have been challenged in the
Court or by means of special appeal. The
observations of the Division Bench in the
said judgment have to be read in context
of finality of the order of the Taxing
Officer under Section 5 of the Court Fees
Act. The observations made by the
Division Bench cannot be read as denying
challenge of the order of Taxing Officer
under Article 226 of the Constitution
since even in the Full Bench of this Court
in Smt. Gindori Bibi's case (supra) while
considering Section 5 of the Court Fees
Act, the Full Bench itself had laid down
in paragraph 16, "...... We think any
opinion
rendered
by
him
on
the
importance of the question may be
amenable to a writ of certiorari if in
forming his opinion the Taxing Officer
proceeded
arbitrary
and
against
established judicial principles.........". The
order of the Taxing Officer rendered on
difference between the Stamp Reporter
and the petitioner or forming an opinion
with regard to importance of the question
is an order under Section 5 and when the
opinion formed by the Taxing Officer
with regard to importance of the question
is amenable to writ of certiorari why
cannot the order of Taxing Officer passed
in exercise of jurisdiction under Section 5
of the Court Fees Act can also be subject
to writ of certiorari in which order he has
not formed any opinion with regard to
importance of the question. There is one
more aspect, which needs to be noted.
According to scheme of Section 5 of the
Court Fees Act, the reference by Taxing
Officer to a Judge nominated by Hon'ble
the Chief Justice is permissible when in
the opinion of Taxing Officer the question
is one of general importance. The
statutory provisions, thus, contemplate
reference to a Judge under Section 5 only
when
the
question
is
of
general
importance and if the question is not of
general importance, the reference cannot
be made under Section 5 and the order of
taxing Officer in that event is final. Where
decision of Taxing Officer in a case
which does not involve any question of
general importance but it prejudicially
effects the petitioner of a case is not
subject to any judicial scrutiny is a
question which is to be answered. The
finality of the order of Taxing Officer
under Section 5 of the Court Fees Act is
finality for the purposes of the said Act.
Finality attached to any order in a statute
is finality to that order qua that statute and
jurisdiction of this court under Article 226
of the Constitution to have judicial review
of the said order passed under any Statute
which is final for that Statute is not
excluded. The right of judicial review
given
under
Article
226
of
the
Constitution cannot be whittled down by
attaching finality to any order under any
Statute. The right of judicial review of
any decision by this Court under Article
226 of the Constitution cannot be
curtailed by any statute be enacted by
Parliament or State Legislature.
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15. A Constitution Bench of the
apex Court in AIR 1966 SC 249; Bharat
Kala Bhandar Ltd. Vs. Municipal
Committee, Dhamangaon had occasion
to consider the provisions of Section 84
(3) of the Municipalities Act which
provided that no objection shall be taken
to any valuation, assessment, or levy, nor
shall the liability of any person to be
assessed or taxed be question, in any other
manner or by any other authority than is
provided in this Act. The apex Court held
that the said provisions does not effect the
remedy provided under Article 226 of the
Constitution to a citizen. Following was
observed in paragraph 30:-

"...... ..... Under Art. 226 the
Constitution has provided a remedy to a
citizen to obtain redress in respect of a tax
levied or collected under an invalid law.
This remedy will not be affected by any
provision like S.67 of the Indian Incometax Act or like S. 84 (3) of the
Municipalities Act."

16. Similarly the apex Court had
occasion to consider Section 9(1) of
Industrial Disputes Act, 1947 in AIR
1977 SC 237; The State of Haryana Vs.
The Haryana Co-operative Transport
Ltd. and others. Section 9(1) of Industrial
Disputes Act, 1947 provided that no order
of the appropriate Government or of the
Central
Government
appointing
any
person as the Chairman or any other
member of a Board or Court or as the
presiding officer of a Labour Court,
Tribunal or National Tribunal shall be
called in question in any manner.
Considering the above provisions, the
apex Court observed in paragraph 14:-
"....... But it is impossible to construe
the provisions as in derogation of the
remedies provided by Arts. 226 and 227
of the Constitution. The rights conferred
by those articles cannot be permitted to be
taken away by a broad and general
provision in the nature of Sec. 9(1) of the
Act ......."

17. A seven Judge Bench in (1997)
3 S.C.C. 261; L. Chandra Kumar Vs.
Union of India and others considered
the provisions of Article 323-A and 323-B
of the Constitution, which provided for
making of appropriate law by the
parliament excluding the jurisdiction of
all Courts except the jurisdiction of the
Supreme Court under Article 136 of the
Constitution,
thus
by
constitutional
amendment the right of judicial review
under Article 226 of the Constitution was
taken away. The seven Judge Bench in the
said judgment has held that power of
judicial review conferred on the High
Court under Article 226/227 of the
Constitution cannot be excluded. The
provisions of Clause 2(d) of Article 323A and Clause 3 (d) of Article 323-B of the
Constitution to the extent they excluded
the jurisdiction of the High Courts and the
Supreme Court under Articles 226/227
and 32 of the Constitution were struck
down and provisions of Section 28 of the
Administrative
Tribunal
Act
which
excluded the jurisdiction of the High
Court
was
also
held
to
be
unconstitutional. The apex Court laid
down following in paragraph 99 of the
said judgment:-
"99. In view of the reasoning
adopted by us, we hold that clause 2(d) of
Article 323-A and clause 3(d) of Article
323-B, to the extent they exclude the
jurisdiction of the High Courts and the
Supreme Court under Articles 226/227
and
32
of
the
Constitution,
are
unconstitutional. Section 28 of the Act
and the "exclusion of jurisdiction" clauses
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in all other legislations enacted under the
aegis of Article 323-A and 323-B would,
to the same extent, be unconstitutional.
The jurisdiction conferred upon the High
Courts under Articles 226/227 and upon
the Supreme Court under Article 32 of the
Constitution is a part of inviolable basic
structure of our Constitution. While this
jurisdiction cannot be ousted, other courts
and
Tribunals
may
perform
a
supplemental role in discharging the
powers conferred by Articles 226/227 and
32 of the Constitution. ........."

18. A recent judgment of the apex
Court in (2003) 6 S.C.C. 675; Surya Dev
Rai Vs. Ram Chander Rai and others had
considered the scope of Article 226/227
of the Constitution. The apex Court has
laid down in the said judgment that the
jurisdiction conferred to the High Courts
under Article 226 of the Constitution
cannot be taken away by any legislative
enactment or by judicial pronouncement.
The apex Court while endorsing the view
of the Division Bench of Delhi High
Court, held following in paragraph 29 of
the said judgment:-

"29. The Constitution Bench in L.
Chandra Kumar v. Union of India dealt
with the nature of power of judicial
review conferred by Article 226 of the
Constitution
and
the
power
of
superintendence conferred by Article 227.
It was held that the jurisdiction conferred
on the Supreme Court under Article 32 of
the Constitution and on the High Courts
under Articles 226 and 226 of the
Constitution is a part of the basic
structure of the Constitution, forming its
integral and essential feature, which
cannot be tampered with much less taken
away even by constitutional amendment,
not
to
speak
of
a
parliamentary
legislation. A recent Division Bench
decision by the Delhi High Court
(Dalveer Bhandari and H.R. Malhotra,
JJ.) in Govind v. State (Govt. of NCT of
Delhi) makes an in-depth survey of
decided cases including almost all the
leading decisions by this Court and holds:

"74. The powers of the High Court
under Article 226 cannot be whittled
down, nullified, curtailed, abrogated,
diluted or taken either by amendment of
the Constitution. The power of juridical
review is an inherent part of the basic
structure and it cannot be abrogated
without affecting the basic structure of the
Constitution."

The essence of constitutional and
legal principles, relevant to the issue at
hand, has been correctly summed up by
the Division Bench of the High Court and
we record our approval of the same."

19. In view of the law laid down by
the apex Court, as noted above, the order
of Taxing Officer is not immune from
judicial review of this Court under Article
226 of the Constitution. The order of
Taxing Officer is final only for the
purposes of the Court Fees Act. The Full
Bench of this Court in Smt. Gindori
Bibi's case (supra) has also taken the
view that opinion formed by Taxing
Officer with regard to importance of the
question is subject to writ of certiorari. A
Division Bench of this Court in (1994) 1
CRC 16; Saroja Nand Jha and others
Vs. M/s Hari Fertilizers and another
while exercising the jurisdiction under
Article 226 of the Constitution has setaside the report of the Taxation Officer.
The judgment of Division Bench of this
Court in Sushmakar Dubey's case
(supra) also entertained a writ petition
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challenging the order of Taxing Officer
which
writ
petition
was
ultimately
allowed. In that case, however, the
Division Bench issued a direction to
Taxing Officer to refer the matter to
Taxing Judge for opinion. However, the
Division Bench after referring to the
judgment of Smt. Gindori Bibi's case
(supra) of this Court made following
observations in paragraph 13:-

"13. In view of the aforesaid dictum
of the Full Bench the question of the
matter being of general importance alone
can be examined by the writ Court in the
event of a contrary finding having been
recorded by the Taxing Officer or in the
event of his having not deciding the said
issue."

20. The Division Bench in the said
case, thus, took the view that writ Court
can only examine the question as to
whether
the
matter
is
of
general
importance or not. The said observation
of the Division Bench has been made
relying on dictum of Full Bench in Smt.
Gindori Bibi's case (supra). It is relevant
to note the facts of Smt. Gindori Bibi's
case (supra) and the law laid down by this
Court in the said judgment. A first appeal
was filed in this Court by Smt. Gindori
Bibi in which Stamp Reporter reported
deficiency. Objection was raised to the
Stamp Reporter's report. The Taxing
Officer rejected the objection of the
appellant and upheld the report of the
Stamp Report. An application was made
by the appellant before the Taxing Officer
praying that Taxing Officer be pleased to
refer the case for final decision to the
Chief Justice or any Hon'ble Judge to be
appointed by the Chief Justice under
Section 5 of the Court Fees Act. The
Taxing Officer rejected the application
taking view that Taxing Officer has no
reason to make any reference to the Court,
as prayed. Thereafter writ petition was
filed by Smt. Gindori Bibi questioning the
report of the Stamp Report and the order
of the Taxing Officer. A prayer was also
made for directing the Taxing Officer to
refer the question of deficiency in the
Court fee to the court under Section 5 of
the Court Fees Act. The observation made
by the Full Bench in paragraph 16 of the
said judgment is to the effect that any
opinion rendered by Taxing Officer on the
importance of the question may be
amenable to the writ of certiorari if in
forming his opinion the Taxing Officer
proceeded
arbitrarily
and
against
established judicial principles. The Full
Bench was neither called upon to express
any opinion as to the limit of the
jurisdiction of this Court under Article
226 of the Constitution while considering
the order of taxing Officer nor the Full
Bench observed that exercise of writ
jurisdiction under Article 226 of the
Constitution shall be limited alone to
examine the opinion of the Taxing Officer
regarding general importance of the
question. The observation of the Division
Bench in Sushmakar Dubey's case
(supra) in paragraph 13, as noted above,
thus is not based on any such ratio laid
down in the Full Bench. No fetter can be
put on the exercise of writ jurisdiction by
this Court under Article 226 of the
Constitution by any legislative enactment
or by any judicial pronouncement as laid
down by the apex Court in Surya Dev
Rai's case (supra).

21. From what has been said above,
it is clear that order of the Taxing Officer
is subject to scrutiny by this Court under
Article 226 of the Constitution and there
cannot be any fetter in exercise of
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jurisdiction by this Court under Article
226 of the Constitution while considering
the
order
of
Taxing
Officer.
The
jurisdiction of this Court shall not confine
only to issue a writ directing the Taxing
Officer to refer the question under Section
5 of the Court Fees Act. It is true that this
Court while exercising jurisdiction under
Article 226 of the Constitution can always
issue direction to the Taxing Officer to
make a reference under Section 5 of the
Court Fees Act but apart from that the
Court can always set-aside the order and
pass any appropriate order in the ends of
justice including an order setting aside the
report of the Stamp Reporter as well as
the order of the Taxing Officer and
making a declaration with regard to
sufficiency of the Court fee.

22. Now the question remains as to
whether in the writ petition filed by the
petitioner Court fee was liable to be paid
by all the workmen who are member of
the Trade Union or not. The Taxing
Officer has placed reliance on judgment
of Mota Singh's case (supra) while
upholding the report of the stamp
reporter. In Mota Singh's case (supra)
independent truck operators filed writ
petition challenging the tax imposed on
each of the truck owner. The facts and
reason given for holding that each truck
owner was liable to pay separate court fee
was given in paragraph 1 of the judgment,
which is quoted below:-

"1. We have carefully gone through
the office report prepared pursuant to the
directions given by us. We are prima facie
satisfied that the petitioners have not paid
court-fees legally payable and that the
petitioners have so modeled the title
clause of the petitions as may indicate
that the payment of the legally payable
court fee could be evaded. Having regard
to the nature of these cases where every
owner of a truck plying his truck for
transport of goods has a liability to pay
tax impugned in the petition, each one has
his own independent cause of action. A
firm as understood under the Partnership
Act or a Company as understood under
the Indian companies Act, if it is entitled
in law to commence action either in the
firm name or in the Company's name, can
do so by filing a petition for the benefit of
the company or the partnership and in
such a case court fee would be payable
depending upon the legal status of the
petitioner. But it is too much to expect
that different truck owners having no
relation with each other either as partners
or any other legally subsisting jural
relationship of association of persons
would be liable to pay only one set of
court-fee simply, because they have joined
as petitioners in one petition. Each one
has his own cause of action arising out of
the liability to pay tax individually and
the petition of each one would be a
separate and independent petition and
each such person would be liable to pay
legally payable court-fee on his petition.
It would be a travesty of law if one were
to hold that as each one uses high way, he
has common cause of action with the rest
of truck pliers."

23. In the present case there is only
one petitioner i.e. registered Trade Union.
The petitioner being one, the writ petition
is maintainable at the instance of the
Trade Union. The judgment in Mota
Singh's case (supra) is not attracted
simply because there are not more than
one petitioner in the present case.

24. The Full Bench of this Court in
Umesh Chand Vinod Kumar's case
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(supra) considers in detail the question of
payment of Court fee with regard to
petitioners.
One
of
the
questions
considered by the Full Bench is the
question of payment of Court fee when a
writ petition is filed by registered
association/union for enforcement of
rights of its members as distinguished
from the enforcement of its own rights.
The present case is a case which may fall
in Question No.1 as framed by the Full
Bench in Umesh Chand Vinod Kumar's
case (supra). It is necessary to note
relevant facts of this writ petition before
applying the proposition laid down by this
Court in Umesh Chand Vinod Kumar's
case (supra). Annexures-10, 11 and 12 of
the writ petition has been prayed to be
quashed. From a perusal of Annexures10, 11 and 12, it is clear that case was
instituted by the petitioner-union. The
first line of the order states that present
case has been filed by Track Parts of India
Mazdoor Sabha. The Deputy Labour
Commissioner by the impugned order
dated 23rd September, 2003 has taken the
view that establishment has since been
closed on 16.1.2003, the application for
payment of wages under Uttar Pradesh
Industrial Peace (Timely Payment of
Wages) Act, 1978 is not maintainable.
From reading of the orders, Annexures10, 11 and 12, it is clear that claim under
Uttar Pradesh Industrial Peace (Timely
Payment of Wages) Act, 1978 was raised
by the petitioner itself. A copy of the
order
has
also
been
endorsed
to
President/Secretary of the petitionerunion. When the order impugned was
passed on the application filed on behalf
of the petitioner, the petitioner has right to
challenge the said order. There cannot be
any
dispute
that
petitioner
being
registered Union, which union has been
registered under the provisions of the
Trade Union Act, is entitled to espouse
the cause of its members.