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TMI Blog1971 (2) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... tain roads vested in the Highways Department and the contractor is enjoined to undertake such works as set out in the contract and the schedule annexed thereto and ultimately to receive the consideration either in a lump sum or by final measurement at unit prices. One of the significant features of the contract is that the petitioner as contractor should win metal from a quarry belonging to the State and he has to carry or convey the same metal so won from the quarry site to the specified road site and after stacking them in accordance with the prescription in the contract, chip some of those metal so stacked in accordance with the specifications set out in the contract and ultimately spread them on the road after doing such excavation as w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od but on the other hand it creates only a tie between two contracting parties who are bound by reciprocal obligations. In those circumstances and in the conspectus of facts related as above, the respondent gave a notice dated 20th March, 1967, stating that the petitioner supplied materials like jelly, granite, etc. to the Highways Department during the year 1961-62 and that in connection with such supply of materials he proposed to assess the petitioner on the ground that there was a supply of such material by the petitioner to the department meaning thereby that there was a sale and, according to him, there being a sale of goods by the petitioner to the Highways Department, the provisions of the Madras General Sales Tax Act are attracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent. But the Supreme Court had occasion to review a similar situation in Commissioner of Sales Tax, M.P. v. Purshottam Premji[1970] 26 S.T.C. 38 (S.C.). That was a case where a contractor agreed to quarry stones from the quarries belonging to the South Eastern Railway, break them, convert them into ballast of specified sizes and ultimately supply them to the railway administration at specified rates. One of the clauses in the said contract was that the contractor was under an obligation to take back all the rejected ballast. In that case the contractor paid the royalty as well to the State. After noticing the above features, the Supreme Court said that 'the fact that the assessee had to pay royalty to the State Government does not in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Government Pleader is that the contract in question is capable of being viewed as a divisible contract. It is very difficult to understand this contention as the facts are not in dispute. The facts alone in a given case can determine whether a contract is divisible or not. In the instant case, the contract is to quarry at Thuvakkudy, which quarry admittedly belongs to the State and in which the petitioners have absolutely no iota of proprietary interest. Viewed in this light that the metal supplied, after quarrying in the quarry as above, always belonged to the State, no question therefore of dissection of an indivisible contract can ever arise. The other argument of the learned Government Pleader is that a writ of prohibition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be said that no rule at all under article 226 can be issued." It follows, therefore, that if on a prima facie investigation the High Court finds that there is total absence of jurisdiction on the part of the assessing authority to further the process of assessment undertaken, then certainly it can interdict the authority from proceeding further. Even so, in Veeri Chettiar v. Sales Tax Officer [1970] 26 S.T.C. 579. , the principle is restated in a different way: "It is well settled that a writ of prohibition will issue in a case where it has been reasonably established that an assessing authority or the authority which issues the impugned order acted without jurisdiction and without any necessary power statutorily derived, to act i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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