Ramaprasada Rao, J.
1. In all these cases a common point is involved. As the necessary facts could be drawn if an affidavit in one of the writ petitions is perused, I intend dealing with the facts in Writ Petition No. 673 of 1967 as the facts in the other writ petitionsvare similar.
2. The petitioner was engaged as a contractor to carry out certain road works for the benefit of the Highways Department. The contract in question itself owns the petitioner as a contractor and the contract is for the purpose of making certain repairs to certain 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 was necessary. As already stated, the consideration for the contract was fixed at a particular figure, and in accordance with the Madras Detailed Standard Specification Rules, the petitioner was to receive the consideration either on a lump sum basis or in piecemeal after final measurements were done. One of the special conditions of the contract is that bitumen required for the work would be supplied departmentally in required quantities. As a matter of fact, the Highways Department understood the contract thus:
That it was only a lump sum contract, for collection of materials such as granite metal, gravel, jelly, chips, etc. from the departmental quarry in Thuvakkudy, conveyance to the work-spot stacked to gauge for pre-measurements, spreading and consolidation etc.
3. The essential facet of the contract is that it creates two parties bound by a solemn contract to perform certain obligations expressly recorded in writing under the agreement between the parties and discharge all such undertakings involved by labour and work which are compensated for in terms of money in accordance with the agreement between the parties. One of the peculiar features of this contract is that, such amount is paid either in a lump sum or after a part of the work is finally measured and accepted by the contractee to his satisfaction. Such being the essential features of the contract between the parties, it reflects not the relationship of a seller and purchaser as is popularly or legally understood 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 and he, therefore, proposed to determine the turnover of the petitioner for the year 1961-62 at a certain sum and levy penalty for having not submitted his return in Form A-l as prescribed by the Act. No sooner this notice of pre-assessment was served on the petitioner, ; the petitioner has come up to this court for the issue of a writ of prohibition restraining the respondent from proceeding with the proposal as communicated in the impugned order and permanently restraining him from assessing the petitioner to tax in respect of the dealings in question, under the Madras General Sales Tax Act. Thiru Swaminathan, the learned counsel for the petitioner, after referring to the facts as above, brought to my notice several decisions of this court and that of the Supreme Court wherein the matter involved was discussed and solved. At one time the view of this court was that in contracts like this when seigniorage fee was paid then it would amount to passing of property of the metal from the hands of the contractor to the department concerned. In fact in Venugopal Naidu v. State of Madras  22 S.T.C. 177 this court held that contracts similar to the one under review did not involve any sale of goods but were contracts relating to work and labour. There they distinguished the decision in Muthurama Reddiar v. State of Madras  22 S.T.C. 174 on the ground that in that case the contractor had to pay seigniorage fee for collecting pebbles and the circumstances therefore were different. But the Supreme Court had occasion to review a similar situation in Commissioner of Sales Tax, M.P. v. Purshottam Premji  26 S.T.C. 38. 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 any manner detract from the legal position that the railway was the owner of the quarry. It is merely an arrangement for the payment of a royalty.' On the other question, the court emphatically held the view that there was no transfer of property in the ballast by the contractor to the railways and hence there was no sale, which event only can attract sales tax. The learned Government Pleader, however, would reiterate that in these cases as there is an obligation on the part of the contractor to take back the rejects that is an indication of ownership of the metal in the contractor himself. This is expressly what was negatived by the Supreme Court in the case referred to above (Commissioner of Sales Tax, M.P. v. Purshottam Premji3). Even otherwise, I am satisfied that the clause in the contract enabling such removal of the rejected metal by the contractor is only intended to benefit the Highways Department rather than to benefit the contractor himself. If the rejected metal were to be dumped on public roads it would create a public hazard instead of being helpful or useful to either the department or the members of the public. In this view of the matter, the fact that the parties agreed that the rejected metal is to be taken back by the contractor has no significance in the eye of law and much less it does not have any impact on the legal relationship of the parties and for the more important purpose of creating the relationship of 'seller and buyer'.
4. Another contention of 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.
5. The other argument of the learned Government Pleader is that a writ of prohibition ought not to issue but the available statutory remedies should be followed in the normal way and the petitioners are not entitled to the rule as a matter of course, under Article 226 of the Constitution. No doubt, writs of prohibition are issued very cautiously and sparingly by courts and generally it is issued only in exceptional circumstances. Such exceptional circumstances should reflect a totality of the absence of jurisdiction on the part of the person who sets the law in motion and if such an absence is discovered, then the court would be in order in issuing a writ of prohibition. In other words, if perceivably there is absence of jurisdiction on the part of the assessing authority in a matter like this to undertake an investigation into affairs which he cannot in the eye of law, then even at the threshold the courts can interfere under Article 226 of the Constitution and issue a writ of prohibition so that the inconvenience to the proposed assessees may be avoided and their fears allayed. In Sakthi Sugars Ltd. v. Deputy Commercial Tax Officer  23 S.T.C. 232 this court reiterated the principle that-
If a factual determination on a question tantamounts to the investigation of a jurisdictional fact, then the High Court will not refrain from investigating the same and adjudicating upon it and if the result of such an investigation decides a jurisdictional fact which would enable the taxing authorities to assume jurisdiction and bring to tax certain articles, then it cannot be said that no rule at all under Article 226 can be issued.
6. 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  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 in the manner it did.
7. I am, therefore, unable to agree that the request for the issue of a rule by the assessees in these cases is premature.
8. Having regard to the well-established principles of law, the rule nisi in each of these cases is made absolute and the writ petitions are allowed. There will be no order as to costs.