TMI Blog1964 (11) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... rt rightly refused the writ of mandamus for the recovery of the sum of ₹ 62,809-5-2 alleged to have been realised by the respondent between 1944 and 1948. Appeal dismissed. - Civil Appeal No. 1073 of 1963, - - - Dated:- 4-11-1964 - Judge(s) : P. B. GAJENDRAGADKAR., K. N. WANCHOO., M. HIDAYATULLAH., RAGHUBAR DAYAL., MUDHOLKAR JJ. I.N. Shroff, for the respondent. M.C. Setalvad, Senior Advocate (T.A. Ramachandran for O.C. Mathur of J.B. Dadachanji and Co. with him), for the appellant. JUDGMENT The judgment of the court was delivered by RAGHUBAR DAYAL J.-- -This appeal by special leave arises out of a petition under article 226 of the Constitution presented by the appellant for the issue of a writ of mandamus against the State of Madhya Bharat and its officers, the Special Tax Commissioner and the Assessing Officer, Industrial Tax, to refund a sum of Rs. 62,809-5-2 which had been illegally collected by the Industrial Tax Officer in the years 1943-48 on account of industrial tax. The petition was dismissed by the High Court on various grounds. The facts leading to the petition are these : The appellant is the managing proprietor of Bhandari Iron and Steel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition praying for the issue of a writ of mandamus against the State of Madhya Bharat and the other respondents, directing them to perform their statutory duty and/or to refund or cause to be refunded to the appellant the amount of Rs. 62,809-5-2 which it was alleged they were entitled in law to receive. The respondents contested the claim and the High Court dismissed the writ petition holding that there was no statutory obligation on the State to refund the amount, that the order of the appellate authority did not necessarily imply an order to the State to refund the amount and that the writ of mandamus could not be issued for the purpose of refund of the tax wrongly realised as held by the appellate authority as that would amount to ordering the execution of the decisions of the appellate authority. It is this order of the High Court against which the appellant has appealed, after obtaining special leave from this court. Two questions arise for determination in this appeal. The first is whether a petition under article 226 of the Constitution praying solely for the refund of money alleged to have been illegally collected by the State as tax, is maintainable under article 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d made several prayers in his petition under article 226. Some of these were not available at the time the order was passed by the High Court. He therefore confined his prayer for one relief only. It was for commanding the State to allow abatement of rent on account of the exemption of the State-owned roadways buses from liability to pay the tolls. The single judge issued the writ as prayed, but the Division Bench, on Letters Patent appeal, dismissed the petition holding that he was not entitled to the abatement of rent and that he may be entitled to claim abatement of rent or licence fee under the general law but that such a relief could be claimed only in a suit but not in a proceeding under article 226. This court held against the petitioner that no abatement of rent could be claimed as there was no lawful order exempting roadways buses from paying the toll. In view of the petitioner's prayer for the grant of any " other relief " the court felt no difficulty in granting the appropriate relief and, consequently, directing the issue of a writ in the nature of mandamus to the State directing it to pay to the petitioner full tolls with respect to every crossing of the roadways buses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the High Court had power for the purpose of enforcement of fundamental and statutory rights to give consequential relief by ordering repayment of money realised by Government without the authority of law and then indicated the various factors the court had to consider in deciding whether such consequential order be passed or not. We may usefully quote the observations at page 1011 in this connection. " At the same time we cannot lose sight of the fact that the special remedy provided in article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of the controversy of facts and law that may have to be decided as regards the availabili ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific Relief Act and the court had to construe the expression " under any law for the time being in force " in proviso (b) to section 45. In that connection this court held that the words " any law " were wide enough to embrace all kinds of law. It may be noted that in that particular case the duty sought to be enforced arose under rules framed in the exercise of a power conferred by a statute. We cannot use the construction placed on the words " any law " in proviso (b) to section 45 of the Specific Relief Act for the purpose of issuing a writ of mandamus in the exercise of powers under article 226 of the Constitution and especially when two earlier cases of this court, already referred to, specifically state that a mandamus, for the recovery of money, could be issued only when the petitioner is entitled to recover that money under some statute. The appellant has not been able to bring his claim for refund within any statute or statutory rule. Rule 8(a) of the Rules provides for a refund of the excess tax realised before the completion of assessment if it is found that the tax payable was less in amount and if the assessee applied for the refund within a month from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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