9911796707
TMI Blog1968 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in asking for relief and the question of delay ought normally to be measured by the periods fixed for the institution of suits under the Limitation Acts. X X X X Extracts X X X X X X X X Extracts X X X X ..... onstitutes a comity between the Supreme Court and the High Court. Similarly, when a party had already moved the High Court with a similar complaint and for the same relief and failed, this court insists on an appeal to be brought before it and does not allow fresh proceedings to be started. In this connection the principle of res judicata has been applied, although the expression is somewhat inapt and unfortunate. The reason of the rule no doubt is public policy which Coke summarised as "interest reipublicae res judicatas non rescindi" but the motivating factor is the existence of another parallel jurisdiction in another court and that court having been moved, this court insists on bringing its decision before this court for review. Again this court distinguishes between cases in which a speaking order on merits has been passed. Where the order is not speaking or the matter has been disposed of on some other ground at the threshold, this court in a suitable case entertains the application before itself. Another restraint which this court puts on itself is that it does not allow a new ground to be taken in appeal. In the same way, this court has refrained from taking action when a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The reason is also quite clear. If a short period of limitation were prescribed the fundamental right might well be frustrated. Prescribing too long a period might enable stale claims to be made to the detriment of other rights which might emerge. If then there is no period prescribed what is the standard for this court to follow? I should say that utmost expedition is the sine qua non for such claims. The party aggrieved must move the court at the earliest possible time and explain satisfactorily all semblance of delay. I am not indicating any period which may be regarded as the ultimate limit of action for that would be taking upon myself legislative functions. In England a period of 6 months has been provided statutorily, but that could be because there is no guaranteed remedy and the matter is one entirely of discretion. In India I will only say that each case will have to be considered on its own facts. Where there is appearance of avoidable delay and this delay 'affects the merits of the claim, this court will consider it and in a proper case hold the party disentitled to invoke the extraordinary jurisdiction. Therefore, the question is one of discretion for this court to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as was done in the subsequent litigation by another party. The present petitioner should have taken the right ground in the High Court and taken it in appeal to this court after the High Court decided against it. Not having done so and having abandoned his own litigation years ago, I do not think that this court should apply the analogy of the article in the Limitation Act and give him the relief now. The petition, therefore, fails and is dismissed with costs. SIKRI, J.-I have had the advantage of reading the drafts of the judgments prepared by Mitter, J., and Bachawat, J. I agree with Mitter, J., in his conclusion that the rule laid down in Daryao v. State of U.P.(1) is inapplicable to the facts of the case, but for the reasons I will presently give, in my opinion, the petition should be allowed. Article 32(2) of the Constitution confers a judicial power on the court. Like all judicial powers, unless there is an express provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice. General principles of res judicata were accordingly applied by this court in Daryao v. State of U.P. [1962] 1 S.C.R. 574., and Amalgamated Coa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quity had another rule, founded sometimes upon the analogies of the law, where such analogy existed, and sometimes upon its own inherent doctrine, not to entertain stale or antiquated demands, and not to encourage laches and negligence. Hence, in matters of account, although not barred by the Statute of Limitations, courts of equity refused to interfere after a considerable lapse of time, from considerations of public policy, from the difficulty of doing entire justice, when the original transactions had become obscure by time, and the evidence might have been lost, and from the consciousness that the repose of titles and the security of property are mainly promoted by a full enforcement of the maxim, vigilantibus, non dormientibus jura subveniunt. Under peculiar circumstances, however, excusing or justifying the delay, courts of equity would not refuse their aid in furtherance of the rights of the party; since in such cases there was no pretence to insist upon laches or negligence, as a ground for dismissal of the suit; and in one case carried back the account over a period of fifty years." (Third Edition, page 224, 529). In England, as pointed out by Bachawat, J., the Court of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not been entertaining stale claims by persons who have slept over their rights. There is no need to depart from this practice and tie our hands completely with the shackles imposed by the Indian Limitation Act. In the case of applications under article 226 this court observed in State of Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, 271-72; 15 S.T.C. 450.: "It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a Prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under article 226 of the Constitution." In State of Kerala v. Aluminium Industries Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 9, 1962, the petitioner was called upon to pay a penalty amounting to Rs. 12,517.68 on account of late payment of sales tax dues but this order of penalty was ultimately cancelled. The Gujarat High Court (Shelat, C.J., and Bhagwati, J.) in Kantilal Babulal v. H.C. Patel, Sales Tax Officer [1965] 16 S.T.C. 973., held on December 2, 1963, that section 12A(4) of the Bombay Sales Tax Act, 1946, was valid and did not violate article 19(1)(f) as it was saved by article 19(5). On September 29, 1967, this court, on appeal, in Kantilal Babulal v. H.C. Patel, Sales Tax Officer [1968] 21 S.T.C. 174., struck down this provision as it infringed article 19(1)(f). On February 9, 1968, four petitioners-hereinafter compendiously referred to as the petitioners-filed this petition praying that the order dated March 17, 1958, and the notice and order dated December 18, 1958, and December 24, 1958, be quashed. There is no doubt that under section 72 of the Contract Act the petitioner would be entitled to the relief claimed and the refund of the amount if he paid the money under mistake of law. I find it difficult to appreciate why the payment was not made under a mistake of law. In my opinion the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provision would be entitled to approach this court under article 32 and claim a refund (see Sales Tax Officer, Banaras v. Kanhaiya Lal Makund Lal Saraf [1959] S.C.R. 1350; 9 S.T.C. 747.). But why not the assessee who applied to the High Court? The answer given is that he had thought at one time that the law was bad, though on wrong grounds. If a law were framed sanctioning the above discrimination, I believe, it would be difficult to sustain it under article 14, but yet this is the discrimination which the respondent wants me to sanction. The grounds extracted above show that it never struck the petitioner that the provision could be challenged on the ground ultimately accepted by this court. If the petitioner had not thought of going to the Bombay High Court on the points he did, and had paid on demand, as most of the assessees do, he would, I imagine, have been entitled to maintain this petition. But it is now said that the petitioner's position is worse because he exercised his right to approach the High Court under article 226. The contention seems to be that when a petitioner approaches a High Court and fails, he can no longer suffer from any mistake of law even if the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 174. decided on September 29, 1967, this court struck down section 12A(4) of the Bombay Sales Tax Act, 1946, as unconstitutional and violative of article 19(1)(f). The arguments in the present appeal proceeded on the assumption that section 21(4) of the Bombay Sales Tax Act, 1953, is liable to be struck down on the same ground. On February 9, 1968, the petitioners filed the present writ petition under article 32 of the Constitution claiming refund of Rs. 26,563.50 under section 72 of the Indian Contract Act, 1872. They alleged that they paid this sum to the Collector under coercion and/or mistake of law, and that they discovered the mistake on September 29, 1967. Two points arise for decision in this writ petition: (1) Would the claim be barred by limitation if it were the subject-matter of a suit in February, 1968, and (2) if so, are the petitioners entitled to any relief in this petition under article 32 of the Constitution. Subject to questions of limitation, waiver and estoppel, money paid under mistake or coercion may be recovered under section 72 of the Indian Contract Act. The right to relief under section 72 extends to money paid under mistake of law, i.e., "mistake in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hers [1964] 6 S.C.R. 261, 274; 15 S.T.C. 450., and State of Kerala v. Aluminium Industries Ltd.[1965] 16 S.T.C. 689, 692., it was held that article 96 applied to a suit for recovery of money paid under a mistake of law. Section 17(1)(c) of the Limitation Act, 1963, now provides that in the case of a suit for relief from the consequences of a mistake the period of limitation does not begin to run until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. Section 17(1)(c) corresponds to section 26(c) of the Limitation Act, 1939 (2 & 3 Geo. 6, c. 21). It was held in Re Diplock [1948] Ch. 465, 515-516., that section 26(c) applied by analogy to a suit for recovery of money paid under mistake of law. On appeal, the House of Lords said that the section presented many problems and refrained from saying more about it: see Ministry of Health v. Simpson [1951] A.C. 251, 277. In some Amercian States, it has been held that a mistake of law cannot be regarded as a mistake within a similar statute and time ran from the date of the accrual of the cause of action: see Corpus Juris Secundum, Volume 54, Limitation of Actions, article 198, page 202, Morgan v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to recover moneys, the recovery of which by suit is barred by limitation. Where the remedy in a writ application under article 32 or article 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction. On similar grounds the Court of Chancery acted on the analogy of the statutes of limitation in disposing of stale claims though the proceeding in a Chancery was not subject to any express statutory bar: see Halsbury's Laws of England, Volume 14, page 647, article 1190, Knox v. Gye L.R. 5 H.L. Cas. 656, 674. Likewise, the High Court acts on the analogy of the statute of limitation in a proceeding under article 226 though the statute does not expressly apply to the proceeding. The court will almost always refuse to give relief under article 226 if the delay is more than the statutory period of limitation: see State of Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261 at 273-274; 15 S.T.C. 450. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd has held registration certificates under the various sales tax laws prevailing in the State of Bombay from 1946 onwards including the Bombay Sales Tax Act, 1946 (5 of 1946), the Bombay Sales Tax Act, 1953 (3 of 1953), and the Bombay Sales Tax Act, 1959 (51 of 1959). In the course of assessment for the assessment period commencing on April 1, 1949, and ending on 31st October, 1952, the firm contended that its sales of the value of Rs. 13,42,165-15-6 were not liable to be taxed under the provisions of the Bombay Sales Tax Act then in force as the goods were delivered as a direct result of such sales for purposes of consumption outside the State of Bombay. The firm claimed that it was entitled to a refund of the amount which it had collected from its customers and paid on account of the aforesaid sales at the time of submitting the returns of its turnover. The Sales Tax Officer did not accept this contention but on appeal the Assistant Collector of Sales Tax upheld the firm's contention after examining the details submitted by it and found that sales involving the sum of Rs. 26,563-8-0 realised by way of tax were protected under article 286 of the Constitution. He therefore direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The order was purported to be passed under section 21(4) of the Bombay Sales Tax Act, 1953. Within a few days thereafter, i.e., on March 28, 1958, the firm presented an application to the High Court of Bombay under article 226 of the Constitution for the issue of a writ in the nature of certiorari quashing the above-mentioned order of forfeiture and for incidental reliefs. In paragraph 4 of the petition it was stated that the order of forfeiture was "without the authority of law and therefore in violation of article 19(1)(g) and article 265 of the Constitution." It appears that a similar application had been presented on behalf of Pasha Bhai Patel and Co. (P.) Ltd. to the Bombay High Court and the application of the firm along with the first-mentioned application was disposed of by a learned single judge of the Bombay High Court on November 28,1958. The main judgment was delivered in Pasha Bhai Patel and Company's case. The learned judge observed in the course of his judgment that there was no merit whatsoever in it and "justice did not lie in his (the petitioner's) side and this was a matter in which the court should not interfere by way of a writ and give relief to the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of fundamental rights, in exercise of his discretion, he will not interfere by issuing a writ. The learned Judge having exercised his discretion which he undoubtedly was entitled to exercise, we do not think sitting in appeal we would be justified in exercising our powers as an appellate court in interfering with the order under appeal. We may observe that we are not dealing with this case on the merits at all. We have not considered the question whether the appellant is entitled in law to retain the moneys which he has obtained from the sales tax department. We have decided this appeal on the limited ground that Mr. Justice K.K. Desai having exercised his discretion, no case is made out for our interference with the exercise of that discretion." It is therefore amply clear from the above that the learned Judges of the Bombay High Court did not examine the merits of the firm's contention that the order of refund was without the authority of law or ultra vires or in violation of any fundamental rights of the partners of the firm. They merely exercised their discretion on the question of issue of a writ under article 226 of the Constitution in view of the firm's conduct in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition. In the view which we take of the firm's claim and in view of the decision of this court in Kantilal Babulal and Bros. v. H.C. Patel [1968] 21 S.T.C. 174., dated September 29, 1967, it is not necessary to examine the validity or otherwise of the provisions of section 12A(4) of the Act of 1946 or the corresponding section of the Act of 1953, i.e., section 21(4). The appeal of Kantilal Babulal and Bros. v. H.C. Patel [1968] 21 S.T.C. 174. decided by this court on September 29, 1967, was from a decision of the High Court of Gujarat reported in 16 Sales Tax Cases 973. The Gujarat High Court had held that section 12A(4) was saved by article 19(5) of the Constitution. The appeal by the assessee was allowed by this court on the short ground that assuming that section 12A(4) was a penal provision within the legislative competence of the Legislature, it was violative of article 19(1)(f) inasmuch as it did not lay down any procedure for ascertaining whether in fact the dealer concerned had collected any amount by way of tax from his purchasers outside the State and if so what that amount was. It was further observed that the section did not contemplate any adjudication nor did it pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt of Allahabad by its judgment delivered on February 27, 1952, in the case of Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur [1952] 3 S.T.C. 185., the respondent by its letter dated 8th July, 1952, asked for a refund of the amount of sales tax paid by it under assessment orders passed on May 31, 1949, October 30, 1950, and August 29, 1951. The Commissioner of Sales Tax, U.P., refused to refund the amount claimed by letter dated July 19, 1952. The above judgment of the Allahabad High Court was confirmed by this court on May 3, 1954, See Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash [1955] 1 S.C.R. 243; 5 S.T.C. 193. In the meanwhile the respondent had filed a writ petition, No. 355 of 1952, in the High Court for quashing the assessment orders which was allowed by an order of a single Judge on November 30, 1954. The appellant's special appeal from the said order contending that money paid under a mistake of law was irrecoverable being dismissed, a further appeal was taken to this court under a certificate. On the facts of that case the court held that both the parties were labouring under a mistake of law, the legal position as established later, by the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court of Madhya Bharat in their decision in Mohammad Siddique v. State of Madhya Bharat A.I.R. 1956 M.B. 214. on 17th January, 1956. The respondents claimed to have discovered their mistake in making the payments after they came to know of these decisions. Sixteen of the applications out of 31 were made to the High Court within three years from 17th January, 1956, and the High Court took the view that this was not an unreasonable delay and in that view ordered refund. The High Court also ordered refund in seven other applications made more than three years and eight months after the said 17th January, 1956. This court, although of opinion that the High Court had power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law, observed: "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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion whether the writ petition was within three years of the date on which the mistake first became known to the respondent so that a suit for refund on that date would not be barred under article 96 of the Indian Limitation Act of 1908. Speaking for myself I am not satisfied that the petitioners in this case had made a mistake in thinking that the money paid was due when in fact it was not due. As already noted, in their reply to the show cause notice dated February 7, 1958, the petitioners' case was that the threat of the sales tax authorities to forfeit the amount was without the authority of law and that the firm had agreed to the condition of refunding the amount received to its own customers under coercion even though in law the authorities were bound to refund without any such condition. The petitioners did not content themselves merely by opposing the claim of the sales tax authorities to forfeit the amount but suited their action to their belief by presenting a writ petition to the Bombay High Court describing the order of forfeiture as without the authority of law and in violation of article 19(1)(g) and article 265 of the Constitution and praying for the necessary relief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l process. It is therefore not possible to hold that the payments complained of following the order of forfeiture were made in mistake of law. They were payments under compulsion or coercion. A payment under coercion has to be treated in the same way for the purposes of a claim to refund as a payment under mistake of law, but there is an important distinction between the two. A payment under mistake of law may be questioned only when the mistake is discovered but a person who is under no mis-apprehension as to his legal right and complains about the illegality or the ultra vires nature of the order passed against him can immediately after payment formulate his cause of action as one of payment under coercion. The Limitation Acts do not in terms apply to claims against the State in respect of violation of fundamental rights. A person complaining of infraction of any such right has one of three courses open to him. He can either make an application under article 226 of the Constitution to a High Court or he can make an application to this court under article 32 of the Constitution or he can file a suit asking for appropriate reliefs. The decisions of various High Courts in India ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion as to whether the payments made in 1959 and 1960 in this case would not attract the said article of the Limitation Act of 1908. It was held by this court in A.V. Subbarao v. The State [1965] 2 S.C.R. 577., that the period of limitation for a suit to recover taxes illegally collected was governed by article 62 of the Limitation Act of 1908 providing a space of three years from the date of payment. But taking the most favourable view of the petitioners' case, article 120 of the Limitation Act of 1908 giving a period of six years for the filing of a suit would apply to the petitioners' claim. The period of six years would have expired some time in 1966 but the Limitation Act of 1908 was repealed by the Limitation Act of 1963 and by section 30(a) of the Act of 1963 it was provided that: "Notwithstanding anything contained in this Act,- (a) any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be instituted within a period of five years next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier;......... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 1958 clearly shows that the merits of the petitioners' claim were not being examined. I can however find no merit in the contention that because there is an invasion of a fundamental right of a citizen he can be allowed to come to this court, no matter how long after the infraction of his right he applies for relief. The Constitution is silent on this point; nor is there any statute of limitation expressly applicable, but nevertheless, on grounds of public policy I would hold that this court should not lend its aid to a litigant even under article 32 of the Constitution in case of an inordinate delay in asking for relief and the question of delay ought normally to be measured by the periods fixed for the institution of suits under the Limitation Acts. The petition therefore fails and is dismissed with costs. HEGDE, J.-I had the advantage of studying the judgments just delivered by my brothers Sikri, Bachawat and Mitter, JJ. The facts of the case are fully set out in those judgments. I shall not restate them. I agree with the decision of Mitter, J., that to the facts of this case the rule laid down by this court in Daryao and Others v. The State of U.P. and Others [1962] 1 S.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 32 is itself a fundamental right and the same cannot be circumscribed or curtailed except as provided by the Constitution. It is inappropriate to equate the duty imposed on this court to the powers of the Chancery Court in England or the equitable jurisdiction of the American Courts. A duty imposed by the Constitution cannot be compared with discretionary powers. Under article 32 the mandate of the Constitution is clear and unambiguous and that mandate has to be obeyed. It must be remembered, as emphasized by several decisions of this court, that this court is charged by the Constitution with the special responsibility of protecting and enforcing the fundamental rights under Part III of the Constitution. If I may, with respect, borrow the felicitous language employed by Patanjali Sastri, C.J., in State of Madras v. V.G. Row [1952] S.C.R. 597., that as regards fundamental rights this court has been assigned the role of a sentinel on the qui vive. The anxiety of this court not to whittle down the amplitude of the fundamental rights guaranteed has found expression in several of its judgments. It has not allowed its vision to be blurred by the fact that some of the persons who inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e no waiver of a fundamental right founded on article 14. Bhagwati and Subba Rao, JJ., held that no fundamental right can be waived and S.K. Das, J., held that only such fundamental rights which are intended to the benefit of a party can be waived. I am mentioning all these aspects to show how jealously this court has been resisting every attempt to narrow down the scope of the rights guaranteed under Part III of our Constitution. Admittedly the provisions contained in the Limitation Act do not apply to proceedings under article 226 or article 32. The Constitution-makers wisely, if I may say with respect, excluded the application of those provisions to proceedings under articles 226, 227 and 32 lest the efficacy of the constitutional remedies should- be left to the tender mercies of the Legislatures. This court has laid down in I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762., that the Parliament cannot by amending the Constitution abridge the fundamental rights conferred under Part III of the Constitution. If we are to bring in the provisions of the Limitation Act by an indirect process to control the remedies conferred by the Constitution it would mean that what the Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rights? The implications of this decision are bound to be far-reaching. It is likely to pull down from the high pedestal now occupied by the fundamental rights to the level of other civil rights. I am apprehensive that this decision may mark an important turning point in downgrading the fundamental rights guaranteed under the Constitution. I am firmly of the view that a relief asked for under article 32 cannot be refused on the ground of laches. The provisions of the Limitation Act have no relevance either directly or indirectly to proceedings under article 32. Considerations which are relevant in proceedings under article 226 are wholly out of place in a proceeding like the one before us. The decision of this court referred to in the judgment of Bachawat and Mitter, JJ., where this court has taken into consideration the laches on the part of the petitioners are not apposite for our present purpose. None of those cases deal with proceedings under article 32 of the Constitution. The rule enunciated by this court in the State of M.P. v. Bhailal Bhai [1964] 6 S.C.R. 261; 15 S.T.C. 450. is only applicable to proceedings under article 226. At page 271 of the report Das Gupta, J., who ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
