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TMI Blog1974 (10) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... JJ. [Judgment per : K.K. Mathew, J.]. - The appellants filed writ petitions before the High Court of Mysore under Article. 226 of the Constitution for a declaration that the Mysore Elementary Education Act, 1941, and the amendments to it by the Mysore Elementary Education (Amendment) Act (XII of 1955) providing for levy and collection of Education Cess on items on which Education Cess is being levied as prescribed in the schedules of the respective Acts were beyond the competence of the Mysore State Legislature and for refund of the Educational Cess paid during 1951-52 to 1965-66 on shop rentals and tree tax in respect of toddy and duty of excise in respect of arrack and special liquor. The High Court dismissed the Writ Petitions by a common judgment and these appeals are directed against that judgment. 2. The High Court of Mysore had, in D. Cawasji and Co. v. State of Mysore, (1968) 2 Mys. LJ 78 struck down the provisions of the Mysore Elementary Education Act and the amendments to it on May 2, 1968. That decision was affirmed by the Court in State of Mysore v. D. Cawasji and Co., (1971) 2 SCR 799. Before the decision of this Court, the Mysore Legislature had passed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... general rule. He was of the view 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. On the question of the period of limitation within which the petition must be filed, he observed that the period of limitation prescribed for recovery of money paid under a mistake of law is three years from the date when the mistake is known and that period may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. He further said that the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action, but, where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. 6. In State of Kerala v. Aluminium Industries Ltd., (1965) 16 STC 689 (SC) a Bench of seven Judges of this Court followed the view taken in State of Madhya Pradesh v. Bhailal Bhai, (1964) 6 SCR 261 on the question of the period of limitation within which the petition has to be filed. 7. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was paid to be invalid, be it a hundred years after the date of payment. Nor is there any provision under which the court could deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so. 11. In the U.S.A., it is generally held that in the absence of a statute to the contrary, taxes voluntarily paid under a mistake of law with full knowledge of facts cannot be recovered back while taxes paid under a mistake of fact may ordinarily be recovered back (see Corpus Juris Secundum, Vol. 84 p. 637). Although Section 72 of the Contract Act has been held to cover cases of payment of money under a mistake of law, as the State stands in a peculiar position in respect of taxes paid to it, there are perhaps practical reasons for the law according a different treatment both in the matter of the heads under which they could be recovered and the period of limitation for the recovery. 12. The task of writing legislation to protect the interest of the nation is committed to Parliament and the legislatures of the States. We are referring to this aspect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) of the Bombay Sales Tax Act, 1953, was also liable to be struck down. It was in these circumstances that this Court had to consider the question, whether the petitioners were entitled to the relief claimed. By a majority of the Court it was decided that there was inordinate delay in filing the petition and therefore it should be dismissed. Hidayatullah, C.J. observed : His (the petitioner's) contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion, he cannot abandon it to resume it after a number of years, because another person more adventurous than him in his turn got the statute declared unconstitutional, and got a favourable decision.... I agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is no question here of a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he majority, it is this : they did not consider the payments made by the petitioners as payments made under a mistake of law. Therefore, we do not see the relevance of that case for the decision of the case here. 18. But that however, is not the end of the matter. In the earlier writ petitions which culminated in the decision in (1968) 2 Mys LJ 78 = (AIR 1969 Mys. 23) the appellants did pray for refund of the amounts paid by them under the Act and the High Court considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that those writ petitioners whose prayers had been rejected would be at liberty to institute suits or other proceedings. We are not sure that, in the context, the High Court, meant by `other proceedings', applications in the nature of proceedings under Article 226, when it is seen that the Court refused to entertain the relief for refund on the ground of delay in the proceedings under Article 226 and that in some cases the Court directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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