Tilokchand Motichand & Ors Vs.
H.B. Munshi & ANR [1968] INSC 289 (22 November 1968)
22/11/1968 HIDAYATULLAH, M. (CJ)
HIDAYATULLAH, M. (CJ) SIKRI, S.M.
BACHAWAT, R.S.
MITTER, G.K.
HEGDE, K.S.
CITATION: 1970 AIR 898
CITATOR INFO:
D 1973 SC1041 (16) F 1974 SC 259 (9) R 1974
SC 532 (11) F 1974 SC2077 (11) R 1975 SC 511 (10) RF 1975 SC 538 (18) R 1975 SC
813 (13,14,16,17) F 1979 SC1328 (10) RF 1981 SC1082 (15) R 1982 SC 101 (28) R
1988 SC1531 (126) F 1990 SC 313 (26) RF 1990 SC 415 (20) RF 1990 SC 772 (8,32)
D 1991 SC1676 (72)
ACT:
Constitution of India, 1950, Art.
32--Laches--Fundamental right-Effect on.
Petition under Art. 226--Contention raised
that provision of law is ultra vires as violating fundamental
rights--Contention not considered but petition dismissed in limine-Order of
High Court if res judicata, in relation to petition under Art. 32.
HEADNOTE:
The sales tax authorities directed that the
sum realised as sales tax by the petitioners from their customers and paid over
to the State should be refunded to the petitioners on condition that the
petitioners passed on the amounts to their customers. Since the petitioners did
not fulfil the condition, the sales tax officer 'forfeited the sum under s. 21(4)
of .the Bombay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28,
the petitioners filed a writ petition in the High Court and contended that s.
21(4) was ultra rites the powers of the State Legislature and was violative of
Arts. 19(1)(f) and 265 of the Constitution and hence, they were not liable to
repay the amount. The single Judge dismissed the petition on the ground that
the petitioners defrauded their customers and so were not entitled to any
relief even if there was a violation of fundamental rights. The appellate bench
of the High Court dismissed the appeal on the ground that it would not
interfere with the discretionary order of the single Judge.
On December 24, 1958, the Collector attached
the properties of the petitioners for recovering the amount as arrears of land
revenue and the petitioners paid the amount in instalments between August 1959
and August 1960. On September 29, 1967 this Court in Kantilal Babual v. H.C.
Panel, 21 S.T.C. 174 (S.C.) struck down s.
12A(4) of Bombay Sales Tax Act, 1946, corresponding to s. 2'1(4) of the 1953-
Act, on the ground that it was violative of Art. 19(1)(f) inasmuch as the power
conferred by the section was unguided, uncanalised and uncontrolled and so was
not a reasonable restriction on the fundamental right guaranteed under the
Article. On the assumption that s. 21(4) of the 1953-Act is also liable to be
struck down on the same ground, on February 9, 1968, the petitioners flied a
writ petition under Art. 32 claiming a refund of the amount. The petitioners
contended that they did not know that the section was ultra vires on the
particular ground on which this Court struck it down, that they paid the
amounts under coercion or mistake, that the mistake was discovered on September
29, 1967 (the date of the judgment of this Court) and that they were entitled
to the refund under s. 72 of the Indian Contract Act, 1872.
On the questions: (1) Whether the petition is
liable to be dismissed on the ground of Inches; and (2) Whether the petition is
barred by res judicata in view of the decision of the High Court.
HELD: (Per Hidayatullah, C.J., Bachawat and
Mitter, JJ.): (1) The petition must be dismissed on the ground of Inches.
825 Per Hidayatullah C.J.: Article 32 gives
the right to move this Court by appropriate proceedings for enforcement of
fundamental rights and the State cannot place any hindrance in the way of an
aggrieved person. But once the matter has reached this Court, the extent or
manner of interference is for this Court to decide. This Court has put itself
in restraint in the matter of petitions under Art. 32. For example, this Court
refrains from acting under the Article if the party had already moved the High
Court under Art. 226 and if the High Court had exercised its parallel
jurisdiction. In such a case, this Court would not allow fresh proceedings to
be started under Art. 32 but would insist on the decision of the High Court
being brought before it on appeal. Similarly, in inquiring into belated and
stale claims, this Court should take note of evidence of neglect of the
petitioner's own rights. for a long time or of the rights of innocent parties
which might have emerged by reason of the delay. The party aggrieved must
therefore move this Court at the earliest possible time and explain
satisfactorily all semblance of delay. It is not possible for this Court to lay
down any specific period as the ultimate limit of action and each case will
have to be considered on its own facts. A petition under Art. 32 is neither a
suit nor an application to which the Limitation Act applies. Further, putting
curbs in the way of enforcement of fundamental rights through such legislative
action might be questioned under Art. 13(2). for, if a short period of
limitation is prescribed the fundamental right might be frustrated. Therefore,
this Court has to exercise its discretion from case to case, and where there is
appearance of an 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 its extraordinary jurisdiction. [830C, DE. G--H; 831
A--B.
C--E; 832 A--E] In the present case, the
petitioners moved unsuccessfully the High Court for relief on the. ground that
the recovery from them was unconstitutional, but did not come up in appeal to
this Court. There is thus no question of any mistake of law. Having set the
machinery of law in motion they cannot abandon it to resume it after a .number
of years because another person got the statute declared unconstitutional. They
should have known the exact ground of unconstitutionality since everyone is
presumed to know the law; and pursued the ground in this Court. Not having done
so, and having abandoned his own litigation years ago. this Court will not
apply the analogy of the Article in the Limitation Act in cases of mistake of
law and give him relief. [832 F--H; 833 A--B, C--E] Per Bachawat, J.: The
normal remedy for recovery of money paid to the State under coercion or mistake
of law is by suit. The right to move this Court for enforcement of fundamental
rights is guaranteed by Art. 32, and no period of limitation is prescribed for
such a petition. The writ issues as a matter of course if a breach of a
'fundamental right established, but this does not mean that in giving relief
under the Article this Court may ignore all laws of procedure. The
extraordinary remedies under Arts. 32 and 226 of the Constitution are not
intended to enable a claimant to recover monies the recovery of which by suit
is barred by limitation. In the absence any roles of procedure under Art.
145(1)(c) this Court may adopt any reasonable rule. For example. this Court
will not allow a petitioner to move this Court under Art. 32 on a petition
containing misleading and inaccurate statements. Similarly, the general
principles of res judicata are applied where applicable on grounds of public
policy. Therefore, where the remedy in a writ application under Art. 32 or Art.
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 imposes on analogy the
same limitation on the summary 826 remedy in the writ jurisdiction even though
there is no express statutory bar of limitation, on grounds of public policy
and on the principle that the laws aid the vigilant and not those who slumber.
[842 A--F; 843 A--F] In the present case, the petitioners were not labouring
under any mistake of law when they made the payments, because, in their writ
petition in the High Court, they contended that the order was invalid and that
s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and
unconstitutional although they did not know the precise ground upon which this
Court subsequently struck down s. 12A(4) of the 1946-ACt. Therefore, when they
made the payments in 1959 and 1960 they were made under coercion and not under
a mistake of law in thinking that the money was due. Hence the petitioners
could not claim any relief on the ground of mistake. They could rely on the
ground of coercion but a suit for the recovery of money on the ground of
coercion instituted in February 1968, would have been barred by limitation. A
suit for recovery of money on the ground of coercion instituted after January
1, 1964 would be governed by Art. 24 of the Limitation Act, 1963, and the
period of limitation would be 3 years from the dates in 1959 and 1960 when the
amounts were paid. The petitioners could not obtain an extension of the period
under s. 30(a) of the Limitation Act, 1963, as Art. 62 of the Limitation Act,
1908, which governs a suit for recovery of tax or other levy illegally
collected, prescribed the same period of limitation. [840 F--H; 841 A---C]
Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R.
76 I.A. 244, 254, Sales Tax Officer v.
Mukundlal Saraf [1959] S.C.R. 1350, 1361, 1362, A. Venkata Subba Rao v.
State of Andhra Pradesh [1965] 2 S.C.R. 577,
612--620, State of Madhya Pradesh v. Bhailal Bhai & Ors. [1964] 6 S.C.R.
261 274, Daryao v. State of U.P. [1962] 1 S.C.R. 574, Sobhraj Odharmal v. State
of Ralasthan, [1963] Supp. 1 S.C.R. 99, 111 and Her Highness Ruckmaboye v.
Lulloobhoy Mottickchund, (185152) 5 M.I.A. 234, 251, referred to.- Per Mitter,
J.: The Limitation Act does not in terms apply to proceedings against the State
under Art. 32 in respect of violation of fundamental rights. A person
complaining of such infraction has. one of three courses open to him. He can
file a suit, invoke Art. 226 or Art.
32Suits are governed by the Limitation Act.
In the matter of the issue of a writ under Art. 226 also, courts have refused
to give relief in cases of long or unreasonable delay, although the Limitation
Act does not apply, and the maximum period fixed by the Legislature for filing
a suit is ordinarily taken to be a reasonable standard by which delay in
seeking the remedy under Art. 226 can be measured.
There is no reason for applying a different
test when a party comes to this Court under Art. 32. There is public policy
behind all statutes of limitation and a claim based on the infraction of
fundamental rights ought not to be entertained if made beyond the period fixed
by the Limitation Act for the enforcement of the right by way of suit, that is,
although the Limitation Act does not apply, the period fixed by it should be
taken to be a true measure of the time within which a person can be allowed to
raise a plea successfully under Art. 32. [853 C--H; 854 A--B] The petitioners
in this case had not made a mistake in thinking that the money paid was due
when in fact it was not due. They not only opposed the claim of the sales tax
authorities but filed a writ petition contending that there was a violation of
Art. 19(1)(f). They did not accept the decision of the single Judge but filed
an appeal raising the same contention. They complained about the violation of
their fundamental rights, the illegality of the order of forfeiture and the
unreason- 827 able restriction on their fundamental rights under Art.
19(1)(f). They protested against the order of
forfeiture not only out of court but in court and only paid the amounts after
the issue of legal process. They were never influenced by a mistake of law and
never 'failed to 'appreciate the correct position in law. But the payments were
made under coercion. The period of limitation for a suit against Government to
recover money paid under protest is governed either by Art. 16 or Art. 62 of
the Limitation Act, 1908 that is one year or three years. But taking the most
favourable view that the period of six years fixed by Art. 120 of Limitation
Act, 1908, would apply, that period would have expired in 1966. The position is
not different even if the Limitation Act, 1963 is applied. A claim for money
paid under coercion would be covered by Art. 113 of the Limitation Act, 1963,
giving a period of 3 years from January 1, 1964 the date of commencement of the
1963-Act.
Under s. 30(a) of the Limitation Act, 1963,
the period of limitation for a suit which was formerly covered by Art. 120 of
the Act of 1908; would be covered by Art. 113 of the 1963-Act. Therefore, the
suit in the present case would have to be filed by January 1, 1967. As the
petitioners came to this Court in February 1968 long after the date when they
could have properly filed a suit, the application under Art. 32 must be
rejected. [851 H; 852 A---D, G-H;
853 A--B; 854- B--H;, 855 A-B] Kantilal
Babulal & Bros. v.H.C. Patel 2.1 S.T,C. 174, Sri Sri Shiba Prasad Singh,
deceased, now represented by Kali Prasad Singha v. Maharaja Srish Chandra Nandi
76 I.A.
244, Sales Tax Officer v. Kanhaiya Lal
Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer, Pilibhit v.
Budh Prakash jai Prakash, [1955] 1 S.C.R.
243, State o/ Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261, State of
Kerala v. Aluminum Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The
State of Andhra Pradesh [1965] 2 S.C.R.
577, referred to.
Per Sikri and Hegde, JJ. (dissenting): The
petition has to be allowed and the petitioners must be granted the relief
prayed for.
Per Sikri, J.: Article 32(2) of the
Constitution confers a judicial power on this Court, and 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, and one such fundamental principle is that stale claims should not be
given effect to. [833 F--G] The Limitation Act does not directly apply to a
petition under Art. 32 and to invoke the analogy of the Limitation Act is not
appropriate when dealing with petitions under Art. 32. If a claim is barred
under the Limitation Act, prima facie it is a stale claim but even if it is not
so barred, it may not' be entertained by this Court if on the facts of the case
there is unreasonable delay. To issue a writ, direction or order in the nature
of mandamus certiorari or prohibition after a delay of 12 years or 6 years
would, except when there are exceptional circumstances, be strange. It is
difficult to lay down a precise period, but a period of one year may be taken
as the period beyond which the claim would be a stale claim unless the delay is
explained. The time spent in making representations to higher authorities may
be taken as a good explanation for any delay. Such a practice would not destroy
the guarantee under Art. 32, because, the article nowhere lays down that a
petition, however late, should be entertained. [833 G; 835 C-H] In the present
case, the petitioners were mistaken in thinking that the money was liable to be
paid under a valid law and hence under s. 72 of the Contract Act, the
petitioners would be entitled to the relief claimed. The grounds urged before
the High Court show that it never struck the petitioners that the provision
could be challenged on the ground ulti- 828 mately accepted by this Court. If
the petitioners had not moved the High Court but had paid on demand they would
have been entitled to maintain the petition in this Court.
The position could not be worse became they
exercised their right under Art. 226. When a petitioner approaches a High Court
and fails, it could not be said that payments made by him thereafter were not
under a mistake of law, even if the point on which this Court ultimately
strikes down the provision under which the payments were made was never raised
in the High Court. The petitioners discovered, like all assessees their mistake
when this Court struck down s.
12A(4) of the 1946-Act and they came to this
Court within 6 months of that date and hence there was no delay. [837 G--H; 839
B---E] Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields Ltd.
v. Janapada Sabha, Chindwara, A.I.R. 1964 S.C. 1013, 1018, Sales Tax Officer v.
Kanhaiyalal, [1959] S.C.R. 1350 and Kantilal Babulal v. H.C. Patel, Sales Tax
Officer, 21 S.T.C. 174, referred to.
Per Hegde, J.: In view of the decision of
this Court in Kantilal Babulal v.H.C. Patel, 21 S.T.C. 174 which struck down s.
12A(4) or the 1946-Act, the impugned collection under s. 21(4) of the 1953-Act
was without the authority of law and consequently the exaction infringed the
fundamental right of the petitioners under Art. 19(1)(f).
Hence the petitioners have a fundamental
right to approach this' Court under Art. 32 for relief and this Court has a
duty to afford them the appropriate relief. Since the right given to the
petitioners under Art. 32 is itself a fundamental right and does not depend on
the discretionary powers of this Court, as in 1be case of Art. 226, it is
inappropriate to equate the duty imposed on this Court to the powers of
Chancery Court in England or the equitable jurisdiction of Courts in the United
States. The fact that the petitioners have no equity in their favour is an
irrelevant circumstance in deciding the nature of the right available to an
aggrieved party under Art. 32. This Court is charged by the Constitution with
the special responsibility of protecting and enforcing the fundamental rights,
and hence leaches on the part of an aggrieved party cannot deprive him of his
right to get relief under Art. 32.
In fact, law reports do not show a single
instance of this Court refusing to grant relief on the ground of delay. If this
Court could refuse relief on the ground of delay, the power of the Court under
Art. 32 would be a discretionary power and the right would cease to be a
fundamental right.
The provisions contained in the Limitation
Act do not apply to proceedings under Arts. 226 and 32 and if these provisions
of the Limitation Act are brought in indirectly to control the remedies
conferred by the ConstitUtion, it would be a case of Parliament indirectly
abridging the fundamental rights which this Court, in Golaknath's case, [1967]
2 S.C.R. 762, held that Parliament cannot do. The 'fear. that forgotten claims
and discarded rights against Government may be sought to be enforced after the
lapse of a number of years if fundamental rights are held to be enforceable
without any time limit, is an exaggerated one, for, after all, a petitioner can
only enforce an existing right. [856 D. F--H; 857 A, B, D, G-H;
858 A, D--E, F--H; 859 H] In this case the
petitioners have an existing right even if their remedy under the ordinary law
is barred. This Court struck down s. 12A(4) of the 1946-Act on a ground not put
forward by the petitioners in the High Court but on a wholly different ground.
A mere impression of a party that a provision of law may be ultra vires cannot
be equated to knowledge that the provision is invalid. and the fact, that,
after a futile attempt to get the provision in question declared invalid the
petitioners gave up their fight and submitted to the law which was apparently
valid is no proof of the fact that they knew that the provision in question was
829 invalid. There is no reason for rejecting the plea of the petitioners that
they became aware of the invalidity of the provision only after the decision of
this Court in Kantilal's case, and since the petition was filed very soon
thereafter, the petitioners were entitled to relief. [860 C--G] State of M.P.v.
Bhailal Bhai, [1964] 6 S.C.R. 261, referred to.
(2) (By Full Court): The petition is not
barred by res judicata.
Per Hidayatullah, C.J. Where the order of the
High Court under Art. 22% is not a speaking order or the matter has been
disposed of on some ground other than on merits, at the threshold, this
Courtmay entertain the application under Art. 32. [831 B] Daryao v. State of
U.P. [1962] 1 S.C.R. 574, explained.
Per Sikri, Bachawat and Mitter, JJ.: When a
petition under Art. 226 is dismissed not on the merits but because of the
laches on the party applying for ,the writ or because an alternative remedy was
available to him, such dismissal is not a bar to a subsequent petition under
Art. 32, except in cases when the facts found by the High Court might themselves
be relevant under Art. 32. [833 E--F; 839 F--G; 855 C--D,F-G] Daryao's case,
[1962] 1 S.C.R. 574 and Joseph v. State of Kerala, A.I.R. 1965 S.C. 1514,
referred to.
Per Hegde. J.: It is only when the right
claimed by the petitioner in his petition under Art. 32 had been claimed in the
High Court under Art. 226 and negatived by the High Court and that decision had
become final as it was not appealed against, that the petitioner would not be
able to agitate the right over again in this Court under Art. 32.
[856 B--C] Daryao's case, [1962] 1 S.C.R.
574, explained.
ORIGINAL JURISDICTION: Writ Petition No. 53
of 1968.
Petition under Art. 32 of the Constitution of
India for enforcement of the fundamental rights.
H.K. Shah, B. Datta and J.B. Dadachanji for
the petitioners.
C.K. Daphtary, Attorney-General, R.
Gopalakrishnan, R.H. Dhebar and S.P. Nayar, for the respondents.
HIDAYATULLAH, C.J., BACHAWAT and MITTER, JJ.,
delivered segarate judgments dismissing the petition. SIKRI and HEGDE, JJ.
delivered separate dissenting opinions allowing the petition.
Hidayatullah, C.J. This petition has led to a
sharp division of opinion among my 'brethren: Sikri and Hegde, JJ.
would allow the petition and Bachawat and
Mitter, JJ. would dismiss it. They have differed on the question whether the
petition deserves to be dismissed on the ground of delay. I agree in the result
reached by Bachawat and Mitter, JJ. and would also dismiss if I wish briefly to
state my reasons.
At the threshold it appears to me that as
there is no.
law which prescribes a period of limitation
for such petitions, each of my brethren has really given expression to the
practice he follows or intends to follow. I can do no more than state the views
1 830 hold on this subject and then give my decision on the merits of the
petition in the light of those views.
The problem divides itself into two. The
first part is a general question to be considered in two aspects: (a) whether
any limit of time at all can be imposed on petitions under Art. 32, and (b)
whether this Court would apply by analogy an article of the Indian Limitation
Act appropriate to the facts of the case or any other limit ? The second is
what is to be done in this case ? I shall begin by stating my views on the
first question.
There appears to be some confusion about the
scope of Article 32. That Article gives the fight to move the Supreme Court by
appropriate proceedings for enforcement of the rights conferred by Part III of
the Constitution. The provision merely keeps open the doors of this Court, in
much the same way, as it used to be said, the doors of the Chancery Court were
always open. The State cannot place any hindrance in the way of an aggrieved
person seeking to approach this Court. This is logical enough for it is against
State action that Fundamental Rights are claimed.
But the guarantee goes no further at least on
the terms of Art. 32. Having reached this Court, the extent or manner of
interference is for the Court to decide. It is clear that every case does not
merit interference. That must always depend upon the facts of the case. In
dealing with cases which have come before it, this Court has ,already settled
many principles on which it acts. A few of them may be mentioned here.
This Court does not take action in cases
covered' by the ordinary jurisdiction of the civil courts, that is to say, it
does not convert civil and criminal actions into proceedings for the obtainment
of writs. Although there is no rule or provision of law to prohibit the exercise
of its extraordinary jurisdiction this Court has always insisted upon recourse
to ordinary remedies or the exhaustion of other remedies. It is in rare cases,
where the ordinary process of law appears to be inefficacious, that this Court
interferes even where other remedies are available. This attitude arises from
the acceptance of 'a salutary principle that extraordinary remedies should not
take the place of ordinary remedies.
Then again this Court refrains from acting
under Art. 32 if the party has already moved the High Court under Art.
226. This constitutes 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 831 doubt is public. policy which Coke summarised as
"interest re-public as res judicates 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 better remedy is to move the High Court under Art.
226 which can go into the controversy more
comprehensively than this Court can under Art. 32.
It follows, therefore, that this Court puts
itself in restraint in the matter of petition under Art. 32 and this practice
has now become inveterate. The question is whether this Court will inquire into
belated and stale claims or take note of evidence of neglect of one's own
rights for a long time? I am of opinion that not only it would but also that it
should. The party claiming Fundamental Rights must move the Court before other
rights come into existence. The action of courts cannot harm innocent parties
if their rights emerge by reason of delay on the part of the person moving the
Court. This principle is well-recognised and has been applied by Courts in
England 'and America.
The English and American practice has been
outlined in Halsbury's Laws of England and Corpus Juris Secundum. It has been
mentioned by my brethren in their opinions and I need not traverse the same
ground again except to say this that Courts of Common Law in England were bound
by the Law of Limitation but not the Courts of Chancery. Even so the Chancery
Courts insisted on expedition. It is trite learning to refer to the maxim
"delay defeats equity" or the Latin of it that the Courts help those
who .are vigilant and do not slumber over their rights. The Courts of Chancery,
therefore, frequently applied to suits in equity the analogy of the law of
Limitation applicable to actions at law and equally frequently put a special
limitation of their own if they thought that the suit was unduly delayed. This
was independently of the analogy of law relating to limitation.
The same practice has been followed in the
United States.
In India we have the Limitation Act which
prescribes different periods of limitation for suits, petitions or
applications. There are also residuary articles which prescribes limitation in
those cases where no express period is provided. If it were a matter of a suit
or application, either an appropriate article or the residuary article
L6Sup.C.I./69--2 832 would have applied. But a petition under Art. 32 is not a
suit and it is also not a petition or an application to which the Limitation
Act applies. To put curbs in the way of enforcement of Fundamental Rights
through legislative action might well be questioned under Art. 13(2). 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 follow from case to case. There is no lower limit and there
is no upper limit. A case may be brought within Limitation Act by reason of
some Article but this Court need not necessarily give the total time to the
litigant to move this Court under Art. 32. Similarly in a suitable case this
Court may entertain such a petition even after a lapse of time. It will all
depend on what the breach of the Fundamental Right and the remedy claimed ,are
and how the delay arose.
Applying these principles to the present case
what do I find ? The petitioner moved the High Court for relief on the ground
that the recovery from him was unconstitutional. He set out a number of grounds
but did not set out the ground on which ultimately in another case recovery was
struck down by this Court. That ground was that the provisions of the Act were
unconstitutional. The question is: can the petitioner in this case take
advantage, after a lapse of a number of years, of the decision of this Court ?
He moved the High Court but did not come up in appeal to this Court.
His 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
he in his turn got the statute declared unconstitutional, and got a favorable
decision. If I were to hold otherwise, then the decision of the High Court in
any case once adjudicated upon and acquiesced it may be questioned in a fresh
litigation revived only with the 'argument, that the correct position was not
known to the petitioner at the time when he abandoned his own litigation. I
,agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is
no question here of a mistake of law entitling the petitioner to invoke analogy
of the Article in the Limitation Act.
The grounds on which he moved the Court might
well have impressed this Court which might have also have decided the question
of the unconstitutionality of the Act 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.
Art. 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.(1),
and Amalgamated Coalfields Ltd. v. Janapada Sabha, Chindwara(2). I understand
that one of the fundamental principles of administration of justice is that,
apart from express provisions to the contrary, stale claims should not be given
effect to But what is a stale claim ? It is not denied that the Indian Limitation
Act does not directly apply to a petition under Art. 32. Both the English
Courts and the American Courts were confronted with a similar problem. In the
United States the Federal Courts of Equity solved the problem thus:
(1) [1962] 1 S.C.R. 574. (2) A.I.R. 1964 S.C.
1013, 1018.
834 "Except, perhaps, where the-statute
by its express terms applies to suits in equity as well as to actions at law,
or where the jurisdiction of law and equity is concurrent, the rule appears to
be that Federal courts sitting in equity are not bound by state statutes of
limitation. Nevertheless, except where unusual conditions or extraOrdinary
circumstances render it equitable to do so, the Federal courts usually act in
analogy to the state statutes of limitation applicable to cases of like
character." (Vol 34, American Jurisprudence, Limitation of Actions, s
54.") In Courts of Admiralty, where the statutes of limitation do not
control proceedings, the analogy of such statutes is ordinarily followed unless
there is something exceptional in the case. (ibid) Story on Equity Jurisprudence
states the legal position thus:
"It was, too, a most material ground, in
all bills for an account, to ascertain whether they were brought to open and
correct 'errors in the account recenti facto; or whether the 'application was
made after a great lapse of time. In cases of this sort, where the demand was
strictly of a legal nature, or might be cognizable at law, courts of equity
governed themselves by the same limitations as to entertain such suits as were
prescribed by the' Statute of Limitations in regard to suits in courts of
common law in matters of account. If, therefore, the ordinary limitation of
such suits at law was six years, courts of equity would follow the same period
of limitation. In so doing, they did not act, in cases of this sort (that is,
in matter of concurrent jurisdiction) so much upon the ground of analogy to the
Statute of Limitations, as positively in obedience to such statute. But where
the demand was not of a legal nature, but was purely equitable; or where the
bar of the statute was inapplicable;
courts of equity had another rule, rounded
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 en- 835 forcement 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
presence 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 Chancery acted on the analogy of Statute of
Limitation (vide Halsbury, Vol. 14, p. 647, Art. 1190).
It seems to me, however, that the above
solution is not quite appropriate for petitions under Art. 32. A delay of 12
years or 6 years would make a strange bed-fellow with a direction or order or
writ in the nature of mandamus, certiorari and prohibition. Beating in mind the
history of these writs I cannot believe that the Constituent Assembly had the
intention that five Judges of this Court should sit together to enforce a
fundamental right at the instance of a person, who had without any reasonable
explanation slept over his rights for 6 or 12 years. The history of these writs
both in England and the U.S.A. convinces me that the underlying idea of the
Constitution was to provide an expeditious and authoritative remedy against the
inroads of the State. If a claim is barred under the Limitation Act, unless
there are exceptional circumstances, prima facie it is a stale claim and should
not be entertained by this Court. But even if it is not barred under the/radian
Limitation Act, it may not be entertained by this Court if on the facts of the
case there is unreasonable delay. For instance, if the State had taken
possession of property under a law alleged to be void, and if a petitioner
comes to this Court 11 years after the possession was taken by the State, I
would dismiss the petition on the ground of delay, unless there is some
reasonable explanation. The fact that a suit for possession of land would still
be in time would not be relevant at all.
It is difficult to lay down a precise period
beyond which delay should be explained. I favour one year because this Court should
not be approached lightly, and competent legal 'advice should be taken and pros
and cons carefully weighed before coming to this Court. It is common knowledge
that appeals and representations to the higher authorities take time; time
spent in pursuing these remedies may not be excluded under the Limitation Act,
but it may ordinarily be taken as a good explanation for the delay.
It is said that if this was the practice the
guarantee of Art. 32 would be destroyed. But the article nowhere says that a
petition, howsoever late, should be entertained and a writ or order or 836
direction granted, howsoever remote the date of infringement of the fundamental
right. In practice this Court 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 Art. 226 this Court observed in State of
Madhya Pradesh v. Bhailal Bhai(1):
"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 Art. 226 of the Constitution." In State of
Kerala v.. Aluminium Industries(2) Wanchoo, J., speaking on behalf of a large
Bench of this Court, observed:
"There is no doubt in view of the
decision of this Court in Sales Tax Officer v. Kanhaiyalal(3) that money paid
under a mistake of law comes within the word 'mistake' in section 72 of the
Contract Act and there is no question of estopped when the mistake of law is
common to both the parties, which was the case here inasmuch as the respondent
did not raise the question relating to Article 286 of the Constitution and the
Sales Tax Officer had no occasion to consider it. In such a case where tax is
levied by mistake of law it is ordinarily the duty of the State subject to any
provision in the law relating to sales tax (and no such provision has been
brought to our notice) to refund the tax. If refund is not made, remedy through
court is open subject to the same restrictions and also to the period of
limitation (see Article 96 of the Limitation Act, 1908), namely, three years
from the date when the mistake becomes known to the person who has made the
payment by mistake [see State of Madhya Pradesh v.
Bhailal(1)]. In this view of the matter it
was the duty of the State to (1) [1964] 6 S.C.R. 261,271-72.
(2) 16 S.T.C. 689, 692, (3) [1959] S.C.R.
1350.
837 investigate the facts when the mistake
was brought to its notice and to make a refund if mistake was proved and the
claim was made within the period of limitation." But these cases cannot
directly apply to petitions under Art. 32 because they proceed from the premise
that the remedy is discretionary under Art. 226.
Coming to the facts of this case, which have
been stated in detail by Mitter, J., it seems to me that the delay in coming to
this Court has been adequately explained. In brief, the facts are these: The
Sales Tax Officer, by his order dated March 17, 1958, forfeited a sum of Rs.
26,563.50 under s. 21 (4) of the Bombay Sales Tax Act (Bombay Act III of 1953),
which provision is similar to s. 12A(4) of the Bombay Sales Tax Act, 1946. The
petitioner promptly filed a writ petition in the Bombay High Court challenging
this order. His petition was dismissed on November 28, 1958. He also failed in
appeal before the Division Bench on July 7, 1959. An order of attachment
followed. The petitioner paid the sum of Rs. 26,563.50 in various installments
from October 3, 1959, to August 8, 1960. By letter dated January 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(x) held on
December 2, 1963, that s. 12A(4) of the Bombay Sales Tax Act, 1946, was valid
and did not violate Art. 19(1) (f) as it was saved by Art. 19(5). On September
29, 1967, this Court, on appeal, in Kantilal Babulal v.H.C. Patel Sales Tax
Officer(2) struck down this provision as it infringed Art.
19(1)(f). On February 9, 1968, four
petitioners--hereinafter compendiously referred to as the petitioner 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 s. 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 petitioner was mistaken in thinking that the money was liable to
be refunded under a valid law. Nobody has urged before us that the grounds
which he had raised before the High Court were sound.
The petitioner had 'attempted to raise before
the Bombay High Court the following grounds:
(1) 16 S.T.C. 973. (2) 21 S.T.C. 174.
838
1. Inasmuch as the sum of Rs. 26,563.50 was
paid by way of refund under the Bombay Sales Tax Act 1946, the taxing
authorities had exceeded their power under s. 21 (4) of the Act of 1953, in
forfeiting the said sum of money.
2. Assuming that the respondent had power to forfeit
the sum under the Act of 1953, it was strictly limited to taxes payable trader
the provisions of the Act .and as no tax was payable on outside sale the
authorities had no power to forfeit the sum of Rs. 26,563.50.
3.
4. Even assuming while denying that the
respondent had power to forfeit the sum of Rs.
26,563.50, the power to forfeit an amount as
a tax presupposes a power to impose a tax and inasmuch as on a proper
construction of the relevant provisions of the Constitution no State
Legislature had at any time a power to impose tax on the aforesaid
transactions, the power to forfeit tax in respect of those transactions is
ultra vires the State Legislature." The learned Single Judge held:
"This appears to me to be a gross case
where even if I was of the opinion that the order is invalid and involved
violation of fundamental rights would not in my discretion interfere by way of
issuing a writ. I 'am not depriving the petitioner of any other appropriate
remedy. I have, therefore, decided to dismiss this petition on that single
ground." The Division Bench, on appeal, decided on the limited ground that
"Mr. Justice K.K. Desai having exercised his discretion no Case is made
out for interference with the exercise of that discretion." The petitioner
rightly did not file an appeal to this Court for he would have had little
chance of succeeding.
Suppose a petitioner challenges a provision
of the Sales Tax Act before the High Court on the ground that it does not fall
within List II or List III of the Seventh Schedule. He fails and pays the tax
and does not appeal to the Supreme Court. Ultimately, in another petition, the
provision is struck down under Art. 14 or Art. 19, a point which he and his
lawyers never thought of All assessees who had paid tax without challenging the
provision would be entitled to approach this Court under Art. 32 and claim a
refund (see Sales Tax Officer, Benaras v. Kanhaiya Lal Mukundlal Saraf) (1).
But why not the assessee who applied to (1) [1959] S.C.R. 1350.
839 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 Art. 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 Art. 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 on
which this Court ultimately strikes down the provision, never struck him or his
lawyer or the Court. I cannot uphold this contention.
In my opinion the petitioner was under a
mistake of law, when he paid up, the mistake being that he thought that s.
12A (4) was a valid provision in spite of its
imposing unreasonable restrictions. This mistake he discovered like 'all
assessees when this Court struck down s. 12A(4) of the Bombay Sales Tax Act. He
has come to this Court within six months of that day and there is no delay.
The petition is accordingly allowed and the
impugned order dated March 17, 1958, quashed and the respondent directed to
refund the amount. Under the circumstances there will be no order as to costs.
Bachawat, J. I have had the advantage of
reading the judgment prepared by G.K. Mitter, J. For the reasons given in this
judgment, 1. agree with the order proposed by him.
As the earlier petition filed in the High
Court was not dismissed on the merits, the present petition is not barred by
res judicata or principle analogous thereto.
The petitioners realised Rs. 26,563.50 P from
their customers outside Bombay on account of sales tax. The Sales Tax Officer
by his order dated March 17, 1958 forfeited this sum under s. 21 (4) of the
Bombay Sales Tax Act 3 of 1953. On March 28, 1958 the petitioners filed a writ
petition' in the Bombay High Court seeking to restrain the Sales Tax Officer
from recovering the amount. They pleaded that they were not liable to pay the
amount, that s. 21 (4) was ultra vires the powers of the State legislature and
that the order of forfeiture was violative of Arts. 19(1) (f) and 265 of the
Constitution and was invalid. On November 28, 1958, K.K. Desai, J. dismissed
the petition.
He held that the petitioners having defrauded
other persons were not 840 entitled to any relief. The petitioners filed an
appeal against the order. In the memorandum of appeal, they pleaded that the
threatened levy was in violation of Arts.
19(1)(f) and 31 of the Constitution. The
appeal was dismissed on July 13, 1959. In the meantime on December 24, 1958 the
Collector of Bombay attached the petitioners' properties. Between August 3,
1959 and August 8, 1960 the petitioners paid the sum of Rs. 26,563.50 P to the
Collector of Bombay. In Civil Appeal No. 126 of 1966, Kantilal Bapulal &
Bros. v.H.C. Patel decided on September 29, 1967 this Court struck down s.
12(A)(4) of the Bombay Sales Tax Act, 1946 as unconstitutional and violative of
Art. 19 ( 1 ) (f). The arguments in the present 'appeal proceeded on the
assumption that s. 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 Art. 32 of the Constitution claiming refund of Rs.
26,563.50 P under s. 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 Art. 32 of the Constitution.
Subject to questions of limitation, waiver
and estoppel, money paid under mistake or coercion may be recovered under s. 72
of the Indian Contract Act. The fight to relief under s. 72 extends to money
paid under mistake of law, i.e., "mistake in thinking that the money paid
was due when, in fact, it was not due." Shiva' Prasad Singh v. Srish
Chandra Nandi ( 1 ), Sates Tax Officer v. Mukundlal Saraf(2).
In my opinion, the petitioners were' not
labouring under any mistake of law when they made the payments. As early as
March 1958 they filed a wait petition for restraining the levy under the order
dated March 17, 1958 claiming that the order was invalid and that s. 21 (4) of
the Bombay Sales Tax Act, 1953 was ultra vires and unconstitutional. They might
not have then known the precise ground upon which the Court subsequently struck
down a similar provision of law, but they had discovered presumably under legal
advice that they were not legally bound to make any payment. After the writ
petition was dismissed their properties were attached and they made the
payments under coercion in 1959 and 1960. The payments were not made under a
mistake of law or as pointed out in Shiva Prasad Singh's Case(1) under a
mistake in thinking that the money was due. They cannot claim any relief on the
ground of mistake.
(1) [1949] L.R. 76 I.A. 244, 254. (2) [1959]
S.C.R.
1350, 1361, 1362.
841 As we are assuming in favour of the
petitioners that s. 21 (4) of the Bombay Sales Tax Act 1953 as invalid, we must
hold that they made the payments under coercion. A suit for the recovery of the
money on this ground instituted on January 1, 1964 would be governed by Article
24 of the Limitation Act, 1963 and the period of limitation would be three years
from the dates in 1959 and 1960 when the money was received by fife
respondents. The petitioners cannot obtain an extension of fife period under s.
30(a) of the Limitation Act, 1963 as Art. 62 of the Indian Limitation Act, 1908
prescribed fife same period of limitation. A suit for recovery of tax or other
levy illegally collected was governed by Art. 62 and not by Art. 120, see A1.
Venkata Subba Rao v. State Andhra Pradesh(1). Accordingly a suit for the
recovery of money instituted in February 1968 would be barred by limitation.
If the petitioners could claim relief on the
ground of mistake the suit would be governed by Art. 96 of fife Indian
Limitation Act, 1908 and time would begin to run from the date when the mistake
becomes known to the plaintiff. In State of Madhya pradesh v. Bhailal Bhai
& Ors.(2), and State of Kerala v. Aluminium Industries Ltd.(3) it was held
that Art. 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 s. 26(c) of the Limitation Act, 1939 (2 & 3
Geo. 6, c. 21). It was held in Re Diplock(4) that sec. 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(5). In some American
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, vol. 54, Limitation of Actions, Article
198, page 202, Morgan v. Jasper County(6), and the cases referred to therein.
It is not necessary to pursue the matter any further as the petitioners cannot
claim relief on the ground of mistake. Accordingly, I express no opinion on the
scope of s. 17(c) of the Limitation Act, 1963, For the reasons already stated a
suit for the recovery of the money instituted in February 1968 would be barred
by limitation.
(1) [1965] 2 S.C.R. 577, 612-620. (2) [1964]
6 S.C.R.
261, 274.
(3) [1965] 16 S.T.C. 689, 692. (4) [1948] Ch.
465, 515-516.
(5) [1951] A.C. 251,277. (6) 11 A.L.R.
634:274 N.W. 310.
842 The next and the more fundamental
question is whether in the circumstances the Court should give relief in a writ
petition under Art. 32 of the Constitution. No period of limitation is
prescribed for such a petition. The right to move this Court for enforcement of
fundamental rights is guaranteed by Art. 32. The writ under Art. 32 issues as a
matter of course if a breach of a fundamental right is established. Technical
rules applicable to suits like the provisions of s. 80 of the Code of Civil
Procedure are not -applicable to a proceeding, under Art. 32. But this does not
mean that in giving relief under Art. 32 the Court must ignore and trample
under foot all laws of procedure, evidence, limitation, res judicata and the
like. Under Art.
145 (1 ) (c) rules may be framed for
regulating the practice and procedure in proceedings under Art. 32. In the
absence of such rules the Court may adopt any reasonable rule of procedure.
Thus a petitioner has no right to move this Court under Art. 32 for enforcement
of his fundamental right on 'a petition containing misleading and inaccurate
statements and if he files such a petition the Court will dismiss it, see W.P.
No. 183 of 1966, Indian Sugar and Refineries Ltd. v. Union of India decided on
March 12, 1968. On grounds of public policy it would be intolerable if the
Court were to entertain such a petition. Likewise the Court held in Daryao v.
The State of U.P.(1) that the general principles of res judicata applied to a
writ petition 'under Art. 32. Similarly, this Court has summarily dismissed
innumerable writ petitions on the ground that it was presented after
unreasonable delay.
The normal remedy for recovery of money paid
to the State under coercion or mistake of law is by suit. Articles 32 and 226
of the Constitution provide concurrent remedy in respect of the same claim. The
extraordinary remedies under the Constitution are not intended to enable the
claimant to recover monies, the recovery of which by suit is barred by
limitation. Where the remedy in a writ application under Art. 32 or Art. 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 statue 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, vol. 14, page 647, Art. 1190, Knox v. Gye(2).
Likewise the High Court acts on the analogy of the statute of limitation in a
proceeding under Art. 226 though the statute does not expressly apply to the
proceeding. The Court will almost always refuse to give relief under Art. 226
if the [1962] 1 S.C.R. 574. C2) L.R. 5 H.L. 656, 674.
843 delay is more than the statutory period
of limitation, see Stale of. Madhya Pradesh v. Bhailal Bhai(1).
Similarly this Court acts on the analogy of
the statute of limitation in respect of a claim under Art. 32 of the
Constitution though such claim is not the subject of any express statutory bar
of limitation. If the right to a property is extinguished by prescription under
s. 27 of the Limitation Act, 1963 the petitioner has no subsisting right which
can be enforced under Art. 32 (see Sobhraj Odharmal v. Slate of Rajasthan(2).
In other cases where the remedy only and not the right is extinguished by
limitation, it is on grounds of public policy that the Court refuses to
entertain stale claims under Art. 32. The statutes of limitation are rounded on
sound principles of public policy. As observed in Whitley Stoke's Anglo-Indian
Codes, Vol. 11 p. '940: "The law is rounded on public policy, its aim
being to secure the quiet of the community, to suppress fraud and perjury, to
quicken diligence, and to prevent oppression." In Her Highness Ruckmaboye
v. Lulloobhoy Mottickchund(a) the Privy Council observed that the object of the
statutes of limitation was to give effect to the maxim, "interest
reipublicae ut sit finis litium" (Co Litt 303)--the interest of the State
requires that there should be a limit to litigation. The rule of res judicata
is rounded upon the same rule of public policy, see Daryao v. State of U.P.(4)
at page 584. The other ground of public policy upon which the statutes of
limitation are rounded is expressed in the maxim "vigilantibus non
dormientibus jura subveniunt" (2 Co. Inst. 690)--the laws aid the vigilant
and not those who slumber. On grounds of public policy the Court' applies the
principles of res judicata to writ petitions under Art.
32. On like grounds the Court acts on the
analogy of the statutes of limitation in the exercise of its jurisdiction under
Art. 32. It follows that the present petition must be dismissed.
Miller, J. The facts leading up to the filing
of the petition under Art. 32 of the Constitution are as follows.
The first petitioner before us is a
registered partnership firm (hereinafter referred to as 'the firm') carrying on
business in Bombay and the other petitioners are partners of the said firm. The
firm has been carrying on business as a dealer in and a trader of textiles and
art silk etc. It was registered as a dealer 'and 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 5 of 1946, the Bombay
Sales Tax Act 3 of 1953 and the Bombay Sales Tax Act 51 of 1959.
In the course of assessment for the
assessment period commencing on April 1, 1949 and ending on 31st October 1952
the [1964] S.C.R. 261. 273-74. (2) [1963] Supp. 1 S.C.R.
99, 111.
[1851-52] 5 M.I.A., 234. 251. (4) [1962] 1 S.C.R.
574.
844 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 Art. 286 of the Constitution. He therefore directed that
the said sum be refunded to the firm on a proper application.
This appellate order was passed on November
7, 1956. The firm preferred an application for refund of Rs. 26,563.50 on
November 13, 1956 whereupon the Assistant Collector (the appellate authority)
simultaneously with the issue of 'a cheque for the above amount by way of
refund wrote a letter dated May 11, 1957 to the effect that the petitioner
should produce before him within one month of the date of the cheque receipts totaling
Rs. 26,563.50 from its customers outside Bombay State to show that the refund
had been passed on to them. It appears that the petitioner did not fulfil this
condition and a notice dated 28th January 1958 was issued calling upon the firm
to show cause why the said sum of Rs. 26,563.50 should not be forfeited under
s. 21(4) of the Bombay Sales Tax Act, 1953. In reply thereto, the firm stated
by letter dated February 7, 1958 that it had collected from its customers
outside the State of Bombay the said sum of money and "under an honest
mistake of law had paid the same to the sales tax authorities." The firm
went on to add that the order for refund had been made only when the
authorities were satisfied that 'it was not liable to pay the said sum but the
latter had insisted upon a condition that the firm should in its turn refund
the said amount to its customers from whom the collection had been made. The
letter records that the firm "had agreed to that condition under coercion
even though in ,law the authorities were bound to refund the said ,amount
without any such condition." Further the firm's case in that letter was
that the authorities had "no right to forfeit any amount collected by a
dealer under a mistake of law in respect of these transactions" and the
threat to forfeit the amount on the ground that it had not been refunded to the
firm's customers was without the authority of law.
The order on the show cause notice passed on
March 17, 1958 records that though given sufficient opportunity to produce
stamped receipts from its customers the firm had failed to do so and had
thereby contravened the provisions of s. 21(2) of the Bombay Sales Tax Act. The
firm was directed to refund the said sum to 845 the Reserve Bank of India on or
before April 1, 1958 failing which it would be recoverable as arrears of land
revenue from the firm together with penalty. The order was purported to be
passed under s. 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
Art. 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 violating of
Art. 19(1)(g) and Art. 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 were 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 petitioner company." The Judge further observed that the
petitioner has not referred to fundamental rights of any kind in the petition
and said:
"This appears to me to be a gross case
where even if I was of the opinion that the order is invalid and involved
violation of fundamental rights, I would not in my discretion interfere by way
of issuing a writ.
I am not depriving the petitioner of any
other appropriate remedy. I have therefore decided to dismiss this petition on
that single ground." No copy of the petition in Pasha Bhai Patel and
Company's case is before us but the present petitioner, as shown already, did
complain of violation of Art. 19(1)(g) and Art. 265 of the Constitution besides
contending that the order was "ultra vires, bad and inoperative in
law." Dealing with the petition of the firm the learned Judge said that
"there was no merit in the case and justice did not lie on the side of the
petitioner" and for reasons given in Pasha Bhai Patel and Co.'s case the
petition was dismissed.
The firm went up in appeal to the same High
Court. A note may be taken of some of the grounds in the memorandum of appeal
filed by the firm. They were inter alia :-- "(13) The learned Judge erred
in not deciding the petition on merits even when there was a question of
violation of fundamental rights.
846 (16) The learned Judge erred in holding
that this was a gross case where even if he had 'been of the opinion that the
order was invalid or that it involved violation of fundamental rights, he would
not in his discretion interfere by way of issuing a writ.
(30) The learned Judge failed to appreciate
that the order of forfeiture was nothing but the deprivation of property
without the authority of law and the action of the respondent was an
unreasonable restriction on the fundamental rights of the petitioner under Art.
19(1)(f) and Art. 31 of the Constitution of India." In dismissing the
appeal the learned Judges of the Division Bench observed:
"The appellant claims to retain with
himself amounts to which he has no claim and the appellant is seeking to come
before this Court to retain with himself amount which he has obtained from the
sales tax authorities on a representation that he is going to refund the same
and which he has not refunded. Mr. Justice K.K. Desai was of the view that the
claim made by the appellant was a gross claim and even if it involved 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
Jud Ges 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 an}, fundamental rights of the partners of the firm.
They merely exercised their discretion on the question of issue of a writ under
Art. 226 of the Constitution in view of the firm's conduct in obtaining an
order for refund of the amount mentioned and later on refusing to fulfill the
condition imposed.
It does not appear that the firm took any
further steps in the court of law for vindicating its position before filing
the present 847 writ petition. It received a notice dated December 18, 1958
under the Bombay City Land Revenue Act 2 of 1876 calling upon it to pay the
said sum of Rs. 26,563.50 to the State of Bombay failing which proceedings were
threatened to be taken by attachment and sale of its property and by other
remedies provided by s. 13 of the Land Revenue Act. It appears that the
Collector of Bombay actually issued an order of attachment on the right, title
and' interest of two of the partners of the firm including the goodwill and
tenancy right in the premises where the business was carried on. The firm paid
the sum of Rs. 26,563.50 in various instalments beginning on October 3, 1959
and ending on August 8, 1960.
In paragraph 8 of the present petition to
this Court it is submitted that the petitioners "paid the sum to the State
of Bombay under coercion 'and/or mistake of law." The petitioners also
state they "did not know that the sections of the Sales ,Tax Acts under which
the said sum was sought to be forfeited and/or recovered and/or retained were
ultra vires." In paragraph 10 of the petition it is stated that the
petitioners discovered their mistake in law when they came to know of the
decision of this Court dated September 29, 1967 that s. 12A(4) of the Bombay
Sales Tax Act 5 of 1946 was ultra vires. In paragraph 14 of the petition the
firm also states:
"that the said sum had been forfeited
and/or recovered and/or retained by the respondents from the petitioners in
violation of Art. 265, Art. 31 and Art. 19 ( 1 ) (f) of the Constitution. The
fundamental rights of the petitioners have thus been violated.
The petitioners submit that they have been
deprived of their property, to wit, the said sum, by the respondents without
any authority in law and contrary to the fundamental rights guaranteed to the
petitioners by Arts.
19(1)(f) and 31 of the Constitution."
The grounds of law under which the firm claimed that the action of the State of
Bombay and the respondents in recovering, retaining, forfeiting and not
returning the said sum were void and invalid in law are set forth in paragraph
15 of the petition. 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. Patei(1)
dated September 29, 1967, it is not necessary to examine the validity or
otherwise of the provisions of s. 12A(4) of the Act of 1946 or the
corresponding section of the Act of 1953 i.e. s. 21 (4). The appeal of Kantilal
Babulal and Bros. v.H.C. Patei(1) decided by this Court on September 29, 1967
was from a decision of the High Court of Gujarat reported in 16 Sales Tax (1)
21 S.T.C. 174. L6Sup.C.I./69-3 848 Cases 973. The Gujarat High Court had held
that s. 12A(4) was saved by Art, 19 (5) of the Constitution. The appeal by the
assessee was allowed by this Court on the short ground that assuming that s.
12A(4) was a penal provision within the legislative competence of the
legislature, it was violative of Art. 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 provide for making any order and on a
reasonable interpretation of the impugned provision. it was observed "that
the power conferred under s. 12A(4) was unguided, uncanalised and
uncontrolled." On the above reasoning the Court held that the provisions
in s.
12A(4) were not a reasonable restriction on
the fundamental right guaranteed under Art. 19 ( 1 ) within the meaning of Art.
19 ( 5 ).
To establish that the payments totalling Rs.
26,563.50 made in the years 1959 and 1960 were under a mistake of law, the
petitioners must satisfy the court that they paid the money under a genuine
belief that the law allowed it but that they later discovered that they were
under no legal obligation to pay. Repayment of money paid under a mistake is
provided for by s. 72 of the Indian Contract Act occurring in Chapter V of the
said Act which deals with certain relations resembling those created by a
contract. It reads:
"A person to whom money has been paid,
or anything delivered, by mistake or under coercion, must repay or return
"" It was laid down by the Judicial Committee of the Privy Council in
Sri Sri Shiba Prasad Singh, deceased, now represented by Kali Prasad Singha v.
Maharaja Srish Chandra Nandi(x) that:
"Payment 'by mistake' in s. 72 must
refer to a payment which was not legally due ,and which could not be enforced:
the mistake is thinking that the money paid was due when in fact it was not
due." The above decision of the Judicial Committee was relied on by this
Court in Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf(2) where it was
said:
"The Privy Council decision has set the
whole controversy at rest and if it is once established that the payment, even
though it be of a tax, has been made by the party labouring under a mistake of
law the party is entitled to recover the same and the party receiving the (1)
76 I.A. 244, 254. (2) [1959] S.C.R. 1350, 1363.
849 same is bound to repay or return it. No
distinction can therefore be made in respect of a tax liability and any other
liability on a plain reading of sec. 72 of the Contract Act .........
In Mukundlal's case(1) the respondent firm
had paid sales tax in respect of its forward transactions in pursuance of the
assessment orders passed by the Sales Tax Officer for the years 1949 to 1951.
The levy of sales tax on forward transactions being held to be ultra vires by
the High Court of Allahabad by its judgment delivered on February 27, 1952 in
the case of Budh Prakash Jai Prakash v.S.T.O.
Kanpur, 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 22, 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(2). 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 as by the decision of the Allahabad High Court in Budh
Prakash Jai Prakash v. The S.T.O. Kanpur subsequently confirmed by this Court
in S.T.O.
Pilibhit v. Budh Prakash Jai Prakash(2 ) not
having been known to the parties at the relevant time. ' This mistake of law
had become apparent only on May 3, 1954 when this Court confirmed the decision
of the Allahabad High Court in Sales Tax Officer, Pilibhit v.
Budh Prakash Jai Prakash(2) observing:
"on that position being established the
respondent became entitled to recover back the said amounts which had been paid
by mistake of law. The state of mind of the respondent would be the only thing
relevant to consider in this context and once the respondent established that
the payments were made by it under a mistake of law .... it was entitled to
recover back the said amounts. and the State of U.P. was bound to repay or
return the same to the respondent irrespective of any other consideration
...... On a true interpretation of s. 72 of the Indian Contract Act the only
two circumstances there indicated as 'entitling the party to recover the money
(1) [1959]S.C.R. 1350. (2) [1955] 1 S.C.R.
243.
850 back are that the moneys must have been
paid by mistake or under coercion." In State of Madhya pradesh v. Bhailal
Bhai(1) this Court had to deal with 31 appeals arising out of an equal number
of applications filed before the Madhya Pradesh High Court contending that the
taxing provisions under which the tax was assessed and collected from the
petitioners (the Madhya Pradesh Sales Tax Act) infringed Art. 301 of the
Constitution and did not come within the special provision of Art. 304(a). In
all the petitions a prayer was made for refund of the taxes collected. The High
Court allowed the prayer for refund in 24 applications but rejected the same in
the other applications. This Court agreed with the decision of the High Court
that the imposition of the tax contravened the provisions of Art. 301 of the
Constitution and was not within the saving provisions of Art. 304('a) and on
that view observed that the payment was made under a mistake within s. 72 of
the Indian Contract Act and so the Government to whom the payment had been made
must repay it.
The tax provisions under which these taxes
had been assessed and paid were declared void by the High Court of Madhya
Pradesh in their decision in Mohammad Siddique v. The State of M.P. on 17th
January, 1956.The respondeats 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 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 Art. 226 is not in- tended to
supersede completely the modes of obtaining relief by an action in a civil
court or to deny defenses legitimately open in such actions. It has been made
clear more than once that the power to give relief under Art. 226 is a
discretionary power. This is especially true in the case of power to issue
writs in the nature of mandamus. Among the several matters which the (Courts
rightly take into consideration in the exercise of that discretion is the delay
made by the aggrieved party (1)[1964] 6 S.C.R 261 851 in seeking this special
remedy and what excuse there is for it. Thus, where, as in these cases, a
person comes to the Court for relief under Art. 226 on the allegation that he
has been assessed to tax under a void legislation and having paid it under a
mistake is entitled to get it back, the court, if it finds that the assessment
was void, being made under a void provision of law, and the payment was made by
mistake, is still not bound to exercise its discretion directing repayment.
Whether repayment should be ordered in the
exercise of this discretion will depend in each case on its own facts and
circumstances.
It is not easy nor is it desirable to lay
down any rule of universal application. 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 Art. 226 of the Constitution." In State of
Kerala v. Aluminium Industries Ltd.(1) the respondents after submitting returns
under the Sales Tax Act for the period May 30, 1950 to March 31, 1951 showing a
net turnover exceeding Rs. 23 lakhs and depositing necessary sales tax claimed
a refund on the ground of having discovered their mistake soon after March 7,
1951. The petition to the Kerala High Court under Art. 226 of the Constitution
was opposed on behalf of the State on various grounds. Holding that money paid
under a mistake of law was recoverable, this Court called for a finding from
the Sales Tax Officer on the question 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
Art. 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 (1) 16 S.T.C. 689.
852 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 Art. 19(1)(g) and Art. 265 of the Constitution 'and
praying for the necessary reliefs. They did not accept the decision of the
learned single Judge of :the Bombay High Court under Art. 226 of the
Constitution but filed their appeal raising practically the same contentions as
they have done in the present petition except that they did not state having
discovered any mistake on 'a perusal of the decision of any court of law. The
grounds of appeal to the Divisional Bench of the Bombay High Court are
illustrative of the frame of mind and viewpoint of the petitioners then. They
complained about the violation of their fundamental rights, the illegality of
the order of forfeiture and in particular mentioned the unreasonable
restriction on their fundamental rights enshrined in Art.
19(1)(f) of the Constitution. Further, they
had the benefit of the judgment of the appeal Bench of the Bombay High Court
that the case was not being decided on the merits at all and even if there was
any violation of the fundamental rights of the petitioners the exercise of
discretion by the learned single Judge would not be interfered with in appeal.
It was therefore clear to the petitioners
that there was no adjudication as to their fundamental rights or the merits of
their claim and there was nothing to prevent the petitioners then from coming
up to this Court by preferring an appeal from the judgment of the Bombay High
Court or by instituting a suit for declaration of the order of forfeiture
illegal and ultra vires and for an injunction restraining the State from giving
effect thereto. Before the Bombay High Court the petitioners questioned the
legality of the order of forfeiture and prayed for quashing it on the ground of
the threatened invasion of their fundamental rights. On these facts it is idle
to suggest that the petitioners ever entertained any belief or thought that the
money was legally due from them. The way they asserted their position under the
law precludes any inference that they were ever influenced by a mistake of law
or that they ever failed to appreciate the correct position under the law. Even
after the decision of the Bombay High Court they did not willingly pay up the
amount forfeited but only made disbursements after an attachment had been
levied on the business including the tenancy of the premises and its good will.
They protested against the order of forfeiture not only out of court but in
court and only paid after the issue of a legal process.
853 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 misapprehension
as to his legal rights 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 rights has one of three courses
open to him. He can either make an application under Art. 226 of the
Constitution to a High Court or he can make an application to this Court under
Art.
32 of the Constitution, or he 'can file a
suit asking for appropriate reliefs. The decisions of various High Courts in
India have firmly laid down that in the matter of the issue of ,a writ under
Art. 226 the courts have a discretion and may in suitable cases refuse to give
relief to the person approaching it even though on the merits the applicant has
a substantial complaint as regards violation of fundamental rights, Although
the Limitation Act does not apply, the courts have refused to give relief in
cases of long or unreasonable delay. As noted above in Bhailal Bhai's case(1),
it was observed that the "maximum period fixed by the legislature as the
time within Which the relief by a suit in a civil court must be brought may
ordinarily be taken to be a reasonable standard by which delay in seeking
remedy under Art. 226 can be measured." On the question of delay we see no
reason to hold that a different test ought to be applied when a party comes to
this Court under Art. 32 from one applicable to applications under Art. 226.
There is a public policy behind all statutes of limitation and according to
Halsbury's Laws of England (Third Edition, Vol.
24), Art. 330 at p. 181:
"The courts have expressed at least
three different reasons supporting the existence of statutes of limitation,
namely, (1) that long dorment claims have more of cruelty than justice in them,
(2) that a defendant might have lost the evidence to disprove a stale claim and
(3) that persons with good causes of action should pursue them with reasonable
diligence." In my view, a claim based on the infraction of fundamental
rights ought not to be entertained if made beyond the period fixed (1) [1964] 6
S.C.R. 261.
854 by the Limitation Act for the
enforcement of the right by way of suit. While not holding that the Limitation
Act applies in terms. I am of the view that ordinarily the period fixed by the Limitation
Act should be taken to be a true measure of the time within which a person can
be allowed to raise a plea successfully under Art. 32 of the Constitution. Art.
16 of the Limitation Act of 1908 fixed a period of one year for a suit against
Government to recover money paid under protest in satisfaction of a claim made
by the revenue authorities on account of arrears of revenue or on account of
demands recoverable as such arrears, from the date when the payment was made.
As an attachment was levied under s. 13 of the Bombay City Land Revenue Act Ii
of 1876 it is a moot question 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(1) 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, Art. 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 s. 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:
A claim for money paid under coercion would
be covered by Art. 113 of the Limitation Act, 1963 giving a period of three
years from the first of January 1964 on which date the Act came into force. The
period of limitation for a suit which was formerly covered by Art. 120 of the
Act of 1908 would in a case like this be covered by Art. 113 of the new Act and
the suit in this case would have to be filed by the 1st January, 1967. As the
petition to this Court was presented in February 1968 a suit, if filed, would
have been barred and in my view the petitioners' claim in this case cannot be
entertained having been preferred after the 1st of (1) [1965] 2 S.C.R. 577.
855 January, 1967. The facts negative any
claim of payment under a mistake of law and are only consistent with a claim
for money paid under coercion. As the petitioners have come to this Court long
after the date when they could have properly filed a suit, the application must
be rejected.
I may also note in brief another contention
urged on behalf of the respondents that the present petition is barred by
principles analogous to res judicata. It was contended by learned counsel for
the respondents that the decisions of the Bombay High Court were speaking
orders and even if the petition to the Bombay High Court had been dismissed in
limine there would be a decision on the merits.
I am unable to uphold this contention. It was
,held in Daryao and others v. The State of U.P.(1) that when a petition 'under
Art. 226 is dismissed not on the merits but because of laches on the party
applying for the writ or because an alternative 'remedy is available to him,
such dismissal is no bar to the subsequent petition under Art. 32 except in
cases where the facts rouged by the High Court might themselves be relevant
under under Art. 32. It was pointed out in Joseph v. State of Kerala(2) that:
"Every citizen whose fundamental right
is infringed by the State has a fundamental right to approach this Court for
enforcing his right. If by a final decision of a competent Court his title to
property has been negatived, he ceases to have the fundamental right in respect
of that property and, therefore, he can no longer enforce it. In that context
the doctrine of res judicata may be invoked. But where there is no such
decision at all, there is no scope to call in its aid." The judgment of
the Bombay High Court in 1958 clearly shows that the merits of the petitioners'
claim were not being examined. I cannot 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 Art. 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
The petition therefore fails and is dismissed with costs.
(1) [1962] 1 S.C.R. 574. (2) A.I.R. 1965 S.C.
1514.
856 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 Ors.
v. The State of U.P. and Ors.(1) is inapplicable.
The principle underlying that decision as I
understand, is that the right claimed by the petitioner therein had been
negatived by a competent court and that decision having become final, as it was
not appealed against, he could not agitate the same over again. It is in that
context the principle of res judicata was relied on. A fundamental right can be
sought to be enforced by a person who possesses that right. If a competent
court holds that he has no such right, that decision is binding on him. The
binding character of judgments of courts of competent jurisdiction is in
essence a part of the rule of law on which administration of justice depends.
In view of the decision of this Court in
Kantilal Babulal and Bros. v.H.C. Patel(2) that s. 12A(4) of the Bombay Sales
Tax Act, 1946 is violative of Art. 19(1)(f) of the Constitution on the grounds
that that section did not lay down any procedure for ascertaining whether in
fact the dealer concerned had collected any amount by way of tax from its
purchasers outside the State and if so what that amount was; neither the
section nor any rule framed under the Act contemplated any enquiry much less a
reasonable enquiry in which the dealer complained of could plead and prove his
case or satisfy the authorities that their assumptions were wholly or partly
wrong and further the section also did not provide for any enquiry on disputed
questions of fact or law or for making an order, it follows that the impugned
collection was without the authority of law and consequently the same is an
exaction resulting in the infringement of one of the proprietary rights of the
petitioners guaranteed to them under Art. 19(1 )(f) of the Constitution. Hence
the petitioners have a fundamental right to approach this Court under Art. 32
of our Constitution for appropriate relief and this Court has a duty to afford
them appropriate relief. In Kharak Singh v. The State of UP and Ors.(a)
Rajagopala Ayyangar 1. speaking for the majority observed that once it is
proved to the satisfaction of this Court that by State action the fundamental
right of a petitioner has been infringed it is not only the right but the duty
of this Court under Art. 32 to afford relief to him by passing appropriate
orders in that behalf. The right given to the citizens to move this Court under
Art. 32 is itself a fundamental right and the same cannot be circumscribed or
curtailed except as provided by the Constitution. It is in- [1962] S.C.R. 574.
(2) 21 S.T.C. 174.
(3) [1964] 1 S.C.R. 332.
857 appropriate 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 Art. 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
Chief Justice Patanjali Sastri in State of Madras v.V.G. Rao(1) 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 invoked its powers had no equity in their favour. It always took
care to see that a bad case did not end in laying down a bad law. I am not
unaware of the fact that the petitioners before us have no equity in their
favour but that circumstance is irrelevant in deciding the nature of the fight
available to an aggrieved party under Art. 32 of the Constitution.
All of us are unanimous on the question that
the impugned collection amounts to an invasion of one of the fundamental rights
guaranteed to the petitioners. Our difference primarily centres round the
question whether their fight to get relief under Art. 32 is subject to any
limitation or to be more accurate whether this Court has any discretion while
exercising its jurisdiction under that Article ? As mentioned earlier a right
to approach this Court under Art. 32 is itself a fundamental right. In that
'respect our Constitution makes a Welcome departure from many other similar
Constitutions. As seen earlier a party aggrieved by the infringement of any of
its fundamental rights has a right to get relief at the hands of this Court,
and this Court has a duty to grant appropriate relief see Joseph Pothen v. The
State of Kerala(2)'. The power conferred on this Court by that Article is not a
discretionary power. This power is not similar to the power conferred on the
High Courts under Art. 226 of the Constitution, Hence laches on the part of an
aggrieved 'party cannot deprive him of the right to get relief from this Court
under Art. 32. A DiVision Bench of the Bombay High Court in Kamalabai
Harjivandas Parekh v.T.B. Desai(3) held that where a constitutionals to the
validity of a legislation is taken in a petition under Art. 226, the question
of mere delay will not affect the (1) [1952] S.C.R. 597. (2) A.I.R. 1965 S.C.
1514.
(3) [1965] Vol. 67 B.L.R.p. 85.
858 maintainability of that petition. Law
reports do not show a single instance, where this Court had refused to grant
relief to a petitioner in a petition under Art. 32 on the ground of delay.
There has been some controversy whether an
aggrieved party can waive his fundamental right. That question was elaborately
considered in Basheshar Nath v. The Commissioner of Income Tax Delhi, Rajasthan
and anr.(1) by a Constitution Bench consisting of S.R. Das, C.J. and Bhagwati,
S.K. Das, J.L. Kapur and Subba Rao, JJ. The learned Chief Justice and Kapur J.
held that there could be no waiver of a fundamental right founded on Art.. 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 111 of our Constitution.
Admittedly the provisions contained in the Limitation
Act do not
apply to proceedings under Art. 226 or Art. 32.
The Constitution makers wisely, if I may say
with respect, excluded the application of those provisions to proceedings under
Art. 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.
Golaknath and ors. v. State of Punjab and
anr.(2) 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 Limitation Act by an indirect process to control the
remedies conferred by the Constitution it would mean that what the Parliament
cannot do directly it can do indirectly by curtailing the period of limitation
for suits against the Government. We may console ourselves by saying that the
provisions of the Limitation Act will have only persuasive value but they do
not limit the power of this Court but the reality is bound to be otherwise.
Very soon the line that demarcates the rule of prudence and binding rule is
bound to vanish as has happened in the past. The fear that forgotten claims and
discarded rights may be sought to be enforced against the Government after
lapse of years, if the fundamental rights are held to be enforceable without
'any time limit appears to be an exaggerated one. It is for the party who
complains the infringement of any right to establish his right. As years roll
on his task is bound to become more and more difficult. He can enforce only an
existing right. A right may be lost due to an earlier decision of a competent
court or due to various other reasons. If a right is lost for one reason or the
other there is no right to be enforced. In this case we are dealing with an
existing right even if it can be said that the petitioners' (1) [1959] Supp. 1
S.C.R. 528. (2) [1967] 2 S.C.R. 762.
859 remedy under the ordinary law is barred.
If the decision of Bachawat and Mitter, JJ. is correct, startling results are
likely to follow. Let us take for example a Case of a person who is convicted
and sentenced to a long period of imprisonment on the basis of ,a statute which
had been repealed long before the alleged offence was committed. He comes to
know of the repeal of the statute long after the period prescribed for filing.
appeal expires. Under such a circumstance according to the decision of Bachawat
and Mitter, JJ. he will have no right-the discretion of the Court apart-to move
this Court for a writ of habeas corpus.
Our Constitution makers in their wisdom
thought that no fetters should be placed on the right of an aggrieved party to
seek relief from this Court under Art. 32. A comparison of the language of Art.
226 with that of Art. 32 will show that while under Art. 226 a discretionary
power is conferred on the High Courts the mandate of the Constitution is
absolute so far as the exercise of this Court's power under Art. 32 is
concerned. Should this Court, an institution primarily created for the purpose
of safeguarding the fundamental rights guaranteed under Part III of the
Constitution, narrow down those 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 fights to the level of other civil rights. I am
apprehensive that this decision may mark an important turning point in down
grading the fundamental rights guaranteed under the Constitution. I am firmly
of the view that a relief asked for under Art. 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 Art. 32. Considerations which are
relevant in proceedings under Art. 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 proceed under Art. 32 of the Constitution- The
rule enunciated by this court in the State of M.P.v. Bhailal Bhai(1) is only
applicable to proceedings under Art. 226.
At page 271 of the report Das Gupta, 1. who
spoke for the Court specifically referred to this aspect when he says:
"that it has been made clear more than
once that power to relief under Art. 226 is a discretionary power".
Therefore those decisions are of no
assistance to us in deciding the present case. Once it is held that the power
of this Court under Art. 32 is a discretionary power-that in nay opinion is the
result of the decision of Bachawat and Mitter JJ-then it follows that this
Court can refuse relief under Art 32 on any one of the [1964] 6 S.C.R. 261.
860 grounds on which relief under Art. 226
can be refused. Such a conclusion militates not only against the plain words of
Art. 32 but also the lofty principle underlying that provision. The resulting
position is that the right guaranteed under that Article would cease to be a
fundamental right.
Assuming that the rule enunciated by this
Court in Sales Tax Officer v. Kanhaiya Lal Mukundlal Saraf(1) and further
refined by this Court in State of M.P.v. Bhailal Bhai(") can apply to the
facts of this case even then I am of opinion that the petitioners are entitled
to the relief that they have asked for. As could be gathered from the decision
of Bachawat and Mitter, JJ., the Bombay High Court did not decide the merits of
the case in the writ petition filed by the petitioners. In that petition the
Court refused to exercise its discretion in favour of the petitioners. The
grounds on which the petitioners challenged the validity of s. 12A(4) of the
Bombay Sales Tax Act, 1946 before the High Court of Bombay have now been found
to be unsustainable by the Gujarat High Court in Kantilal Babulal and Bros.
v.H.
C. Patel(3). In the appeal against that
decision this Court did not examine those grounds. It struck down s. 12A(4) on
a wholly different ground, a ground not put forward by the petitioners in their
writ petition before the Bombay High Court. A mere impression of a party that a
provision of law may be ultra vires the Constitution cannot be equated' to
knowledge that the provision is invalid. Hope and desire are not the same
things as knowledge. A law passed by a competent legislature is bound to be
presumed to be valid until it is struck down by a competent court. The fact
that after a futile attempt to get the provision in question declared invalid
the petitioners gave up their right and submitted to the law which was
apparently valid is no proof of the fact that they knew that the provision in
question is invalid. As seen earlier that none of the grounds urged by the
petitioners in support of their contention that the provision in question is
invalid has been accepted by any court till now. Under these circumstances I
see no justification to reject the plea of the petitioners that they became
aware of the invalidity of the provision only after the decision of this Court
in Kantilal Babulal's case(4) which decision was rendered on September 29,
1967.
This petition was filed very soon thereafter.
Hence this case under any circumstance falls within the rule laid down by this
Court in Bhailal Bhai's case(2).
For the reasons mentioned above I allow this
petition and grant the relief prayed for by the petitioners.
ORDER In accordance with the opinion of the
majority, the petition fails and is dismissed with costs.
V.P.S.
[1959] S.C.R. 1350. (2) [1964] 6 S.C.R. 261.
(3) 16 S.T.C. 973. (4) 21 S.T.C. 174.
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