Shiv Shanker Dal Mills Vs. State of
Haryana & Ors  INSC 232 (9 November 1979)
CITATION: 1980 AIR 1037 1980 SCR (1)1170 1980
SCC (2) 437
CITATOR INFO :
F 1985 SC 218 (13,14,15) R 1985 SC 901 (11) R
1990 SC 313 (16) R 1990 SC 772 (24,32)
Constitution of India 1950, Article 226-High
Court holding levy illegal- Consequential liability to refund- 'Alternative
remedy' available-Jurisdiction under-Whether barred.
In Kewal Krishan puri v. State of Punjab and
others  3 S.C.R. page 1217, this Court struck down payment of market fees
at the increased rate of 3 per cent (raised from the original 2 per cent) under
Haryana Act No.22 of 1977. A consequential liability was therefore cast on the
market committees to refund the excess amounts collected.
The appellants and the petitioners who had
paid under mistake the excess sums demanded a direction to the effect that
these amounts be refunded.
On the question of refund of the excess
amounts collected by the market committees.
HELD| 1. Where public bodies under colour of
public laws recover people's money, later discovered to be erroneous levies,
the dharma of the situation admits of no equivocation. There is no law of limitation
especially for public bodies on the virtue of returning what was wrongly
recovered to whom it belongs. In our jurisprudence it is not palatable to turn
down the prayer for high prerogative writs on the negative plea of alternative
remedy, since the root principle of law married to justice, is ubi jus ibi
2. In our jurisdiction, social justice is a
pervasive presence and save in special situation it is fair to be guided by the
strategy of equity by asking those who claim the services of the judicial
process to embrace the basic rules of distributive justice, while moulding the
relief by consenting to restore little sums taken in little transactions from
little persons to whom they belong.
3. Article 226 grants an extraordinary remedy
which is essentially discretionary, although founded on legal injury.
It is perfectly open for the court exercising
this flexible power to pass such orders as public interest dictates and equity
In the instant case although the refund of
excess collections might be legally due to the traders, many of the traders had
themselves recovered the excess percentage from the next purchasers. To the
extent the traders had paid out of their own, they were entitled to keep them,
but not where they had in turn collected from elsewhere. It would be hard to
leave every agriculturist to file a suit or other legal proceeding for recovery
of negligible sums which cumulatively amount to colossal amounts.
4. In Newabganj Sugar Mills v. Union of India
and others  1 SCR 803 this Court in a similar situation devised a new
procedure to deal with a new situation where equity demanded redistribution but
procedural expensiveness and cumbersomeness effectively thwarted legal actions.
5. Situations without precedent demand
remedies without precedent.
[The Court devised a scheme of refund by the
market committees and redistribution of the small amounts to those from whom
unwarranted collections had been made.]
CIVIL APPELLATE JURISDICTION : Civil Appeal
Nos. 3220- 3234 of 1979.
Appeals by Special Leave from the Judgment
and Order dated 11-7-79, 23-8-79, 8-8-79, 15-10-79, 30-7-79, 18-9-79, 22-10-79,
18-10-79, 29-10-79, 16-10-79, and 12-10-79 of the Punjab and Haryana High Court
in Civil Writ Petitions Nos.
2306, 2966, 2737, 3617, 2588, 3277, 3749,
3697, 3820, 3625, 3624 and 315-317/79 respectively.
AND Writ Petitions No. 892, 918, 921,
979-980, 1057-1058, 1095, 1234, 1273, 1051, 997, 940 and 981/79.
(Under Article 32 of the Constitution) Dr. Y.
S. Chitale (CA 3220/79), R. A. Gupta, Adarsh Goel and S. K. Goel, for the
Appellant in CA 3220/79 and 3222/79 for the Petitioner in W.P. 892, 918 and
B. Datta and K. K. Manchanda for the
Appellant in CA 3221/79, 3224-3226/79.
Anil B. Dewan, Adarsh Goel, S. K. Goel, and
R. A. Gupta for the Appellant in CA 3323/79.
Adarsh K. Goel, S. K. Goel and R. A. Gupta
for the Appellants in CA 3222/79, for the Petitioner in WP 892/79, 918/79,
A. K. Goel and S. K. Goel for the Petitioner
in WP 979/79.
B.Datta and K. K. Manchanda for the
Petitioner in WP 980/79.
Sarwa Mitter, Ved Prakash Goel and B. S.
Malik for the Petitioner.
M. P. Jha, Gyan Chand Dhurtwala and Sanjee
Walia for the Petitioner in WP 1057-58/79.
M. P. Jha and P. C. Khunger for the
Petitioner in W.P. 1095/79.
N. D. Garg and T. L. Garg for the Petitioner
in WP 1234/79.
1172 R.K. Garg (WP 892/79 and CA 3220/79)
Gian Singh and S. C. Patel for the Respondents 2-3 in CAs. 3220/79, 3221, 3222,
3223, 3224 and for the Respondent in WP 892/79, 921, 979, 981, 1057-58/79,
1273, 997 and for Respondent in CA 3230, 3225/79.
Hardev Singh and R.S Sodhi for the Respondent
in WP 918/79 and 980/79, 1095 and 1234/79.
Adarsh Goel and Gyan Sudha Misra for the
Petitioner in WP 1273/79.
The Order of the Court was delivered by
KRISHNA IYER, J. This big bunch of writ petitions shows how litigation has a
habit of proliferation in our processual system since cases are considered in
isolation, not in their comprehensive implications and docket management is an
art awaiting its Indian dawn. The facts being admitted, obviate debate. All
these appellants and writ petitioners had paid market fees at the increased
rate of 3 per cent (raised from the original 2 per cent) under Haryana Act No.
32 of 1977. Many dealers challenged the levies as unconstitutional, and this
Court, in a series of appeals (C.A. Nos. 1083 of 1977 etc.) (1) ruled that the
excess of 1 per cent over the original rate of 2 per cent was ultra vires. This
cast a consequential liability on the market committees to refund the illegal
portion. They were not so ordered probably because they could not straightway
be quantified. The petitioners who had, under mistake, paid large sums which,
after the decision of this Court holding the levy illegal, have become
refundable, demand a direction to that effect to the market committees
concerned. There cannot be any dispute about the obligation or the amounts
since the market committees have accounts of collections and are willing to
disgorge the excess sums. Indeed, if they file suits within the limitation
period, decrees must surely follow. What the period of limitation is and
226 will apply are moot as is evident from
the High Court's judgment, but we are not called upon to pronounce on either
point in the view we take. Where public bodies, under colour of public laws,
recover people's moneys, later discovered to be erroneous levies, the dharma of
the situation admits of no equivocation. There is no law of limitation,
especially for public bodies, on the virtue of returning what was wrongly
recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn
down the prayer for high prerogative writs, on the negative plea of
'alternative remedy', since the root principle of 1173 law married to justice,
is ubi jus ibi remedium. Long ago Dicey wrote:
"The saw ubi jus ibi remedium, becomes
from this point of view something more important than a mere tautological
proposition. In its bearing upon constitutional law, it means that the
Englishmen whose labours gradually formed the complicated set of laws and
institutions which we call the Constitution, fixed their minds far more
intently on providing remedies for the enforcement of particular rights or for
averting definite wrongs, than upon any declarations of the Rights of Man or
Englishmen....The Constitution of the United States and the Constitutions of
the separate States are embodied in written or printed documents, and contain
declaration of rights. But the statesmen of America have shown an unrivalled
skill in providing means for giving legal security to the rights declared by
American Constitutions. The rule of law is as marked a feature of the United
States as of England." Another point. In our jurisdiction, social justice
is a pervasive presence; and so, save in special situations it is fair to be
guided by the strategy of equity by asking those who claim the service of the
judicial process to embrace the basic rule of distributive justice, while
moulding the relief, by consenting to restore little sums, taken in little
transactions, from little persons, to whom they belong.
When we reminded counsel on both sides of
these guidelines of Good Samaritan jurisprudence and desired consensual
disposal of these cases, we gratifyingly found welcome echo and we appreciatively
record this stance.
The counsel for the market committees pointed
out that although refund of excess collections might be legally due to the
traders many of the traders had themselves recovered this excess percentage
from the next purchasers. So much so, these tiny tittles if they are to return
to the original payers, should revert to the next purchasers themselves. The
traders who are the petitioners have no more right to keep such small sums than
the market committees themselves. To the extent to which the traders had paid
out of their own, of course, they were entitled to keep them, but not where
they had, in turn, collected from elsewhere. It would be hard to leave every
agriculturist to file a suit or other legal proceeding for recovery of negligible
sums which cumulatively amount to colossal amounts. Many a little makes a
mickle. A similar situation arose in Newabganj Sugar 1174 Mills case(1) where
this Court devised a new procedure to deal with a new situation where equity
demanded redistribution but procedural expensiveness and cumbersomeness
effectively thwarted such legal actions by the "small" many.
Situations without precedent demand remedies without precedent.
We indicated to counsel that the procedure
adopted in the Newabganj Sugar Mills case (supra) may usefully be adapted to
the present case. In broad principle, counsel did agree, and we proceed on that
footing, that we devise a scheme of refund by the market committees and
redistribution, to the extent indicated above, of small amounts to those from
whom unwarranted collections had been made, may be unwittingly, by the traders
who are appellants or petitioners.
Article 226 grants an extra-ordinary remedy
which is essentially discretionary, although founded on legal injury.
It is perfectly open for the court,
exercising this flexible power, to pass such order as public interest dictates
and equity projects.
"Courts of equity may, and frequently
do, go much further both to give and withhold relief in furtherance of the
public interest than they are accustomed to go where only private interests are
involved. Accordingly, the granting or withholding of relief may properly be
dependent upon considerations as of public interest...."(2) Keeping in
mind these guidelines we make the following directions:
I. Subject to the directions given below, all
the sums collected by the various market committees who are respondents in
these various writ petitions or appeals shall be liable to be paid into the
High Court of Punjab and Haryana within one week of intimation by the Registrar
of the amount so liable to be paid into the court.
II. A statement of the amounts collected in
excess (1%) shall be put into this court by the dealers with copies to the
various market committees aforesaid within 10 days from today, and if there is
any difference between the parties it shall be brought to the notice of this
Court in the shape of miscellaneous petitions. On final orders, if any, passed
thereon by this Court, those amounts, as so determined, shall be treated as
1175 III. The Registrar of the High Court
shall issue public notice and otherwise give due publicity to the fact that
dealers who have not passed on the liabilities to others and others who have
contributed to or paid the excess one per cent covered by these writ petitions
and appeals may make claims for such sums as are due to them from him within
one month or such other period as he may fix. The Registrar shall scrutinise
such claims and ascertain the sums so proved. He will thereupon demand of all
the market committees concerned payment into the Registry of such sums in
regard to which proof of claims have been made. On such intimation, the market
committees shall pay into the Registry the amounts so demanded by the Registrar
within one week of such intimation. The amount shall be paid together with
interest at 10 per cent per annum from today upto the date of deposit with the
IV. It shall be open to the Registrar to make
such periodical claims on appropriate proof by claimants on the lines stated
V. He will devise the mechanics of processing
the claims as best as he may and, in the event of dispute, may refer to the
High Court for its decision of such disputes, if he thinks it necessary.
Otherwise, he may dispose of the objections finally.
VI. If any further directions regarding the
mechanics of the claim of refund or otherwise are found necessary from this
Court, the High Court will report about such matter to this Court and orders
made thereon will bind the parties.
VII. If parties eligible for repayment of
amounts do not claim within one year from today the Registrar will not
entertain any further claims. It will be open to such parties to pursue their
remedies for recovery for any sums that may be due to them.
VIII. Each State Marketing Board will deposit
within 10 days from today a sum of Rs. 5,000/- before the Registrar for the
preliminary expenses of publicity and other incidentals for the implementation
of the directions given above. Any unexpended amount, at the end of one year,
will be repaid to the respective State Marketing Board.
IX. We further direct that the unclaimed
amounts, if any, shall be permitted to be used by the respective Marketing
Committees for the purposes falling within the statute as interpreted by this
Court in the CA No. 1083/77.
1176 These appeals and writ petitions are
disposed of on the above lines, the winners being both the sides before us, the
invisible small consumers and above all, justice, equity and good conscience to
the inarticulate community, which is the functional triumph of law in action
within hailing distance of each other.
We wind up with a word of satisfaction that
each one has had his meed and in recognition thereof we direct the parties to
bear their own costs.