D. CAWASJI & CO., ETC. ETC. versus THE STATE OF MYSORE & ANR.

Civil Appeals Nos. 437--451 & 477-489 of 1974.

p. 512

J.-The appellants filed writ petitions before the High CourL of Mysore under Article 226 of the Constitution for a declaration that. the Mysore Elementary Education Act, 1941, and the amendments to it by the Mysore Elementary Education (Amendment c Act XII of 1955) providing for levy and collection of Education Cess

p. 512

items on which Education Cess is being levied as prescribed in the schedules ct the respective Acts were beyond the competence of the Mysore State Legislature and for refund of the Educational Cess paid during 1951-52 to 1965-66 on shop rentals and tree tax in respect of toddy and duty of excise in respect of arrack and special liquor. The High Court dismissed the writ petitions by a common judgment and D thes~ appeals are directed against that judgment.

p. 512

The Hir,h .CclUrt of Mysore had, in D. Cawasji & Co. v. The Stat~ of My sore and Others( ), struck down the provisions of the Mysore Elementary Education Act and the amendments to it on May 2, 1968. That decision was affirmed by this Court in State of Mysore and Others v. D. Cawas;; & Co. and Others(~). Before the decisicn of this Co1,1rt, the Mysore Legislature had passed the Mysore Education Cess· (Validation and Levy) Act, 1969 on September 10, 1969 validating the levy and the collectioll of cess under ·the Act. But the Validation Act was held to be invalid by the Mysore High Court. The writ petitions were filed befcll'e the Hi~ Court in June and July, 1968, i.e. after the decision of the Mysore High Court in D. Cawasji & Co. v. State of Mvsore and Others(!) and before this Court rendered! its F judgment.· · . ·

p. 512

The contention of the appellantS before the High Caurt was that the payrtlents of cess in questicm were made by them under a mistake of law; that they discovered the mistake only on May 2, 1968 when the High Court, by its Judgment, declared that . the provisions of the Act and the amendments· thereto were unconstitutional, and that, as c they filed the writ petitions within three months• of that decisiort. the writ ~titicms were within. time.

p. 512

· The High Court found that· there was delay in filing the petitions and, it was majnly for that reason that the High Court dismissed them.

p. 512

In State of Madhya Pradesh v. Bhai(al Bhai and . Others(t) Des Gupta, J. who delivered the judgment of the Court, while holding that H Law the High Courts have power, for the purpose of enforcement of (unda· mental rights and statutory rights give consequential relief by ordering repayment of money realised by the Government without the authority of law, said that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by ail action in a civil court or to deny defence legitimately open in such actions and that among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and the excuse there is for it. He further said that if a person comes to the court for relief under Article 226 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; and that whether repayment shciUld be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances and that it is not easy nor is it desirable to lay a general rule. He. was of the view that if there has been unreasonable delay tie court ought not ordinarily to lend its aid to a party by this extraordinary remedy cl mandamus. On the question of the period of limitation within which the petition must be filed, he observed that the period of limitation prescribed for recovery of money paid under a mistake of law is three years from the date when the mistake is known and that" 'that period may ordinarily be taken tct be a reasonable standard by which delay in seeking remedy under Artic1e 226 can be measured. He further said that the court may consider the delay unreasonable even if .it is less than the period of limitation prescribed for a civil action,. but, where the delay is more than this period, it will almost always be proper for the court tel hold that it is unreasonable.

pp. 512–513

In State of Kerala v. Aluminium Industries Ltd.(l) a Bench of seven judges of this Court followed the view taken in State of Madhya Pradesh v. Bhailal Bhai (supra) on the question of the period of limi~ tatictn within which the petition has to be filed.

p. 513, margin E

Section 17(1 )(c) of the Limitation Act, 1963, provides that in the case of a suit for .relief on the ground o'f 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. In a case where payment is made under a mistake of law as contrasted with a. mistake of fact, generally .the mistake becomes known to the party only when a court makes .a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even befcre a court makes a pronouncement, it is seldom that a person can, even with reasonable diUJtence. discover a mistake of law before a judgment adjudging the validity of the law.

p. 513, margin F

Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the periOd of (l) (196S) 16 S.T.C. 689.

p. 513, margin G

114 SUPJtEME COUll T R.BPOllT9 limitlticil prescribed i.e. within 3 ol

p. 514

rem take, would also lie. For filina ll wit petition plid under a mistake of law, thts Court bas ot limitation i~ from the date on which the the particular law under which the tax was would nctrmaUy be the date on which 1he the party. If any writ petition is filed beyond. date, it will almost always be proper for is unreasonabie to entertain that petition, it is filed within three years, the court has the facts and , circumstances o.f each case. tion.

p. 514

We are aware that the result of this view penon to recover the amount paid as tax the date of payment, if some other party the validity of the law under which the payment a suit or writ petition is filed for re~ by years from the date of declaration of the might both be inexpedient and unjust 10 far

p. 514, margin A

A tax is Intended for immediate expenditure and it would· be unjust t~ require its repayment whole or in part expended, which would or application could be brought at any time court declaring_ the law under which it was hundered years' after the date of payment. under which the deny refund of tax it has collected it from his customers and intention to refund it to them, or, for any do so.

p. 514, margin D

In the U.S.A., it is generally held that to the ccmtrary, taxes voluntarily paid tmder know] edge of, facts cannot be recovered back mistake of fact may ordinarily be recovered Se¢undum, vo1. 84, p. 637). A1thouglt s. been. held to cover cases of payment ct money as the State 3tands in a peculiar position In there are perhaps practical reasons for the treatment both in the matter of the heads recovered and the period of llmitaticn for

p. 514, margin A

The task of writing legislation to protect is committed to Parliament and the legislaures refering to this aspect only to alert the attention Jaw.

p. 514, margin G

Now, the High Court relied on the decision chand Moticfrand and Others v. H. B. Mumhi, Tax Bombay( for its conClusion that relief (I) 0970) lJ. S.T.C.

p. 514, margin G

S15 granted in the p~edinp alld that the appellants must resort-td the ordinar:r remedy bl euit!j

p. 515

In Tilokchand Motichand'a case, the petitioners before this Coutt had realised several amounts from their customers outside Bombay acoount of sales tax. The Sales Tax Officer, by his order dated March

p. 515

17, 1958, forfeite<f the same Wider s.21(4) of the Bombay Sales Tu: 8 Act, 1953. On March 28, 1958, the petitioners filed a writ petition in the High Court of Bombay seeking a writ ctf mandamus restrainin: the Sales Tax Officer from recovering the amount from them on the ground that s. 21 ( 4) was ultra vires the powers of the State LegislatUre and that the order of forfeiture was violative of Articles 19(1)(f) and 265 cJ the Constitution. On November 28, 1958, the writ petition

p. 515

was dismissed by a learned Single Judge on the ground that the peti~ tioners, having defrauded other persons, were not entitled to any relief.

p. 515

The appeal filed against the said order by the petitioners was dismissed on July 13, 1959. Before the appeal was dismissed, the Collector of Bombay attached the petitioners' prc~perties at¢ the petitioners paid the amount to the Collector of Boml:iay between August 3, 1959 and August 8, 1960. In Kantllal Babulal & Bro.r. v. H. C. Patel(l) de· clded on September 29, 1967, tbis Court struck down s. 12A(4) of the Bombay Sales Tax Act, 1946 as violative of Article 19 ( 1 ) (!) . The petiticners thereupon filed a writ petition under Article 32 of the ~onstitution on February .9, 1968, claiming refund of the amount paid by theni under s. 72 of the Indian Contract Act, 187Yon the &round that they paid the amount under a tnistake of law and that they discovered the mistake oitly when this Court struck down s. 12(A)(4)

p. 515, margin C

of the ~crnbay Sales tax Act, 1946.~ The petitioners also alleged that ifiey paid the aniouiit to the collectOr under coercion ~d they were entitled to recover the same. The contention of the petitionerS wa;, for the grounds cin which this Court struck down s.- 12A(4) of the Bombay Sales Tax Act, .1946, s.21 (4) of the Boml;>ay Sales Tai ACt, 1953; was also liable to be stnick doWn. It was in these circumstana!'8 that this Court h~ to consider the question whether the petitiOmn

p. 515, margin C

:~;~::tm~ ,}fer~~~~u~oi~~:t~ra: ~ rru~~:2eC::ti:~ ~ ' . fore it shffii1t1 be disriU8sed. C.J: observed : ·

p. 515, margin E

maayatbllah,

p. 515, margin E

"His (the petitioner's) contention is that the ground which his petition was dismissed was dlflerent and the Jrolind on which the statute wail struck down was nQt within bJI ~owledge iuid t))erefore he did not know of it end purSUO it in this Court. To that I answer that law will pre.sume ..hat he knew the exact ground of unconstitutionality. EverybOdy is presumed to know the law. It was his dtity hilvo brought the matter before this Court for consideration. IB any event, having set the machinery of law in motiem, _he cannot abandon it to resume it after a number of years, be> cause another perscn more adventurous than him in his t~ got the statute declared unconstitutional, and got a fav~ur­ able decision. . . . . I agree With the opin~ori of my brethi'ea [1968{1 ~ .t.tt. 73~. Ba~hawat and Mitter, JJ. that the:~ is no q?estion here of · a mistake of law entitling the petitioner to mvcj}c:e analogy

pp. 515–516, margin E

of the Article in the Limitation Act .... ". B.ach.awa~, ]. said that the payment made by the petitioners wer~ made ·not under any mistake of law and. therefore, they cannot claun any relief on the ground of mistake: Mitter, J. was <?f. the vie~ that af_ter lhe decision of the Bcnnbav H1gh Court. the pet1ttoners d1d not Wlllingly pay the amount torfcitcd, but that they made. the payment after attachment of their propcr1t~::s and, thcr~ t ._.t·..;, th~ amounts were really pajd under coercion and the period of limitation would normally run from tl.te date elf the payment.

p. 516, margin A

We arc not quite sure that if the ma:um that cwryon<! is presumed to know the law is applied, there will be any case of payment under a mistake of law unless that presumption is rebutted in the first instance, for, the moment it is assumed that everyone is presumed to know the law, it is clear that no one can make a mistake as to the law. It is sometimes said that every num is presumed to know the law. but this is only a slovenly way of stating the truth that ignorance of the law is oot in general an excuse( l) ... There is no presumption in this country that every person knows the Jaw; it would be contrary to common sense and reason if it were so" ( ). · Be that as it may, the High Court deduced the conclusion from the decision in Tilokclrand 1\.fotichand's (supra) case that the question whether a declaration by a court that a taw is unconstitutional and therefor~ void would not aJways furnish the starting point of limitation .tor a. for recovery of the amount p id under that taw and that the qU:est1on must be decided on the fact~ of each case. The Court further s~1d that the P:lrtics should seck rclicl under Article 226 as expedi- !10usly as poss1blc .a~d ~vcn .if t~e ordinary remedy by way of a ~ujt

p. 516, margin B

not bar_red by lumtatlon. tt wtll be proper exercise of discrl!tiOn under Art1clc 226 of the Constitution to decline to interfere in cases where ~e persons approach the court after several years, in the absl!nce ~f spectal and suftictcnt grounds. M J!.to,:J.thing is clear from the judgments rendered in Tilokchand tl • ~c t~ ~.care (supra) by the Judges who formed the maiority, it is

p. 516, margin E

ey •d not cons1dcr the payments made by the pctitico.ers as P~tnents made under a mist~1ke of law. Therefore. we do not see the rc cvance of that case for the decision of the case here.

p. 516, margin F

.· But •. ~hat bo~ever, b; not the end or the matter In the earlier ~~/t ~.etatJOns whJch culminated in the decision in D. Cawasji & Co v, fUI~~ ~r~~ of My~ore n1 Other1 (supra) the appella.nt did pray for.reconsidcred eth:o~nts paid by ther;t under the Act nnd the High Court nllowcd the :Y~r {Qr refund. ~n each of the writ petitions and

p. 516, margin G

rf the grounu ~ m ~me PChhons and reiected it in the others on

p. 516, margin G

J.{ whos~ prayers h~J~ c~.Co~trt observed that thc~e writ petitiofl':rs · -:7:"'~-:::·---- en TcJCCtcd would be at liberty to institute suits (I) See Frederi~k PoHock .. J . (2) Sec Maule : umprudcnce un~ leaal &.'lays". p. 89.

p. 516, margin G

• J.ln_ Mc~rtmriCJie v. Falk"~' ( 18-'6> 2 C. B. 706.719. or other proceedings. We are not sure that, in the context, the High Court meant, by 'other proceedings', applications in the nature d proceedings under Article 226, when it is seen that the Court refused to entertain the relief for refund on the ground of delay in the proceedings under Article 226 and that in some cases the Court directed the .parties to file rcpresenattions before Gcwernment. Be that as it may, 1n the earlier writ petitions, the appellants did not pray for refund df the amounts paid by .way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in thes.e writ petitions why they did nc1t make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piece-meal fashion. If the appellants could have, but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants shoul_d be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct elf the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interesting with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them resort to the remedy of suits.

pp. 516–517, margin G

We dismiss the appeals but make no order as to costs.

p. 517, margin D

II Civil Appeals Nos. 452-476 of 1974

p. 517, margin D

The appellants filed writ petitions before the High Coutt of Mysore challenging the levy of health cess under the Mysore Health Cess Act, 19 51 (hereinafter referred as the '19 51 Act') for the reason that the Act ~s outside the legislative competence of the Mysore Legislature as well as on the ground that levy of health cess under the 19 51 Act on shop rentals and tree tax items in respect of toddy and arrack is ultra vires sub-section { 1) of s. 3 of the 19 51 Act and s. 9 (1 ) and ( 2) read with the schedule to the Elementary Education Act, 1951. They also prayed for quashing the conditions in the annual notificaticltl for iale of excise and claimed refund of the health cess on shop rentals and tree tax in respect of toddy and arrack paid by them for the years 1951-52 to 1961-62.

p. 517, margin E

Before the High Court, a preliminary cbjection was raised by the learned Advocate General on behalf of the State of Mysore that since the writ petitions were filed more than three years after the payments were made, the court should not entertain them. . The High Court sustained the objection and dismissed the writ -petitica1s. These appeals are directed against that order.

p. 517, margin F

The 1951 Act under which the health cess was collected from the appellant was in force in the State till it was repealed and re·enacted by the Mysore Health Cess Act, 1962 (hereinafter referred to as the '1962 Act') with effect from April L 1962. M/s. D. Cawasji & Co. and several other excise contractors challenged the validity of levy

p. 517, margin G

[t9n] 2s.c.Jt 8Dd collection of health ces.1 under the 19~,1 Act u wen as under the A 1962 Act filing writ petitions before the High Court of Mysore. They were disposed of by a coJDJllOn judgment [see Suram Buth & Co. v. T~ Deputy CommiSsumer (Exciu) d: Another (I)]. By th:) judgment, the High CCAJit struck down explanation to clause ( 1 ) oi Schedule A to the 1962 Act but rejt:cted all other prayers. That decision was challenged before this CA:1urt and this Court, by its ju.dl" ment dated September 26, 1966 (see Shinde Brother~ '· DepuJy Commissioner(~) declared that the Stlltc of Mysorc hud no competenco to levy and ¢ollect health cess under the Mysorc Health Cess Act, 196.2, em shop rent and directed refund of health cess illeglllly 1col• lectod under the Henlth Cess Ac:t, 1962. And re:ar.uda the prnycr

p. 518

cc~s c tor deolnrntlon thnt tho levy af heftlth under the 19S 1 Aet wal Ulea;nl Md fgr rl.'lf'und of the collected under th~t Aet, tbl• Cmm deellned. to MO into dun Q\JC:t~lon; tho Court however, Mllld tbat utbl petlttonon wlU, however, ho ftt IIbert~ to dlt:l aultt, if ftdvJ~ed!, to recPv~r th~ ~tm()unt~ Pllci~c.d to hnvo b~en. ptdd tty them und~r th!! HenJtb Ceu Act, 1951",

p. 518

Withlq ~wg mQnthli of lh~ dl8posnl of ftppool~ by thi~ Court, tht oppellut1 IUed writ p@thlonK ~foro tho Hlnh Caun ohAllcn&lns ~ viUdJf)l of th.tl 19~ l Aof ttnd Jm~yln.JI~er rehmd of befll~h eeM~ fJOU,.:tcd under the 19'1 Aet for the ~rlod from 19,1·!~ to l961·6l, Tho High Court held that thero · wa• lnordinPtc del~~ in ftUna tho mlt petl tlont and dismissed them on that around without ~QtoMJ into thQ lllCdta of the pctltJons. ·

p. 518

The appellant!! contended that the Hi.gb Court mnt wroq J.u dis~ missing the writ petition~ on the ground that there was inordinato delay in filing them. It may be recalled that the 19~ 1 Act had t~Ce~. repealed iD .1962 and that the refund was claimed in respect of tm amounts paid bdore 1962 under the 1951 Act. Merely because t1m F O>urt has said that the appellants can challenge the validity of tm Act, ·if they are so advised, by a suit, it would not follow that they can challenge its 'alidity in writ petiti~ without encountering Iegititltlito pleas available to the respondent. It there was inordinate delay in filing the writ petiti~, there was nothing in the judgment of tbb Court which prevented the High Court in disminina them on that G JTound. The reason why this Court did not ao into the questictl of the validity of the 1951 Act was that relevant material8 were oot placed before the Court by the appellants. When this Court said that the appell~ts, if so advised, were at liberty to file suit for the r~~lief claimed, it cannot be taken as a sanctiC«l to the appellants by thi8 Court for approaching the High Court for relief under Article 226 H , J). CAWASJI & CO. v. MYSORE (Mathew,

pp. 518–519

~ . ~ without regard to the question delay in

p. 519

or . appellants, as they did not place the relevant materials for successfully challenging the validity ci the themselves. The appellants were directed by

p. 519

they were so advised. 1J . In these circumstances, we do not think wrong in dismissing the writ petitions on the delay. We dismiss the appeals, but make no order as P.B.R.

p. 519