1968 (11) TMI 86 - SC - VAT / Sales Tax

Petition for refund under allegedly unconstitutional provision dismissed as time-barred despite constitutional challenge

Tilokchand Motichand and Others Versus HB. Munshi, Commissioner of Sales Tax, Bombay and Another  

The SC dismissed a petition filed under Article 32 seeking refund of money paid under an allegedly unconstitutional provision, with the majority holding ... Scope and ambit of article 32 - time limit on petitions - rights emerge by reason of delay on the part of the person moving the court - good explanation for the delay - suit for recovery of money paid under a mistake of law - rule of res judicata - Whether the court should apply by analogy an article of the Indian Limitation Act to petitions under Article 32? 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? 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 it. I wish to state briefly my reasons. HELD THAT:- There is no lower limit and there is no upper limit. A case may be brought within the 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 article 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 the 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 favourable decision. If I were to hold otherwise, then the decision of the High Court in any case once adjudicated upon and acquiesced in 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 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. - HELD THAT:- The grounds extracted show that it never struck the petitioner that the provision could be challenged on the ground ultimately accepted by this court. If the petitioner had not thought of going to the Bombay High Court on the points he did, and had paid on demand, as most of the assessees do, he would, I imagine, have been entitled to maintain this petition. But it is now said that the petitioner's position is worse because he exercised his right to approach the High Court under article 226. The contention seems to be that when a petitioner approaches a High Court and fails, he can no longer suffer from any mistake of law even if the point 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 section 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 section 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 - HELD THAT:- 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 moneys, the recovery of which by suit is barred by limitation. Where the remedy in a writ application under article 32 or article 226 corresponds to a remedy in an ordinary suit and the latter remedy is subject to the bar of a statute of limitation, the court in its writ jurisdiction acts by analogy to the statute, adopts the statute as its own rule of procedure and in the absence of special circumstances imposes the same limitation on the summary remedy in the writ jurisdiction. Similarly this court acts on the analogy of the statute of limitation in respect of a claim under article 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 section 27 of the Limitation Act, 1963, the petitioner has no subsisting right which can be enforced under article 32. The rule of res judicata is founded upon the same rule of public policy, see Daryao v. State of U.P. [1961 (3) TMI 91 - SUPREME COURT]. The other ground of public policy upon which the statutes of limitation are founded 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 article 32. On like grounds the court acts on the analogy of the statutes of limitation in the exercise of its jurisdiction under article 32. It follows that the present petition must be dismissed. MITTER, J. - HELD THAT:- It is not possible to hold that the payments complained of following the order of forfeiture were made in mistake of law. They were payments under compulsion or coercion. A payment under coercion has to be treated in the same way for the purposes of a claim to refund as a payment under mistake of law, but there is an important distinction between the two. A payment under mistake of law may be questioned only when the mistake is discovered but a person who is under no mis-apprehension as to his legal right and complains about the illegality or the ultra vires nature of the order passed against him can immediately after payment formulate his cause of action as one of payment under coercion. In my view, a claim based on the infraction of fundamental rights ought not be entertained if made beyond the period fixed 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 article 32 of the Constitution. A claim for money paid under coercion would be covered by article 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 article 120 of the Act of 1908 would in a case like this be covered by article 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 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. The petition therefore fails and is dismissed with costs. HEGDE, J.- HELD THAT:- Once it is held that the power of this court under article 32 is a discretionary power-that in my opinion is the result of the decision of Bachawat and Mitter, JJ.-then it follows that this court can refuse relief under article 32 on any one of the grounds on which relief under article 226 can be refused. Such a conclusion militates not only against the plain words of article 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. 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 is invalid. As seen earlier 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 [1967 (9) TMI 118 - SUPREME COURT]., 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 [1964 (1) TMI 33 - SUPREME COURT]. 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. Petition dismissed. Issues Involved:1. Whether any limit of time can be imposed on petitions under Article 32.2. Whether the court should apply by analogy an article of the Indian Limitation Act to petitions under Article 32.3. Whether the petition should be dismissed on the ground of delay.4. Whether the petitioner can claim relief under Article 32 after a lapse of several years.5. Whether the petitioner was under a mistake of law when making the payments.6. Whether the petition is barred by principles analogous to res judicata.Analysis of the Judgment:1. Whether any limit of time can be imposed on petitions under Article 32:The court discussed whether there is a prescribed period of limitation for petitions under Article 32. It was noted that Article 32 gives the right to move the Supreme Court for enforcement of fundamental rights, and the State cannot hinder an aggrieved person from approaching the court. However, the extent or manner of interference is for the court to decide. The court emphasized that it does not entertain every case and has settled principles for its actions, including the exhaustion of ordinary remedies and the principle of res judicata.2. Whether the court should apply by analogy an article of the Indian Limitation Act to petitions under Article 32:The judgment highlighted that the Limitation Act prescribes different periods for suits, petitions, or applications, but a petition under Article 32 is not covered by these provisions. The court stated that utmost expedition is essential for such claims, and the aggrieved party must move the court at the earliest possible time, explaining any delay satisfactorily. The court emphasized that it would consider each case on its facts and might entertain a petition even after a lapse of time if justified.3. Whether the petition should be dismissed on the ground of delay:The court examined whether the petitioner, who had moved the High Court earlier but did not appeal to the Supreme Court, could take advantage of a subsequent decision declaring the statute unconstitutional. The court held that the petitioner should have taken the right ground in the High Court and appealed to the Supreme Court. Not having done so and having abandoned his litigation years ago, the court decided not to grant relief, applying the analogy of the Limitation Act.4. Whether the petitioner can claim relief under Article 32 after a lapse of several years:The court discussed the principles of res judicata and the analogy of the statute of limitations. It was noted that while the Limitation Act does not apply directly, the court acts on its analogy to refuse relief in stale claims. The court emphasized that the extraordinary remedies under the Constitution are not meant to enable claimants to recover money if the recovery by suit is barred by limitation. The court concluded that the petition should be dismissed due to the delay.5. Whether the petitioner was under a mistake of law when making the payments:The court examined whether the payments were made under a mistake of law. It was found that the petitioner had challenged the validity of the statute in the High Court but did not appeal to the Supreme Court. The court held that the petitioner was not under a mistake of law when making the payments, as he had already questioned the legality of the statute. The payments were made under coercion, not under a mistake of law.6. Whether the petition is barred by principles analogous to res judicata:The court discussed the principle of res judicata, noting that a petition under Article 32 is not barred if the earlier petition was dismissed not on the merits but due to laches or availability of an alternative remedy. The court held that the present petition was not barred by res judicata but dismissed it on the ground of delay and the lack of a mistake of law.Conclusion:The Supreme Court dismissed the petition on the grounds of delay and the absence of a mistake of law. The court emphasized the importance of moving the court at the earliest possible time and the application of the analogy of the statute of limitations to petitions under Article 32. The judgment highlighted that while the Limitation Act does not directly apply, the court acts on its analogy to refuse relief in stale claims. The petition was dismissed with costs.