TaxTMI 
TaxTMI 
1968 (11) TMI 86
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....es 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 I hold on this subject and then give my decision on the merits of the petition in the light of those views. 3. 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 article 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. 4. That article gives the right 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 ....
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....e 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 article 226 which can go into the controversy more comprehensively than this court can under article 32. 7. It follows, therefore, that this court puts itself in restraint in the matter of petitions under article 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. 8. The English and American practice has been outlined in Halsbury's Laws of England and Corpus Juris Secundum. It has been mention....
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....e 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. 11. 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 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. 12. 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 numbe....
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....xpress 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. [1962] 1 S.C.R. 574., and Amalgamated Coalfields Ltd. v. Janapada Sabha, Chhindwara A.I.R. 1964 S.C. 1013, 1018., I understand that one of the fundamental principles of administration of justice is that, apart from express provisions to the contrary, stale claim 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 article 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: "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 equitab....
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....s of the party; since in such cases there was no pretence 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). 17. In England, as pointed out by Bachawat, J., the Court of Chancery acted on the analogy of the Statute of Limitation (vide Halsbury, Volume 14, page 647, article 1190). 18. It seems to me, however, that the above solution is not quite appropriate for petitions under article 32. A delay of 12 years or 6 years would make a strange bedfellow with a direction or order or writ in the nature of mandamus, certiorari and prohibition. Bearing 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 ....
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....us 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 article 226 of the Constitution." 20. In State of Kerala v. Aluminium Industries Ltd. [1965] 16 S.T.C. 689, 692., 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. Kanhaiya Lal [1959] S.C.R. 1350; 9 S.T.C. 747., 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 estoppel 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 mad....
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.... and order dated December 18, 1958, and December 24, 1958, be quashed. 24. There is no doubt that under section 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. 25. The petitioner had attempted to raise before the Bombay High Court the following grounds: "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 section 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 under the provisions of the Act and as no tax was payable on outside sales the authorities had no power to forfeit the sum of Rs. 26,563.50. 3..................
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.... 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. 30. 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. 31. 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. BAC....
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....ition: (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 article 32 of the Constitution. 35. Subject to questions of limitation, waiver and estoppel, money paid under mistake or coercion may be recovered under section 72 of the Indian Contract Act. The right to relief under section 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": Shiba Prasad Singh v. Srish Chandra Nandi [1949] L.R. 76 I.A. 244, 254., Sales Tax Officer v. Makund Lal Saraf [1959] S.C.R. 1350, 1361, 1362; 9 S.T.C. 747. 36. 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 writ petition for restraining the levy under the order dated March 17, 1958, claiming that the order was invalid and that section 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 provisi....
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....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 [1951] A.C. 251, 277. In some Amercian 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, Volume 54, Limitation of Actions, article 198, page 202, Morgan v. Jasper County 11 A.L.R. 634; 274 N.W. 310., 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 section 17(1)(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. 39. The next and the more fundamental question is whether in the circumstances the court should give relief in a writ petition under article 32 of the Constitution. No period of limitation is prescribed for such a petition. The right to move this cour....
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....ect to any express statutory bar: see Halsbury's Laws of England, Volume 14, page 647, article 1190, Knox v. Gye L.R. 5 H.L. Cas. 656, 674. Likewise, the High Court acts on the analogy of the statute of limitation in a proceeding under article 226 though the statute does not expressly apply to the proceeding. The court will almost always refuse to give relief under article 226 if the delay is more than the statutory period of limitation: see State of Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261 at 273-274; 15 S.T.C. 450. 41. 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 (see Sobhraj Odharmal v. State of Rajasthan [1963] Supp. I S.C.R. 99, 111.). 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 article 32.....
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....tion 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 article 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 petitioners should produce before him within one month of the date of the cheque receipts totalling Rs. 26,563.50 from its customers outside Bombay State to show that the refund had been passed on to them. It appears that t....
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....tion 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 was 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." 48. No copy of the petition in Pasha Bhai Patel and Company's case is before us but the p....
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....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." 51. It is therefore amply clear from the above that the learned Judges 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 any fundamental rights of the partners of the firm. They merely exercised their discretion on the question of issue of a writ under article 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 fulfil the condition imposed. 52. It does not appear that the firm took any further steps in the court of law for vindicating its position before filing the present writ petition. It received a notice dated December 18, 1958, under the Bombay City Land Revenue Act, 1876 (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 sal....
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....1967, was from a decision of the High Court of Gujarat reported in 16 Sales Tax Cases 973. The Gujarat High Court had held that section 12A(4) was saved by article 19(5) of the Constitution. The appeal by the assessee was allowed by this court on the short ground that assuming that section 12A(4) was a penal provision within the legislative competence of the Legislature, it was violative of article 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 section 12A(4) was unguided, uncanalised and uncontrolled." On the above reasoning the court held that the provisions in section 12A(4) were not a reasonable restriction on the fundamental right guaranteed under article 19(1) within the meaning of article 19(5). 55. To establish that the payments totalling Rs. 26,563.50 made in the years 1959 and 1....
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.... 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 [1955] 1 S.C.R. 243; 5 S.T.C. 193. 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, by the decision of the Allahabad High Court in Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur [1952] 3 S.T.C. 185., subsequently confirmed by this court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash [1955] 1 S.C.R. 243; 5 S.T.C. 193., 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 has confirmed the decision of the Allahabad High C....
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....is 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 and eight months after the said 17th January, 1956. 60. 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 article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under article 226 is a discretionary power. This is specially 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 in seeking this special remedy and what excuse there is for it...Thus, where, as in these cases, a person come....
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....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 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 article 19(1)(g) and article 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 article 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 Divisiona....
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....he 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. 65. 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 right has one of three courses open to him. He can either make an application under article 226 of the Constitution to a High Court or he can make an application to this court under article 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 article 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 ....
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....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, article 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 section 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;..........." 67. 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 th....
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....g 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 article 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 Acts. 70. The petition therefore fails and is dismissed with costs. HEGDE, J. 71. 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. 72. 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 Others v. The State of U.P. and Others [1962] 1 S.C.R. 574., 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 agai....
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.... or the equitable jurisdiction of the American Courts. A duty imposed by the Constitution cannot be compared with discretionary powers. Under article 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 Patanjali Sastri, C.J., in State of Madras v. V.G. Row [1952] S.C.R. 597., 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 circums....
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....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 III of our Constitution. 76. Admittedly the provisions contained in the Limitation Act do not apply to proceedings under article 226 or article 32. The Constitution-makers wisely, if I may say with respect, excluded the application of those provisions to proceedings under articles 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. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762., 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 the 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 persua....
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....pprehensive that this decision may mark an important turning point in downgrading the fundamental rights guaranteed under the Constitution. I am firmly of the view that a relief asked for under article 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 article 32. Considerations which are relevant in proceedings under article 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 proceedings under article 32 of the Constitution. The rule enunciated by this court in the State of M.P. v. Bhailal Bhai [1964] 6 S.C.R. 261; 15 S.T.C. 450. is only applicable to proceedings under article 226. At page 271 of the report Das Gupta, J., who spoke for the court specifically referred to this aspect when he says "that it has been made clear more than once that the power to give relief under article 226 is a discretionary power." 78.....