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TMI Blog1968 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 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 I 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 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. 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 person seeking t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inciples 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 equitable to do so, the Federal Courts usually act in analogy to the State statutes of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the Statute of Limitation (vide Halsbury, Volume 14, page 647, article 1190). 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 barred under the Limitation Act, unless there are exceptional circumstances, Prima facie it is a stale claim and should no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under article 226 of the Constitution." 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 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), name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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..................... 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht 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.-I have had the advantage of reading the judgment prepared by G.K. Mitter, J. For the reasons given in this judgment, I agree with the order proposed by him. As the earlier petition filed in the High Court was not dismissed on the merits, the present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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. 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w 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. 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 court for enforcement of fundamental right is guaranteed by article 32. The writ under article 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 section 80 of the Code of Civil Procedure are not applicable to a proceeding u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt 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. 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. The statutes of limitation are founded on sound principles of public policy. As observed in Whitley Stoke's Anglo-Indian Codes, Volume 11, page 940: "The law is founded 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 He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld 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 the petitioners 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 section 21(4) of the Bombay Sales Tax Act, 1943. In reply thereto, the firm stated by letter dated February 7, 1958, that it had collected from its custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 article 19(1)(g) and article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 sale of its property and by other remedies provided by section 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 para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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). 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 section 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable 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 Court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash [1955] 1 S.C.R. 243; 5 S.T.C. 193. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 comes to the court for relief under article 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 desirabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 article 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her 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 to give relief in cases of long or unreasonable delay. As noted above in Bhailal Bhai's case [1964] 6 S.C.R. 261; 15 S.T.C. 450., 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 article 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 article 32 from one applicable to application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 [1968] 21 S.T.C. 174., that section 12A(4) of the Bombay Sales Tax Act, 1946, is violative of article 19(1)(f) of the Constitution on the grounds that tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned 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 right available to an aggrieved party under article 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 right to get relief under article 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 article 32 is itself a fundamental right. In that respect our Constitution makes a welcome departu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt 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 persuasive value but they do not limit the power of the court but the reality is found 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 decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 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. Assuming that the rule enunciated by this court in Sales Tax Officer v. Kanhaiya Lal Makund ..... 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