TMI Blog1978 (9) TMI 169X X X X Extracts X X X X X X X X Extracts X X X X ..... t Collector (Principal Appraiser) Customs, Bombay levied duties as under, Customs Duty 61/2% Countervailing Duty ₹ 396 per M.T. 3. The petitioner paid the above duties. The petitioner has no grievance so far as the payment of customs duty at 16 % on the above consignment is concerned but according to the petitioner, the countervailing duty at ₹ 396 per M.T. was levied and collected by the Assistant Collector (Principal Appraiser) Customs, Bombay on a mistaken impression that it was leviable under Section 2A of the Indian Tariff Act, 1936 (hereinafter to be referred to as the Act ) in respect of these goods and this being a bilateral mistake, neither the department nor the petitioner disputed this levy. The petitioner has submitted Bill of Entry dated July 7, 1965 with the writ petition and that has been marked Ex. 1. The petitioner further states that the Collector of Customs issued a public Notice No. 170/67, dated October 15, 1967 containing the decision of the Central Board of Excise and Customs with regard to the levy of countervailing duty on Electrolytic Grade Aluminium Wire Rods and clarified that Electrolytic Grade Aluminium Wire Rods other than e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia Kalan, District Pali, Rajasthan, on February 3, 1968. After the receipt of the order of Principal Appraiser of Customs, the petitioner preferred an appeal against that order before the Appellate Collector of Customs on April 2, 1968. The Appellate Collector, Customs, Bombay (respondent No. 2) rejected the appeal holding that the provisions of S. 27(1) of the Customs Act are mandatory and could not be relaxed and in this view of the matter, he confirmed the order of the Principal Appraiser of Customs and rejected the appeal on April 26, 1968. The copy of the order of the Appellate Collector, Customs, Bombay has been placed on record by the petitioner and has been marked Ex. 3. The copy of the order was forwarded for information to the petitioner at Pipalia Kalan via Beawar, Rajasthan, which was received on May 4, 1968. Thereafter, the petitioner filed a revision application against the order of the Appellate Collector. Customs, Bombay before the Joint Secretary to the Government, Ministry of Finance, Department of Revenue, New Delhi. By a consolidated order dated November 28, 1969 reproduced in Schedule A appended to the writ petition, the Government of India rejected the revisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bay dated January 30, 1968 (Ex. 2), (ii) the Appellate Collector of Customs, dated April 4, 1968 (Ex. 3) and (iii) the Commissioner, (Revision Applications), Government of India, dated November 28, 1969 (reproduced in Schedule `A ) be quashed and the respondents be ordered to allow the claim of the petitioner. In the alternative, it has been prayed that respondent No. 3 be directed to determine the question of limitation under Section 27 of the Customs Act and thereafter, to decide the revision application preferred by the petitioner afresh. This writ petition as presented in this Court on July 14, 1970. 6. The respondents have contested this writ petition by filing a reply to it, the copy of which was delivered to the learned Counsel for the petitioner on January 10, 1978. It was denied that any countervailing duty, ₹ 396/- per M.T. was charged from the petitioner. The following customs duty was levied by the Assistant Collector on the consignment of Electrolytic Grade Aluminium Wire consisting of 9.165 M.Ts. :- 161 % (15%+10% ad valorem) 10% regulatory duty and ₹ 396 (Rs. 360+10% of ₹ 360 i.e. ₹ 36 per M.T.). Thus, the aforesaid entire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in regard to which, he preferred the refund claim on July 7,1965. The present writ petition was submitted on July 14, 1970 (the amended writ petition was filed on January 11, 1971) when the limitation for claiming the refund under the ordinary law of limitation had expired. Thus, on this ground also, the writ petition deserves to be dismissed; (3) that the petitioner has challenged the vires of the provisions of Section 27 of the Customs Act. Since the Act is a central law and under the amended provisions of the Constitution, it is only the Supreme Court which is empowered to hear and decide such matters, therefore, the writ petition for this reason is not maintainable in this Court; and (4) that the petitioner had an alternative remedy of suit for claiming the refund. If he is aggrieved by the decisions of the Customs Authorities, i e should have pursued his remedy by instituting a suit. It was, therefore, prayed that the writ petition should be dismissed. 7. Mr. R.N. Munshi, learned Counsel for the respondents, in the first instance, argued that no cause of action on any count in this case arose within the territory of Rajasthan and hence, this Court has got no jurisdiction t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s territories simply because the cause of action has arisen within those territories. This decision was also rendered prior to the Constitution (Fifteenth Amendment) Act, 1963, Mr. Munshi also supported the preliminary objection by referring to the judgment of the learned Single Judge of Punjab and Haryana High Court in M/s. Hukam Chand Jagan Nath v. Union of India and Others, ILR (1968) 2 P H 456, wherein a question arose as to whether an order of confiscation made by the Collector, Howrah can be challenged in the High Court of Punjab and Haryana. The learned Single Judge took the view that the action of the Collector, Howrah cannot be challenged in the proceedings before the High Court of Punjab and Haryana, as, according to him, if the goods are seized at Howrah and were taken possession of by the Collector, the export of foodgrains alone having taken place from the State of Haryana, the Punjab and Haryana High Court had no jurisdiction to quash the orders of confiscation made by the Collector of Howrah. Mr. Munshi further submitted that the matter came to be considered by a Division Bench of the Delhi High Court in Shiv Shankar Lal Gupta v. The Commissioner of Income Tax, Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 21, C.P.C. it was held that the objection regarding jurisdiction should be taken at the earliest possible opportunity and if there is no consequent failure of justice, mere taking of objection is inconsequential. Our attention was drawn to Surjit Singh Atwal v. Union of India, AIR 1965 Cal. 181, in which it was held that invalid contract cannot be relied upon as constituting part of cause of action. Reference was also made by Mr. Parakh to Shree Biharji Mills Ltd. v. Union of India through the General Manager etc, AIR 1965 Patna 53, where the provisions of Section 20, Civil Procedure Code, came up for consideration. It was held therein that the cause of action in that case arose in the district S and no part of cause of action with respect to the stolen bags and bags from which certain quantities were pilfered arose within the jurisdiction of the court at P. In these circumstances, the learned Judges concluded that the court at P had no jurisdiction to try the suit. The learned Single Judge of the Allahabad High Court in the Purtabpore Co. Ltd. v. Cane Commissioner, Bihar, AIR 1969 Allahabad 105, considered the expression, `cause of action, wholly or in part, arises us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that in that case there was no reason as to why the plaintiff could not invoke the applicability of the doctrine of part of the cause of action. Mr. Parakh submitted that Samrendra Nath Roy s case, (1968) 71 Cal. W.N. 592 was overRuled on appeal in F.M.A. 497 and 363 of 1967 by a Bench decision dated April 30, 1970 of the Calcutta High Court. It was held in Serajuddin Co. v. The State of Orissa and Others, AIR 1971 Cal. 414, that where the orders as to grant and revocation of a mining lease were served within the territorial jurisdiction of a High Court and a part of cause of action arose within its jurisdiction that High Court would have writ jurisdiction with respect to the order of revocation even though the authority revoking the lease and the authority communicating revocation were beyond the jurisdiction of the High Court Mr. Parakh on the basis of the decision of the learned Single Judge of the Delhi High Court reported in M/s. S.S. Light Rly. Co. Ltd. v. The Industrial Tribunal, AIR 1971 Delhi 69, also argued that when the orders under challenge were served on the petitioner at Pipalia Kalan, in Rajasthan, a part of cause of action arose in Rajasthan and, therefore, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nasiruddin v. State Transport Appellate Tribunal etc., AIR 1976 S.C. 331, while considering paras 7 and 14 of the Union Provinces High Court (Amalgamation) Order, 1948. Para 36 of the judgment of their Lordships reads as under,- .... the expression `cause of action in an application under Article 226 would be as the expression is understood and if the cause of action arose because of the appellate order of the revisional order which came to be passed at Lucknow then Lucknow would have jurisdiction though the original order was passed at a place outside the areas in Oudh. It may be that the original order was in favour of the person applying for a writ. In such case an adverse appellate order might be the cause of action. The expression `cause of action is well-known. If the cause of action arises wholly or in part at a place within the specified Oudh areas, the Lucknow Bench will have jurisdiction. If the cause of action arises wholly within the specified Oudh areas it is indisputable that the Lucknow Bench would have exclusive jurisdiction in such a matter. If the cause of action arises in part within the specified areas in Oudh it would be open to the litigant who is the dom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as jurisdiction to entertain and decide the writ petition. In Union of India v. Bhagwan Industries Ltd., AIR 1957 All. 799, it was held that where the deposit is made in advance, there is evidently an implied agreement that the amount deposited would be refundable, if not appropriated, and the depositee becomes a debtor for the purpose of repayment of the money to the person entitled to get back the deposit and as such, under the circumstances, the depositee is liable to made the refund at the place where the depositer resides. Reliance was also placed upon Soniram Jeetmull v. R.D. Tata and Company Ltd., AIR 1927 P.C. 156, Firm Bilasrai Hannalal v. Firm Purshottam Dass Sanwaldass and Another, AIR 1962 Raj. 247. Balloram and Another v. Firm Seth Uttamchand Bishamdas, ILR (1960) 10 Raj. 1123 and Ram Bhagat Somani v. Kanhaiyalal Jainarain Tambi, 1973 RLW 142. We may, in passing observe here that Mr. Munshi, learned Counsel for the respondents submitted that the common law principle that debtor should find the creditor does not apply in the facts and circumstances of this case as the Notification No. GSR..., dated February 9, 1963 specifically lays down as to before whom the applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners within the teritorial limits of this State. We have therefore no hesitation in holding that a part of the cause of action has arisen in the State of Tamil Nadu. 13. A special Bench of the Bombay High Court in Gopal Vinayak Godse v. The Union of India and Others, AIR 1971 Bombay 56, also examined the expression cause of action wholly or in part arises used in Article 226 (1-A) of the Constitution. In that case, the order of forefeiture was passed by the Delhi Administration but the learned Judges were of the view that it could make no difference because under Cl. (1A) which, was inserted in Article 226 by Secion 8 of the Constitution (Fifteenth Amendment) Act, 1963, the poser conferred on the High Court by Cl. (1) can be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or m part, arises for the exercise of such power notwithstanding that the seat of the Government to which a direction, order or writ is to be issued is not within those territories. In that case, the copies of the book were seized in Poona in pursuance of the order of forefeiture passed by the Delhi Administration and, therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of the entire consignments against contracts under Item 72(18) provided the consignments were mining machineries . Being aggrieved, the petitioners filed writ petitions under Article 226 of the Constitution for (a) issuance of a writ in the nature of mandamus, (b) issuance of a writ of certiorati for quashing those orders and (c) issuance of the writ of mandamus directing the respondents to grant refund of ₹ 26,85,460/- realised in excess from petitioner No. 1 and, if necessary, for ascertainment of the amount of refund by the reassessment in accordance with law. A preliminary objection was raised about the lack of jurisdiction of Orissa High Court on the ground that since duty was assessed at Calcutta, contracts were registered at Calcutta, orders of the Customs authorities were passed at Calcutta and Central Government order was passed at New Delhi, no part of cause of action arose within the jurisdiction of that Court. While dealing with this preliminary objection about jurisdiction of the Orissa High Court to hear the writ petition, the learned Judges were of the view that as the application seek to quash the demand notices of the appellate and the revisional orders ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is within the local limits of the jurisdiction of this Court and therefore, this Court has jurisdiction to entertain this writ petition. The first preliminary objection raised by the learned Counsel for the respondents regarding the lack of jurisdiction of this Court to entertain and decide the writ petition is, therefore, overruled. 14. For the purpose of appreciating the other objections raised by the learned Counsel for the respondents, it will be useful to examine the merits of the case at this juncture. Mr. Munshi, learned Counsel for the respondents submitted that the levy of ₹ 396/- per M.T. does not represent any countervailing duty but was, in fact part of the basic customs duty in terms of the Notification No. 30-Cus., dated March 10, 1962 as amended by Notification No. 126-Cus,, read with Notification No. 144-Cus., dated August 31, 1965 and Notification No. 105-Cus., dated June 6, 1966. The above mentioned notifications relied upon by the learned Counsel for the respondents are extraeted below : Notification No. 30-Cus., dated 10-3-1962 :- In exercise of the powers conferred by Section 23 of the Sea Customs Act, 1878 (8 of 1878), as in force in Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said Table :- TABLE S. No. Description of Goods Rate of duty 1. Electrolytic aluminium rods (extruded), electrolytic aluminium wire bard, electrolytic aluminium billets, or electrolytic aluminium ingots. 35 per cent ad valorem 2. Electrolytic aluminium rods (other than extruded) 35 per cent ad valorem plus ₹ 360 P.T. Notification No. 105-Cus., dated June 6, 1966 :- GSR 875. - In exercise of the: powers.....the Central Government being satisfied that it is necessary in the public interest so to do, hereby directs that in the notifications of the Government of India, Ministry of Finance (Revenue Divn.) or in the Ministry of Finance (Department of Revenue) or in the Ministry of Finance as the case may be specified in column (2) of the Table annexed hereto and relating to the articles specified in column (3) thereon, for the entries specified in columns (4) and (5) of the said Table, the entries specified in the corresponding entries in columns (6) and (7) of the said Table shall be substituted : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nature of duty Standard rate of duty ... ... ... 1 2 3 4 5 6 7 66 Aluminium manu- factures of the following namely : (a) Plates, sheets, circles, strips and foil, including foil in any form or size ordinarily used as parts and fittings of tea chests. Revenue 40 per cent ad valorem ... ... ... (b) other manufacture, not otherwise specified. Revenue 60 percent ad valorem ... ... .... Item 66(b) is a residuary Item. There is no dispute between the parties that it applies to the goods mentioned in the Bill of Entry (Ex. 1) dated July 7, 1965. Section 2A of the Act was inserted by Act No. III of 1963 and it came into force on February 2, 1963. Therefore, on July 7, 1965, Section 2A of the Act was in force ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the excise duty, 27. ALUMINIUM- (a) In any crude form including ingots, bars, blocks, slabs, billets, shots and pellets. Nine hundred and fifty rupees per metric tonne (b) Manufactures of the following, namely plates, sheets, circles and strips in any form or size, not otherwise specified. One thousand four hundred and fifty rupees per metric tonne (bb) Foils, that is a product of thickness excluding any backing not exceeding 0.1 5 milimetres. Two thousand rupees per metric tonne (c) Pipes and tubes, other than extruded pipes and tubes. Twenty per cent ad valorem (d) Extruded shapes and Sections including extruded pipes and tubes. Twenty per cent ad valorem . 16. It is clear that none of these sub-Items of Item 27 mentions the electrolytic grade aluminium rods other than extruded. These sub-Items did not apply to the goods mentioned in the Bill of Entry Ex. 1 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 2A of the Act, Column 9 of the Bill of Entry (Ex. 1) dated July 7, 1965 shows that 16 +10% + ₹ 396/- per M.T. has been charged and thereafter what became payable by the petitioner in this behalf has been mentioned. In this case, the rate mentioned is at ₹ 396/- per M.T. So, from the very face of this bill, it appears that what the customs authorities recovered from the petitioner under this bill was the countervailing duty under Section 2A of the Act, in additional to the customs duty payable under Section 2 of the Customs Act. Mr. Munshi however contends that the assessment made in the Bill of Entry Ex. 1 dated July 7, 1965 does not contain any countervailing duty. Duty charged is ad valorem as prescribed under the Act. It has, therefore, become necessary for us to examine the scheme of exemption granted in respect of certain aluminium goods from time to time. Sub-Section(1) of Section 25 of the Customs Act provides as follows :- 25. (1) If the Central Government is satisfied that it is necessary in the public interest so to do, it may, by notification in the Official Gazette, exempt generally either absolutely or subject to such conditions (to be fulf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above were issued from time to time to grant exemption and not to charge any import duty. It is therefore, clear that there was no levy of Excise duty on the goods in question at the relevant time under the relevant provisions of the Excise Act read in the light of the provisions of the Act and, therefore, the amount of ₹ 3629.34 which was charged from the petitioner was nothing but the countervailing duty under Section2A of the Act which the Assistant Collector (Principal Appraiser) of Customs, Bombay, was not entitled to recover. Venkatdri, J. of the Madras High Court in a batch of writ petitions Nos. 1575 to 1577 of 1965 has observed as under,- Though the countervailing duty was originally introduced on the advice of the Tariff Commission, subsequently it was made a statutory duty by introduction of Section 2A of the Indian Tariff Act. But this duty is kept distinct from the customs duty and this would be clearly seen if we look into the proviso to Section26 (1) of the Finance Act, 1965 and subsequently incorporated in Section 57(1) of the 1964 Act and Section 76(1) of the 1965 Act. These Sections by their provisos clearly exempt the countervailing duty under Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 9.165 MTs., collected by the Assistant Collector (Principal Appraiser) Customs, Bombay and paid by the petitioner under a mistake, it was beyond a period of Six months within the meaning of Section 27(1) of the Customs Act. The Bill of Entry (Ex. 1) dated July 7, 1965 which has been produced with the writ petition shows that following customs duty was levied on the consignment of Electrolytic Grade Aluminium Wire consisting of 9.165 MTs.:-16 %, 10% regulatory duty and ₹ 396/- per M.T. ₹ 396/- per M.T. was levied under Section 2A of the Act. This levy and collection in that behalf were not justified under any provisions of the Customs Act or the Act or the Excise Act. A reading of Section 27(1) clearly shows that it contemplates payment of duty amongst others by an importer in pursuance of order of assessment made by an officer of Customs. The words order of assessment in the context, in our opinion, mean an order of assessment made under the charging statute. Under Section 2A of the Act, any countervailing duty could not be levied and, therefore, there could not have been an order of assessment under that Statute. The countervailing duty in the Bill of Entry (Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, the suit for its refund could not be filed after three years from July 7, 1965. As such, the petitioner is not entitled to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitut ion. In this connection, he referred to a Division Bench decision of this Court in Mubarak Hussain v. State of Rajasthan - AIR 1967 Raj. 14. Our attention was drawn to part 13 of the report wherein it has been observed, ......the point of time when the plaintiff came to know of the mistake under which he had made the disputed payments must be a matter within his special knowledge and under Section 106 of the Evidence Act, it would be for the plaintiff to establish a point like this, rather than for the defendant for whom it would be hardly possible to read the mind of the plaintiff with any precision. Again, as we look at the matter, the plaintiff in enjoyment of his monopoly rights, rightly or wrongly until the 31st of March, 1951 or a few days thereafter and admittedly his monopoly was terminated early in the month of April 1951. We have no doubt therefore, that he should have certainly discovered soon after that the payments made by him up to the 31st o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ound and wise exercise of discretion for the courts to refuse to exercise their extraordinary powers under Article 226 in the case of persons who do not approach it expeditiously for relief and whostand by and allow things to happen and then approach the court to put forward stale claims and try to unsettle settled matters. That was a case where a person was aggrieved by an order of promoting a junior over his head and in that connection, their Lordships were of the opinion that a person aggrieved by an order of promoting a junior over his head should approach the court atleast within six months or at the most a year of such promotion. We are tempted to spots the following extract from this judgment,- .....It is not that there is any period of limitation for the courts to exercise their powers under Article 226 nor is it that there can never be a case where the courts cannot interfere in a matter after the passage of certain length of time...... Mr. Munshi also placed reliance upon the observations made in para 13 in Raja Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes and Others, AIR 1975 SC 1816,- ....Article 226 is not a blanket power, regardless ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c) of the Limitation Act provides that in the case of a suit for relief from the consequence of a mistake, the period of limitation shall not begin to run until the plaintiff has discovered the mistake or could, with reasonable diligence, have discovered it. In this connection, he also referred to us to Jain Brothers and Company Bundi v. The State of Rajasthan, AIR 1964 Raj. 17, wherein a Division Bench of this Court held that Article 62 of the Limitation Act, 1908 governs suit for money had and received, not only where the defendant may have actually received money for the use of the plaintiff as his agent or in a like capacity, but is also governs suits for money where in it can be rightly postulated that the defendant had received money which he had not right to receive and the receipt whereof by the defendant therefore amounts in law or by a legat fiction to a receipt by him for the plaintiff s use. It may be mentioned here that, that case related to the action for refund of a definite sum of money which was recovered by the defendant State from the plaintiff-appellant by way of Sales-tax and the recovery of which was without any authority of law. It was observed that it can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the subject matter of a suit on July 14, 1970 when the writ petition was filed. It was not disputed before us that subject to the question of limitation, money paid under a mistake or coercion may be recovered under Section 72 of the Indian Contract Act. The right to relief for the return of money under Section 72 of the Contract Act extends to money paid under mistake of law, that is, mistake in thinking that the money paid was due when in fact it was not due. This view has been taken in Sri Sri Shiba Prasas Singh v. Maharaja Srish Chandra Nandi and Another, AIR 1949 P.C. 297 and The Sales Tax Officer, Banarns v. Kanhiyalal Makund Lal Saraf, AIR 1959 S.C. 135. The same view was reiterated by their Lordships of the Supreme Court in the State of Kerala v. Aluminium Industries Ltd., (1965) S.T.C. 689, wherein it was observed,- 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 assessee and the taxing authority. In the Limitation Act, 1908, Article 96 provided that in a claim for relief on the ground of mistake, time began to run from the date wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aggrieved party in seeking this special remedy and what excise there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. 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 ligislation 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 viod 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 desirable to lay down any Rule for universal application. It may, however be stated as a general Rule that if there has been unreasoable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the or the statutory authority against whom the consequential relief is prayed for raises a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner, after acquiring knowledge that the countervailing duty has been paid under a mistake, submitted their claim for refund of the amount on December 25, 1967 before the Principal Appraiser, who rejected it by his order dated January 30, 1968. Thereafter, an appeal was preferred which was rejected on April 26, 1968. Against the order of the Appellate Collector, revision was preferred and that revision was rejected vide order dated November 28, 1969. The petitioner was vigilant in expiring all possible avenues to get back the money recovered from it without any authority of law and it exhausted all the remedies but did not get any relief. We, therefore, hold that the writ petition cannot be dismissed merely on the ground of laches and delay. In Tata Engineering and Locomotive Co. Ltd. v. The Assistant Commissioner of Commercial Taxes and Another. AIR 1967 S.C. 1401, it has been Ruled that under an invalid law or arbitrarily without the sanction of law the action has been taken, it is open to the High Court to interfere to avoid hardship to a party and permit him to invoke the extraordinary jurisdiction envisaged by Article 226. 26. Learned Counsel for the respondent m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Patna v. State of Bihar and Others, AIR 1978 Patna 126. We have carefully examined these decisions and we have no hesitation in saying that they are not applicable to the cases in hand. The Supreme Court in Suganmal s case (supra) has laid down inter alia as under in paragraphs 6 and 9 on which the learned Counsel for the respondents laid considerable emphasis, ......we are of opinion that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Article 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which has illegally collected the money as a tax..... .....We, therefore, hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved Party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defences to the claim defences which cannot, in most cases, be app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief for refund of tax simplicitor will not be granted by the High Court in the exercise of its discretion under Article 226 of the Constitution. But a High Court may order refund of tax as a consequential relief in a proceeding under the Article 226 of the Constitution in which the validity of the assessment itself is challenged. Sugan Mal s case itself recognises this position. Again where the statute provides for grant of refund of tax under certain circumstances and subject to certain conditions, but the taxing authority evades dealing with the application for refund, we do not see any legal impediment in the way of the High Court issuing a direction to the authority to consider the application for refund and to grant the refund to which the applicant may be found to be entitled. In the Patna case (supra), the sole relief asked for by the petitioner was for a writ of mandamus directing the State to refund the duty illegally collected and in that connection, the learned Judges, while relying on Suganmalis case (supra), observed that when the sole relief asked for is about refund of the duty illegally collected, the ordinarily a petition under Article 226 of the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. That in a number of cases the High Courts have used the writ of mandamus to enforce such repayment is not disputed..... 30. Reference may also be made to the Sales Tax Officers Banaras v. Kanhaiyalal Makundlal Saraf (supra). In that case, the appellant disputed the correctness of the High Court s order made on an application under Article 226 of the Constitution directing refund of tax that had been paid under the Uttar Pradesh Sales Tax Act on the respondents formal transactions in silver bullion. After the levy of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad, the respondents asked for refund of the tax paid and when he was refused, he applied to the High Court under Article 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for refund was affirmed by the Supreme Court in appeal. It is correct that in Firm 4. T. B. s case (supra) and the Sale ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
