TMI Blog2017 (3) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... h such directions came to be issued on an erroneous appreciation of the law i.e., Section 55 of THE ACT. We undertook the exercise of examining the scope and amplitude of Section 55 only for the purpose of declaring the law as we are informed that a number of claims for refund similar to the claim of the respondent are pending and also likely to arrive in future, therefore, there is need to have clarity on the true meaning and scope of Section 55. Apart from the appellant, we are sure, number of applications under Section 55 must be pending with various other major ports. - CIVIL APPEAL NO.496 of 2003 - - - Dated:- 1-3-2017 - Mr. J . CHELAMESWAR AND Mr. S . ABDUL NAZEER JJ . For the Appellant : Mr . P . H . Parekh,Sr . Adv . M / s . Parekh Co . ,Adv . For the Respondent : Mr . Ravindra Kumar, Adv . ORDER 1. This appeal arises out of a judgment dated 28.12.2001 of the High Court of Gujarat in a writ petition (Special Civil Application No.771 of 1985) preferred by the sole respondent herein (a company recognised under the Companies Act, 1956). The 1st appellant herein is a body corporate (called BOARD) established unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he discussion aforesaid, we allow SCA No. 771/1985 and direct the respondent-Trust to verify the claim in the petition and make refund of a sum of ₹ 6,99,588.66 with 6% interest thereon from the date of filing of the petition till payment. Rule is made absolute. 8. Hence the instant appeal. 9. The case of the appellants both before the High Court and before this Court is that the claim of the respondent is barred by limitation (Learned counsel appearing for Kandla Port Trust mainly opposed the refund claim on the provision of section 55 of Major Port Trusts Act, 1963. He stated that over-charge towards wharfage can be claimed from the Board of Trustees only by a claim application under section 55 and within the prescribed period of six months from the date of payment. It is urged that application for refund in all these five cases is clearly barred by limitation prescribed under Section 55 of the Act and, therefore, a writ petition for the same is not maintainable.) prescribed under Section 55 of THE ACT, therefore, the writ petition for refund of the amount allegedly paid in excess is not maintainable. In the alternative, it is the case of the appellants that si ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the appellants placed heavy reliance (Whether the Hon ble High Court ought to have appreciated that as per the decision of a Constitution Bench of 9 Hon ble Judges of this Hon ble Court in Mafatlal Industries Ltd. and Ors. Vs. Union of India and Ors., reported in (1997) 5 SCC 536, where the amount is collected by the authorities under the Act upon a misconstruction or wrong interpretation of the provisions of the Act, Rules and Notifications or on an erroneous finding of fact, then the claim for the refund arises under the provisions of the Act, and therefore, in the facts of the instant case, the claim for refund should have been preferred within six months from the date of payment?) upon the judgment of this Court in Mafatlal Industries Ltd. Others v. Union of India Others, (1997) 5 SCC 536. The High Court purported to distinguish the judgment in Mafatlal case . 12. Mafatlal case was decided by a Constitution Bench (9 Judges). Facts of Mafatlal case are not very clear from the judgment. The controversy in the case revolved around the constitutionality of section 11B of the Central Excise Act, 1944, its interpretation and the questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es which govern the exercise of jurisdiction under Article 226 of the Constitution. 14. In our opinion, the judgment in Mafatlal case is not relevant in the context of the appellants defence based on Section 55 of THE ACT. Section 55 of THE ACT reads as follows: 55. Refund of overcharges.-No person shall be entitled to a refund of an overcharge made by a Board unless this claim to the refund has been preferred in writing by him or on his behalf to the Board within six months from the date of payment duly supported by all relevant documents: Provided that a Board may of its own motion remit overcharges made in its bills at any time. It can be seen from the language of Section 55 of the Act that no person shall be entitled to seek refund of any amount allegedly overcharged by a BOARD unless such a claim is made within six months from the date of the payment and made in writing duly supported by relevant documents. 15. In our opinion the declaration under Section 55 of THE ACT extinguishes the right to claim refund of the amounts allegedly paid in excess of the legal liability under THE ACT if such a claim is not made within the period of 6 months f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted therefrom except in accordance with the provisions of this section . Section 13 enumerates various grounds on which a landlord can seek possession. This right is further restricted if the landlord has obtained possession of similar premises under the same provisions of law by the proviso. Now the question is whether the bar under the proviso is applicable only to the filing of an application or it is a bar on the right of the landlord. If the interpretation suggested by the landlord is accepted then the bar will be on the application by the landlord and not on his right to evict. This, in our opinion, will not be the correct interpretation of the proviso. A careful perusal of the various provisos found in sub-section (3) of Section 13 of the Act clearly shows that the legislature intended to further restrict the right of a landlord to seek eviction under the clauses mentioned in that sub-section apart from the restrictions imposed in Section 13 of the Act. For example, if the landlord is seeking eviction of a tenant on the ground that the same is required for the use of his son then, in view of the proviso applicable to that sub-section, he can seek eviction of the premi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ught by the person invoking the jurisdiction. ii. The rules of law which regulate the exercise of jurisdiction by such forum. 21. The issue in the instant case is whether the jurisdiction of the High Court under Article 226 of the Constitution of India could be invoked to secure a relief on the basis of a right which had been extinguished? In our opinion, the jurisdiction of the High Court under Article 226 can only be exercised for enforcement of rights which subsist in law but not those which have been extinguished. 22. In our opinion Section 55 of THE ACT makes such a declaration of extinguishment of the right to claim for refund of the excess amount paid unless the person making such a claim makes the demand to the BOARD within a period of six months from the date of the payment. 23. If a claim is made within the time stipulated under Section 55 of THE ACT and if the same is rejected by BOARD the claimant may have more than one remedy available for the redressal of his grievance, such as, filing of a civil suit under Section 9 of the Code of Civil Procedure, 1908 or approaching constitutional courts invoking their extraordinary jurisdiction under Article 226 or Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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