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TMI Blog1974 (10) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... asji and Co. v. State of Mysore, (1968) 2 Mys. LJ 78 struck down the provisions of the Mysore Elementary Education Act and the amendments to it on May 2, 1968. That decision was affirmed by the Court in State of Mysore v. D. Cawasji and Co., (1971) 2 SCR 799. Before the decision of this Court, the Mysore Legislature had passed the Mysore Education Cess (Validation and Levy) Act, 1969 on September 10, 1969 validating the levy and the collection of cess under the Act. But the Validation Act was held to be invalid by the Mysore High Court. The writ petitions were filed before the High Court in June and July, 1968, i.e. after the decision of the Mysore High Court in (1968) 2 Mys. LJ 78 and before this Court rendered its judgment. 3. The contention of the appellants before the High Court was that the payments of cess in question were made by them under a mistake of law; that they discovered the mistake only on May 2, 1968 when the High Court, by its judgment, declared that the provisions of the Act and the amendments thereto were unconstitutional, and that, as they filed the writ petitions within three months of that decision, the writ petitions were within time. 4. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minium Industries Ltd., (1965) 16 STC 689 (SC) a Bench of seven Judges of this Court followed the view taken in State of Madhya Pradesh v. Bhailal Bhai, (1964) 6 SCR 261 on the question of the period of limitation within which the petition has to be filed. 7. Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff had discovered the mistake or could, with reasonable diligence, have discovered it. In a case where payment is made under a mistake of law as contrasted with a mistake of fact, generally, the mistake becomes known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with a reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law. 8. Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the period of limitation prescribed i.e. within 3 years ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perhaps practical reasons for the law according a different treatment both in the matter of the heads under which they could be recovered and the period of limitation for the recovery. 12. The task of writing legislation to protect the interest of the nation is committed to Parliament and the legislatures of the States. We are referring to this aspect only to alert their attention to the present state of law. 13. Now, the High Court relied on the decision of this Court in Tilokchand Motichand v. H.B. Munshi. (1970) 25 STC 289 (AIR 1970 SC 898) for its conclusion that relief for refund cannot be granted in the proceedings and that the appellants must resort to the ordinary remedy of suits. 14. In Tilokchand Motichand's case (1970) 25 STC 289 (AIR 1970 SC 898) the petitioners before this Court had realised several amounts from their customers outside Bombay on account of sales tax. The Sales Tax Officer, by his order dated March 17, 1958, forfeited the same under Section 21(4) of the Bombay Sales Tax Act, 1953. On March 28, 1958, the petitioners filed a writ petition in the High Court of Bombay seeking a writ of mandamus restraining the Sales Tax Officer from re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration. In any event, having set the machinery of law in motion, he cannot abandon it to resume it after a number of years, because another person more adventurous than him in his turn got the statute declared unconstitutional, and got a favourable decision.... I agree with the opinion of my brethren Bachawat and Mitter, JJ. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the Article in the Limitation Act......" Bachawat, J. said that the payment made by the petitioners were made not under any mistake of law, and therefore, they cannot claim any relief on the ground of mistake. Mitter, J. was of the view that after the decision of the Bombay High Court, the petitioners did not willingly pay the amount forfeited, but that they made the payment after attachment of their properties and, therefore, the amounts were really paid under coercion and the period of limitation would normally run from the date of the payment. 15. We are not quite sure that if the maxim that everyone is presumed to know the law is applied, there will be any case of payment under a mistake of law unless that presumption is rebutted in the first instance, fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by `other proceedings', applications in the nature of proceedings under Article 226, when it is seen that the Court refused to entertain the relief for refund on the ground of delay in the proceedings under Article 226 and that in some cases the Court directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before the High Court in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants could not be allowed to split up their claim for refund and file writ petitions on this piecemeal fashion. If the appellants could have but did not, without any legal justification, claim refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X
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