TMI Blog1979 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... regarding refund of the duty survives. We are considering all these writ petitions together and disposing of them by a common judgment, in view of the controversy being the same. ***** 13. We are of the opinion that the payment made by the petitioners in these cases cannot be said to be payment made under a mistake of law. As we have pointed out already, the decision of the Supreme Court in Kalyani Stores v. State of Orissa - AIR 1966 S.C. 1686, was rendered on 21-9-1965 and the petitioners themselves did not state as to why they did not know that decision earlier and that they came to know the same only for the first time just before the filing of the writ petitions. In fact, in paragraph 7 of the affidavit in W.P. No. 3259 of 1974, it is stated that the petitioner therein was paying the excise duty without examining the validity of such levy. In paragraph 9 of the affidavit it is pointed out that for the first time the petitioner was advised by the counsel that the levy and collection of excise duty on Indian made foreign liquor and beer imported into the State in the past was wholly unauthorised and illegal and that there was a duty upon the respondents to refund the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the party." (Italics are ours). 14. Even assuming that for any purpose the date of the judgment cannot be taken to be the date when a party comes to know of it, at least the date when the judgment is reported in the recognised law journals will constitute the date when he is deemed to have become aware of the decision of the Supreme Court. The decision of the Supreme Court in Kalyani Stores v. State of Orissa, AIR 1966 S.C. 1686, had been reported in 1966 itself and the period with reference to which the relief has been claimed in the present case is from 1971. Thus it will be seen that the payment has been made in the present case with the full knowledge of the decision of the Supreme Court referred to above in Kalyani Stores v. State of Orissa, AIR 1966 S.C. 1686 and therefore such payment cannot be claimed or characterised as payment made under a mistake of law. Both sides agree before us that their has not been a single decision of our court where the claim for refund has been allowed by the issue of a writ of Mandamus when the payment had been made after the law had been declared by the Court as unconstitutional or invalid. That being the case, we are clearly of the opini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd of the entire amount without giving due credit for the expenses or charges incurred by the Government for the issue of permits and for the supervision of export, transport and other administrative charges. The second reason given by the High Court was that the court would not be justified in exercising discretion in favour of the appellants who voluntarily paid the administrative charges, obtained the permits and derived considerable profits therefrom. The third reason given by the High Court was that there was undue delay in claiming the refund". The Supreme Court upheld the exercise of discretion by the High Court, pointing out - "The High Court in exercise of its discretion refused to grant a Mandamus on a consideration of facts and circumstances of the case. The principal matters which weighed with the High Court are these. First, the appellants voluntarily paid the amounts and derived full advantage and benefit by utilising the permits. Second there is undue delay in claiming refund. Where the High Court has in exercise of discretion refused to grant a writ of Mandamus, this court does not ordinarily interfere". 17. In the present cases also, as we have pointed out al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art of the petitioners in approaching the court and there are no controverted facts to be investigated by means of evidence, the court is bound to grant relief under Article 226 of the Constitution of India, by the issue of a writ of Mandamus and for this purpose relied on the well known decision of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai etc. - AIR 1964 S.C. 1006. In paragraph 17 of its judgment, the Supreme Court pointed out - "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 High 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. Another is the nature of controversy of facts and law that may have to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd law that may have to be decided as regards the availability of consequential relief." Therefore these two circumstances do not exhaust all the circumstances or matters which the High Court can take into account for the exercise of the discretion, that too, with reference to the grant of a writ of Mandamus in favour of the petitioners. 22. Under these circumstances, we are clearly of the opinion that the circumstances referred to above can certainly be taken into account by this court in declining to issue a writ of Mandamus in favour of the petitioners herein. 23. It may be pointed out that in these cases the petitioners had been paying the excise duty voluntarily without any threat or force, from the State and they had been so doing merely for the purpose of carrying on the business of selling Indian made foreign liquor and beer in the State after the prohibition was suspended and they came forward with the present claim only when prohibition was reintroduced and it had become difficult for them to carry on the business in the same manner in which and to the same extent to which they had been doing in the past. 24. Under these circumstances, we are clearly of the opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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