No Acts & Articles mentioned in this case
[M.
TILOKCHAND MOTICHAND & ORS.
v.
H. B. MUNSID & ANR.
Nuvember 22, 1968
HIDAYATULLAH, C.J., S. M. SIKRI, R. S. BACHAWAT,
G. K. MITTER AND K. S. HEGDE, JJ.]
Constitution of India, 1950, Art. 32-Lache.T-Fundamental right-
E/Ject on. '
Petition under Art. 226-Contention raised that" provision of law is
ultra vires as violating junda1nental rights-Contention not considered but
petition dismissed in limine--Order of High Court if res judicata, i11 rela
tion to petition under Art. 32.
The sales tax authorities directed that the sum realised as sales tax by
the petitioners from their customers and paid over to the State should be
refunded
to the petitioners on condition that the petitioners passed on the
amounts
to their customers.
Since the petitioners did not fulfil the con-
A
B
c
dition, the sales tax officer forfeited the sum under s. 21 ( 4) of the Bom-D
bay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28,
the petltioners filed a writ petition in the High Court
and contended that
s. 21(4) was ultra vires the powers of the State Legislature
and was viola-
tive of Arts. 19(1) (f) and 265 of the Constitution and hence, they were
not liable
to repay the amount. The single Judge dismissed the petition
on the ground that the petitioners defrauded their customers and so were
not entitled
to any relief even if there was a violation of fundamental
rights. The appellate bench
of the High Court dismissed the appeal on
the ground that it would not interfere with the discretionary order
of the
single Judge.
On December 24. 1958, the Collector attached the proper
ties
of the petitioners for recovering the amount as arrears 'of land revenue
and the petitioners paid the amount
in instalments between August 1959
and August
1960. On September 29, 1967 this Court in Kanti/al Babula/
v. H. C. Patel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of llombav
Sales Tax Act, 1946, corresponding to s.
21(4) of the 1953-Act, on the
ground that it was violative
of Art. 19(1) ) inasmuch as the
power
conferred by the section was unguided, uncanalised and uncontrolled and
so was not a reasonable restriction on the fundamental right guaranteed
under the Article.
On the assumptioh that s. 21 ( 4) of the
1953-Act is
also liable to be struck down on the same ground, on February 9, 1968,
E
F
the petitioners filed a writ petition under Art. 32 claiming a refund of the
amount. The petitioners contended
that they did not know that the
section
was ultra vires on the particular ground on which this Court struck G
it down, that they paid the amounts under coercion or mistake, that the
mistake was discovered on September 29, 1967 (the date
of the judgment
of this Court) and that they were entitled to the refund under s. 72 of
the Indian Contract Act, 1872.
On the questions : (1) Whether the petition is liable to be dismissed
on the ground of /aches; and (2) Whether the petition is barred by res
judicata in view of the decision of the High Court. H
HELD : (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.) (1) The
petition must be dismissed on the ground
of /aches.
•
•
~·-
\.
,.
..
,.
·~.
-··.
"
•
•
•
A
B
c
D
E
F
G
H
T!LOK CHAND V. H. B. MUNSHI 825
Per Hidayatullah C.J. : Article 32 gives the right to move this Court
by appropriate proceedings for enforcement of fundamental rights and the
State cannot place any hindrance in the way of an aggrieved person. But
once the matter has reached this Court, the extent or manner
of interfe
rence is for this Court to decide. This Court has put
itself in restraint in
the matter of petitions under Art. 32. For example, this Court refrains
from acting under the Article
if the party had already moved the High
Court under Art. 226 and if the High Court had exercised its parallel
jurisdiction. In such a case, this Court would not allow fresh proceedings to be started under Art. 32 but would insist on the decision of the
High Court being brought before it
on appeal. Similarly, in inquiring
into belated and stale claims, this Court should take note
df evidence of
neglect of the petitioner's own rights for a Jong time or of the rights of
innocent parties which might have emerged by reason of the delay. The
party aggrieved must therefore move this Court at the earliest possible
time and explain satisfactorily all semblance
of delay. It is not possible
for this Court to
Jay down any specific period as the ultimate limit
of
action and each case will have to be considered on its own facts. A peti
tion under Art. 32
is neither a suit nor
ar. application to which the Limita
tion Act applies. Further, putting curbs in the way of enforcement of
fundamental rights through such legislative action might
be questioned
under Art. 13(2), for, if
a short period of limitation is prescribed the
fundamental right might be frustrated. Therefore, this Court has to
exercise its discretion from case to case, and where there is appearance
of an avoidable delay and this delay affects the merits of the claim, this
Court
will consider it, and in a proper case, hold the party disentitled to
invoke its extraordinary jurisdiction. [830C, D-E. G-H; 831 A-8. C--E; 832 A-BJ
In the present case, the petitioners moved unsuccessfully the High
Court for relief on the ground that 'the recovery from them V(as uncons
titutional, but did not come up in appeal to this Court. There is thus
no question df any mistake of law. Having· set the machinery of la\V in
motion they cannot abandon it to resume it after a number of years he
cause another person got the statute declared unconstitutional. They
should have known the exact ground
of unconstitutionality since every
one is presumed to know the law; and pursued the ground in this Court.
Not having done so, and having abandoned his own
litigation years ago.
this Court will not apply the analogy of the Article in the Limitation
Act
in cases of mistake of Jaw and give him relief. [832 F-H; 833 A-B, C-E]
Per Bachawat, J. : The normal remedy for recovery of money paid
to the State under coercion or mistake df law is by suit. The right to
move this Court for enforcement
of fundamental rights is guaranteed by
Art.
32, and no period of limitation is prescribed for
such a petition.
The writ issues as a ma:tter of course if a breach of a fundamental right
is established, but thiS does not mean that in giving relief under the
Article this Court may ignore all laws of procedure. The extraordinary
remedies under Arts. 32 and 226
of the Constitution are not intended to enable a claimant to recover monies the recovery of which by suit is bar
red by limitation. In the absence any rules of procedure under Art.
145(1) (c) this Court may adopt any reasonable rule. For example .
this Court will not allow a petitioner to move this Court under Art. 32
oo. a petition containing misleading and inaccurate statements. Similarly,
the general principles of res judicara are applied where applicable on
~ounds of public policy. Therefore, where the remedy in a writ appli
cation under Art. 32 or Art. 226 corresponds to a remedy i-n an ordinary
suit and the latter remedy is subject to the bar of a statute of limitation.
the Court imposes on analogy the same limitation on the summary
826 SUPREME COURT REPORTS [1969) 2 S.C.R.
remedy in the writ jurisdiction even though there is no express statutory A
bar of limitation, on grounds of public policy and on the principle that
the laws aid the vigilant and not those who slumber. (842
A-F; 843
A-Fl
In the present
case, the petitioners were not labouring under any
mistake of Jaw when they made the payments, because, in their writ peti
tion in the High Court, they contended that the order was invalid and
that
s. 21(4) of the Bombay Sales Tax Act, 1953, was ultra vires and
B
unconstitutional although they did not know the precise ground upon
which this Court subsequently struck down
s. 12A(4) of the 1946-Act.
Therefore, when they made the payments in 1959 and
1960 they were
made under coercion and not under a mistake
o'f law in thinking that
the money was due. Hence the petitioners could not claim any relief
on the ground of mistake. They could rely on the ground
of coercion
but a suit for the recovery of
money· on the ground of coercion institut-
ed in February 1968, would have been barred by limitation. A suit for
C
recovery of money on the ground of coercion instituted
lifter January 1,
1964 would be governed by Art. 24 of the Limitation Act, 1963, and
the period
of limitation would be 3 years from the dates in 1959 and. 1960 when the amounts were paid. The petitioners could not obtain an
extension of the period under s. 30(a) of the Limitation Act, 1963, as
Art. 62 of the Limitation Act, 1908, which governs a suit for recovery
o'f tax or other levy illegally collected, prescribed the same period of D
limitation. [840 F-H; 841 A-CJ
Shiva Prasad Singh v. Srish Chandra Nandi, (1949) L.R. 76 I.A.
244, 254, Sales Tax Officer v. Mukundlal Saraf [1959] S.C.R. 1350,
1361, 1362, A. Venkat;z Subba Rao v. State of Andhra Pradesh [1965] 2
S.C.R. 577, 612-620, State of Madhya Pradesh v. Bhai/a/ Bhai & Ors.
[1964] 6 S.C.R. 261 274, Daryao v. State of U.P. [1962] I S.C.R. 574,
Sobhraj Odharmal v. State of Rajasthan, [1963] Supp. I S.C.R. 99, 111
and Her Highness Ruckmaboye v. Lul/oobhay Mottickchund, (1851-E
52)
5 M.I.A. 234, 251, referred to.
Per Mitter, J. : The Limitation Act does not in terms apply to pro
ceedings against the State under Art. 32 in respect of violation of funda
mental rights. A person complaining
of such infraction has one of three
courses open
to him. He can file a suit, invoke Art. 226 or Art. 32.
Suits are governed by the Limitation Act.
In the matter of the issue of
a writ under Art. 226 also, courts have
refused to give relief in cases of F
long or unreasonable delay, although the Limitation Act does not apply,
and the maximum period fixed by the Legislature for filing a suit
is
ordinarily taken to be a reasonable standard by which delay in seeking
the remedy under Art. 226 can be measured. There
is no reason for
applying a different test when a party comes to this Court under Art. 32.
There is public policy behind all statutes of limitation and a claim based
on the infraction of fundamental rights ought not to be entertained if
made beyond the period fixed by the Limitation Act for the enforcement G
o'f the right by way of suit, that is. although the Limitation Act does not
apply, the period fixed by it should be taken to be a true measure of the
time within which a person can be
allowed to raise a plea successfully
under Art. 32. [853 C-H; 854 A-BJ
The petitioners in this case had riot made a mistake in thinking that
the money paid was due when in
fact it was not due. They not only
opposed the claim
of the sales tax authorities but filed a writ petition
contending that there was a violation of Art. 19(1)
(f). They did not
accept the decision
of the
single Judge but filed an appeal raising the
same comtention. They comolained about the violation of their funda
mental rights. the illegality of the order of forfeiture and the unreason-
ff
•
~
\.
•
,.
,
•
•
•
•
A
B
c
TILOK CHAND V. H. B. MUNSHI 827
able restriction on their fundamental rights under Art. 19(1)(f). They
protested against the order of forefeiture not only out of court but in
court and only paid the amounts after the issue of legal process. Tuey
were never influenced
by a mistake of law and never
'failed to appreciate
the correct position in law. But the payments were made under coer
cion. The period of limitation for a suit against Government to recover
money paid under protest is governed either by Art. 16 or Art. 62 of
the Limitation Act, 1908 that is one year or three years. But taking the
most favourable view that the period of
six years fixed by Art.
120 of
Limitation Act, 1908, would apply, that period would have expired in
1966. The position
is not different even if the Limitation Act, 1963 is
applied. A claim for money paid under coercion would be covered by
Art. 113
of the Limitation Act, 1963, giving a period of 3 years from
January
1, 1964 the date of commencement of the 1963-Act.
Under
s. 30(a) of the Limitation Act, 1963, the period of limitation for a suit
which
was formerly covered by Art.
120 of the Act of 1908; would be
covered by Art. 113 of the 1963-Act. Therefore, the suit in the present
case would have to be
filed by January 1, 1967. As the
petitiooers came
to
this Court in
February 1968 long after the date when they could have
properly
filed a suit, the application under Art. 32 must be rejected.
[851 H; 852 A-D, G-H; 853 A-B; 854 B-H; 855 A-Bl
Kantilal Babu/al & Bros. v. II.
C. Patel 21 S.T.C. 174, Sri Sri Shiba
Prasad Singh, deceased, now represented by Kali Prasad Singha v. Maha-
D raja Srish Chandra Nandi 76 I.A. 244, Sales Tax Officer v. Kanhaiya
Lal Mukundlal Saraf, [1959] S.C.R. 1350 at 1363, Sales Tax Officer,
Pilibhit v. Budh Prakash Jai Prakash, [1955] 1 S.C.R. 243, State of
Madhya Pradesh v. Bhailal Bhai, [1964] 6 S.C.R. 261, State of Kera/a v.
Aluminium Industries Ltd. 16 S.T.C. 689, and A. V. Subbarao v. The
State of Andhra Pradesh [1965] 2 S.C.R. 577, referred to.
E
F
G
H
Per Sikri and Hegde, JJ. (dissenting) : The petition has to be allow
ed and the petitioners must be granted the relief prayed for.
Per
Sikri, J. : Article 32(2) of the Constitution con'fers a judicial
power on this Court, and like all judicial powers, unless there is an ex
press provision to the contrary, it must be exercised in accordance with
fundamental principles of administration of justice, and one such funda
mental principle is that stale claims should not be given effect to. [833
F-GJ
The Limitation Act does not directly apply to a petition under Art.
32 and and to invoke the analogy of the Limitation Act is not appro
priate when dealing with petitions under Art. 32.
If a claim is barred
under the Limitation Act,
prilna facie it is a stale claim but even if it is
not so barred, it may not be entertained by this Court lf on the facts of
the case there is un:reasonable delay. To issue a writ, direction or order
in the nature
of mandamus, certiorari or prohibition after a delay
df 12
years or 6 yem: would, except when there are exceptional circumstances,
be strange.
It rs difficult
to lay down a precise period but a period of
one year may be taken as the period beyond which the ~!aim would be a
stale
clai.m unless .the delay is. explained. The time spent in making re
presentations to higher
authorities may be taken as a good explanation
for any delay. Such a practice would not destroy the guarantee under
Art. 32, because, the article nowhere lays down that a petition however
late, should be entertained. [833 G; 835 C-H] '
In the oresent case, the petitioners were mistaken in thinking that the
money was liable to be paid .'!nder a valid law and hence under s. 72
of the Contract Act, the petitroners would be entitled to the relief claim
ed. The grounds urged before the High Court show that it never .strnck
the petitioners that the provision could be challenged on the ground ulti-
828 SUPREME COURT REPORTS [1969] 2 s.c.R.
mately accepted by this Court. If the petitioners had not moved the
High Court but had paid
on demand they would have been entitled to
'maintain the petition in this
C-Ourt. The position could not be worse
because they exercised their right under Art. 226. When a petitioner
approaches a High Court and 'fails, it could not be said that paymenL•
made by him thereafter were not under a mistake of law, even if the
point on which this Court ultimately strikes down the provision under
which the payments were made was never raised in the High Court.
The
petitioners discovered, like all assessees, their mistake when
this Court
struck down
s. 12A( 4) of the
1946-Act and they came to this Court
within
6 months of that date and hence
there was no delay. [837 G-H;
839 B-E]
Daryao v. State of U.P. [1962] 1 S.C.R. 574, Amalgamated Coalfields
Ltd.
v.
Janapada Sabha, Chindwara, A.LR. 1964 S.C. 1013, 1018, Sales
Tax Officer v. Kanhaiyala/, [1959] S.C.R. 1350 and Kanti/a/ Babu/al v.
Ti. C. Patel, Sales Tax Officer, 21 S.T.C. 174, referred to.
Per Hegde, J. : In view of the decision of this Court in Kantilal
Babu/al v. Ti. C. Patel, 21 S.T.C. 174 which struck down s. 12A(4) di
tjle 1946-Act, the impugned collection under s. 21 ( 4) of the 1953-Act
was without the authority
of law and consequently the exaction infringed
the fundamental right
of the petitioners under Att. 19
(I)( f). Hence
the petitioners have a fundamental right to approach this Court under
Art. 32 for relief and this Court has a duty to afford them the appro
priate relief. Since the right given to the petitioners under Art. 32 is
itself a fundamental right and does not depend on the discretionary
powers of this Court, as in the case of· Art. 226, it is inappropriate to
equate the duty imposed on this Court to the powers of Chancery
Court
in England or the equitable jurisdiction of
Court. in the United States.
The fact that the petitioners have no equity in their favour is an irre
levant circumstance in deciding the nature of the right available to an
aggrieved party under Art. 32. This Court is charged by the Constitu
tion with the special responsibility df protecting and enforcing the funda
mental rights, and hence /aches on the part of an aggrieved party cannot
deprive him
of his right to get relief under Art. 32. In fact, law
reporu
do not show a single instance of this Court refusing to grant relief on
the ground of delay. If this Court could re'fuse relief on the ground of
delay, the power of the Court under Art. 32 would be a discretionary
power and the right would cease to be a fundamental -right. The provi
sions contained in the Limitation Act do not apply to proceedings under
Arts. 226 and 32 and if these provisions of the Limitation Act are
brought
in indirectly to control the remedies conferred by the
Constitu
tion, it would be a case of Parliament indirectly abridging the funda
mental rights which this Court, in Golaknnth's case, [1967] 2 S.C.R. 762,
held that Parliament cannot do. The fear that forgotten claims and
discarded rights against Government may be sought to
be enforced after
the lapse of a number of years if fundamental rights are held to
be
enforceable without any time limit, is an exaggerated one, for. after all,
a petition.er can only enforce an existing right. [856 D. F-H; 857 A, B. D,
G-H; 858 A. D-E. F-H; 859 HJ
In this case the petitioners have an existing right even if their remedy
under the ordinary law is barred. This
Court struck down s. 12A(4)
of the 1946-Act on a ground not put forward by the petitioners in the
High
Court but on a wholly different ground. A mere impression of a
party that a provision
of law may be
ultra vires cannot be equated to
knowledge that the provision is invalid, and the fact. that, after a futile
attempt to get the provision in question declared invalid the petitioners
gave up their fight and submitted to the law which ."'.as ~pparently valid
is no proof of the fact that they knew that the proVISton m question was
A
B
c
D
•
E
•
F
'
G
H •
•
•
•
TILOK CHAND v. H. B. MUNSHI (Hidayatullah, C.I.) 829
A invalid. There is no reason for rejecting the plea of the petitioners that
they became aware of the invalidity of the provision only after the deci
sion of this Court in Kantilal's case, and since the petition was
filed very
soon thereafter, the petitioners were entitled to relief.
[860 ~]
B
c
n
E
State of M.P. v. Bhailal Bhai, [1964] 6 S.C.R. 261, referred to.
(2) (By Full Court) : The petition is not barred by res judicata.
Per Hidayatullah, C.J. : Where the order of the High Court under
Art. 226 is not a speaking order or the matter has been disposed of on
some ground other than on merits, at the threshold, this Court may
entertain the application under Art. 32. [831 BJ
Daryao v. State of U.P. [1962] 1 S.C.R. 574, explained.
Per Sikri, Bachawat and Mitter, JJ. : When a petition under Art. 226
1s dismissed not on the merits but because of the /aches on the party
applying for the writ
or 'because an alternative remedy was available to
him, such dismissal
is not a bar to a subsequent petition under Art. 32,
except
in cases when the facts found by the High
Court might them
selves be relevant under Art.
32. [833
E-F; 839 F-G; 855 C-D,
F--GJ
Daryao's case, [1962] 1 S.C.R. 574 and Joseph v. State of Kera/a,
A.LR. 1965 S.C. 1514, referred to.
Per Hegde. J. : It is only when the right claimed by the petitioner
in
his petition under Art. 3 2 had been claimed in the High Court under
Art. 226 and negatived by the High Court and that decision had become
final as
it was not appealed against, that the petitioner would not be able
to agitate the right over again
in this Court under Art. 32. [856 B-C]
Daryao's case, [1962] 1
S.C.R. 574, explained .
ORIGINAL JURISDICTION : Writ Petition No. 53 of 1968.
Petition under Art. 32 of the Constitution of India for enforce
ment of the fundamental rights.
H.K. Shah, B. Datta and J. B. Dadachanji for the petitioners.
C. K.
Daphtary, Attorney-General, R. Gopa/akrishnan, R. H.
F Dhebar and S. P. Nayar, for the respondents.
G
H
HIDAYATULLAH, C.J., BACHAWAT and MITTER, JJ., delivered
separate judgments dismissing the petition. SIKRI and H!!GDE,
JJ. delivered separate dissenting opinions al.lowing the petition.
H~yatullah, C.J. This petition has led to a sharp division
of opu1;1~n among my brethren : Sikri and Hegde, JJ. would allow
the pet.1t10n and Bachawat .and Mitter, JJ. would dismiss it. They
h~ve. differed on the question whether the petition deserves to be
d1slll!Ssed on the gro~d of delay. I agree in the result reached
bl'. Bachawat and Mitter, JJ. and would also dismiss ii. I wish
bnefly to state my reasons .
.
At the
!11reshold it appears to me that as there is no law
which prescribes a perio~ of limitation for such petitions, each of
my. brethren has really given expression
to the practice he follows
or mtends
to follow. I can do no more than state the views I
830
SUPREME COURT REPORTS [1969] 2 S.C.R.
hold on this subject and then give my decision on the merits of the A
petition in the light of those views.
. The problem divides itself into two. The first part is a gen~ral
question to be considered in two aspects: (a) whether any limit
of time at all can be imposed on petitions under Art. 32, and
(b) whether
this Court would apply by
atialogy 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 Ill 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 to approach this Court. This is logical enough
for it is against State action that Fundamental Rights are
claimed.
But the guarantee goes no further at least on the terms of Art. 32.
Havilllg reached this Court, the extent or manner of interference
is for the Court to decide. It is clear that every case does not
merit interference. That must
always depend upon the facts of
the case. Iri dealing with cases which have
come before it, this
Court has already settled many principles on which it acts. A
few
of them may be mentioned here.
This Court
does not take action in cases covered by the ordi
nary
jurisdictioin of the civil. courts, that is to say, it does not con
vert
civil and criminal actions into proceedings for the obtainment
of writs. Although there is
no rule or provision of law to prohi
bit the exercise of its extraordinary jurisdiction this Court has
always insisted upon recourse
to ordinary remedies or the exhaus
tion of other remedies.
It is in rare cases, where the
ord:ary
process of law appears to be inefficacious, that this Court interferes
even where other remedies are available. This attitude
arises
from the acceptance of
a salutary principle that extraordinary
remedies should not take the place of ordinary remedies.
Then again this Court refrains from acting under Art. 31. if
the party has already moved the High Court under Art. 226. This
constitutes a comity between: the Supreme Court and the High
Court. Similarly, when a party had aJready moved the High
Court with a similar complaint and for the same relief and failed,
this Conrt insists on an appeal to be brought before it and does
not allow fresh proceedings to be started. In this connection the
principle of res judicata has been applied, although the expression
is somewhat inapt and unfortunate. The reason of the rule no
B
c
D
E
F
G
H
•
"
;
•
-
j
• I
' •
~
w.
!ft
I
•
•
'
•
•
•
A
B
c
D
E
F
G
H
TILOK CHAND v. H. B. MUNSHI (Hidayatullah, C.J.) 831
doubt is public policy which Coke surrunarised as "interest
· reipublicae res ;udicates non rescindi" but the motivating factor
is the existence of another parallel jurisdiction in ain,other Court
and that Court having
.been moved, this Court insists on bringing
its decision before this Court for review. Again this Court
distin
guishes between cases in which a speak~ng order on merits has
been passed. Where the order
is not speaking or the matter has
been disposed
of on some other ground at the threshhold, this
Court
in a suitable case entertains the application before itself.
Another restraint which
this Court puts on itself is that it does not
a!Jow 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 Art. 226 which can go into the
controversy more comprehensively than this Court can under
Art. 32.
It follows, therefore, that this Court puts itself in restraint in
the matter of petition under Art. 32 and this practice has now
become inveterate. The question
is whether this Court wil!
in
quire 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 not
traverse the same ground again except to say this that Courts
of
Common Law in England were bound by the Law of Limitation
but not the Courts of Chancery. Even
so the Chancery Courts
insisted
on expedition. It is trite
leaming to refer to the maxim
"delay defeats equity" or the latin of it that the Courts help those
who are vigilant and do not slumber over their rights. The
Courts of Chancery, therefore, frequently applied to suits in equity
the analogy of the
law of Limitation applicable to actions at law
and equally frequently put a special limitation of their
own if they
thought that the suit was unduly delayed. This was independently
of the analogy of
law relating to limitation. The same practice
has been followed in the United States.
In India we have the Limitation Act which prescribes
different
periods of limitation for suits, petitions or applications. There are
also residuary article~ which orescribes limitation in those cases
where
no
exp•ess period is provided. If it were a matter of a suit
or application, either an appropriate article or the residuary article
L6S·1p.C.l./69-2
S32 SUPREME COURT REPORTS [1969) 2 S.C.R.
would have applied. But a petition under Art. 32 is not a suit and
it is also not a petitio:n or an application to which the Limitation
Act applies.
To put curbs in the way of enforcement of
Funda
mental Rights through legislative action might well be questioned
under Art.
13(2). The reason is also quite clear. If a short
period of limitation
were prescribed the Fundamental Right might
well be frustrated. Prescribing too long a period might enable
stale claims to be made to the
detrimecrit of other rights which
might emerge.
If then there is no period prescribed what is the standard for
this Court to
follow ? I should say that utmost expedition is the
sine qua non for such claims. The party aggrieved mus(move the
Court at the earliest possible time and explain satisfactorily
all
semblance of delay. I am not indicati111g any period which may
be regarded as the ultimate limit of action for that would be talc
ing upon myself legislative functions. In England a period of 6·
months has been provided statutorily, but that could be because
there
is no guaranteed remedy and the matter is
CJi® entirely of dis
cretion. In India I will only say that each case will have to be
considered on its own facts. Where there
is appearance of
avoid
able delay and this delay affects the merits of the claim, this Court
will consider it and in a proper case hold the party disentitled to
invoke the extraordinary jurisdiction.
A
B
c
D
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 . E
upper limit. A case may be brought within 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 Art. 32.
Simi
larly 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 bow F
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 uilJ,Constitutional. 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 did not come up
in appeal to this
Court. His contention is that the ground on which his petition
was dismissed
was different and the
grou\ld on which the statute
was struck down
was not within his knowledge and therefore he
did not know of it and pursue it in this Court. To that I answer
that
Jaw will presume that he knew the exact ground of unconsti-
G
H
•
•
•
'
•
•
•.
•
-
,.
. )
'
•
•
A
B
1)
F
G
H
TILOK CHAND V. H. B. MUNSHI (Sikri, J.) 8 33
tutionality. Everybody is presumed to know the law. It was his
duty to have brought the matter before this Court for consideration .
In any event, having set the machinery of law in motion he cannot
abandon it to resume it after a number ot years, because another
person more adventurous than he in
his turn got the statute dec
lared unconstitutional, and got a favourable decision.
If I were
to hold otherwise, then the decision of the High Court in any case
once adjudicated upon and acquiesced it may be questioned
in a
fresh litigation revived only with the argument, that the correct
position
was not known to the petitioner at the time when he aban
doned
his own litigation. I agree with the opinion of my brethren
Bachawat and Mitter,
JJ. that there is no question here of a mis
take of law entitling the petitioner to invoke analogy of the
Article
in the Limitation Act. The grounds on which he moved
the Court might
well have impressed this Court which might have
also have decided the question of the unconstitutionality of the
Act
as was done in the subsequent litigation by another party.
The present petitioner should have taken the right ground
in the
High Court and taken it
in appeal to this Court after the High
Court decided against it. Not having done
so and having aban
doned his
O\yn litigation years ago, I do not think that this Court
should apply the analogy
of the Article in the Limitation Act
and
give him the relief now. The petition,
therefore, fails and is
dismissed with costs.
Sikri, J. I have had the advantage of reading the drafts of
the judgments prepared
by Mitter, J., and Bachawat, J. I agree
with Mitter,
J., in his conclusion that the rule laid
do~ in Daryao
v. State of U.P.(') is inapplicable to the facts of the case, but
for the reasons I
will presently give, in my opinion the petition
should be allowed.
Art.
32(2) of the Constitution confers
a judicial power on the
Court. Like all judicial powers, unless there
is an express
provi
sion to the contrary, it must be exercised in accordance with fun
damental principles of administration of justice. General princi
ples of res judicata were accordingly applied by this Court in
Daryao v. State of U.P. ('), and Amalgamated Coalfield~ Ltd. v.
Janapada Sabha, Chindwara(
2
). I understand that one of the
fundamental principles of administration of justice
is that, apart
from express provisions to the contrary, stale. claims 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 Art.
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 :
(1) [1962] 1 S.C.R. 574. (2) A.1.R. 1964 S.C. 1013, 1018.
834
SUPREME COURT REPORTS [1969] 2 S.C.R'
"Except, perhaps, where the statute by its express A
terms applies to suits in equity
as well as to actions at
law, or where the jurisdiction of law and equity
is con-
current, 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 extra-
ordinary circumstances render it equitable to do
so, the B
Feder.:-.! courts usually act in analogy to the state statutes
of limitation applicable to
cases of like
character."
(Vol. 34, American Jurisprudence, Limitation of
Actions,
§
54.")
In Courts of Admiralty, where the statutes of limitatiqn do not
control proceedings, the analogy of such statutes is ordinarily C
followed unless there
is something exceptional in the case. (ibid)
Story on Equity Jurisprudence states the legal position thus :
"It was, too, a most material ground, in all bills for
an account, to ascertaiJU whether they were brought to
open and correct errors in the account recenti facto;
or whether the application was made after a great lapse
of time.
In cases of this sort; where the demand was
strictly of a legal nature, or might be cognizable at law,
courts of equity governed themselves by the same !imita-
tions
as to entertain such suits as were prescribed by the
Statute of
Limitatioll!S in regard to suits in courts of
common law in matters of account. If, therefore, the
ordinary !imitation of such
suits at law was six years,
courts
of equity would follow the same period of limi-
tation.
In so doing, they did not act, in cases of this
sort (that
is, in matter of concurrent jurisdiction) so
much upon the ground of
awlogy to the Statute of
Limitations,
as positively in obedience to such statute.
But where the demand
was not of a legal nature, but
was purely equitable; or where the bar of the statute was
inapplicable; courts of equity had another rule, founded
sometimes upon the
analogies of the Jaw, where such
analogy existed, and sometimes upon
its
o fi inherent
doctrine, not
to entertain stale or antiquated demands,
and not to encourage !aches and negligence. Hence, in matters of account, although not barred by the Sta-
tute of Limitations. courts of equitv refused to interfere
after a considerable lapse of time. from considerations
of nublic policy, from the difficulty of doing; entire
justice, when the oriqinal transactions had become obs
cure bv time, and the evidence might have been lost, and
from the consciousness that the repose of titles and the
security of property are mainly promoted by a full en-
D
E
F
G
H
•
....
l·
r
•
•
•
A
•
B
'
c
E
•
G
•
H
TJLOK CHAND V. H. B. MUNSHI (Sikri, /.) ll 35
forcement of the maxim, Vigilantibus, non dormientibus
jura subveniunt. Under peculiar circumstances, how
ever, excusing or justifying the delay, courts of equity
would not refuse their aid in furtherance of the rights
of the party; since in such cases 'there was no pretence
to insist upon !aches or negligence,
as a ground for
dis
missal 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
Chan
cery acted on the analogy of Statnte of Limitation ( vide Halsbury,
Vol. 14,
p. 647, Art.
1190).
It seems to me, however, that the above solution is not quite
appropriate for petitions· under Art. 32. A delay of 12 years or 6
years would make a strange bed-fellow with a direction or order
or writ in the nature of
mandamus, certiorari and prohibition.
Bearing in
miiud 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 run 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 not be entertained
by this Court. But even if it is not
barred
Hnder the lindian Limitation Act, it may not be entertained .
by this Court if on the facts of the case there
is unreasonable delay.
For instance, if the
State had taken possession of property under a
law alleged to be void, and if a petitioner comes to this Court
11 years after the possession was taken by the
State, I would dis·
miss the petition on the ground of delay, 11!1less there is some
reasonable explanation. The fact that a suit for possession of land
would still be in time would not be relevant at all. It
is difficult
to lay down a precise period beyond which delay should
be
ex
plained. I favour one year because this Court should not be
approached lightly, 3ind competent legal advice should be taken
and pros and
cons
ca·efully weighed before coming to this Court.
It is common kndwledge that appeals and representations to the
higher authorities take time; time spent in pursuing these remedies
may not be excluded under the Limitation Act, but it may ordina
rily be takein as a good explanation for the delay.
It is said that if this was the practice the guarantee of Art. 32
would be destroyed. But the article no where
says that a
peti
tion, howsoever late, should be entertained and a writ or order or
836
SUPREME COURT REPORTS [1969) 2 s.c.R.
direction granted, howsoever remote the date of infringement of
the fundamental right. In practice this Court has not been ooter
taining stale claims by persons who have slept over their rights.
There
is no need to depart from this practice
and tie our hands
completely with the shackles imposed by the Indian Limitation
Act.
In the case of applications under Art. 226 this Court
ob
served in State of Madhya Pradesh v. Bhailal Bhai(') :
"It may however be stated as a general rule that if
there has been unr.easonable 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 statutory authority
against whom the consequential relief
is prayed for
raises a
prima facie triable issue as regards the
avail
ability of such relief on the merits on ground~ like limi
tation, the Court should ordinarily refuse to issue the
writ of
mandamus for such payment. In both these
kinds
of cases it will be sound use of discretion to leave
. the party to seek his remedy by the ordinary mode
of
action in a civil
court and to refuse to exercise in. his
favour the extraordinary remedy under Art. 226 of the
Constitution."
In State of Kera/a v. Aluminium Industries(
2
)
Wanchoo, J.,
speaking on behalf of a large Bench of this Court, qbserved :
"There is no doubt in view of the decision of this
Court in
Sales Tax
Officer v. Kanhaiyalal (3) 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
respqndent did not raise the question
retating to Article 286 of the Constitution and the Sales
Tax Officer had no occasion to consider it. In such a
case where \ax 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
refrnnd 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), namely,
three years from the date when the mistake becomes
known to the person who has made the payment by
mis
take [see State of Madhya Pradesh v. Bhailal(')]. In
this view of the matter .it was the duty of the State to
{I) [1964] 6 S.C.R. 261, 271-72. (2) 16 S.T.C. 689, 692.
(3) [1959] S.C.R. 1350.
A
•
B
c
D
E
F
•
G
•
H
1. •
'
...
•
•
•
A
B
TILOK CHAND v. H.B. MUNSHI (Sikri, J.) 837
investigate the facts when the mistake was brought to
its notice and to make a refund if mistake
was proved
and the claim
was made within the period
of !imitation."
But these cases cannot directly apply to petitions under Art. 32
because they proceed from the premise that the remedy
is discre
tionary under Art. 226.
Coming
to the facts of this case, which have been stated in
detail
by Mitter, J., it seems to me that the delay in coming to this
Court has been adequately explained.
Iai brief, the facts are
these: The Sales Tax Officer, by his order dated March 17, 1958,
forfeited a
sum of Rs. 26,563.50 under s. 21 ( 4) of the Bombay
C
Sales Tax Act (Bombay Act III of 1953), which provision is
similar to s. 12A ( 4) of the Bombay
Sales Tax Act, 1946. The
petitioner promptly
filed a writ petition in the Bombay High Court
challenging this order.
His petition was dismissed on November
28, 1958. He also failed
in appeal before the Division Bench
on July
7, 1959. An order of attachment followed. The peti-
D . tioner paid the
sum of Rs. 26,563.50 in
various instalments from
October
3, 1959, to August 8,
1960. By letter dated January 9,
1962, the petitioner
was called upon to pay a penalty amounting
to Rs. 12,517 /68 on account of late payment of sales tax dues
but this order of penalty
was ultimately
ca$).celled.
The Gujarat High Court (Shelat, C.J., and Bhagwati, J.) in
E Kantilal Babula/ v. H. C. Patel, Sales Tax Officer(') held on
December
2, 1963, thats. 12A(4) of the Bombay
Sales Tax Act,
1946,
was valid and did not violate Art. 19(1) (f) as it was saved
by Art. 19(5).
On September 29, 1967, this Court, on appeal, in
Kantilal Babula/ v. H. C. Patel Sales Tax Of]icer(2) struck down
this provision
as it infringed Art. 19(1)(f).
On February 9, ·
F 1968, four petiticmers-he-einafter compendiously referred to as
the petitioner-filed this petition praying that the order dated
March 17, 1958, and the notice and order dated December 18,
1958, and December 24, 1958, be quashed.
G
H
There is no doubt that under s. 72 of the Contract Act the
petitioner would be entitled to the relief claimed and the refund
of the amount if he paid the money
u,."lder 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
th~ 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 :
(I) 16 S.T.C. 973. (2) 21 S.T.C. 174 .
8 38
SUPREME COURT REPORTS [1969] 2 S.C.R
I. 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
unde; s. 21 ( 4) of the Act of 1953, in forfeiting the said
sum of money.
2. Assuming that the respondent had power to for
feit the sum under the Act of 1953, it was strictly
limited to taxes payable
Uillder the provisions of the Act
and
as no tax was payable on outside sale the autho
rities had
no power to forfeit the sum of Rs. 26,563.50.
3.
4. Even assuming while denying that the respon
dent 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 proper
constructi001 of the relevant provisions of the Constitution
no State Legislature had at any time a power to impose
tax on the aforesaid transactions, the power
to forfeit
tax in respect of those
transactions is ultra vires the
State Legislature."
The learned Single Judge held :
A
B
c
D
"This appears to me to be a gross case where even
if I
was of the opinion that the order is invalid and ~nvolved violation of fundamental rights I would' not in E
my discretion interfe·e by way of issuing a writ. I am
not depriving the petitioner of any other appropriate
remedy. I have, therefore, decided
to dismiss this peti-
tion on that single
ground." ·
The Division Bench, on appeal, decided on the limited ground
that "Mr. Justice K. K. Desai havimg exercised his discretion no F
case is made out for interference with the exercise of that discre
tion." The petitioner rightly did not file an appeal to this Court
for he would have had little chance of succeeding.
Suppose a petitioner challenges a provision of the Sales Tax
Act before the High Court
on the ground that it does not fall
within List
II or List III of the
Seventh Schedule. He fails and
pays the tax and does not appeal to the Supreme Court. Ulti
mately, in another petition, the provision
is
st•uck down under
Art. 14 or Art. 19, a point which he and his lawyers never thought
of. All
assessees who had paid tax without challenging the provi-
sion would be entitled
to approach this
Court under Art 32 and
claim a re.fund (see Sales Tax Officer, Benaras v. Kanhaiya Lal
Mukundlal Saraf)(')·.
But why not the assessee who applied to
(1) [19591
S.C.R. 1350.
G
H
'
•
•
•
•
;•
•
•
•
•
TILOK
CHAND v. H. B. MUNSHI (Bachawat, J.) 839
A the High Court ? The answer given is that he had thought at one
time that the
law was bad, though on wrong grounds. If a law
were framed sanctioning the above discriminatiQn, I believe, it
would
be difficult to sustain it under Art. 14, but yet this is the
discrimination which the respondent wants me to sanction.
B
c
D
E
F
G
H
The grounds extracted above show that it never struck the
petitioner that the
provisio111 could be challenged on the ground
ultimately accepted
by this Court. If the petitioner had not
thought of going to the Bombay High Court on the points he did,
and had paid
cm demand, as most of the assessees do, he would,
I imagine, have been entitled to maintain this petition. But it
is
now said that the
petitiooer's position is worse because he exer
cised
his right to approach the High Court under Art. 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
tills Court ultimately strikes down the
provisioo, 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 s. l 2A ( 4) was
a valid provision in spite of its imposing unreasonable restrictions.
This mistake he discovered like
all assessees whein this Court struck
downs. 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
re.fund the amount. Under the circumstances there will be no
order as to costs.
Bachawat, J. I have had the advantage of reading the judg· .
ment 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 petition
is not barred by res judicata or principle
analogous thereto.
The petitioners realised Rs. 26,563.50
P from their customers
outside Bombay
on account of sales tax. The Sales Tax Officer
by
his order dated March 17, 1958 forfeited this sum under
s. 21 ( 4) of the Bombay Sales Tax Act 3 of 1953.
On March 28,
1958 the petitioners
filed a writ petition in the Bombay High
Court seeking to restrain the
Sales Tax Officer from recovering
the amount. They pleaded that they
were not liable to pay the
amount, that
s. 21 ( 4) was ultra vires the powers of the State
legislature and that the order of forfeiture
was violative of Arts.
19 ( 1) (
f) and 265 of the Constitution and was invalid. On
November 28, 1958, K. K. Desai, J. dismissed the petition. He
held that the petitioners having
defraud~d other persons were not
840
SUPREME COURT REPORTS
[1969] 2 S.C.R.
entitled to any relief. The petitioners filed an appeal against the
order.
In the memorandum of appeal, they pleaded
that the
threatened levy was in violation of Arts. 19 (I )( 0 and 31 of the
Constitution. The appeal was dismissed
on July 13, 1959. In
the meantime on December 24, 1958 the Collector of Bombay
attached the petitioners' properties. Between August
3, 1959 and
August
8, 1960 the petitioners paid the sum of Rs. 26,563.50 P
to the Collector
of Bombay. In Civil Appeal No. 126 of 1966,
Kantilal Bapulal & Bros. v. H. C.
Patel decided on September 29,
1967 this Court struck down
s. 12(A)( 4) of the Bombay
Sales
Tax Act, 1946 as unconstitutional and violative of Art. 19(l)(f).
The a"guments in the present appeal proceeded on the assumption
that
s. 21 ( 4) of the Bombay
Sales Tax Act, 1953 is liable to be
struck down on the same ground. On February 9, 1968 the peti
tioners filed the present writ petition under Art.
32 of the ConstitutiO!n claiming refund of Rs. 26,563.50 P under s. 72 of the
Indian Contract Act 1872. They alleged that they paid this sum
to the Collector under coercion
and/ or mistake of law, and that
they discovered the mistake
on September 29, 1967.
Two points arise
for decision in this writ petition : ( 1) Would
the claim be barred
by limitation if it were the subject-matter at
a suit in February 1968 and (2) if so, are the petitioners entitled
to any relief in this petition under
Art 32 of the Constitution.
Subject to questions of limitation, waiver
and estoppel, money
paid under mistake or coercion may be recovered under s. 72 of
the lindian Contract Act. The right to relief under s. 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." Shiva
Prasad Singh v. Srish Chandra Nandi ('), Sales Tax Officer v.
Mukundlal Saraf(
2
).
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, 19 5 8 claiming that the order was invalid
and that
s. 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
c.f 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
payme!l}ts under coercion in
1959 and 1960.
The payments were not made under a mistake
of law or as pointed out in
Shiva Prasad Singh's Case(') under
a mistake in thinking that the money was due. They cannot claim
any relief Qll. the ground of mistake.
(1) [1949] L.R. 76 I.A. 244, 254. (2) [1959] S.C.R. 1350, 136l, 1362.
A
B
(
c
E
F
•
G
H
•
A
B
'
~'
c
D
E
•
F
G
•
H
TILOK CHAND v. H. B. MUNSHl (Bachawat, J.) 841
As we are assuming in favour of the petitioners that s. 21 ( 4)
of the Bombay Sales Tax Act 1953 as invalid, we must hold that
they made the payments under coercion. A suit for the recovePJ
of the money on this ground instituted on January l, 1964 would
be governed by Article 24 of the Limitation Act, 19 63 a.nid the
period
of limitation would be three years from the dates in 1959
and
1960 when the money was received by the respondents. The
petitioners cannot obtain an extension
of the period
i1nder s. 30 (a)
of the Limitation Act, 1963 as Art. 62 c.f the Indian Limitation
Act, 1908 prescribed the same period of limitation. A suit for
recovery of tax or other levy illegally collteted was governed by
Art. 62 and not by Art. 120, see A. Venkata Subba Rao v. State
of A ndhra Pradesh('). Accordingly a suit for the recovery of
money instituted in February 1968 would be barred
by !imitation.
If the petitioners could claim relief on the ground of mistake
the suit would be governed by Art. 96 of the Indian Limitation
Act,
1908 and time would begin to run from the date when the
mistake becomes known
to the
pla~ntiff. In State of Madhya
pradesh
v. Bhailal Bhai &
Ors.('), and State of Kerala v. Alumi
nium Industries Ltd.(') it was held that Art. 96 applied to a suit
for recovery of money paid under a mistake of law. Section
17 (I) ( c) of the Limitation Act 1963 now provides that in the
case of a suit
for rel,ief from the consequences of a mistake the
period of limitation does not begin to run until the plaintiff has
discovered the mistake or could with reasonable diligence have
discovered it. Section
17 ( 1 )( c) corresponds to s. 26( c) of
the
Limitation Act, 1939 (2 & 3 Geo. 6, c. 21 ). It was held in
Re Diplock(') that 'ec. 26(c) applied by analogy to a suit for
recovery of money paid under mistake of
law.
On appeal, the
House of Lords said that the section presented many problems
and refrained from saying more about it,
see Ministry of
Health v.
Simpson('). In some American States, it has been
held that a mistake of law cannot
be regarded as a mistake with
in a similar statute and time ran from the date of
th.e accrual
of
the cause of action, see Corpus Juris Secundum, vol. 54,
Limitation of Actions, Article 198, page
202, Morgan v. Jasper
County('), 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
s. 17 ( c) of the Limitation Act, 1963.
For the reasons already stated a suit for the recovery of the
mon.ey instituted in February 1968 would be barred by lilni
tation.
(1) [1965] 2 S.C.R. 577, 612-620.
(3) [1965] 16 S.T.C. 689. 692.
(5) [19511 A.C. 251, 277.
(2) [1964] 6 S.C.R. 261. 274.
(4) [19481 Ch. 465, 515-516.
(G) 11 A.! •. R. 634: 274 N.W. 310.
~42 SUPREME COURT REPORTS [1969]2 s.c.R.
The next and the more fundamental question is whether in the
circumstances the Court should give relief in a writ petition under
Art. 32 of the Constitution. No period of limitation
is prescrib
·ed for such a petition. The right to move this Court for enforce
me.nt of fundamental rights is guarariteed by Art. 32. The writ
under Art. 32 issues
as a matter of course if a breach of a funda
mental right
is established. Technical rules applicable to suits
like the provisions of
s.
80 of the Code of Civil Procedure are not
applicable to a proceeding, under Art. 32. But this does not mean
that in giving relief under Art. 32 the Court must ignore and
trample under foot all
laws of procedure, evidence, limitation, res
judicata and the like.
Under Art. 145(1) (c) rules may be fram
ed for regulating the practice and procedure
in proceedings under
Art. 32.
In the absence of such rules the Court may adopt any
reasonable rule of procedure. Thus a petitioner has no right
to
move this Court under Art. 32 for
enforcement of his fundamental
right on a petition containing misleading and inaccurate statements
and
if he files such a petition the Court will dismiss it, see W.P.
No. 183 of 1966,
Indian Sugar and Refineries Ltd. v.
Union of
India decided on March 12, 1968. On grounds of public policy
it would be intolerable if the Court
were to entertain such a peti
tion. Likewise the Court held in
Daryao v. The State of
U.P. (')
that the general principles of res judicata applied to a writ petition
under Art. 32. Similarly, this Court has summarily ·dismissed
iitinumerable writ petitions on the ground that it was presented after
unreasonable delay.
•
The normal remedy for recovery of money paid to the State
under coercion or mistake of law is by suit. Articles 32 and 226
of the Constitution provide concurrent remedy in respect of the
same claim. The extraordinary remedies under the Constitution
are not intended
to enable the claimant to recover monies, the
recovery of which by suit
is barred by limitation. Where the
remedy in a writ application under Art.
32 or Art. 226 corresponds
, to a remedy in an o-dinary suit and the }alter remedy is subject to
the bar of a statute of ]imitation, the Court in
its writ jurisdiction
acts by analogy to the
•tatute, adopts the statute as its own rule of
procedure and in the abseince of special circumstances imposes the
same limitation on the summary remedy in the writ jurisdiction.
On similar grounds the Court of Chaneery acted on the analogy
of the statutes of limitation in disposing of stale claims though
the p·oceeding in a Chc~'lcery was not subject to any express
statutory bar,
see Halsbury's Laws of England, vol. 14, page 647,
Art.
1190, Knox v. Gye(2). Likewise the High Court acts on the
analogy of the statute of !imitation in a proceeding under Art. 226
though the statute does not expressly applv to the proceeding. The
Court will almost always refuse to give relief under Art. 226
if the
(I) [1962] 1 S.C.R. 574. (2) L.R. 5 H.L. 656, 674.
A
B
c
D
E
F
•
G
,
'
H
•
A
B
c
D
E
•
F
G
• j
H
TILOK CHAND v. H. B. MUNSHI (Mitter, J.) 843
delay is more than the statutory period of limitation, see State oj
Madhya Pradesh v. Bhailal Bhai(' ).
Similarly this Court acts on the analogy of the statute cf !imi
tation in respect of a claim under Art.
32 of the Constitution though
such claim
is not the subject of any express statutory bar of limita
tion.
If the right to a property is extinguished by prescription
under
s. 27 of the Limitation Act, 1963 the petitioner has no
subsisting right which can be enforced under Art. 32 (see Sobhrai
Odharmal
v.
State of Raiasthan(
2
). In other cases where the
remedy only and not the right i3 extinguished by !imitation, it is on
grounds of public policy that the Court refuses to entertain stale
claims under Art. 32. The statutes of limitation are founded 011
sound principles of public policy. As observed in Whitley Stoke's
Anglo-Indian Codes, Vol.
II p.
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 Her Highness Ruckmaboye v. Lulloobhoy
M ottickchund
(3) the Privy Council observed that the object of the
statutes of limitation was to give effect to the maxim, "interest
reipublicae ut sit finis litium" (Co Litt 303 )-the interest of the
State requires that there should be a limit to litigation.
The rule
of
res ;udicata is founded upon the same rule of public policy, see
Daryao v. State of V.P. (
4
)
at page 584. The other ground
of public policy upon which the statutes of limitation are founded
is expressed in the maxim
"vigilantibus non dormientibus iura
subveniunt"
(2 Co. Inst.
690)-the laws aid the vigilant and not
those who slumber. On grounds of public policy the Court
applies the principles of res judicata to writ petitions under Art.
32. On like grounds the Court acts on the analogy of the statutes
of limitation in the exercise of its jurisdiction under Art. 32. It
follows that the present petition must be dismissed,
Mitter, J. The facts leading up to the filing of the petition
under Art. 32 of the Constitution are as follows.
The first petitioner before us is a registered partnership firm
(hereinafter referred to as 'the firm') carryinQ on business in Bom
bay and the other petitioners are partners of the said firm.
The
finn has been
ca•rying on business as a dealer in and a trader of
textiles and art silk etc.
It was registered as a dealer and has held
registration certificates under the various sales tax laws prevailing
in the State of Bombay
from 1946 onwards including the Bomb1y
Sales Tax Act 5 .of 1946, the Bombay Sales Tax Act 3 of 1953
and the Bombay Sales Tax Act
51 of 1959.
In the course of assessment for the assessment period commencing on Ap•il l, 1949 and ending on 31st October 1952 the
--·
(11 (196') 6 S.CR. 261. 273·74.
(3) [l85l-52]S M.l.A., 234, 251.
(2) [1963] Supp, l S.C.R. 99, 111.
(4} (1962] 1 S.C.R. 574.
.344 SUPREME COURT REPORTS [ 1969] 2 S.CR
firm contetnded that its sales of the value of Rs. 13,42,165-15-6
were not liable to be taxed under the provisions of the Bombay
Sales Tax Act then in force
as the goods were delivered as a direct
result of such sales for purposes of consumption outside the State
of Bombay. The firm claimed that it was entitled to a
refund of
the amount which it had collected from its customers and paid on
account of the aforesaid sales at the time of submitting the returns
of its tmiUover. The Sales Tax Officer did not accept this conten-
. tion but on appeal the Assistant Collector of Sales Tax upheld the
firm's contention after examining the details submitted by it and
found that
s.ales involving the sum of Rs. 26,563-8-0 realised by
way of tax were protected under Art. 286 of the
ConstitutiOll. He
therefore directed that the• said sum be refunded to the firm oin a
proper application. This appellate order
was passed on Novem
ber 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 petitioner 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 petitioner did not fulfil this condition and a notice dated
28th January 1958
was issued calling upon the fim1 to show cause
why the said sum of Rs. 26,563.50 should not be forfeited under
s. 21 (4) of the Bombay Sales Tax Act, 1953. In reply thereto,
the firm stated by letter
dated February 7, 1958 that it had collect
ed .from its customers outside the State of Bombay the said sum of
money
a,nd
"under an honest mistake of law had paid the same
to the sales tax authorities." The firm went on to add that the order
for refund had been made only when the authorities were satisfied
that
it was not liable to pay the said sum but the l,atter had insisted
upon a condition that the
fitm should in its turn refund the said
amount to its customers from whom the collection' had been made.
The letter records that the Jinn "had agreed to that condition under
coercion even though in law the authorities were bound to refund
A
B
c
D
E
F
the said amount without any such
condition." Further the firm's
case in that letter was that the authorities
had
"no right to forfeit
any amount collected by a dealer under a mistake of law in respect · G
of these transactions" and the threat to forfeit the amount on the
ground that it
had not been refunded to the firm's customers
was without the authority of law.
The order
on the.show cause notice passed on March 17, 1958
records that though given sufficient opportunity to produce stamped H
receipts
from its customers the firm had failed to do so a;nd had
thereby contravened the provisions of
s. 21 (2) of the Bombay :Sales Tax Act. The firm was directed to refund the said sum to
1.'
A
B
c
,·
D
E
..
F
G
'
H
• l
TILOK CHAND v. H. B. MUNSHI (Mitter, l.) 845
the Reserve Bank of India on or before April 1, 1958 failing
which it would be recoverable
as arrears of land revenue from the
firm together with .penalty. The order was purported to be passed
under
s. 21 ( 4) of the Bombay Sales Tax Act, 1953.
Within a
few days thereafter i.e. on March 28, 1958 the firm
presented an applicatiqn to the High Court of Bombay under
Art. 226 of the Constitution for the issue
of a writ in the nature
of
certiorari quashi;ng the above mentioned order
of forfeiture and
for incidental reliefs.
In paragraph 4 of the petition it was stated
that the order of forfeiture
was
"without the authority of law and
therefore in violatioin o~ Art. 19(1)(g) and Art. 265 of the
Constitution."
It appears that a similar application had been presented on
behalf of
Pasha Bhaj Patel and Co. (P) Ltd. to the Bombay High
Court and the application of the
firm along with the first mention
ed application were disposed of
by a learned single Judge of the
Bombay High Court
on November 28, 1958. The main judgment
was delivered in Pasha Bhai Patel and Company's case. The learn
ed Judge observed
in the course of his judgment that there was no
merit whatsoever in it and
"justice did not lie in his (the petition
er'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
it 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
peti
tion 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 Art.
19(1) (g) and Art. 265 of the
Con
stitution besides contending that the order was "ultra vires, bad
and inoperative in law." Dealing wiih the petition of the firm the
learned Judge said that "there was no merit iin the case and justice
did not lie on the side of the petitibner" and for reasons given in
Pasha Bhai Patel and Co.'s case the petition was dismissed.
The
firm went up in appeal to the same High Court. A note
may be taken
of some of the grounds ~n: the memorandum of
appeal
filed by the firm. They were inter a/ia :-
" (13) The learned Judge erred in not deciding the petition
on merits even when there
was a question of violation of
funda
mental rights.
846 SUPREME COURT REPORTS [1969] 2 s.c.R.
( 16) The learned Judge erred ~n holding that this was a gross
case where even if he had been of the opinion that the order
was
invalid or that it involved violation of tundamental rights, he
would not in his discretion interfere by
way of issuing a writ. (30) The learned Judge failed to appreciate that the order of
forfeiture
was nothing but the deprivation of property without the
authority of law and the action
of the respondent was an unreason
able restriction on the fundamental rights of the petitioner under
Art.
19(1)(f) and Art. 31 of the Constitution of
India."
In dismissing the appeal the learned Judges of the Division Bench ·
observed:
"The appellant claims to retain with himself amounts
to which he has no claim and the appellant
is seeking
to come before this Court to retain with himself
amoun~s
which he has obtai;ned from the sales tax authorities on
a representation that he
is going to refund the same and
which he has not refunded. Mr. Justice
K. K. Desai
was of the view that the claim made by the appellant was
a gross claim and even if it involved violation
of funda
mental rights, in exercise of his discretion, he will not
interfere by issuing a writ. The learned Judge having
exercised his discretion which he undoubtedly
was entitled
to exercise,
we do not think sitting in
appeal we would
be justified in exercising our powers
as
an appellate
court in interfering with the order under appeal.
We
may observe that we are not dealing with this case on
the merits at all. We have not considered the question
whether the appellant
is
~titled in law to retain the
moneys which he has obtained from the sales tax depart
ment. We have decided this appeal on the limited
ground that Mr. Justice
K. K. Desai having exercised
his discretion, no case
is made out for our
inte'.ierence
with the exercise of that discretion."
It is therefore amply clear from the above that the learned
Judges of the Bombay High Court did not examine the merits of
the firm's contention that the order of refund was without the
authority of law
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 Art. 226 of the
Constitution in view of the firm's conduct in obtaiining 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
fa1 the
court of law for vindicating its position before filing the present
•
•
B
c
'
D
E •
F
G
•
H •
B
c
D
:r.
•
r
G
H
TILOK CHAND v. ff. B. MUNS!Il (Mitter, /.) 847
writ petition. It received a notice dated December 18, 1958
under the Bombay City Land Revenue Act 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 attach
ment and sale of its property and by other remedies provided
by
s. 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 good
will and
teinancy 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 paragraph 8 of the present petition to this Court it is sub
mitted that the petitiOillers "paid the sum to the State of Bombay
under coercion
and/or mistake of
law." The petitioners also state
they "did not know that the sections of the Sales :rax Acts under
which the said sum was sought to be forfeited and/ or recovered
and/or retained
were ultra
vires." In paragraph 10 of the peti
tion it is stated that the petitioners discovered their mistake in law
when they came to know of the decision of this Court dated Sep
tember 29, 1967 that s. 12A( 4) of the Bombay Sales Tax Act 5
of 1946 was ultra vires. In paragraph 14 of the petition the firm
also states :
"that the said sum had been forfeited and/ or recov
ered
and/ or retained by the respondents from the peti
tioners
in violation of Art. 265, Art. 31
3\Ild Art.
19 ( 1) ( f) of the Constitution. The fundamental rights
of the petitioners have thus been violated. The peti
tioners submit that they have been deprived
of their
pro
perty, to wit, the said sum, by the respondents without
any authority in law and CQ!litrary to the fundamental
rights guaranteed to the petitioners by Arts.
19 ( 1 )( f)
and 31 of the Constitution."
The grounds of law under which the
firm claimed that the action
of the State of Bombay and the respondents in recovering, retain
ing, forfeiting and not returning the said sum were void and in
valid in law are set forth in paragraph 15 of the petition. Jn the
view which we take of the firm's claim and in view of the decision
of this Court in Kanti/al Babu/a/ and Bros. v. H. C. Pate/(
1
)
dated September 29, 1967, it is not necessary to examine
the validity or otherwise of the provisions of s. 12A(4)
of the Act of 1946 or the corresponding section of the Act of 1953
i.e. s. 21 ( 4). The appeal of Kantilal Babula/ and Bros. v. H. C.
Patel(') decided by this Court on September 29, 1967 was from
a decision
of the High Court of Gujarat reported
~ 16 Sales Tax
(1) 21 S.T.C. 174.
L6Sup.C.T./69-J
s'4s · SUPREME COURT REPORTS [1969) 2 S.C.R.
Cases 973.. The Gujarat High· Court had held that s. 12A(4)
was saved by Art. 19 ( 5) of the Constitution. The appeal by the
assessee was allowed by this Court on the short ground that assun;i~
iug that s. 12A( 4) was a penal provision within the legislatiye
competence of the legislature, it was violative of Art. 19 ( 1 ){ f).
iriasmuch as it did not lay down any procedure for ascerta1ning
whether 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 adjudicatiQn 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 s. 12A ( 4) was
unguided, uncanalised and uncootrolled:" On the above reason,
ing the Court held that the provisions in s. 12A( 4) were not •a
reasonable restriction on the fundamental right guaranteed under
Art. 19 (1) withim. the meaning of Art. 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 dis,
covered that they were under no Iegal obligation to pay. Repay
ment of money paid under a mistake is provided for by s. 72 of the
Lndian 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 any
thing delivered, by mistake or under coercion, must
repay or return it."
A
B
c
D
E
It was laid down by the Judicial Committee of the Privy Council
in
Sri Sri Shiba
Prasad Singh, deceased, now represented by Kali
Prasad Singha v. Maharaja Srish Chandra Nandi(
1
)
that: F
"Payment 'by mistake' in s. 72 must refer to a pay
ment which was not legally due and which could not be
enforced : the mistake
is
thinkin)l; that the money paid
was due when im. fact it was not due."
The above decision of the Judicial Committee was relied on by
this Court in
Sales Tax Officer v. Kanhaiya Lal Mukundlal
Saraf(
2
)
where it was said :
"The Privy Council decision has set the whole con
troversy at rest and if it is once established that the pay
ment, even though it
be of a tax, has been made by the
party labouring under a mistake of law the party
.i~ ·
entitled to recover the same and the party receiving. the.
(I) 76 I.A. 244, 254. (2) [1959] S.C.R. 1350, 136~: .
,.
G
H
•
,
-
·'
.L _ f'
A
•
8
c
0
E
...
'
F
G
' .l H
TILOK CHAND v. H. B. MUNSHI (Mitter, !.) 849
same is bound to repay or return it. No distinction can
therefore
be made in respect of a tax liability
and any
other liability on a plain reading of
sec. 72 of the
Contract Act.
........
"
In Mukundlal's case(') the respondent firm had paid sales tax ip
respect ot its forward transactions in pursuance of the assessment
orders passed by the Sales Tax Officer for the years 1949 to 1951.
The
levy of sales tax on forward transactions being held to be
ultra vires by the High Court of Allahabad by its judgment deli
vered on February 27, 1952
in the case of Budh Prakash Jai Pra
kash v.
S.T.O. Kanpur, the respondent by its letter dated 8th July
1952 asked
fot a refund of the amount of sales tax paid by it
under assessment orders passed on May 31, 1949, October
30,
1950 and August 22, 1951. The Commissioner of Sales Tax U.P.
refused to refund the amount claimed by letter dated July 19,
1952. The above judgment of the Allahabad High Court
was
confirmed by this
Court on May 3, 1954 see Sales Tax Officer,
Pilibhit v. Budh Prakash Jai Prakash(
2
). In the meanwhile
the respondent had
filed a writ
petiti0ll1 No. 355 of 1952 in the
High Court for quashing the assessment orders which was allowed
by an order of a single Judge on November 30, 1954. The
appellant's Special Appeal from the said order contending that
money paid under a mistake of law was irrecoverable being dis
missed, 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
as by the decision
o;f the Allahabad High Court in Budh
Prakash
Jai Prakash v. The
S.T.O. Kanpur subsequently confirmed
by this Court
in
S.T.O. Pilibhit v. Budh Prakash Jai Prakash(
2
)
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
confim1ed the decision of the Allahabad High Court in
Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash(')
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 respondeint would be the only thing relevant to con
sider 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 repay or return the
same to the respondent irrespective of ooy other consi-
deration
......
On a true interpretation of s. 72 of the
Indian Contract Act the only
two circumstances there
indicated
as entitling the party to recover the money
(1) [1959)
S.C.R. 1358. (2) [1955) I S.C.R. 243.
850 SUPREME COURT REPORTS [ 1969] 2 S.C.R.
back are that the moneys must have bee.n paid by mis
take or under ooercion."
In State of Madhya Pradesh v. Bhailal Bhai(') this Court had
to deal with
31 appeals arising out of an equal number of appli
cations
filed before the Madhya Pradesh High Court contending
that the taxing provisions under which the tax
was assessed and
collected from the petitioners (the Madhya Pradesh
Sales Tax
Act) iinfringed Art. 301 of the Constitution and did not come
within the special provision of Art. 304( a). In all the petitions
a prayer
was made for refund of the taxes collected. The High
Court allowed the prayer
for refund in 24 applications but reject
ed the same in the other applications. This Court agreed with
the decision of the High Court that the imposition of the tax con
travened the provisions of Art. 301 of the ConstitutiQ\ll and wa»
not within the saving provisions of Art. 304 (a) and on that view
observed that the payment was made under a mistake within s. 72
of the Indian Contract Act and
so the
Gover,ttment to whom the
payment had· been made must repay it. The tax provisions under
which these taxes had been assessed and paid were declared void
by the High Court of Madhya Pradesh in their decision in
Mohammad Siddique v. The
State of M.P. on 17th January, 1956.
The respondents claimed
to have discovered their mistake in mak
ing the payments after they came to know of these decisions.
Sixteen of the applications out of
31 were made
to the High Court
within three years from 17th January 1956 and the High Court
took the
view that this was not an unreasonable delay and in that
view ordered refund. The
High Court also ordered refund in
seven other applications made more than three years eight months
after the said 17th January 1956.
This Court although of opinion that the High Court had
power for the purpose of enforcement of fundamental rights and
statutory rights to
give consequential relief by ordering repay
ment of money realised by the Government without the authority
of law, observed :
"At the same time we cannot lose sight of the fact
that the special remedy provided in
Art. 226 is not in
tended 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
Art. 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 ccmsideration in the exercise of
· that discretion is the delay made by the aggrieved party
------~~~~~~-
(1) [1'9641 6 S.C.R 261.
•
B
'
c
D
E
F
G
H
•
'
J
A
8
c
D
E
F
G
H
TILOK CHAND v. H.B. MUNSill (Mitter,!.) 851
in seeking this special remedy and what excuse there is
for it. Thus, where,
as in
.thes.e cases, a person comes
to the Court for relief under Art. 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
direct\ing repayment. Whether
repayment should be ordered in the exercise
of this
dis
cretion will depend in each case on its own facts a,nd
circumstances. It is not easy nor is it desirablle to lay
down any rule of universal application.
It may
how
ever be stated as a geiiIBral rule that if there has been
unreasonable 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 statutory authority against whom
the consequential relief
is prayed for raises a prima facie
triable issue as regards the availability of such relief on
the merits on grounds like limitation, the Court should
ordinarily refuse to issue the writ of
mandamus for such
payment.
In both these kinds of cases
it will be sound
use of discretion to leave the party to seek his remedy
by the ordinary mode of action
in a civil court and to
refuse to exercise in his favour the extraordinary remedy
under Art. 226 of the Constitution."
In
State of Kera/a v. Aluminium Industries Ltd.(') the respon
deints after submitting returns under the Sales Tax Act for the
period May 30, 1950 to March 31, 1951 showing a net turnover
exceeding Rs. 23 lakhs and depositing necessary sales tax claimed
a refund on the ground of having discovered their mistake soon
after March 7, 1951. The petition to the Kerala High Court under
Art. 226 of the Constitution
was opposed
an) behalf of the State
on various grounds. Holding that money paid under a mistake of
law was recoverable, this Court called for a finding from the Sales
Tax Officer on the question whether the writ petition was within
three years of the date on which the mistake first became known
to the respqndent so that a suit for refund on that date would not
be barred under Art. 96 of the Indian Limitation Act
of 1908.
Speaking for myself I am not satisfied that the petitioners in
this case had made a mistake in thinking that the money paid was
due when in fact it
was not due. As already noted,
~ their reply
to the show cause notice dated February 7, 1958 the petitioners'
case
was that the threat of the sales tax authorities to forfeit the
amount
was without the authority of
law and that the firm had
{!) 16 S.T.C. 689.
8 52 SUPREME COURT REPORTS
(1969] 2 S.C. R.
agreed to the ~ondition of refunding the amount received t~ .its
own customers under coercion eveiu though in law the authontJes
were bound to refund without any such condition. The petitioners
did not content themselves merely
by opposing the claim
o.f the
sales tax authorities to forfeit the amount but suited their action
to their belief by presentig a writ petition tC? the Bombay Hi~h
Court describing the order. of forfeiture as without the authonty
of law and in violation of Art. 19(l)(g) and Art. 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 Cdurt under Art. 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 havmg
dis
covered any mistake on
a perusal of the decision of any court of
law. The grounds of appeal to the Divisional Bench of the Bom
bay High _Court are illustrative of the frame of mind and view-
. point of the petitioners then. They complained about the viola
tion of their fundamental rights, the illegality of the order of ·
forfeiture and in particular mentioned the unreasonable restrictio~
on their fundamental rights enshrined in Art. 19 (l) ( f) of the
. Constitution. Further, they had the benefit of the judgment of
the appeal Bem;ch of the Bombay High Court that the case was not
being decided on the merits at all and even
if there
was any viola
tion of the fundamental rights of the petitioners the exercise of
discretion by the learned single Judge would not be interfered with
in appeail.
It was therefore clear to the petitioners that there was no
adjudication
as to their fundamental rights or the merits
of their
claim and there was nothing to prevent the petitioners then from
coming
up to this Court by preferring an appeal from the judg
ment of the Bombay High Court or by instituting a suit for decla
ration of the order
of forfeiture illegal and ultra
vires and for an
injunction restraining the Staterfrom
giving effect thereto. Before
the Bombay High
Court the petitioners questioned the legality o~
the order of forfeiture aind prayed for quashing it on the ground
of the threatened invasion
of their fundamental rights.
On these
facts it
is idle to suggest that the petitioners ever entertained any
belief
or thought that the money was Jega1ly due from them.
. The
way they asserted their position under the law precludes any infer
ence that they
were ever influenced by a mistake of law or that they
ever failed to appreciate the correct
positiqn under the law. Even
after the decision of the Bombay High Court they did not will
ingly pay
up the amount forfeited but only made disbursements
after an attachment had been levied
on the business including the
tenancy
of the premises and its good will. They protested agai!!St
the order of forfeiture not on,Jy out of court but in court and only
paid after the issue of a legal process.
B
c •
E
F •
G
H
,
'
-·
•
'
'
TILOK CHAND v. H. B. MUNSHI (Mitter, J.) 8 ~:i
A It is therefore not possible to hold that the payments come
plained of following the order of forfeiture were made in mistakil
Of law. They were payments under compulsion or coercion. A
payment under coercion has
to be treated in the same way for the_ purposes o.f a claim to refund as a payment under mistake of law,
but there is an important distinction between the two. A payment
B ooder mistake of law may be questioned only when the mistake is_
discovered but a person who is under no misapprehension as to his
legal rights and complains about the illegality or the
ultra
vi~e1
nature of the order passed against him can immediately after pay~
ment formulate his cause of action as one of payment under
coercion.
c
D
E
F
G
H
The
Limitatioo Acts do not in terms apply to claims against
the State in respect of violation of fundamental rights. A person
complaining of infraction of any such rights has one of three
courses open to him. He can either make an application under
Art. 226 of the Constitution
to a High Court or he can make
an
application to this Court under Art. 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 !hi
matter of the issue of a writ under Art. 226 the courts have a
discretion and may in suitable
cases refuse to give relief to the
person
approachi)ng 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
refm;.;
ed to give relief in cases of long or unreasonable delay. As noted
above in
Bhailal Bhai' s case('),
it was observed that the
"maximum period fixed by the legislature as the time within which
the relief by a suit in a
civiJ court must be brought may
ordinarily
be taken to be a reasonable standard by which delay in seeking
remedy under Art. 226 can be measure_d." On the question of
(ielay, we see no reason to hold that a different test ought to be
applied when a party comes to thh Court under Art. 32 from one
applicable
to applications under Art. 226. There is a public policy
behind
alJ statutes of limitation and according to Halsbury's Laws
of England (Third Edition, Vol.
24), Art.
330 at p. 181:
"The courts have expressed at least three diffe•ent
:reasons supporting the existence of statutes of limitation,
namely, (I) that long dorment claims have more of
cruelty than justice i1n them, (2) that a defendant might
have
Jost the evidence to
disprove a stale claim and (3)
· that persons with goo~. cames of action should pursue
them with reasonable diligence."
In my view, a claim based on the infraction of fundamental
rights ought not
to be entertained if made beyond the period fixed
(1) [1961] 6
S.C.R. 261.
SUPREME COURT REPORTS [1969] 2 s.C.R.
by the Limitation Act f.or the enforcement of the right by way of
suit. While not holding that the Limitation Act applies in terms,
I am of the view that ordinariJy the period fixed by the Limitation
Act should be taken to be a true measure of the time within which
a person can be allowed to raise a plea successfully under
Art. 32
of the Constitution. Art.
16 of the Limitation Act of 1908 fixed
a period of one year for a suit against Government to recover
money paid
u:nder protest in satisfaction of a claim made by the
revenue authorities on account of arrears of revenue or on account
of demands recoverable as such arrears, from the date when the
payment
was made. As an attachment was levied under s. 13
oi.
the Bombay City Land Revenue Act II of 1876 it is a moot qu~
lion as to whether the payments made in 1959 and 1960 in this
case would not attract the said article of the Limitation Act of
1908. It was held by this Court in A. V. Subbarao v: The
State(')
that the period of limitation for a suit to recover
taxe&
illegally collected was governed by Article 62 of the Limitation
Act of 1908 providing a space of three years from the date of
payment. But taking the most favourable
view of the
petitioner5'
case, Art. 120 of the Limitation Act of 1908 giving a period of
six years for the filing of a suit would apply to the petitioners'
claim. The period of six years would have expired some time in
1966 but the LimitatiQ!l Act of 1908 was repealed by the Limita
tion Act of 1963 and by s. 30(a) of the Act of 1963 it WBi
provided that :
"Notwithstanding anything contained in this
Act
( a) any suit for which the period of limitation is
shorter than the period of limitation 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 :
(b)
..
A claim for money paid under coercion would be covered by
Art. 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 Art. 120 of the Act of 1908 would in a case like this
be covered by Art. 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
(I) [1965] 2 S.C.R. 577.
A
B
c
D
E
F
•
G
•
H
A
B
c
D
E
• F
G
'
H
TILOK CHAND v. H. B. MUNSHI (Mitter, J.) 8 55
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 Coun long
after the date when they could have properly
filed a suit, the
application must be rejected.
I may also note in brief another contention urged on behalf
of the respondents that the present petition
is barred by principles
analogous to
res judicata. It was contended by learned cou)lSel
for the respondents that the decisions of the Bombay High Court
were speaking orders and even
i.f the petition to the Bombay High
Court had been dismissed
in limine there would be a decision on
the merits. I am
lljOOble to uphold this contention. It was held
in
Daryao and others v. The State of
U.P.(
1
) that when a petition
under Art. 226
is dismissed not on the merits but because of !aches
on the party applying for the writ or because an alternative
remedy
is available to him, such dismissaJ is no bar to the
subse
quent petition under Art. 32 except in cases where the facts foUQJd
by the High Court might themselves be relevant under under Art.
32. It was pointed out in Joseph v. State of Kerala(
2
)
that :
"Every citizen whose fundamental right is infringed
by the State has a fundamental right to approach this
Court for (!\TI.forcing his right. If by a final decision of
a competent Court his
title to property has
been nega
tived, he ceases to have the fundamental right in respect
of that property and, therefore, he can no longer enforce
it.
In that context the doctrine of res judicata may be
invoked. But where there
is
no such decision at all,
there
is no scope to call in its
aid."
The judgment of the Bombay High Court in 1958 clearly
ib.ows that the merits of the petitioners' claim were not being
examined. I cannot however find no merit in the contention
that because there is an invasion of a fundamenaJ right of a citizen
he can be allowed to come to this Court, no matter how ICl\!lg after
the infraction of his right he applies for relief.
The Constitution is sil~nt on this point; nor is there any statute of limitation expressly
applicable, but nevertheless, on grounds of public policy I would
hold that this Court should mt lend its aid to a litigent even under
Art. 32 of the Constitution in case of an inordinate delay in asking
for relief and the question of delay ought normally to be measured
by the periods
fixed for the institution of suits under the Limitation
Acts.
The petition therefore fails and
is dismissed with costs.
(I) [1962]
I S.C.R. 574. (2) A.LR. 1965 S.C. 1514.
8 56 SUPREME COURT REPORTS [ 1969] 2 S.C.R.
Hegde, J. I had the advantage of studying the judgments just A
delivered by my brothers .Sikri, Bachawat 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
Ors. v.
The State of U.P. and Ors.(') 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
~n essence a part of the rule
of law on which administration of justice depends.
In view of the decision
o.f this Court in Kantilal Babula/ and
Bros.
v. H. C.
Patel(') that s. 12A( 4) of the Bombay Sales Tax
Act, 1946
is violative of Art. 19 (1 )( f) of the Constitution on the
grounds that that
secticin did not lay down any procedure for
ascertaining whether in fact the dealer concerned had collected
any amount by way of tax from its purchasers outside the State
and if so what that amount was; neither the section nor any rule
framed under the Act cqntemplated any enquiry much less a
reasonable einquiry in which the dealer complained of could plead
and prove his case or satisfy the authorities that their assumptions
were
whoJ.ly or partly wrong and further the section also did not
provide
.for any enquiry on disputed questions of fact or Jaw or
for makitng an order, it follows that the impugned collection was
without the authority of
law and consequently the same is an ex
action resulting
in the
infrin~ement of one of the proprietary rights
of the petitioners guaranteed
to them under
Art. 19(1) (f) of the
Constitution. Hence the petitioners have a fundamental right to
approach this Court under Art. 32 of our Constitution for apprcr
priate relief and this Court h::is a duty to afford them approp'iate
relief. In
Kharak
Singh v The SMte of UP and Ors.(
3
)
Raja
gopala Ayyangar
J. speaking for the
m~jority observed that o1:1ce
it is proved to the satisfaction of this Court that bv State act10n
the fundamental right of a petitio,ner has been infringed it is not
onlv the eight but the duty of this Court under Art. 32 to afford
relief to him bv passing aopropriate orders
in that
behalf. 'fh:e
right given to the citizens to move this Court unde! Art. 3~ is
itself a fundamental right and the same cannot be c1rcumscnb.ed
or curtailed except as provided by the Constitution. It is m-
(1) [1962] S.C.R. 574. (2) 21 S.T.C. 174.
(3) [1964] I S.C.R. 332.
c
E
F
G
H
•
•
•
•
•
.....
,
A
B
c
D
E
F
....
G
H
TILOK CHAND v. H.B. MUNSHI (Hegde, /.) 857
appropriate to equate the duty imposed on this Court to the powers
oi the Chancery Court in England or the equitable jurisdiction
of the American Courts. A duty imposed by the Constitution
cannot
be compared with discretionary powers.
Under Art. 32
the mandate of the Constitution
is clear and unambiguous and
that mandate has
to be obeyed.
It must be remembered, as em
phasized
by several decisions of this Court that this Court is
charged by the Constitution with the special responsibility of pro
tecting and enforcing the fundamental rights under
Part III of the
Constitution.
If I may with respect, borrow the felicitous
Iain-.
guage employed by Chief Justice Patanjali Sastri in State of Mad
ras v. V. G. Rao(1) that as regards fundamental rights this Court
has been assigned the role of a Sentinel on the qui vive. The
anxiety of this Court not to whittle down the amplitude of the
fundameintal 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 nnaware of the
fact that the
petitiQ.ners 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 Art. 32 of the
Constitution.
Ali of
us are unanimous on the question that the impugned
co11ection
amouints 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 Art. 32
is subject to any limitation or to be more accurate whether
this
Court has any discetion while exercising its jurisdiction under
that Article
? As mentioned earlier a right to approach this Court
under Art. 32
is itself a
fundamen~al right. In that respect our
Constitut!on makes a welcome departure from many other similar
Consutut10ns.
As seen ea-lier a party aggrieved by the infringe
ment of
any of its
fundamein'tal rights has a right to j!et relief at
th~ hand~ of this Court, and this Court has a duty to grant app-o
pnate relief-see Joseph Pothen v. The State of Kera/a(
2
). The
~ower conferred on this Court by that Article is not a discre
tionary P?wer. This power is not similar to the power conferred
on the High Courts und.~r Art. 226 of the Constitution. Hence
lache.s on the part of an aggrieved party cannot deprive him of
the right to get relief from this Court nnder Art. 32. A Division
Bene~ of the Bomba:\:' ~igh Court in Kamalabai Harjivandas
l'_arekh v. T. B: J?esai I ) he!? that where a constitutional objec
tion to the vahd1ty o~ a leg1slation is taken in a petition under
~_!:__}~6_, -~h_e_ queshon of mere delay will not affect the
(l) [1952] S.C.R. 597. ·- (2) A.1.R. 1965 S.C. 1514.
(3) [1965] Vol. 67 B.L.R. r. 85.
858 SUPREME COURT REPORTS (1969] 2 S.C.R.
ma,intainability of that petition. Law reports do not show a single
instance, where this Court had refused to grant relief
to a petitioner
in a petition under Art. 32 on the ground of delay.
There has been some controversy whether an aggrieved
party can waive his
fundamenti•l right. That question was elabo
rately considered jn Basheshar Nath
v. The Commissioner of
Income Tax Delhi, Rajasthan and anr.
(1) by a Constitution
Bench consisting of
S. R. Das, C. J. and Bhagwati, S. K. Das,
J. L. Kapur and Subba Rao,
JJ. The learned
Chie.f Justice and
Kapur J. held that there could be no waiver of a fundamental
right foll/nded on Art. 14. Bhagwati and Subba Rao JJ. held
that no fundamental right can be waived and
S. K. Das J. held
that only such fundamental rights
whlch are intended to the bene
fit of a party can be waived. I am mentioning all these aspects
to show how jealously this Court has been resisting every attempt
to narrow down the scope of the rights guaranteed under Part III
of our Constitution.
Admjttedly the provisions contained in the Limitation Act do
not apply to proceedings under Art. 226 or Art. 32. The Con
stitutiqn makers wisely, if I may say with respect, excluded the
application of those provisions to proceedings under Art. 226, 227
and 32 lest the efficacy of the constitutional remedies should be
left to the tender mercies of the legislatures. This Court has laid
down in I.C. Golaknath and ors.
v. State of
Punjab and anr.(
2
)
that the Parliament 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 Limitation Act by an
indirect process to control the remedies conferred by the Consti
tutio.n it would mean that what the Parliament cannot do directly
it can do indirectly by curtai.Jing the period of limitation for suits
against the Government.
We may console ourselves by saying
that the orovisions of the Limitation Act
will have only persuasive
value but they do not limit the power of this Court but the reality
is bound to be otherwise. Very soon the
Jijlle that demarcates the
rule of prudence and binding rule
is bound to vanish as has hap
pened 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 o4' any right to establish
his right. As years roll on his task
is
botwid to become more and
more difficult. He can enforce only an existing right. A right may
be lost due to an earlier decision of a competent court
or due to
various other reasons.
If a right is lost for one reason or the other
there is no right to
be enforced. In this case we are dealing with
an existing right even if it can be said that the petitioners'
(!) [1959]
Supp. I S.C.R. 528. (2) [1967] 2 S.C.R. 762.
A
B
c •
D
E
}<'
G
H
L
TILOK CHAND v •. H. B. MUNSHI (Hegde, /.) 859
.f
A remedy under the ordinary law is barred. If the decision ot
Bachawat and Mitter, JJ. is correct, startling results are likely to
follow. Let
us take for example a
case of a person who is con-
victed and senttlnced to a Jong period of imprisonment on the basis
of a statute which had been repealed long before the alleged
offence
was committed. He comes to know of the repeal of the
l~
B
statute long after the period prescribed for filing appeal expires.
Under such a circumstance according to the decision of Bachawat
and Mitter,
JJ. he
wiJI have no right-the discretion of the Court
apart-to move this Court for a writ of habeas corpus.
Our Constitutiqn makers in their wisdom thought that no
fetters should be placed on the right of an aggrieved· party to seek
c
relief from this Court under Art. 32. A comparison of the Ian-
guage of Art. 226 with that of Art. 32 will show that while under
Art. 226 a discretionary power is conferred
on the High Courts
the mandate of the Constitution
is absolute so far as the exercise
of this Court's power under Art. 32
is concerned. Should this
,. Court, ain institution primarily created for the purpose of safe-
guarding the fundamental rights guaranteed under Part III of the
D Constitution, narrow down those rights ? The implications of this
decision are bound to be far reaching. It is likely to pull down
from the high pedestal now occupied by the fundamein:tal rights to
the level of other civil rights. I am apprehensive that this deci-
sion may mark an important turning point
in down grading the
fundamental rights guaranteed under the CQrtstitution. I am
E firmly of the view that a relief asked for under Art. 32 cannot be
refused
on the ground of !aches. The provisions of the Limitation
Act have no relevance either directly
or indirectly to proceedings
under Art. 32. Considerations which are relevant
in proceedings
under Art. 226 are wholly out of place in a proceeding like the one
before us. The decision of this Court referred to in the judgment
F
of Bachawat and Mitter, JJ. where this Court has taken into consi-
deration the !aches
on the part of the petitioners are not apposite
for our present purpose. None of those cases
deal with proceed-
ings under Art. 32 of the Constitution. The rule enunciated by
this Court in the
State of M.P. v. Bhai/a/ Bhai(
1
)
is only applicable ""
to proceedings under Art. 226. At page 271 of the report Das
'
G
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·
power to relief under Art. 226 is a discretionary power".
• Therefore those decisions are of no assist3J11Ce to us in deciding
the present case. Once it is held that the power
of this Court
' H
under Art. 3 2 is a discretionary
powe~-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 Art. 32 on any Q11e of the
(I) [1964] 6 S.C.R. 261.
860 SUPREME COURT REPORTS [1969) 2 S.C.R.
grounds on which relief under Art. 226 can be re.fused. Such a
conclusion militates not only against the plain
words of Art. 32
but also the lofty principle underlyg that provision. The
result
ing 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 Mukundlal Saraf(') and further refined
by this Court in State of M.P. v. Bhailal Bhai(') can apply to
the facts of this case even then I . am of opinion that the peti
tioners are entitled to the relief that they have asked for. As
could be gathered from the decision of Bachawat and Mitter, JJ.,
the Bombay High Court did not decide the merits
of the case in
the writ petition filed by the petitioners. In that petition the
Court refused to exercise
its discretion in favour of the petitioners.
The grounds
on which the petitioners challenged the validity of
s. 12A ( 4) of the Bombay Sales Tax Act, 1946 before the High
Court of Bombay have now been found to be unsustainable by
the Gujarat High Court in Kantilal Babula!
and Bros. v. H. C.
Patel ( •). In the appeal against that decision this Court did not
examine those grounds.
It struck down s. 12A( 4) on a wholly
different ground, a ground not put forward by the petitioners in
their writ petition before the Bombay High Coutt. A mere
im
pression of a party that a provision of law may be ultra vires the
Constitution cannot be equated
to knowledge that the provision
is invalid. Hope and desire are not the same things as knowledge.
A law passed
by a competent legislature is bound to be presumed
to be valid until it
is struck down by a competent court. The
fact that after a futile attempt to get the provision in question
dec
lared invalid the petitioners gave up their right and submitted to
the law which
was apparently valid is no proof of the fact that
they knew that the provision
in question is invalid. As seen
earlier that none of the grounds urged
by the petitioners in
sup
port of their contention that the provision in question is invalid
has been accepted by any court till
now.
Under these circum-
. stances I
see no justification to reject the plea of the petitioners
that they became aware
of the invalidity of the provision only
after the decision of
this Court in Kantilal Babulal's case(
4
)
which
decision
was rendered on September 29, 1967.
This petition
was filed very soon thereafter. Hence this case under any cir
cumstance falls within the rule laid down by this Court in
Bhailal Bhai's case(
2
).
For the reasons mentioned above I 'allow this petition aind
grant the relief prayed for by the petitioners.
ORDER
In accordance with the opinion of the majority, the petition fails
and is dismissed with costs.
V.P.S.
(l) c1~9=59=1~s~.c~.R~.-1=3so. (2) l1964J 6 s.c.R. 261.
(3) 16 S.T.C. 973. (4) 21 S.T.C. 174.
A
{.
B
c
D
E
F
G
•
H
The landmark judgment of Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., a pivotal case available on CaseOn, delves into the critical intersection of fundamental rights and procedural delays. This case analysis unpacks the Supreme Court's stance on laches in writ petitions under Article 32 and clarifies the application of res judicata in fundamental rights cases. It addresses a profound constitutional question: Can the guaranteed right to approach the Supreme Court for the enforcement of fundamental rights be defeated by inordinate delay?
The petitioners, a business firm, had collected sales tax from their customers and paid it to the State of Bombay. Later, it was determined that these taxes were not leviable. The sales tax authorities agreed to refund the amount on the condition that the petitioners would, in turn, pass the refund on to their customers. When the petitioners failed to fulfill this condition, the Sales Tax Officer, exercising powers under Section 21(4) of the Bombay Sales Tax Act, 1953, issued an order on March 17, 1958, forfeiting the said amount.
Challenging this forfeiture, the petitioners filed a writ petition in the Bombay High Court under Article 226, arguing that Section 21(4) was unconstitutional and violated their fundamental rights. The High Court, however, dismissed the petition without examining the merits. The single Judge and the appellate bench both held that since the petitioners had, in their view, defrauded their customers, they were not entitled to the court's discretionary relief, even if a fundamental right was violated.
Following the dismissal, the State attached the petitioners' properties, and the firm paid the forfeited amount in installments between 1959 and 1960. Years later, on September 29, 1967, the Supreme Court, in an entirely different case (Kantilal Babulal v. H. C. Patel), struck down a corresponding provision of an earlier Sales Tax Act as unconstitutional. Buoyed by this judgment, the petitioners filed a writ petition directly in the Supreme Court under Article 32 on February 9, 1968. They claimed a refund, arguing they had paid the amount under coercion and a mistake of law, which was only discovered after the Supreme Court's 1967 ruling.
The Supreme Court was faced with two primary questions:
The five-judge bench was divided, delivering a 3:2 majority decision. While the judges were unanimous on the issue of res judicata, they were sharply divided on the applicability of laches to a petition under Article 32.
Point of Unanimity: Res Judicata Not Applicable
All five judges agreed that the principle of res judicata did not bar the petition. This was because the Bombay High Court had dismissed the earlier writ petition *in limine* (at the threshold) based on the conduct of the petitioners and on discretionary grounds, without deciding the case on its merits. For res judicata to apply, there must be a final decision on the substantive legal and factual issues, which was absent here.
Point of Contention: Laches and the Remedy under Article 32
The core of the dispute lay in whether the Court could refuse to enforce a fundamental right solely due to delay.
The majority held that the petition must be dismissed on the ground of laches. Their reasoning was based on principles of public policy and judicial restraint.
The dissenting judges argued that laches cannot be a ground for dismissing a petition under Article 32, as it would dilute a guaranteed fundamental right.
The intricate and divided reasoning in Tilokchand Motichand is precisely where tools like CaseOn.in's 2-minute audio briefs become invaluable for legal professionals, helping to quickly grasp the core arguments of both the majority and dissenting opinions and understand the nuances of this complex constitutional debate.
By a 3:2 majority, the Supreme Court held that the petition was barred by laches. The Court, while acknowledging its role as the protector of fundamental rights, established that it would not exercise its extraordinary jurisdiction to assist those who have been inactive and have allowed their claims to become stale. The petition was dismissed.
In Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., the Supreme Court established that while the dismissal of a writ petition under Article 226 on discretionary grounds does not act as res judicata for a subsequent petition under Article 32, the Court can refuse to grant relief under Article 32 on grounds of unreasonable and unexplained delay (laches). The majority view prioritized public policy and the need for finality in litigation over the absolute enforcement of a fundamental right in the case of stale claims.
This judgment is an essential read for lawyers and students for several reasons:
Disclaimer: This article is for informational and educational purposes only and does not constitute legal advice. For any legal issues, it is essential to consult with a qualified legal professional.
Login with google
Legal Notes
Add a Note....