# D. CAWASJI i CO., BTC. BTC v. THB STATE OF MYSORB & ANR

- **Citation:** [1975] 2 S.C.R. 511
- **Court:** Supreme Court of India
- **Decided:** 1974-10-29
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/d-cawasji-i-co-btc-btc-v-thb-state-of-mysorb-anr-6330
- **Pages:** 9

## Headnote

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D. CAWASJI i CO., BTC. BTC.
v.
THB STATE OF MYSORB & ANR.
October 29, 1974
[K. K. MATHEW AND A. ALAGilUSWAMl, 1J~]
Corutitution of india, 1950-Art. 226-Paymerst of taxes made under mlstilkl
of law-Period of limitation wh!n commentes-Jurlsdiction of tM High Court.
The appellants paid certain amounts . to the government a8 excise dutY and
education ce~s for the years 1951-52 to 1965-66 in one case an~ from 1951-Sl
~ 1961-62 in the oth~r .. The High_ C~mrt ~t.ruq. down the p~ovi~ions of ~e.~
levant Acts as unconstitutional. In wnt petitions before the Htgh Court claunlbD
refund; the appellants contended that the payments in question were made by them
under mistake of law; that the mistake was discovered when the High Court o;tfuck
down the provisions a~ unconstitutional and that the petitions were therefore in
time. .But the Hlah Court dismissed them on the around of inordiliate delly.
Dismissina the appeale.
HELD: Where a suh wut lie to recover moneys pald under a mist&ke bt lao.
a writ petition for refund of tu within the period of Umitatlou woUld U&, · Por
llllDI a writ petition to rewver the money paid under o mistake bf Jaw the start.
ina point of limitation ls from the date of which the jud~ot decl•rbtl aa veitl
the particular law under which the tax was paid was. rendered. £\len itt case~
"here it is IDed within thrr.e years, the court bas a discretion, bavl.na resard •
~
facts and circumslances ot each case not to entertain the appl.katlon. [!ll3H;
Sl4A•B]
.
StMe of Madhya Pradtm v. Bhailal BhtJI and Olhtr.J [1964] 6 S.C.lt 261 relied on, State of KeJYJia v. if..luminium Indusirie.r Ltd, (1965) 16 S.T;C. 689• feE · ferred to and Trilok Chand Motich4nd and Others v. H. B. Muniht. CoirinilssitJner of Sales Tax, Bonibay (1970) 2S S.T.C. 289 held inapplicable~
G
in the instant case having regard to the conduct of the appellants in jiot claiMbig the. amountS in the earlier writ petitions without any iustification. there is llO
justification in interferitig with discretioil exercised by the High Court ill disfu.isl.;
i~~ the writ petiti~ris. The appellants did riot pray for i:efurid of the arrioun~
pa1d .bY way ,of ~
for, the years l~Sl-52 to 1965-6~ and ~ey gave tto re~soDJ
before the .H1g.b ~urt 10 • thest: ,Petittons why .theY, -d1~ n,ot m*.e . th_e pray~r -~~
~fut1_d of the a~ou~ts. . p~d , d\1~1118 the yea~ 19, 9..l}.~_st19Ii: /1 v~~c!•Di .E!l!![ell.~\)'
of unnecessary legal proceedtnSS should be the IUm of iill colrtfS. The aptJe11a~
should not be allowed to split up theif dalm for refund and fi1e writ pet!Hdn! Jii ·
a piece-meal fas.~IC?_n. If tlie ~tppella_rits could b!lv~ but did n~t, · without. a~y _legal
lustiflcation claim rC.fund of t~e amounts, paid durlt~s tJte years In questlo1
n In fh•
earlier writ f!etltlons there Is no reason why th~ should ee atlowed to c aim thi
amoUnts by filini writ petitions apln. [S 17B-q
In the second batch qf appeals the reason why this Court did .~ot So Jrlto ~o
guestlon C?f the validity of the .Act was that relevant materials were n~t .1-'l!l(.:Cd
6efofe the court by the appellant for' successfully challenglrig its validity and ~hey
were therefor to blame themselves.
[S18H]
CML APPELLATE JUiliJ>icnoN : Civn Appeal&. NC~t. 437. 4St;
452-476 and 477-459 of 1974.
Il
Aweals _by. Special i..eav~ from the itidgme~t & Ordei .ditedj~
3(1;& November, 1972 o'f. the Mysore.High Court in W.Ps. ~(;i .. ~
2671, 2673~2681/68, 181, 19~199, 1~~195, 200---21}4J61; 1 ..
1-8~J93j61 and 265~2665/68 tespettiftly.
. . .
--~
-
2-Ut9SupCJI75
512
SUPREME COURT REPORTS
(1975] 2 S.C.ll.
R. 1. Kolah, (In CAs Nos. 450.451, 453, 468--471, ~79--484 of
74 only) A.. Jagannath Shetty, K. /.John, I. B. Dadacr1anji, 0. C.
Mathur and Ravinder Narain, for the appellants.
B. Sen (In CA. No. 437/74) Chandrakant ~aju, Advocate for
Karnatka (In CA. No. 477 j74) and M. Veerappa, for the Respondents.
The Judgment of the Caurt was delivered by
1. Civil Appeals Nos. 437--451 & 477-489 of 1974.
MATHEW, J.-The appellants f

## Text

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D. CAWASJI i CO., BTC. BTC.
v.
THB STATE OF MYSORB & ANR.
October 29, 1974
[K. K. MATHEW AND A. ALAGilUSWAMl, 1J~]
Corutitution of india, 1950-Art. 226-Paymerst of taxes made under mlstilkl
of law-Period of limitation wh!n commentes-Jurlsdiction of tM High Court.
The appellants paid certain amounts . to the government a8 excise dutY and
education ce~s for the years 1951-52 to 1965-66 in one case an~ from 1951-Sl
~ 1961-62 in the oth~r .. The High_ C~mrt ~t.ruq. down the p~ovi~ions of ~e.~
levant Acts as unconstitutional. In wnt petitions before the Htgh Court claunlbD
refund; the appellants contended that the payments in question were made by them
under mistake of law; that the mistake was discovered when the High Court o;tfuck
down the provisions a~ unconstitutional and that the petitions were therefore in
time. .But the Hlah Court dismissed them on the around of inordiliate delly.
Dismissina the appeale.
HELD: Where a suh wut lie to recover moneys pald under a mist&ke bt lao.
a writ petition for refund of tu within the period of Umitatlou woUld U&, · Por
llllDI a writ petition to rewver the money paid under o mistake bf Jaw the start.
ina point of limitation ls from the date of which the jud~ot decl•rbtl aa veitl
the particular law under which the tax was paid was. rendered. £\len itt case~
"here it is IDed within thrr.e years, the court bas a discretion, bavl.na resard •
~
facts and circumslances ot each case not to entertain the appl.katlon. [!ll3H;
Sl4A•B]
.
StMe of Madhya Pradtm v. Bhailal BhtJI and Olhtr.J [1964] 6 S.C.lt 261 relied on, State of KeJYJia v. if..luminium Indusirie.r Ltd, (1965) 16 S.T;C. 689• feE · ferred to and Trilok Chand Motich4nd and Others v. H. B. Muniht. CoirinilssitJner of Sales Tax, Bonibay (1970) 2S S.T.C. 289 held inapplicable~
G
in the instant case having regard to the conduct of the appellants in jiot claiMbig the. amountS in the earlier writ petitions without any iustification. there is llO
justification in interferitig with discretioil exercised by the High Court ill disfu.isl.;
i~~ the writ petiti~ris. The appellants did riot pray for i:efurid of the arrioun~
pa1d .bY way ,of ~
for, the years l~Sl-52 to 1965-6~ and ~ey gave tto re~soDJ
before the .H1g.b ~urt 10 • thest: ,Petittons why .theY, -d1~ n,ot m*.e . th_e pray~r -~~
~fut1_d of the a~ou~ts. . p~d , d\1~1118 the yea~ 19, 9..l}.~_st19Ii: /1 v~~c!•Di .E!l!![ell.~\)'
of unnecessary legal proceedtnSS should be the IUm of iill colrtfS. The aptJe11a~
should not be allowed to split up theif dalm for refund and fi1e writ pet!Hdn! Jii ·
a piece-meal fas.~IC?_n. If tlie ~tppella_rits could b!lv~ but did n~t, · without. a~y _legal
lustiflcation claim rC.fund of t~e amounts, paid durlt~s tJte years In questlo1
n In fh•
earlier writ f!etltlons there Is no reason why th~ should ee atlowed to c aim thi
amoUnts by filini writ petitions apln. [S 17B-q
In the second batch qf appeals the reason why this Court did .~ot So Jrlto ~o
guestlon C?f the validity of the .Act was that relevant materials were n~t .1-'l!l(.:Cd
6efofe the court by the appellant for' successfully challenglrig its validity and ~hey
were therefor to blame themselves.
[S18H]
CML APPELLATE JUiliJ>icnoN : Civn Appeal&. NC~t. 437. 4St;
452-476 and 477-459 of 1974.
Il
Aweals _by. Special i..eav~ from the itidgme~t & Ordei .ditedj~
3(1;& November, 1972 o'f. the Mysore.High Court in W.Ps. ~(;i .. ~
2671, 2673~2681/68, 181, 19~199, 1~~195, 200---21}4J61; 1 ..
1-8~J93j61 and 265~2665/68 tespettiftly.
. . .
--~
-
2-Ut9SupCJI75
512
SUPREME COURT REPORTS
(1975] 2 S.C.ll.
R. 1. Kolah, (In CAs Nos. 450.451, 453, 468--471, ~79--484 of
74 only) A.. Jagannath Shetty, K. /.John, I. B. Dadacr1anji, 0. C.
Mathur and Ravinder Narain, for the appellants.
B. Sen (In CA. No. 437/74) Chandrakant ~aju, Advocate for
Karnatka (In CA. No. 477 j74) and M. Veerappa, for the Respondents.
The Judgment of the Caurt was delivered by
1. Civil Appeals Nos. 437--451 & 477-489 of 1974.
MATHEW, J.-The appellants filed writ petitions before the High
CourL of Mysore under Article 226 of the Constitution for a declaration that. the Mysore Elementary Education Act, 1941, and the
amendments to it by the Mysore Elementary Education (Amendment
Act XII of 1955) providing for levy and collection of Education Cess
00 items on which Education Cess is being levied as prescribed in the
schedules ct the respective Acts were beyond the competence of the
Mysore State Legislature and for refund of the Educational Cess paid
during 1951-52 to 1965-66 on shop rentals and tree tax in respect of
toddy and duty of excise in respect of arrack and special liquor. The
High Court dismissed the writ petitions by a common judgment and
thes~ appeals are directed against that judgment.
The Hir,h .CclUrt of Mysore had, in D. Cawasji & Co. v. The Stat~
of My sore and Others( 1), struck down the provisions of the Mysore
Elementary Education Act and the amendments to it on May 2, 1968.
That decision was affirmed by this Court in State of Mysore and
Others v. D. Cawas;; & Co. and Others(~). Before the decisicn of
this Co1,1rt, the Mysore Legislature had passed the Mysore Education
Cess· (Validation and Levy) Act, 1969 on September 10, 1969 validating the levy and the collectioll of cess under ·the Act.
But the
Validation Act was held to be invalid by the Mysore High Court. The
writ petitions were filed befcll'e the Hi~ Court in June and July, 1968,
i.e. after the decision of the Mysore High Court in D. Cawasji & Co. v.
State of Mvsore and Others(!) and before this Court rendered! its
judgment.· · .
·
The contention of the appellantS before the High Caurt was that
the payrtlents of cess in questicm were made by them under a mistake
of law; that they discovered the mistake only on May 2, 1968 when
the High Court, by its Judgment, declared that . the provisions of the
Act and the amendments· thereto were unconstitutional, and that, as
they filed the writ petitions within three months• of that decisiort. the
writ ~titicms were within. time.
· The High Court found that· there was delay in filing the petitions
and, it was majnly for that reason that the High Court dismissed them.
In State of Madhya Pradesh v. Bhai(al Bhai and . Others(t) Des
Gupta, J. who delivered the judgment of the Court, while holding that
(I) (1968) 2 Mysore Law .Tournai 78.
(2) (1971] 2 S.C.R. 799.
(3) [ 1964] 6 S. C. R. 261.
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D. CAWASJI & CO. v. MYSORE (Mathew1 J.)
513
the High Courts have power, for the purpose of enforcement of (unda·
mental rights and statutory rights tc1 give consequential relief by ordering repayment of money realised by the Government without the
authority of law, said that the special remedy provided in Article 226
is not intended to supersede completely the modes of obtaining relief
by ail action in a civil court or to deny defence legitimately open in
such actions and that among the several matters which the High Courts
rightly take into consideration in the exercise of that discretion is the
delay made by the aggrieved party in seeking this special remedy and
the excuse there is for it. He further said that if a person comes to the
court for relief under Article 226 Clll 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
directing repayment; and that whether repayment shciUld be ordered in
the exercise of this discretion will depend in each case on its own facts
and circumstances and that it is not easy nor is it desirable to lay a
general rule. He. was of the view that if there has been unreasonable
delay tie court ought not ordinarily to lend its aid to a party by this
extraordinary remedy cl mandamus. On the question of the period of
limitation within which the petition must be filed, he observed that the
period of limitation prescribed for recovery of money paid under a
mistake of law is three years from the date when the mistake is known
and that" 'that period may ordinarily be taken tct be a reasonable
standard by which delay in seeking remedy under Artic1e 226 can be
measured. He further said that the court may consider the delay unreasonable even if .it is less than the period of limitation prescribed for
a civil action,. but, where the delay is more than this period, it will
almost always be proper for the court tel hold that it is unreasonable.
In State of Kerala v. Aluminium Industries Ltd.(l) a Bench of
seven judges of this Court followed the view taken in State of Madhya
Pradesh v. Bhailal Bhai (supra) on the question of the period of limi~
tatictn within which the petition has to be filed.
Section 17(1 )(c) of the Limitation Act, 1963, provides that in
the case of a suit for .relief on the ground o'f 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. In a
case where payment is made under a mistake of law as contrasted with
a. mistake of fact, generally .the mistake becomes known to the party
only when a court makes .a declaration as to the invalidity of the law.
Though a party could, with reasonable diligence, discover a mistake of
fact even befcre a court makes a pronouncement, it is seldom that a
person can, even with reasonable diUJtence. discover a mistake of law
before a judgment adjudging the validity of the law.
Therefore, where a suit will lie to recover moneys paid under a
mistake of law, a writ petition for refund of tax within the periOd of
(l) (196S) 16 S.T.C. 689.
114
SUPJtEME COUll T R.BPOllT9
[197S] 2 S.C~lt,
limitlticil prescribed i.e. within 3 rem ol the knowledge of the milltake, would also lie. For filina ll wit petition to recover the montaJ
plid under a mistake of law, thts Court bas sa1d that the starung pomt
ot limitation i~ from the date on which the judgment declaring as void
the particular law under which the tax was paid was rend~red, as that
would nctrmaUy be the date on which 1he mistake becomes known to
the party. If any writ petition is filed beyond. three years' after that
date, it will almost always be proper for the court to consider that i•
is unreasonabie to entertain that petition, though, even in cases where
it is filed within three years, the court has a discretion, having regard to
the facts and , circumstances o.f each case. not to entertain the applicttion.
We are aware that the result of this view would 1» to enable a
penon to recover the amount paid as tax even after several years of
the date of payment, if some other party would successfully challenge
the validity of the law under which the payment was made and if oi~Y
a suit or writ petition is filed for re~ by .the person within threo
years from the date of declaration of the invalidtty of the ·law. That
might both be inexpedient and unjust 10 far as the State il concen1eclt.
A tax is Intended for immediate expenditure for the common good
and it would· be unjust t~ require its repayment after it has been io.
whole or in part expended, which would often be the case, If the iu.it
or application could be brought at any time within three years of . a
court declaring_ the law under which it was paid_ to be invalid, be it a
hundered years' after the date of payment. Nor is there any provision
under which the CCIW't deny refund of tax ·even if the person who paid
it has collected it from his customers and has no subsisting liability or
intention to refund it to them, or, for any re8$0n, it is impracticable to
do so.
In the U.S.A., it is generally held that in the absence of a ·statuto
to the ccmtrary, taxes voluntarily paid tmder a mistake of law with full
know] edge of, facts cannot be recovered back while taxes· paid under a
mistake of fact may ordinarily be recovered back (see CorpU$
J~tris
Se¢undum, vo1. 84, p. 637). A1thouglt s. 72 of the Contract Act has
been. held to cover cases of payment ct money under a mistake of 1E1w,
as the State 3tands in a peculiar position In respect of taxes paid to it,
there are perhaps practical reasons for the law according a different
treatment both in the matter of the heads under which they could bo
recovered and the period of llmitaticn for the recovery.
The task of writing legislation to protect the interest .of the nation
is committed to Parliament and the legislaures of the States. We. :ue
refering to this aspect only to alert the attention to the present state of
Jaw.
Now, the High Court relied on the decision of this Court in Til4,kchand Moticfrand and Others v. H. B. Mumhi, Commbslone of S~r~s
Tax .. Bombay(1) for its conClusion that relief tor refund cannot be
(I) 0970) lJ. S.T.C. 28!J.
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D. CAWASJI A CO. V• MYSOIUI (Mat/ww, /,)
S15
granted in the p~edinp alld that the appellants must resort-td the
ordinar:r remedy bl euit!j
In Tilokchand Motichand'a case, the petitioners before this Coutt
had realised several amounts from their customers outside Bombay eel
acoount of sales tax. The Sales Tax Officer, by his order dated March
17, 1958, forfeite<f the same Wider s.21(4) of the Bombay Sales Tu:
8 Act, 1953. On March 28, 1958, the petitioners filed a writ petition in
the High Court of Bombay seeking a writ ctf mandamus restrainin:
the Sales Tax Officer from recovering the amount from them on the
ground that s. 21 ( 4) was ultra vires the powers of the State LegislatUre
and that the order of forfeiture was violative of Articles 19(1)(f) and
265 cJ the Constitution. On November 28, 1958, the writ petition
was dismissed by a learned Single Judge on the ground that the peti~
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tioners, having defrauded other persons, were not entitled to any relief.
The appeal filed against the said order by the petitioners was dismissed
on July 13, 1959. Before the appeal was dismissed, the Collector of
Bombay attached the petitioners' prc~perties at¢ the petitioners paid the
amount to the Collector of Boml:iay between August 3, 1959 and
August 8, 1960. In Kantllal Babulal & Bro.r. v. H. C. Patel(l) de·
D
clded on September 29, 1967, tbis Court struck down s. 12A(4) of
the Bombay Sales Tax Act, 1946 as violative of Article 19 ( 1 ) (!) .
The petiticners thereupon filed a writ petition under Article 32 of the
~onstitution on February .9, 1968, claiming refund of the amount paid
by theni under s. 72 of the Indian Contract Act, 187Yon the &round
that they paid the amount under a tnistake of law and that they discovered the mistake oitly when this Court struck down s. 12(A)(4)
of the ~crnbay Sales tax Act, 1946.~ The petitioners also alleged that
E ifiey paid the aniouiit to the collectOr under coercion ~d they were
entitled to recover the same. The contention of the petitionerS wa;,
for the grounds cin which this Court struck down s.-
12A(4) of the
Bombay Sales Tax Act, .1946, s.21 (4) of the Boml;>ay Sales Tai ACt,
1953; was also liable to be stnick doWn. It was in these circumstana!'8
that this Court h~ to consider the question whether the petitiOmn
' :~;~::tm~ ,}fer~~~~u~oi~~:t~ra: ~ rru~~:2eC::ti:~ ~
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. fore it shffii1t1 be disriU8sed. maayatbllah, C.J: observed :
·
"His (the petitioner's) contention is that the ground
OJl
which his petition was dismissed was dlflerent and the Jrolind
on which the statute wail struck down was nQt within bJI
~owledge iuid t))erefore he did not know of it end purSUO
it in this Court. To that I answer that law will pre.sume ..hat
he knew the exact ground of unconstitutionality. EverybOdy
is presumed to know the law. It was his dtity
tCI hilvo
brought the matter before this Court for consideration. IB
any event, having set the machinery of law in motiem, _he
cannot abandon it to resume it after a number of years, be>
cause another perscn more adventurous than him in his t~
got the statute declared unconstitutional, and got a fav~ur
able decision. . . . . I agree With the opin~ori of my brethi'ea
1) [1968{1 ~ .t.tt. 73~.
. '
SUPR~ME COURT .R~POR~~ :: : :.: .· .. : {1975'J ~.S.C.R·.
·, . , "•
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Ba~hawat and Mitter, JJ. that the:~ is no q?estion here of
· a mistake of law entitling the petitioner to mvcj}c:e analogy
of the Article in the Limitation Act .... ".
A
·B.ach.awa~, ]. said that the payment made by the petitioners wer~ made
·not under any mistake of law and. therefore, they cannot claun any
relief on the ground of mistake: Mitter, J. was <?f. the vie~ that af_ter
lhe decision of the Bcnnbav H1gh Court. the pet1ttoners d1d not WlllB
ingly pay the amount torfcitcd, but that they made. the payment after
attachment of their propcr1t~::s and, thcr~ t ._.t·..;, th~ amounts were really
pajd under coercion and the period of limitation would normally run
from tl.te date elf the payment.
We arc not quite sure that if the ma:um that cwryon<! is presumed
to know the law is applied, there will be any case of payment under a
mistake of law unless that presumption is rebutted in the first instance,
for, the moment it is assumed that everyone is presumed to know the
law, it is clear that no one can make a mistake as to the law. It is
sometimes said that every num is presumed to know the law. but
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this is only a slovenly way of stating the truth that ignorance of the
law is oot in general an excuse( l) ... There is no presumption in this
country that every person knows the Jaw; it would
be contrary to
D ·
common sense and reason if it were so" ( 2 ).
·
Be that as it may, the High Court deduced the conclusion from the
decision in Tilokclrand 1\.fotichand's (supra) case that the question
whether a declaration by a court that a taw is
unconstitutional and
therefor~ void would not aJways furnish the starting point of limitation
.tor a. SUit for recovery of the amount p:.1.id under that taw and that the
qU:est1on must be decided on the fact~ of each case. The Court further
s~1d that the P:lrtics should seck rclicl under Article 226 as expedi-
!10usly as poss1blc .a~d ~vcn .if t~e ordinary remedy by way of a ~ujt
E
15 not bar_red by lumtatlon. tt wtll be proper exercise of discrl!tiOn
under Art1clc 226 of the Constitution to decline to interfere in cases
where ~e persons approach the court after several years, in the absl!nce
~f spectal and suftictcnt grounds.
f
M J!.to,:J.thing is clear from the judgments rendered in Tilokchand
tl •0 ~c t~
~.care (supra) by the Judges who formed the maiority, it is
119 •
ey •d not cons1dcr the payments made by the pctitico.ers as
P~tnents made under a mist~1ke of law. Therefore. we do not see the
rc cvance of that case for the decision of the case here.
.· But •. ~hat bo~ever, b; not the end or the matter
In the earlier
~~/t ~.etatJOns whJch culminated in the decision in D. Cawasji & Co v,
fUI~~ ~r~~ of My~ore 0n1 Other1 (supra) the appella.nt did pray for.reconsidcred eth:o~nts paid by ther;t under the Act nnd the High Court
nllowcd the rf :Y~r {Qr refund. ~n each of the writ petitions and
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the grounu ~ J.{ m ~me PChhons and reiected it in the others on
whos~ prayers h~J~
1c~.Co~trt observed that thc~e writ petitiofl':rs · ll
-:7:"'~-:::·---- en TcJCCtcd would be at liberty to institute suits
(I) See Frederi~k PoHock .. J .
(2) Sec Maule
:
umprudcnce un~ leaal &.'lays". p. 89.
• J.ln_ Mc~rtmriCJie v. Falk"~' ( 18-'6> 2 C. B. 706.719.
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D. CAWASJI & CO. v. MYSORl~ (Mathew, !.)
517
or other proceedings. We are not sure that, in the context, the High
Court meant, by 'other proceedings', applications in the nature d proceedings under Article 226, when it is seen that the Court refused to
entertain the relief for refund on the ground of delay in the proceedings under Article 226 and that in some cases the Court directed the
.parties to file rcpresenattions before Gcwernment. Be that as it may,
1n the earlier writ petitions, the appellants did not pray for refund df
the amounts paid by .way of cess for the years 1951-52 to 1965-66 and
they gave no reasons before the High Court in thes.e writ petitions why
they did nc1t make the prayer for refund of the amounts paid during
the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the appellants
could not be allowed to split up their claim for refund and file writ
petitions on this piece-meal fashion. If the appellants could have, but
did not, without any legal justification, claim refund of the amounts
paid during the years in question, in the earlier writ petitions, we see
no reason why the appellants shoul_d be allowed to claim the amounts
by filing writ petitions again. In the circumstances of this case, having
regard to the conduct elf the appellants in not claiming these amounts
in the earlier writ petitions without any justification, we do not think
we would be justified in interesting with the discretion exercised by
the High Court in dismissing the writ petitions which were filed only
for the purpose of obtaining the refund and directing them resort to
the remedy of suits.
We dismiss the appeals but make no order as to costs.
II Civil Appeals Nos. 452-476 of 1974
The appellants filed writ petitions before the High Coutt of Mysore
challenging the levy of health cess under the Mysore Health Cess Act,
19 51 (hereinafter referred tc1 as the '19 51 Act') for the reason that the
Act ~s outside the legislative competence of the Mysore Legislature as
well as on the ground that levy of health cess under the 19 51 Act on
shop rentals and tree tax items in respect of toddy and arrack is ultra
vires sub-section { 1) of s. 3 of the 19 51 Act and s. 9 (1 ) and ( 2)
read with the schedule to the Elementary Education Act, 1951. They
also prayed for quashing the conditions in the annual notificaticltl for
iale of excise and claimed refund of the health cess on shop rentals
and tree tax in respect of toddy and arrack paid by them for the years
1951-52 to 1961-62.
Before the High Court, a preliminary cbjection was raised by the
learned Advocate General on behalf of the State of Mysore that since
the writ petitions were filed more than three years after the payments
were made, the court should not entertain them. . The High Court
sustained the objection and dismissed the writ-petitica1s. These appeals are directed against that order.
The 1951 Act under which the health cess was collected from
the appellant was in force in the State till it was repealed and re·enacted by the Mysore Health Cess Act, 1962 (hereinafter referred to
as the '1962 Act') with effect from April L 1962. M/s. D. Cawasji &
Co. and several other excise contractors challenged the validity of levy
SUPI.Elfl OOUlT lEii'OlTS
[t9n] 2s.c.Jt
8Dd collection of health ces.1 under the 19~,1 Act u wen as under the
1962 Act filing writ petitions before the High Court of Mysore.
They were disposed of by a coJDJllOn judgment [see Suram Buth & Co.
v. T~ Deputy CommiSsumer (Exciu)
d: Another (I)]. By th:)
judgment, the High CCAJit struck down explanation to clause ( 1 ) oi
Schedule A to the 1962 Act but rejt:cted all other prayers. That
decision was challenged before this CA:1urt and this Court, by its ju.dl"
ment dated September 26, 1966 (see Shinde Brother~ '· DepuJy Commissioner(~) declared that the Stlltc of Mysorc hud no competenco
to levy and ¢ollect health cess under the Mysorc Health Cess Act,
196.2, em shop rent and directed refund of health cess illeglllly 1col•
lectod under the Henlth Cess Ac:t, 1962. And aR re:ar.uda the prnycr
tor deolnrntlon thnt tho levy af heftlth cc~s under the 19S 1 Aet wal
Ulea;nl Md fgr rl.'lf'und of the eeNa collected under th~t Aet, tbl• Cmm
deellned. to MO into dun Q\JC:t~lon; tho Court however, Mllld tbat utbl
petlttonon wlU, however, ho ftt IIbert~ to dlt:l aultt, if !lPf ftdvJ~ed!, to
recPv~r th~ ~tm()unt~ Pllci~c.d to hnvo b~en. ptdd tty them
und~r th!!
HenJtb Ceu Act, 1951",
Withlq ~wg mQnthli of lh~ dl8posnl of ftppool~ by thi~ Court, tht
oppellut1 IUed writ p@thlonK ~foro tho Hlnh Caun ohAllcn&lns ~
viUdJf)l of th.tl 19~ l Aof ttnd Jm~yln.JI~er rehmd of befll~h eeM~ fJOU,.:tcd
under the 19'1 Aet for the ~rlod from
19,1·!~ to l961·6l, Tho
High Court held that thero · wa• lnordinPtc del~~ in ftUna tho mlt
petl tlont and dismissed them on that around without ~QtoMJ into thQ
lllCdta of the pctltJons.
·
The appellant!! contended that the Hi.gb Court mnt wroq J.u dis~
missing the writ petition~ on the ground that there was inordinato
delay in filing them. It may be recalled that the 19~ 1 Act had t~Ce~.
repealed iD .1962 and that the refund was claimed in respect of tm
amounts paid bdore 1962 under the 1951 Act. Merely because t1m
O>urt has said that the appellants can challenge the validity of tm
Act, ·if they are so advised, by a suit, it would not follow that they can
challenge its 'alidity in writ petiti~ without encountering Iegititltlito
pleas available to the respondent. It there was inordinate delay in
filing the writ petiti~, there was nothing in the judgment of tbb
Court which prevented the High Court in disminina them on that
JTound. The reason why this Court did not ao into the questictl of
the validity of the 1951 Act was that relevant material8 were oot
placed before the Court by the appellants. When this Court said that
the appell~ts, if so advised, were at liberty to file suit for the r~~lief
claimed, it cannot be taken as a sanctiC«l to the appellants by thi8
Court for approaching the High Court for relief under Article 226
(1) (1966) l :Mysorc Law Journal 5S4.
(2) A.I.R. 1967 S.C. 1512.
A
B
c
F
G
H
, ..
·. ~ .
J). CAWASJI & CO. v. MYSORE (Mathew, J.)
t519
~ without regard to the question or delay in filing the petitions. The
. appellants, as they did not place the relevant materials before this Court
for successfully challenging the validity ci the 195 1 Act, are to blame
themselves. The appellants were directed by this Court to file suits> if
they were so advised.
· 1J
. In these circumstances, we do not think that the High Court went
wrong in dismissing the writ petitions on the ground of inordinate
delay. We dismiss the appeals, but make no order as tCI costs.
P.B.R.
App~als dismisud.
•
.•.