# TILOKCHAND MOTICHAND & ORS v. H. B. MUNSID & ANR

- **Citation:** [1969] 2 S.C.R. 824
- **Court:** Supreme Court of India
- **Decided:** 1967-09-29
- **Case number:** Writ Petition No. 53 of 1968
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/tilokchand-motichand-ors-v-h-b-munsid-anr-4595
- **Pages:** 37

## Headnote

[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 rightE/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 relation 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 conA
B
c
dition, the sales tax officer forfeited the sum under s. 21 ( 4) of the BomD
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 violative 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 properties 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)\f)
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,
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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
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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.
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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 interference 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 s

## Text

_Characters 0–39,608 of 109,818. This is a partial read: ask again with offset=39608 for what follows._

[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 rightE/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 relation 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 conA
B
c
dition, the sales tax officer forfeited the sum under s. 21 ( 4) of the BomD
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 violative 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 properties 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)\f)
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,
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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.
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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 interference 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 petition under Art. 32 is neither a suit nor ar. application to which the Limitation 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 unconstitutional, 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 hecause 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 barred 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 application 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 petition 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
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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 instituted in February 1968, would have been barred by limitation.
A suit for
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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,
(1851E
52) 5 M.I.A. 234, 251, referred to.
Per Mitter, J. : The Limitation Act does not in terms apply to proceedings against the State under Art. 32 in respect of violation of fundamental 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
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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
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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 fundamental rights. the illegality of the order of forfeiture and the unreasonff
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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 coercion.
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. MahaD
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.
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Per Sikri and Hegde, JJ. (dissenting) : The petition has to be allowed 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 express provision to the contrary, it must be exercised in accordance with
fundamental principles of administration of justice, and one such fundamental 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 appropriate 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 representations 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 claimed. 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 appropriate 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 irrelevant circumstance in deciding the nature of the right available to an
aggrieved party under Art. 32. This Court is charged by the Constitution with the special responsibility df protecting and enforcing the fundamental 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 provisions 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 Constitution, it would be a case of Parliament indirectly
abridging the fundamental 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
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TILOK CHAND v. H. B. MUNSHI (Hidayatullah, C.I.)
829
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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 decision of this Court in Kantilal's case, and since the petition was filed very
soon thereafter, the petitioners were entitled to relief. [860 ~]
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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 themselves 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 enforcement 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 ordinary jurisdictioin of the civil. courts, that is to say, it does not convert civil and criminal actions into proceedings for the obtainment
of writs.
Although there is no rule or provision of law to prohibit the exercise of its extraordinary jurisdiction this Court has
always insisted upon recourse to ordinary remedies or the exhaustion of other remedies.
It is in rare cases, where the ord\n: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
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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 distinguishes 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! inquire 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 Fundamental 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 talcing 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 discretion. In India I will only say that each case will have to be
considered on its own facts. Where there is appearance of 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 the extraordinary jurisdiction.
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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. Similarly 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
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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 unconstiG
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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 declared 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 abandoned his own litigation.
I agree with the opinion of my brethren
Bachawat and Mitter, JJ. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the
Article in the Limitation Act. 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 abandoned 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 provision to the contrary, it must be exercised in accordance with fundamental principles of administration of justice. General principles 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 concurrent, 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 extraordinary circumstances render it equitable to do so, the
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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
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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 !imitations 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 limitation.
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\\ffi 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 Statute 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 obscure bv time, and the evidence might have been lost, and
from the consciousness that the repose of titles and the
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TJLOK CHAND V. H. B. MUNSHI (Sikri, /.)
ll 35
forcement of the maxim, Vigilantibus, non dormientibus
jura subveniunt.
Under peculiar circumstances, however, 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 dismissal 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 Chancery 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 explained.
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 ordinarily 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 petition, 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 ootertaining 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 observed in State of Madhya Pradesh v.