20 January 1964
Supreme Court


Case number: Appeal (civil) 362 of 1962






DATE OF JUDGMENT: 20/01/1964


CITATION:  1964 AIR 1006            1964 SCR  (6) 261  CITATOR INFO :  RF         1965 SC1740  (11)  R          1966 SC1089  (34)  R          1969 SC  78  (4)  E          1970 SC 898  (18,35,37,46,51,62,63)  D          1972 SC2060  (4,5)  E          1975 SC 813  (5,6)  RF         1976 SC2243  (21)  R          1982 SC 101  (28)  E&R        1990 SC 772  (20,31,32)  RF         1990 SC 820  (17)  RF         1991 SC1676  (72)

ACT: Constitution  of India, 1950, Arts. 226, 301 and  304--Issue of  Writ Unreasonable delay in moving Court--what  is--Sales Tax--Impeding  inter State trade--Validity--Tax  paid  under mistake--Order  of  repayment--Jurisdiction  of  High  Court under Art. 226.

HEADNOTE: The  respondents  are dealers in tobacco in  the  State  of Madhya Bharat.  The appellant imposed sales tax on the  sale of imported tobacco by the respondents.  But no such tax was imposed on the sale of indigenous tobacco.  The  respondents filed  petitions under Art. 226 of the Constitution for  the issue of writ of mandamus ’directing the refund of sales tax collected  from them.  They contended that the impugned  tax violated Art. 301 (a) of the Constitution and they paid  the tax  under  a  mistake  of  law and  the  tax  so  paid  was refundable  under  s. 72 of the Indian Contract  Act,  1872. The appellant contended that there was no violation of  Art. 301  of the Constitution, even if there was  such  violation the tax came within the special provision under Art. 304(a), the High Court bar. no power to direct refund of tax already paid and in any event the High Court should not exercise its discretionary power of issuing a writ of mandamus  directing this to be done since there was unreasonable delay in filing the  petition.  The High Court rejected all the  contentions of the appellant and a writ of mandamus was issued as prayed



for.   The appellants appealed to this Court.   Before  this Court  substantially the same contentions as were  canvassed before the High Court were raised. Held:     (i)  Even  though  the liability to  pay  tax  was created by the sale of tobacco in Madhya Pradesh and not  by the  import itself the facts and circumstances  showed  that trade and commerce as between Madhya Bharat and other  parts of  India  was  directly impeded by  the  impugned  tax  and therefore   the  said  tax  violated  Art.  301(a)  of   the Constitution. Atiabarj  Tea  Co. Ltd. v. State of Assam, [1961]  1  S.C.R. 809,  Automobiles  Transport (Rajasthan) Ltd.  v.  State  of Rajasthan,  [1963] 1 S.C.R. 491 and Firm Mehtab Majid &  Co. v. State of Madras, A.I.R. 1963 S.C. 928, referred to. (ii)  Even  though  the  tax contravened  Art.  301  of  the Constitution it     would  he  valid if it came  within  the saving provisions of Art. 304 of the    Constitution. (iii)  Tobacco  manufactured or produced  in  the  appellant State, similar to   the  tobacco imported from  outside  had not been subjected to the tax and therefore the tax was  not within  the  saving  provisions  of  Art.  304  (a)  of  the Constitution. 262 (iv) The tax which had already been paid was so paid under a mistake  within s. 72 of the Indian Contract Act.  The  High Courts  have  power  for  the  purpose  of  enforcement   of fundamental   rights   and   statutory   rights   to   grant consequential   reliefs  by  ordering  repayment  of   money realised by the Government without the authority of law. Firm Mehtab Majid & Co. v. State of Madras, A.I.R. 1963 S.C. 928  and  Sales Tax Officer, Banaras v. Kanhaiya  Ld  Saraf, [1963] S.C.R. 1360,referred to. (v)  As a general rule if there has been unreasonable  delay the court ought not ordinarily to lend its aid to a party by the extraordinary remedy of mandamus.  Even if there is  not such delay, in cases where the opposite party raises a prima facie  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. (vi) Though  the provisions of the Limitation Act do not  as such  apply  to the granting of relief under  Art.  226  the maximum  period fixed by the legislature as the time  within which relief by a suit in a Civil Court must be claimed  may ordinarily  be  taken to be a reasonable standard  by  which delay in seeking remedy under Art. 226 can be measured.  The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil  action for the remedy.  Where the delay is more than this period it will  almost always be proper for the court to hold that  it is  unreasonable.  The period of limitation  prescribed  for recovery  of money paid by mistake under the Iimitation  Act is three years from the date when the mistake is known.   In the  result  C.A. Nos. 861-867 are allowed in part  and  the other appeals are dismissed.

JUDGMENT: CIVIL  APPELLATE JURISDICTION Civil Appeals Nos. 362-377  of 1962. Appeals from the judgment and orders dated December 16, 1959 of the Madhya Pradesh High Court in Miscellaneous  Petitions Nos. 144 to 158 and 160 of 1958. Civil Appeals Nos. 858 to 867 of 1962. Appeals  from  the judgment and orders dated  28th  October,



1960, 16th September, 1960 and 29th July, 1960 of the Madhya Pradesh High Court in Miscellaneous Petitions Nos. 110,  119 and 136 of 1960, 198, 199, 202 to 206 of 1959 respectively. Civil Appeals Nos. 25 to 29 of 1963. Appeals from the judgment and orders dated 29th July,  1960, 26th  September, 1960, 28th October, 1960,  16th  September, 1960 and 28th October, 1960 of the Madhya                             263 Pradesh  High  Court in Miscellaneous Petition Nos.  273  of 1958, 73, 74, 120 and 132 of 1960 respectively. M.   Adhikari, Advocate-General, Madhya Pradesh and 1. N. Shroff for the appellants (in all the appeals). M.   C. Setalvad, S. N. Andley, Rameshwar Nath and P.  L. Vohra, for the respondent (in C.A. No. 362/1962). S.   N.  Andley,  Rameshwar Nath and P. L.  Vohra,  for  the respondents (in C.A. Nos. 363 to 377 and 858 to 867 of  1962 and 25 to 27 of 1963). January  20, 1964.  The Judgment of the Court was  delivered by DAS GUPTA J.-These 31 appeals by the State of Madhya Pradesh are  against  the orders made by the High Court’  of  Madhya Pradesh   in   31  applications  under  Art.  226   of   the Constitution  by dealers in tobacco.  All these  petitioners carried on business in Madhya Bharat which later became part of the State of Madhya Pradesh.  They were assessed to sales tax  on  their  sales  of tobacco  in  accordance  with  the notification  issued by the State Government in exercise  of powers  under  s.  5 of the State Sales Tax  Act  and  large amounts  were collected by the Madhya Bharat Government  and later  by  the Madhya Pradesh Government.   The  petitioners contended that the taxing provisions under which the tax was assessed and collected from them was unconstitutional as  it infringed  Art.  301 of the Constitution and  did  not  come within  the special provision of Art. 304(a).   Accordingly, they  prayed for appropriate writs or orders for  refund  of all  the  taxes  that  has been  collected  from  them.   In resisting  these applications the Madhya Pradesh  Government contended,  first, that the Wing provisions did  not  offend Art.  301  of the Constitution and that in  any  case,  they satisfied the requirements of Art. 304(a).   It was  further contended that even if the taxing provision  was unconstitutional and the assessment and collection of  tax had  been without any legal authority the  petitioners  were not entitled to the order for refund prayed for. 264 The  High  Court was of opinion on a consideration  of;  the notification  under  which  the tax  was  assessed  that  it imposed a tax only on imported tobacco and not on home grown tobacco and so it did not come within the special provisions of  Art.  304(a) of the Constitution  and  consequently  the infringement of Art. 301 of the Constitution which  resulted from  the  imposition of a tax on import of goods  made  the provisions  void in law.  The prayer for refund was  allowed in  the  applications out of which C.A. Nos.  362-377,  C.A. Nos.  861--867 of 1962 and C.A. No. 25 of 1963 have  arisen. The prayer was rejected in the remaining applications. In   the  present  appeals  the  State  of  Madhya   Pradesh challenges the correctness of the High Court’s decision that the taxing provision was unconstitutional and void and  also the  orders  for refund made in some of the  petitions  men- tioned above. The  liability  to  pay tax arose under s.3  of  the  Madhva Bharat Sales Tax Act.  This Act came into force from the 1st day of May 1950.  As originally enacted it provided that (a) every  dealer who imports goods into Madhya Bharat shall  be



liable  to  pay tax on his taxable turnover  in  respect  of sales or supplies of goods effected from the 1st day of  May 1950  if his total turnover in the previous year in  respect of  sales  or  supplies  of goods  exceeded  Rs  5,000;  (b) similarly every manufacturer or processor whose turnover  in the previous year exceeded Rs. 5,000 was made liable to  pay tax on his taxable turnover in respect of sales or  supplies of  goods effected from the 1st day of May 1950;  (c)  every other  dealer  was  made liable to pay tax  on  his  taxable turnover  in respect of sales or supplies of goods  effected from  the 1st day of May 1950, if the total turnover in  the previous year exceeded Rs. 12,000.  By later amendments  the word "processor" was deleted from cl. (b) of the section and the  meaning  of the words "any other" in cl. (c)  was  made clearer by substituting the words "any goods of a dealer not falling in cl. (a) or cl. (b)".  There was also an amendment in 1950 making it, clear that the taxable turnover on  which the tax liability.                             265 arose was in respect of sales or supplies of goods  effected in Madhya Bharat. Section  5  of the Act provides that the tax  payable  by  a dealer shall be at a single point and shall not be less than Rs.  1/9/-  per  cent or more than 6-1/4  per  cent  of  the taxable  turnover,  as  notified from time to  time  by  the Government by publication in the Official Gazette.  This  is subject to a proviso that the Government may in respect of a special  class  of  goods charge tax  upto  12-1/2%  on  the taxable  turnover.  The second sub-section of s. 5  empowers the  Government to notify at the time of notifying  the  tax payable  by a dealer, the goods and the point of their  sale at  which the tax is payable.  The legal position  therefore is  that unless there is a valid notification under s. 5  no tax  can  be  levied.  The contention  of  the  petitioners- dealers  which has succeeded in the High Court is  that  the notifications on the strength of which the tax was  assessed on them were invalid. The  first notification was issued on April 30, 1950.   This provided that with effect from the 1st day of May 1950 sales tax  shall  be collected in respect of  goods  specified  in column   2  of  the  Schedule  that  was  attached  to   the notification  at the point of sale mentioned in column 3  at the rates mentioned in column 4. The relevant portion of the Schedule ran thus:- -------------------------------------------------------- Sl   Name of commodity    The point of sale     Rate of No.                          by dealers         tax --------------------------------------------------------- 9.   Tobacco leaves, manufactu-     Importer    6-4-0      red tobacco (for eating and                Per cent      smoking) and tobacco used                  Sales Tax      for Bidi manufacturing. ----------------------------------------------------------- This was followed by another notification dated May 22, 1950 under which a lower rate was prescribed for tobacco used for Bidi  manufacturers.   But the point at which  the  tax  was payable remained unaltered.  The rele- 266 vant  portion  of the Schedule to this notification  was  in these words: ----------------------------------------------------------- Sl.  Name of commodity         Point of sale       Rate per- No.                          by the dealers      cent of tax                                      in M. B. ------------------------------------------------------------



10.  Tobacco leaves and manu-      factured tobacco (for eating,  Importer         6-4-0      smoking and snuffing) 11.  Tobacco used for Bidi          Importer         1-9-0      manufacturing. ------------------------------------------------------------ For  a short period, i.e., from the 1st January 1954 to  the 21st   January   1954  these  two   notifications   remained inoperative in consequence of a notification dated the  24th October,  1953,  under which from the 1st January  1954  the point  of sale at which the tax was payable was  altered  to "on  a sale by a dealer direct to a consumer or to a  dealer who  does  not hold a licence  or  registration  certificate under the Sales Tax Act".  This last notification was  again superseded by a notification dated the 21st January, 1954 in consequence  of  which the old position  was  restored  with effect  from  January 22, 1954.  That is, with  effect  from 22nd  January 1954 the point at which the tax  was  payable, again became a sale by an importer. There  can be no doubt that the tax payable at the point  of sale  by the importer in Madhya Bharat directly impeded  the freedom of trade and commerce guaranteed by Art. 301 of  the Constitution.   It is true that the import by  itself  would not  bring in the liability to tax and that if the  imported goods  were  not  sold  in Madhya Bharat  no  tax  would  be -payable.  Quite clearly however by far the greater part  of the  tobacoo  leaves, manufactured tobacco (for  eating  and smoking) and tobacco used for Bidi manufacturing that  would be  imported into the State would be sold in Madhya  Bharat. That  a very considerable amount  was so sold is clear  from the  very  assessment orders made  in these  several  cases. There can be no doubt therefore 267 that  even  though it is the sale in Madhya  Bharat  of  the imported goods that creates the liability to tax and not the import  by itself, the trade and commerce as between  Madhya Bharat and other parts of India is directly impeded by  this tax.  On the authority of this Court’s decision in  Atiabari Tea Co., Ltd. v. State of Assam(1) it must therefore be held that  the tax contravenes the provisions of Art. 301 of  the Constitution.   It may be mentioned that the later  decision of  this Court in Automobile Transport (Rajasthan)  Ltd.  v. State  of Rajasthan(2) which slightly modified the  majority decision  in  Atiabari Tea Co.’s case does  not  alter  this position.  If the tax could have been claimed to be  regula- tory  or compensatory it would have got the benefit  of  the latter  decision.   There is, however, no scope for  such  a claim (See Firm Mehtab Majid & Co. v. State of Madras) (3). The  tax could still be good if even though  it  contravened the provisions of Art. 301 it came within the saving  provi- sions  of  Art. 304(a) of the  Constitution.   That  Article provides  in  its cl. (a) that notwithstanding  anything  in Article  301 or Art. 303 the legislature of a State  may  by law  impose on goods imported from other States any  tax  to which  similar goods manufactured or produced in that  State are subject so however as not to discriminate between  goods so  imported  and  goods so manufactured  or  produced.   An attempt  was  made on behalf of the State  before  the  High Court  and  also  before us  to  construe  the  notification mentioned  above to mean that not only the tobacco  imported from  other  States but also similar goods  manufactured  or produced  in Madhya Bharat were subject to this tax  and  at the  same rate.  It was argued that a dealer in these  goods who  was an importer and so sold goods imported by him  into Madhya  Bharat would also be selling goods not  so  imported



but manufactured and produced in the State.  We are prepared to  agree that may well be so.  What we are unable  to  see, however,  is  that in respect of sales of such  other  goods this person would be liable to (1) [1961] 1 S.C.R. 809. (2) [1963] 1 S.C.R. 491. (3) A.I.R. 1963 S.C. 928. 268 any  tax  under the notification.  We are informed  that  in fact  where importers dealt with goods other  than  imported goods  the sales of such other goods were in  fact  excluded from  tax.  The learned Advocate-General of  Madhya  Pradesh who appeared before us in support of these appeals suggested that  that was done by the State Sales Tax Authorities on  a mistaken interpretation of the law. We do not think so.   In our  opinion,  the  only reasonable  interpretation  of  the notification as it stands, viz., that tax on tobacco leaves, manufactured tobacco and tobacco used for Bidi manufacturing would  be payable at the point of sale by the  importer,  is that only the sale of goods which the importer had  imported would  be liable to tax and not sale of any other  goods  by him.  If the intention had been as suggested by the  learned Advocate-General that though the tax is payable at the point of sale by an importer the scale by the same person of goods manufactured  or  produced in Madhya Bharat  would  also  be liable to tax, the word "importer" would not have been  used in  column 3 but the word "dealer" would have been used  and the  point of sale would have been indicated by  some  other words  as the "first sale in Madhya Bharat" or "the sale  to the retailer in Madhya Bharat" as the rule-making  authority chose. The  matter becomes even more clear if in column 3  we  read for  "importer" the definition of "importer of goods" in  s. 2(i)  of  the Act.  Reading this we find that the  point  of sale  in  Madhya Bharat at which the tax is payable  is  the sale "by the dealer who brings or causes to be brought  into Madhya  Bharat  any goods from outside for  the  purpose  of processing,  manufacturing or sale" or "who purchases  goods in  Madhya Bharat for the purpose of sale from a dealer  who does not ordinarily carry on business in Madhya Bharat."When only such a sale is being made the point at which the tax is payable,  there is hardly any scope for a  serious  argument that  the  notification was intended to make sales  by  that same  dealer  of goods manufactured or  produced  in  Madhya Bharat liable to tax. it may not be out of place to notice in this connection  the distinction made by s.3 of the Madhya Bharat Sales 269 Tax  Act  between sales by a dealer who imports  goods  [cl. (a)]  and other dealers [cls. (b) and (c) ]. It is  not  un- reasonable  to  think that the Act itself  contemplated  the sales  by an importer of goods as meaning only sales by  him of  goods  imported by him into Madhya Bharat.   Apart  from this, it has to be noticed that admittedly the  notification did  not make dealers who dealt only in home grown  or  home produced  tobacco  liable to pay the tax.   That  by  itself would  be sufficient to bring in the vice of  discrimination which is the purpose of Art. 304(a) to prevent. There can, therefore, be no escape from the conclusion  that similar  goods  manufactured  or produced in  the  State  of Madhya  Bharat  have  not been subjected to  the  tax  which tobacco  leaves, manufactured tobacco and tobacco  used  for Bidi  manufacturing, imported from other States have to  pay on sale by the importer.  This tax is, therefore, not within the  saving provisions of Art. 304(a).  As  already  pointed



out  it  contravenes  the  provisions of  Art.  301  of  the Constitution.   The tax has therefore been rightly  held  by the High Court to be invalid.  It is clear that the  assess- ment  of tax under these notifications was thus  invalid  in law. A portion of the tax thus assessed has been already paid  by the  petitioners.   It  cannot now  be  disputed  that  this payment  was made under a mistake within s.72 of the  Indian Contract  Act and so the Government to whom the payment  has been made by mistake must in law repay it.  The question  is whether the relief of repayment has to be sought by the tax- payer by an action in a civil court or whether such an order can   be  made  by  the  High  Court  in  exercise  of   its jurisdiction  under  Art.  226  of  the  Constitution.   The jurisdiction  conferred by Art. 226 is in very  wide  terms. This  Article empowers the High Court to give relief by  way of  enforcement  of fundamental rights and other  rights  by issuing directions, orders or writs, including writs in  the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.  According to the petitioners a writ in  the nature of mandamus can be appropriately used where money has been  paid  to the Government by mistake to give  relief  by commanding repayment 270 of the same.  That in a number of cases the High Courts have used  the writ of mandamus to enforce such repayment is  not disputed.   In a recent case in Firm Mehtab Majid & Co.,  v. The State of Madras(1) this Court made, in a petition  under Art. 32, an order for refund of tax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939.  The question whether the  Court  has this power to order refund was  not  however raised there. in Sales Tax Officer, Banaras v. Kanhaiya  Lal Mukundlal Saraf (2) the appellants disputed the  correctness of the High Court’s order made in an application under  Art. 226  of the Constitution directing refund of taxes that  had been  paid under the U.P. Sales Tax Act on the  respondent’s forward  transactions in silver bullion.  After the levy  of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked, for refund of the tax paid and when that was refused he applied to  the High Court under Art. 226 of the Constitution for a writ  of certiorari for quashing the assessment orders and a writ  of mandamus  requiring  the  appellants to  refund  the  amount illegally  collected.   The order made in this case  by  the High Court for refund was affirmed by this Court in  appeal. In this case also the power of the High Court to order  such refund  was not challenged either before the High  Court  or before this Court. We see no reason to think that the High Courts have not  got this  power.   If  a  right  has  been  infringed-whether  a fundamental  right  or a statutory right-and  the  aggrieved party  comes  to the court for enforcement of the  right  it will  not be giving complete relief if the court merely  de- clares  the  existence of such right or the fact  that  that existing  right  has been infringed.  Where there  has  been only a threat to infringe the right, an order commanding the Government  or  other statutory authority not  to  take  the action  contemplated would be sufficient.  It has been  held by  this Court that where there has been a threat  only  and the right has not been actually infringed an application (1) A.I.R. 1963 S.C. 928. (2) [1959] S.C.R. 1350. 271 under Art. 226 would lie and the courts would give necessary



relief  by making an order in the nature of injunction.   It will  hardly be reasonable to say that while the court  will grant  relief by such command in the nature of an  order  of injunction  where  the invasion of a right has  been  merely threatened the court must still refuse, where the right  has been actually invaded, to give the consequential relief  and content  itself  with merely a declaration  that  the  right exists  and  has been invaded or with  merely  quashing  the illegal order made. For the reasons given above, we are clearly of opinion  that the High Courts have power for the purpose of enforcement of fundamental   rights   and   statutory   rights   to    give consequential relief by ordering repayment of money realised by the Government without the authority of law. At  the same time we cannot lose sight of the fact that  the special  remedy  provided  in Art. 226 is  not  intended  to supersede  completely  the modes of obtaining relief  by  an action  in  a civil court or to deny  defences  legitimately open in such actions.  It has been made clear more than once that  the  power  to  give  relief  under  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 High Courts  rightly  take  into consideration  in  the exercise of that  discretion  is  the delay  made by the aggrieved party in seeking  this  special remedy  and  what excuse there is for it.   Another  is  the nature  of controversy of facts and law that may have to  be decided as regards the availability of consequential relief. Thus, where, as in these 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   directing repayment.   Whether  repayment  should be  ordered  in  the exercise of this discretion will depend in each case on  its own  facts  and  circumstances.  It is not easy  nor  is  it desirable  to lay down any rule for  universal  application. It may however be stated 272 as a general 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. The prayer for refund has been allowed by the High Court  in the  applications out of which Civil Appeal Nos. 362-377  of 1962 and Civil Appeal Nos. 861--867 of 1962 and Civil Appeal No.  25  of  1963  have arisen.  It  appears  that  the  tax provisions  under  which these taxes had been  assessed  and paid  was declared void by the High Court of Madhya  Pradesh in  their  decision  in Mohammad Siddique v.  The  State  of Madhya  Pradesh on January 17, 1956.  Later, on  August  27, 1957  the Appellate Authority, Sales Tax, in  Madhya  Bharat made an order relying on the High Court’s decision mentioned above.   The  petitioners  claim to  have  discovered  their



mistake  in making the payments after they came to  know  of these decisions. it is reasonable to think however that  the petitioners  must have discovered their mistake as  soon  as the High Court’s decision in  the case of Mohammad  Siddique v. The State of Madhya Pradesh dated January 17, 1956 became known  to them’ All these 16 applications were  made  within less than three years from the 17th January, 1956.  The High Court  has  taken the view that this  was  not  unreasonable delay and in that view has ordered refund.  This appears  to us  to be a sound and judicial exercise of  discretion  with which  this  Court ought not to interfere. it may  be  added that  no triable issue as regards the availability  of  this consequential  relief was raised before the High  Court  nor has any been suggested before us.  The order of refund made                             273 by  the High Court in these cases cannot therefore  be  dis- turbed- The  position  in Civil Appeal Nos. 861 to 867  of  1962  is however  different.   The applications out  of  which  these appeals have arisen were made in September 1959, i.e., about three years and eight months after January 17, 1956 when the High  Court of Madhya Pradesh gave their decision  declaring the tax provisions in question to be void. It  was  necessary  for  the High  Court  to  consider  this question of delay before any order for refund was made.   It does not appear however that any attention was paid to  this question.  In making the orders for refund in each of  these cases the High Court merely said this:-               The present case is governed by Bhailal Bhai’s               Case  (1960 M.P.C. 304).   Learned  Government               Advocate  formally raised the question of  the               remedy  open to the petitioner for  refund  of               tax  in  order to keep the point open  in  the               Supreme  Court.   We  accordingly  allow  this               petition. and issue a writ directing the oppo-               nents  to  refund to the  applicant  firm  the               amount  of  tax collected from it  during  the               above-mentioned period." The learned Judges appear to have failed to notice that  the delay  in  these petitions was more than the  delay  in  the petition  made  in Bhailal Bhai’s case out  of  which  Civil Appeal  No. 362 of 1962 has arisen.  On behalf of  the  res- pondents-petitioners in these appeals (C.A. Nos. 861 to  867 of 1962) Mr. Andley has argued that the delay in these cases even  is not such as would justify refusal of the order  for refund.  He argued that assuming that the remedy of recovery by  action in a civil court stood barred on the  date  these applications  were  made that would be no reason  to  refuse relief under Art. 226 of the Constitution.  Learned  counsel is  right  in  his submission that  the  provisions  of  the Limitation  Act  do  not as such apply to  the  granting  of relief  under Art. 226.  It appears to us however  that  the maximum  period fixed by the legislature as the time  within which the relief by a suit in a civil court must be  brought 134--159 S.C. 18 274 may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Art. 226 can be measured.  The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil  action for  the  remedy.  but where the delay  is  more  than  this period,  it  will almost always be proper for the  court  to hold  that  it is unreasonable.  The  period  of  limitation prescribed  for recovery of money paid by mistake under  the Limitation Act is three years from the date when the mistake



is  known.   If the mistake was known in these cases  on  or shortly  after  January 17, 1956 the delay in  making  these applications should be considered unreasonable.  If, on  the other  hand, as Mr. Andley seems to argue, the  mistake  was discovered  much later, this would be a  controversial  fact which  cannot conveniently be decided in  writ  proceedings. In  either view of the matter we are of opinion  the  orders for  refund  made  by the High Court in  these  seven  cases cannot be sustained. The application out of which Civil Appeal No. 25 of 1963 has arisen  was  also made in 1958, that is,  within  less  than three  years from the date of the High Court’s  decision  in Mohammad Siddique v. The State of Madhya Pradesh.  The  High Court was therefore right in stating in its judgment in this case that it is governed by Bhailal Bhai’s case.  We see  no reason  to interfere, with the order for refund made by  the High Court in this case. In  the  result, Civil Appeals Nos. 861 to 867 of  1962  are allowed  in  part and the orders for refund  made  in  those cases are set aside.  The petitioners will be at liberty  to seek  such  relief  as they may be entitled to  in  a  civil court, if it be not barred by limitation.  There will be  no order  as  to costs in these cases.  In two  other  appeals, viz.,  Civil Appeal Nos. 28 and 29 of 1962, the  respondents have not appeared; so there will be no order as to costs  in them.  In the other appeals which are dismissed, the  appel- lant will pay costs to the respondents.  One hearing fee for all these appeals. Appeals   Nos.   861-867  partly  allowed,   other   appeals dismissed. 275