BURMAH CONSTRUCTION COMPANY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE following Judgment of the court was delivered by

(2.) MESSRS. Buarmah Construction Company a firm carrying on business as building and works contractors-executed several contracts in the State of orissa for construction of buildings roads, bridges etc. MESSRS. Burmah Construction Company, who are hereinafter referred to as the appellants, were registered as dealer in orissa under the orissa Sales Tax Act, 1947 from the quarter sending 30/06/1949. The Sales Tax officers treating the transfer of the materials used in the construction of the buildings, roads and bridges, as sale of goods, assessed the appellants to tax under the orissa Sales Tax Act. The tax so assessed under the diverse orders of assessment was paid from time to time. For the quarters ending 30/06/1949, to 31/03/1954, the appellant paid Rs. 1,17,869-80 as tax and Rs. 2,917-11-0 as penalty. The following table sets out the tax and penalty paid to the Sales Tax Authorities for the twenty quarters. <FRM>JUDGEMENT_1320_AIR(SC)_1962Html1.htm</FRM>

(3.) IT is not necessary to consider in this case whether s.14 prescribes the only remedy for refund of tax unlawfully collected by the State. The appellants have not filed any civil suit for a decree for refund of tax unlawfully collected from them. This appeal arises out of a proceeding filed in the High court substantially to compel the Collector to carry out this statutory obligations under s.14 of the Act. The High court normally does not entertain apetition under Art. 226 of the constitution to enforce a civilliability arising out of abreach of contract or a tort to pay and amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be madein apetition under Art.226 of the constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a-tax illegally collected and it was maintainable: but it can only be allowed subject to the restrictions which have been imposed by the Legislature. IT is not open to the claimantto rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.