K N ANJANAPPA Vs. STATE OF MYSORE

JUDGEMENT

(1.) The petitioners in this batch of 29 cases are excise contractors, who had secured exclusive privilege of retail vending of toddy, arrack and special Lquor in deferent areas or shops in the old Mysore area of the New State of Mysore. Though in these writ petitions several reliefs have been asked, the learned Counsel for the petitioners, during the course of arguments, restricted their prayer to the refund of education cess paid during the years 1951-52 to 1965-G6 on shop rentals and tree tax in respect oi toddy and on duty of excise m respect of arrack and special liquor, on the ground that the education cess was paid by them under a mistake of law. As common questions arise for determination in all these cases, they were heard together and we are disposing them of by this common order.

(2.) It is not necessary to advert to the history of the levy of education cess on the aforesaid items under the Mysore Elementary Education Act, 1941 (hereinafter referred to as the Education Act) and the Mysore Compulsory Primary Education Act, 1961, as the same has been referred to in great detail in the decision of this Court between D. Cawasji & Co. v. State of Mysore , (1968) 2 Mys.L.J. 78. which has been affirmed by the Supreme Court in State of Mysore v. P. Cawasji & Co , AIR. 1971 SC. 152, In view of the aforesaid decision of this Court, which has been affirmed by the Supreme Court, the learned Counsel for the petitioners submitted that the collection of education cess by the respondents from the petitioners for the relevant years was clearly illegal and without the authority of law. At one stage, the learned Advocate General appearing for the respondents, took the stand that though the levy of education cess has been declared to be without the authority of law in the aforesaid decision, the Legislature having subsequently validated the levy and collection thereof, the petitioners cannot claim refund on the basis of the earlier decisions of this Court and the Supreme Court. After the decision of this Court in D. Cawasji & Co's cose(1) and during the pendency of the appeal by the State before the Supreme Court, the Mysore Education Cess (Validation of Levy) Act, 1969 was passed with the object of validating the levy of education cess on items of excise revenue under the Education Act. But, when the learned Counsel for the petitioners brought to our notice another judgment of this Court between H. S. Basappa v. State of Mysore , WP. 1418/69 dt.6-10-1971 the learned Advocate General fairly conceded that the validation Act does not come to the rescue of the State. This Court has, in the csse of Basappa (3), considered the effect of the Validation Act and held that though the Act intended to validate the levy, the same has not the effect of validating the levy inasmuch as the grounds of illegality or invalidity of the levy pointed out by this Court in the decision D. Cawasji & Co.'s case(1) have not, in fact, been removed.

(3.) While conceding that in the light of the aforesaid decisions of this Court and the Supreme Court he cannot justify the levy and collection of education cess, the learnod Advocate General submitted that we should decline to exercise our jurisdiction under Art.226 of the Constitution on the pround of inordinate delay and laches on the part of the petitioners in approaching this Court. The prayer for refund of education cess paid by the petitioner is in respect of the periods from 1951-52 to 1965-66. the High Court of Bombay seeking a writ of mandamus restraining the Sales Tax Officer from recovering the amount fom them, on the ground that S.21(4) was ultra vires the powers of the State Legislature and that the order of forefeiture was violative of Arts.19(1) (f) and 365 of the Constitution. On November 28, 1958, the writ petition was dismissed hy a learned single Judge, on the ground that the petitioners, having defrauded other persons, were not entitled to any relief. The appeal filed against the said order by the petitioner was dismissed on the 13th of July, 1959. Before the appeal was dismissed, the Collector of Bombay attached the petitioners' properties. Between 3rd August, 1959 and 8th August, 1960, the petitioners paid the amount to the Collector of Bombay In another case before the Supreme Court, the decision of which is reported in AIR 1968 SC. 445 decided on 29-9-1967 the Supreme Court struck down S.21A(4) of the Bombay Sales Tax Act. 1946 as unconstitutional and violative of Art.19(1) (f). It is after the Supreme Court rendered that decision that the petitioners filed a writ petition under Art.32 of the Constitution in the Supreme Court, on the 9th February, 1968 claiming refund of the amount paid by them, under S.72 of the Indian Contract Act, 1872. The petitioners alleged that they paid the amount to the Collector under coercion and or by mistake of law and that they discovered the mistake on the 29th September, 1967 when the Supreme Court rendered its decision in another case reported in AIR. 1968 SC, 445. The contention of the petitioners was, for the grounds on which the Supreme Court struck down S.12A of the Bombay Sales Tax Act, 1946, S.21 (4) of the Bombay Sales Tax Act, 1953 is also liable to be struck down. It is in these circumstances that the Supreme Court had to consider the question as to whether the claim of the petitioners would be barred by limitation, if it were the subject matter of a suit in February, 1968 and if so, whether the petitioners were entitled to any relief under Art. 32 of the Constitution. The writ petition was heard by a Bench of five Judges of the Supreme Court and was dismissed in accordance with the opinion of the majority. Chief Justice M.Hidayatullah, Justice Bachawat and Justice Mitter have delivered separate judgments dismissing the writ petition, whereas Justice Sikri (as he then was) and Justice Hegde have delivered separate dissenting judgments.