MITRA PRAKASHAN PVT LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) D. K. Seth, J. By an order dated 23-1-1992 Civil Misc. Writ Petition No. 1184 of 1991 was dismissed as in fructuous. The said order has been sought to be reviewed by means of this review applica tion.

(2.) MR. S. P. Gupta, learned Counsel for the petitioner contends that having regard to the prayers made in the writ petition, the ground on which the writ petition was dismissed as in fructuous, is an error apparent on the face of the record. The Court had committed a mistake in holding that the writ petition had become in fructuous because of the facts disclosed in the order, oblivion of the fact that the entire relief claimed in the writ petition could not be said to be fulfilled. The Court having mistaken the statement of the Counsel as a concession which in fact was not, the same was a ground for review in view of the ratio decided in the case of M. M. B. Catholicos v. M. P. Athanasius, AIR 1954 SC 527. He also relies on the decisions in the cases of Geep Industrial Syndicate Ltd. v. Union of India, 1990 (47) ELT 311 (All), Prestige Engineering (India) Pvt. Ltd. v. Union of India, 1991 (51) ELT 255 (All) and Secretary, Irrigation Depart ment, Government of Orissa and others v. G. C. Roy, JT 1991 (6) SC 349, in support of his contention that refund is liable to be made with interest since it was assessee's money that has been utilised by the Government. Therefore, according to him, non-payment of interest while refunding the principal after such a long detention of the money during which the same was utilised by the Government, it self shows that this Court had arrived at a wrong conclusion which is an error ap parent on the face of the record.

(3.) THIS writ petition was disposed of by order dated 23-1-1992 on the ground that by an affidavit filed by the respon dents, it was pointed out that the authority has sanctioned the refund of sum of Rs. 3,58,398. 11 P. against 23 refunds filed by the petitioner and that Mr. S. P. Gupta, learned Counsel for the petitioner, stated that his client had received the refund vouchers and therefore in view of above, the petition had become in fructuous and accordingly it was dismissed as in fructuous. The text of the order dated 23-1-1992 is quoted below: "in this petition, the learned Senior Stand ing Counsel on behalf of the Central Govern ment has filed an application for disposing of the petition in view of the circumstances mentioned in the affidavit. In para 2 of the affidavit filed in support of the application, it has been stated that the Bombay authorities have sanctioned the refund of Rs. 3,58,398. 11 P. against 23 refund filed by the petitioner. Sri S. P. Gupta, learned Senior Advocate appearing for the petitioner states that his client has received the refund vouchers. In view of the above, the petition has become in fructuous. It is accordingly dismissed as in fructuous. " From the prayer clause in the writ petition, it appears that the petitioner had claimed a sum of Rs. 3,59,854. 60 P. together with sum of Rs. 4,37,223. 33 P. as interest by way of damages. It was also prayed that the refund money should not be withheld on the ground that the petitioner had passed on the enhanced duty to customers and also to examine for verification of the fact that the petitioner did not pass on the enhanced duty to its customers. Thus, it appears that the ques tion of payment of interest by way of damages as claimed was a matter for deter mination in the writ petition itself. The order dated 6-12-1984 passed by the Apex Court as quoted earlier does not specify that the refund should accompany inter est. Therefore, right of the petitioner to claim damages in the form of interest does not flow directly from the said order, under which refund is being claimed. Then again, the refund was the result of con sideration that was to be undertaken by the Government in terms of the said order dated 6-12-1984. The situation which has arisen out of the above facts, does not clearly lay down any entitlement of the petitioner to obtain damages in the form of interest or otherwise. Therefore, it was a case open for decision in the writ petition itself. THIS fact was well within the knowledge of the petitioner, who had as serted the same in order to obtain the relief claimed. It cannot be said that either the petitioner or its lawyer was uncon scious of the claim or relief involved in the writ petition. When the writ petition was dismissed as in fructuous as apparent from the order dated 23-1-1992, it was clear that only a part of the claim in respect of the original amount of which refund was sought, was allowed inasmuch as the prin cipal amount of which refund was sought was mentioned as Rs. 3,59,854. 60 P. whereas sum of Rs. 3,58,398. 11 P. was sanctioned for refund in consideration of 23 refund claims filed by the petitioner. Having regard to such a situation, learned Counsel for the petitioner had informed the Court that the petitioner had received the refund vouchers.