DAULAT RAM TRILOK NATH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) Whether a writ of mandamus can or should issue for a claim of money simpliciter--is the significant issue which arises at the very threshold of this case admitted directly to a hearing by a Full Bench.

(2.) The facts are not in serious dispute. Thirty-one partnership business firms of Tarn Taran, district Amritsar, have jointly moved this writ petition to claim a writ of mandamus for the refund of unspecified sums of money which are alleged to have been paid by them under a mistake of fact or law to the Market Committee, Tarn Taran. It is the common case that under the earlier unamended Section 23 of the Punjab Agricultural Produce Markets Act (hereinafter called the Act) the Market Committees were entitled to levy fee ad valorem at the rate of Rs. 1.50 P. on the purchase or sale of agricultural produce worth Rs. 100 only. By the Ordinance No. 40 of 1974, the aforesaid Section 23 was amended and the market fee was raised from Rs. 1.50 P. to Rs. 2.25 P. ad valorem. This ordinance was later replaced by the Punjab Agricultural Produce Markets (Amendment) Act No. 13 of 1974 and was given retrospective effect from the date of the issue of the earlier Ordinance. The vires of the amending Act were challenged by a spate of writ petitions filed by business firms all over the State and it is not denied that some of the present petitioners were also parties to the said writ petitions. Two hundred and eleven such writ petitions came up together before a Division Bench consisting of Tuli and Pattar JJ. and were disposed of by a common judgment in M/s. Hanuman Dall & General Mills, Hissar v. The State of Haryana, AIR 1976 Punj & Har 1. Therein the amending Act enhancing the rate of the levy of market fee was struck down as unconstitutional. It is significant to note that in that set of writ petitions express prayers for the refund of the excess tax had been made but in the concluding and the operative part of the order, the Bench in terms observed that the impugned statute was being struck down but in all other respects the writ petitions were being dismissed with no order as to costs. It was also noticed in the said judgment that no other point of substance apart from that challenging the vires of the statute had been urged before it and indeed it was the common case before us also that the matter regarding the refund of unquantified sums alleged to have been paid in excess was not pressed or argued before the Division Bench.

(3.) After the aforesaid decision had been rendered there arose a spate of writ petitions of the present nature claiming in effect that unquantified sums of excess tax alleged to have been paid under mistake of law or fact be directed to be refunded to the petitioners. On behalf of the respondents, a four-fold preliminary objection to the very competency of the writ petitions was raised. It was first alleged that a joint writ petition was not maintainable. Apart from this, it was highlighted that the remedy was misconceived and no writ petition under Article 226 of the Constitution for the mere recovery of money could lie and the petitioners must be relegated to filing regular civil suits therefor. Objection was also raised that the direction to refund could be given only by way of consequential relief in the petitions earlier filed but no refund having been granted therein a fresh writ for recovery of money alone was barred. The bar of limitation was pleaded on the ground that under the statutory provisions applicable the claim for refund was being made beyond a period of six months from the 8th of November, 1974, when the decision in M/s. Hanuman Dall & General Mills' case (AIR 1976 Punj & Har 1) (supra) was rendered. Lastly it was claimed that the writ petitions be dismissed for having suppressed material facts on the point whether the sums claimed to be refunded had not been actually recovered by the petitioners from the buyers under the provisions of the Act and the Rules.