ivil Appeals No 2390 2391 of 1972
From the Judgment and order dated 27 3 1972 of the High Court of Andhra Pradesh in Writ Petition Nos
3976 3977 of 1971 Civil Appeal No 604 of 1975 From the Judgment and order dated 28 3 1973 of the Andhra Pradesh High Court in Writ Petition No 68572
389 Civil Appeals Nos 2423 2437 From the Judgment and order dated 27 3 1972 of the Andhra Pradesh High Court in Writ Petitions Nos
3974 3975 3978 4015 4016 4017 4018 4019 4020 4021 4247 4246 4248 4249 and 577971
Civil Appeal Nos 2584 2586 of 1972 From the Judgment and order dated 28 3 1972 of the Andhra Pradesh High Court in Writ Petition No 606 and 620 62272
Civil Appeals Nos
281 286of 1973 From the Judgment and order dated 28 3 1972 of the Andhra Pradesh High Court in Writ Petitions Nos
4642 4643 4644 4701 4702 and 5776 of 1971 Civil Appeals No 539 540 of 1973 From the Judgment and order dated 2731972 of the High Court of Andhra Pradesh in Writ Petition NOS
5170 517371
Civil Appeals No 2019 2034 of 1973
From the Judgment and order dated 2831972 of the Andhra Pradesh High Court in Writ Petitions Nos
4512 4588 4589 4590 4591 4679 4683 4684 4690 4943 4953 4983 5115 5117 and 5118 of 1971 Civil Appeal No 653 66274 From the Judgment and order dated 2831972 of the High Court of Andhra Pradesh in Writ Petitions NOS
603 607 609 621 627 629 738 739 744 and 74672
Civil Appeals NOS
637 1837 1842 of 1973
From the Judgment and order dated 2731972 of the Andhra Pradesh High Court in Writ Petitions NOS
34372 and 566971 254 256 260 334 56272
A K Sen for the appellants in CAs 2390 2391  2423 243772
P A Chowdhary for the appellants in Cas 2019 203473
N Bhaskar Rao for the appellants in CAs 2390 2391 2423 243772
B Kanta Rao for all the appellants
A K Sen with section Markandeya and N Madhusudan Raj for the appellants in CAs 60475 2584 258672 and 653 66274
H A K Sen with N Madhusudan Raj and G N Rao for the appellants in CAs 281 28673
390 P Ram Reddy with P P Rao for the respondents in CAs 2390 2391  2423 243772 281 282 539 540 2019 203473 rr 2 4 in CA No 66475 653 66274 and 2584 258672 rr 1 3 in CA 104273 and for rr
in CA 63673
1837 184173
P P Rao for Respondent No 1 in CA 60475
section P Nayar and Girish Chandra for respondent No 1 in CAs 653 66274  rr
in CAS 2584 258672
The Judgment of the Court was delivered by RAY CJ
These appeals are by certificate from the common judgment dated 27 March 1972 of the Andhra Pradesh High Court dismissing the writ petitions of the appellants
The appellants filed the writ petitions for an appropriate writ or order directing the respondent State of Andhra Pradesh to refund the sums of money collected from the appellants as administrative surcharges
The appellants are dealers in foodgrains and held licences issued in accordance with the provisions of relevant statutes and control orders
Under the provisions of the various Control orders have been issued for maintaining or increasing supplies of any essential commodity or for securing their equitable  distribution and availability at fair prices
The Control orders contemplate regulation or prohibition or production supply and distribution of essential commodities and trade and commerce therein
The State Government exercising powers delegated to it by the Central Government in accordance with the provisions of the issued several measures to achieve the objectives of the Control orders
The Government of Andhra Pradesh introduced a scheme known as Incentive Export Scheme
Under that Scheme all millers who delivered 50 per cent of their purchases to the Food Corporation of India towards mill levy would be eligible for export under the Scheme
Incentive export permits were to be granted in the ratio of 2 3
The ratio meant that if a miller delivered two additional wagons to the Food Corporation of India he would be entitled to export three wagons on private trade account
The last date for delivering rice to the Food Corporation of India was fixed as 20 May 1971
The last date for issue of permits was fixed as 31 May 1971
Permits were of four types
The A type of permits was for export from one block to another within the State
Under these permits administrative charge were Rs 250 per quintal
The type of permits was for export from the State of Andhra Pradesh to other States in the South
The administrative charges under the type permits were RS
10 per quintal
The type permits was for export to any State outside Andhra Pradesh
The administrative charges for type permits were RS
8 per quintal
The fourth 391 type of permits was for export of broken rice under the A type or the A type permits and the surcharges were Re 100 per quintal
By an order dated 24 July 1967 under section S of the  l955 the Central Government directed that the powers conferred on it by section 3 1 of the Essential Commodities  I Act 1955 to make orders to provide for matters specified in clauses a b c d e f h i and j of sub section 2 thereof shall in relation to foodstufls be exercisable also by a State Government subject to the conditions 1 that such power shall be exercised by a State government subject to such directions if any as may be issued by the Central Government in this behalf and 2  that before making any order relating to any matter specified in clauses a and c or in regard to regulation of transport of any foodstuffs under clause d of section 3 2 of the  the State Government shall also obtain prior concurrence of the Central Government
By an order dated 30 September 1967 in exercise of powers conferred by section S of the the Central 
Government made an amendment to the order dated 24 July 1967
The amendment was to the effect that before making an order relating to any matter specified in clauses a c and f or in regard to t distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff under clause d the State Government shall obtain the prior concurrence of the Central Government
The State of Andhra Pradesh by an order dated 22 July 1968 pursuant to the representation of the millers for export of rice outside the block but within the State passed orders that permits for export of rice would be issued subject to the fulfilment of their commitments and that administrative charging of Rs 250 per quintal of rice would be collected from the millers before the issue of permits
Under the Southern States Regulation of Export of Rice Order 1964 Andhra Pradesh Rice and Paddy Restriction on Movement order 1965 and the Andhra Pradesh Rice Procurement Levy and Restriction on Sale order 1967 every dealer or miller was required to supply a minimum quantity of rice to the State Government or its nominees and the balance that is to say levy free rice could be sold in the open market or exported to the places outside the block or State under permit issued by the State Government
The representation of the millers for permission to export rice outside the block or the State was that the denial of permission to export rice would result in deterioration of stocks and consequential loss to both the trade and consuming public
The appellants applied for and obtained permits by fulfilling two principal conditions
One was to satisfy the statutory requirements of supply to the Food Corporation of India and the another was payment of administrative surcharges for every quintal of rice
In the petitions before the High Court the appellant alleged that they paid the surcharge under trying circumstances mistaken belief and impression that the respondent has the right to collect the surcharge
The appellants also alleged that having come to know about 392 the correct legal position in the matter they asked the respondents to refund the administrative surcharges
The respondents refused to refund any administrative surcharge
The appellants contended in the petitions that the respondent Government has no right to collect any administrative surcharge and therefore the amount should be refunded
The appellants alleged that they made the payments under mistake of law
The High Court held that the levy of administrative surcharge is not backed by valid legislative sanction
The High Court said that the agreements between the State and the appellant millers for export were an executive scheme undertaken by the State but liability to pay tax must be covered by the statute
The High Court expressed the view that there could be no estoppel when both parties are under a mistake of law
The High Court however hold that the appellants were not entitled to any relief on three grounds
First the administrative surcharges were paid voluntarily by the appellants
The appellants themselves represented for issue of permits
The appellants obtained the permits
They exported rice under the permits
The High Court therefore held that the appellants cannot claim refund of the entire amount without giving due credit for the expenses or charges incurred by the Government for the issue of permits and for the supervision of export transport and other administrative charges
The second reason given by the High Court was that the Court would not be justified in exercising discretion in favour of the appellants who voluntarily paid the administrative charges obtained the permits and derived considerable profits therefrom
The third reason given by the High Court was that there was undue delay in claiming the refund
The appellants contended that the three grounds on which the High Court dismissed the writ petitions were unsustainable
It is said on behalf of one of the appellants Civil Appeals No 2584 to 2586 of 1972 that in their application dated 10 February 1970 for refund of charges paid by them the appellants gave particulars of payments showing the dates of payment quantity covered by the permit the amount of charges paid the number of permit against which payment was made as well as the challenge under which the payment was made Thereafter the appellants called upon the Collector to furnish copies of regulations under which surcharge was collected
The Collector by letter dated 28 July 1970 informed the appellants that the State Government alone was competent to give the copy of the relevant rule or regulation under which surcharge was collected
The appellants referred to the letters dated 22 December 1970 and 2 January 1971 by which the State Government refused to grant certified copy of the rule or regulation on the ground that it was part of the official correspondence not meant to be supplied to the private party
In this back ground the appellants contended that since 10 February 1970 when the appellants demanded refund the appellants from time to time made application for refund and the last reminder was on 30 December 1971
Some of the appellants filed their writ petitions in the 393 High Court in the month of September 1970 and some of them filed A their writ petitions in the month of January 1972
It was therefore said that The applications for refund were all made within three years from the date of payment and the High Court should not have dismissed the writ petitions on the ground of delay
The appellants next contended that the pleadings were not vague and the appellants in Civil Appeals No 2584 to 2586 of 1972 gave B all details of the payments and therefore the High Court should not have dismissed the writ petitions on the ground of vagueness of particulars and pleadings
It was also said on behalf of the appellants that if the levy as well as collection of administrative surcharges was without authority of law the High Court was in error in refusing any relief to the appellants on the ground that the payments were voluntarily made
The appellants relied on the decision of this Court in The State of Kerala etc
vs k 
P Govindan Tapioca Exporter etcl as an authority for the proposition that the levy of administrative surcharge is illegal
In the Tapioca case supra under the Kerala Tapioca Manufacture and Export Control order 1966 no person could export tapioca except in accordance with permit
The State Government Levied administrative surcharge under a scheme
The State contended that the administrative surcharge was in effect and substance a licence fee charged in exercise of the police powers of the State for permitting the appellants by grant of permits to export tapioca
This Court held that the scheme was not an order under any of the provisions of the and no licence fee or fee for grant of permit was imposed by the Kerala Tapioca Control order
The E Kerala Tapioca Control order only provided for levy of administrative surcharge
The Kerala Tapioca Control order came into existence on 9 June 1966
Even before the promulgation of the order administrative surcharge was levied under a scheme formulated by the State Government on 15 April 1966 published in the Kerala Gazette on 3 May 1966
The rate of administrative surcharge levied on tapioca under the scheme dated 15 April 1966 varied from time to time
This Court found that the order dated 15 April 1966 formulating the scheme was not an order under any of the provisions of section 3 of the 
The Scheme did not impose any licence fee
The scheme merely provided for levying of administrative surcharge
The orders levying administrative surcharge which followed the Tapioca Control order did not refer to the exercise of any power under the order
Therefore this Court held that G the administrative surcharge in the Tapioca case supra was bad and the realisations were without any authority of law
The appellants contended relying on the decision of this Court in State of Madhya Pradesh vs Bhailal Bhai2 that the High Court in exercise of powers under Article 226 has power to order refund and repayment of tax illegally collected
The appellants submitted H that the State had no power under any statute or any authority to 1  2  394 impose and collect administrative surcharge and therefore the payments which were made by the appellants were made under mistake of law and the State was liable to refund them
The appellants contended that the administrative surcharge was neither in the nature of a fee nor was it a tax and there was no authority of law to support the levy and collection of administrative surcharge
It was said on behalf of the appellants that neither the Essential commodities Act 1955 nor the Southern States Regulation of Export of Rice order 1964 nor the Andhra Pradesh Rice and Paddy order 1965 nor the Andhra Pradesh Rice Procurement Levy and Restriction on Sale order 1967 conferred any power to levy administrative surcharge
The respondents contended that the permits were granted pursuant to the representation of the appellants that unless they were allowed the movement of rice to places outside their blocks or outside the State they could not sell rice locally because there was no demand
The respondents further said that for ensuring export of rice the administrative machinery had to be set up
The permits were grant ed on terms and conditions of payment of surcharge and the appellants voluntarily paid surcharge and received benefits under permits
The respondents also said that the permits were contractual obligations between the appellants and the respondents
The High Court in exercise of its discretion refused to grant mandamus on a consideration of facts and circumstances of the case
The two principal matters which weighed with the High Court are these
First the appellants voluntarily paid the amounts and derived full advantage and benefit by utilizing the permits
Second there is undue delay in claiming refund
Where the High Court has in exercise of discretion refused to grant a writ of mandamus this Court does not ordinarily interfere
See Municipal Corporation of Greater Bombay vs Advance Builders India Private Limitedl D Cawasji  Co vs State of Mysore2 Refund of illegal taxes stands on a different footing from claiming refund of surcharge paid under terms and conditions of permits
The only basis of tax is legislative sanction and if the legislative sanction fails the collection of tax cannot be sustained
In the present case the claim for refund is to be judged between the rival contentions
The appellants contend that there is no legislative sanction for collection of administrative surcharge
The respondents on the other hand support the collection of administrative surcharge first as a condition for permit and second as an item of maintenance charges in the maintenance and supervision of the scheme for export of rice
The respondents also contend that the appellants have no right to claim refund under section 72 of the Indian Contract Act because the payments were neither under mistake of law nor under coercion
It is said by the respondents that there is no coercion because the export scheme was voluntary
Again it is said that there is no mis take because the payments made were in fact due as part of the export scheme initiated at the instance of the appellants
The respondents deny the claim of the appellants on the further ground that the 1  at p 420
2 19751 2 SCR Sl I at p 527 395 appellants having derived the benefit and caused detriment to the A Government are estopped from questioning the validity of the payments voluntarily made
Another ground on which the respondents challenge the claim of the appellants is that the payments were part of the consideration of the agreement entered into by the appellants with State
If it be assumed that the agreements are illegal the respondent contends that the appellant being a party to the same cannot sue for recovery of money paid
All the matters were covered by the common judgment
In some cases the claims were beyond three years from the date of the payments
In some cases they were within a lesser time but the ground of delay on which the High Court exercised discretion is not confined L purely to period of limitation but is bound up with matters relating to conduct of parties in regard to payments pursuant to agreements between the parties
The remedy under Article 226 is not appropriate in the present cases for these reasons as well
First several petitioners have joined
Each petitioner has individual and independent cause of action
A suit by such a combination of plaintiffs would be open to misjoinder
Second there are triable issues like limitation estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative surcharges of the scheme and allocating the expenses with regard to quality as well as quantity of rice covered by the permits
The appellants contended that in all cases of claim for refund of money the payments were voluntary and therefore the High 3 Court was in error in refusing refund because of the voluntary character of payment
In cases relating to refund of payments of tax which is illegal the voluntary character of payment is that tax payer has no say but is compelled to pay
In the present cases the questions are whether it can be said that payments of administrative charges were voluntary in order to reap benefits of export of rice covered by the permits
The contention of the respondents that the export scheme was framed at the instance of the appellants and that the administrative surcharge is the consideration for preparation maintenance and supervision of the scheme raises questions which can be solved by a suit
A mandamus will go where there is a specific legal right
Mandamus may be refused where there is an alternative remedy which is equally convenient beneficial and effectual
If there is no other means of obtaining justice the writ of mandamus is grant ed to enable justice to be done
Those are cases where justice can not be done unless a mandamus is to go
R V Bristol and Exeter Railway Col is an authority for the proposition where the Corporation could be compelled to pay a sum of money pursuant to an agreement which could not be enforced by action because the agreement was not under seal
This Court in Lekh Raj vs Deputy Custodian2 and Har Shankar  Ors
vs Deputy Excise and Taxation Commissioner  ors8 held that contractual obligations cannot be enforced through a writ of mandamus
1 1845 31 18453Ry
 Can
2 11966 I SCR 120
3  396 The view of this Court in Sales Tax officer Banaras  ors
v A Kanhaiya Lal Mukundalal Saraf1 was that a mandamus could be issued when the assessments were found to be illegal
In Suganmal vs State of Madhya Pradesh  ors2 this Court said that the mandamus for recovery of money could be issued only when the petitioner was entitled to recover that money under some statute
In Burmah Construction Co vs State of Orissa8 this Court said that normally the parties are relegated to a suit to enforce civil liability arising out of a breach of contract or a tort to pay an amount of money
An order for payment of money may sometimes be made to enforce a statutory obligation
In the State of Kerala vs Aluminium Industries Ltd4 the refund claimed was by reason of the moneys being paid under mistake of law and the collection having been made wrongly
The petitions solely for the writ of mandamus directing the State to refund the moneys in the present case have been rightly refused by the High Court on the grounds of delay insufficiency of particulars and pleadings and voluntary payments
The additional reasons in our opinion are that various questions of fact arise as to whether there was really mistake or it was a case of voluntary payment pursuant to contractual rights and obligations
The plea of mistake is a bare averment in the writ petitions
The payments did not disclose the circumstances under which the alleged mistake occurred and the circumstances in which the legal position became known to the appellants
The respondents contradicted the plea of mistake
A triable issue arose as to whether there was a mistake in paying the amounts and when exactly the mistake occurred and under what circumstances
Section 72 of the Contract Act states that a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it
The mistake is material only so far as it leads to the payment being made without consideration
This Court has said that the true principle is that if one party under a mis take of law pays to another money which is not due by contract or otherwise that is to be repaid
When there is a clear and unambiguous position of law which entitles a party to the relief claimed by him equitable considerations are not imported
A contract entered into under a mistake of law of both parties falls under section 21 of the Contract Act and not section 72
If a mistake of law had led to the formation of a contract section 21 enacts that the contract is not for that reason voidable
If money is paid under that contract it cannot be said that the money was paid under mistake of law it was paid because it was due under a valid contract and if it had not been paid payment could have been enforced
See Shiba Prasad Singh vs Srish Chandra Nandi5 See also Pollock  Mulla Contract Act 9th Ed
by J L Kapur pp
519 520
In the present case the respondents do not support the demand for administrative charges either as a tax or as a fee but as a term and condition of permit and as a 1 2 AIR 1965 SC 1740
3 1962 Supp 1 SCR 242
4 16 STC 689
5 76 IA 244
397 term of agreement between the parties for the maintenance and supervision expenses for the scheme for export permits of rice from one block to another within the State or outside the State
It may be stated here that in cases where the State collected administrative changes but could not grant permits the State refund t ed moneys to such Person
It is only where millers have obtained permits and taken advantage thereof that the State contends that there is no mistake and that the payments were made voluntarily with full knowledge of facts
For these reasons the appeals are dismissed
If the parties are so advised they may institute suits and all rival contentions would be 
open to both parties
Parties will pay and bear their own costs
VPS Appeals dismissed


Summary:
The respondent State Government was exercising powers delegated to it by the Central Government under the 
It introduced an Incentive Export Scheme  under which millers who delivered 50 of their purchases to the Food Corporation of India towards mill levy would be eligible for exporting rice either within the State from one block to another or to States outside
On payment of administrative charges
On the representation of the millers appellants that they could not sell rice locally because there was no demand and that unless they were allowed to move rice outside the blocks or outside the State there would be deterioration of stocks resulting in loss to both trade and the consuming public the State passed orders permittion the export of rice subject to the fulfilment of their commitments to the Food Corporation and the payment of administrative charges and also set up the necessary administrative machinery for ensuring such export
Permits were accordingly granted on terms and on condition of payment of the surcharge fixed
and the millers paid the surcharge and received the benefits under the permits
Thereafter they claimed refund of the administrative surcharge on the ground that the State had no right to collect it and that they made the payments under mistake of law
Where the State collected administrative charges but could not grant permits the State refunded the money but where millers obtained permits and had taken advantage thereof the State contended that there was no mistake on the part of the millers and that the payments were made voluntarily with full knowledge of facts and in discharge of their contractual obligations
The millers filed writ petitions praying for directions to the State to refund the administrative surcharges collected from them but the High Court held that they were not entitled to the relief on the grounds of delay insufficiency of particulars regarding expenses and charges incurred by the Government and the payments being voluntary
Dismissing the appeals to this Court  HELD The petitions were rightly dismissed by the High Court
Also since various question of fact are involved as to whether there was really a mistake or whether it was a case of voluntary payment pursuant to contractual rights and obligations
the remedy under article 226 is not appropriate in the present cases
396C D a A mandamus will go where there is a specific legal right
If there is no other means of obtaining justice the writ of mandamus is granted to enable justice to be done
A writ of mandamus for recovery of money could be issued only when the petitioner was entitled to recover that money under some statute
An order for payment of money may sometimes be made to enforce a statutory obligation
A mandamus for refund of tax could be issued when the assessments were held to be illegal but contractual obligations cannot be enforced through a writ of mandamus
Normally the parties are relegated to a suit of enforce civil liability arising out of a breach of contract or a tort to pay an amount of money
Mandamus may also be refused where there is an alternative remedy which is equally convenient beneficial and effectual 395F 396C 388 R V Bristol and Exeter Railway Co 18453 Ry
 Can
Cas 777 Lekh Raj v Deputy Custodian  Har Shankar  ors
vs Deputy Excise and Taxation Commissioner  Ors   Sales Tax officer Banaras  ors
vs Kanhaiya Lal Mukundalal Saraf  Suganmal vs State of Madhya Pradesh  ors AIR 1965 SC 1740 Burmah Construction Co vs State of Orissa 1962 Supp 1 SCR 242 and State of Kerala vs Aluminium Industries Ltd 16 STC 689 referred to
b The ground of delay on which the High Court in the exercise of its discretion refused to grant a mandamus is not confined purely to the period of limitation
Though some of the petitions were filed within 3 years from the date of payment the delay is bound up with matters relating to the conduct of parties in regard to payments pursuant to agreements between the parties
395B C c In the present cases several petitioners have joined in the writ petitions
Since each has an individual and independent cause of action such a combination would be open to the objection of misjoinder even in a suit
395C D d The issues regarding limitation estoppel and questions of fact in ascertaining the expenses incurred by the Government for administrative purposes of the scheme and allocating the expenses with regard to the quality as well as quantity of rice covered by the permits are triable more appropriately in a suit
395D e The plea of mistake is a bare averment in the writ petition
The payments did not disclose the circumstances under which the alleged mistake occurred nor the circumstances in which the legal position became known to the millers
Whether there was a mistake in paying the amounts and when exactly the mistake occurred are also issues triable in a suit
1396D E f The Government did not support its demand for administrative charges either as a tax or a fee but as a condition of the permit and as a term of agreement between the parties to meet the maintenance and supervision ex penses for the Scheme of export permits
Under section 72 Contract Act 1872 if one party under a mistake of law pays to another money which is not due by contract or otherwise that money has to be repaid
The mistake is material only so far as it leads to the payment being made without consideration
But if a mistake of law had led to the formation of a contract
section 21 of the Contract Act enacts that such a contract is not for that reason voidable and if money is paid under that contract it cannot be said that the money was paid under mistake of law
It was paid because it was due under a valid contract and if it had not been paid payment could have been enforced
396E 397A The State of Kerala etc
vs K P Govindan Tapioca Exporter etc
  State of Madhya Pradesh vs Bhailal Bhai  and Shiba Prasad Singh vs Srish Chandra Nandi 76 IA 244 referred to
g Where the High Court has in the exercise of its discretion refused to grant a writ of madamus this Court does not ordinarily interfere 394E Municipal Corporation of Greater Bomboy vs Advance Builders India Private Limited
1972 I SCR 408 at p 420 and D Cawasji d Co vs State of Mysore 1975 2 SCR 511 at p 527 referred to