Civil Appeal No 2166 of 1970
of 1970 From the Judgment and Order dated the 31st October 1968 of the Allahabad High Court in WP No 3233 of 1968
section C Manchanda and A G Ratanaparkhi for the appellant
T A Ramachandran for the respondent
The Judgment of the Court was delivered by KRISHNA IYER J
The freak but few facts of this appeal appear to highlight an issue of morality versus legality
But closer scrutiny whittles down this conflict and induces us to dismiss the appeal subject to certain observations warranted by the circumstances of the case
We may proceed straight to a miniaturised statement of the circumstances giving rise to the controversy before us
The appellant has been the owner of a mango grove of long ago from which he has been deriving income by way of fruits and fallen trees
Way back in 1939 40 he claimed this income to be agricultural and therefore immune to Central income tax
His plea was over ruled by the Income tax officer but adverse orders notwithstanding the assessee reached the High Court undaunted by the disappointment he met with as he steered through the statutory spiral of authorities
Unfortunately on account of the zigzag course of this litigation which had its deck by deck slow motion more than two decades passed before the High Court could pronounce at long last in favour 5 of the appellant holding that the income in dispute was agricultural t income and therefore could not be taxed
The State did not carry the case further to this Court and thus the decision of the Allahabad High Court rendered on March 21 1963 became final
As a proposition of law on the facts of the case the ruling was that such income as arose from mango fruits and fallen trees was agricultural income and therefore outside the pale of the 51 Income tax Act vide s43 of the Income tax Act
We have no reason to disagree with this view and proceed to dispose of this writ appeal which has come to us by certificate under article 1331a of the Constitution on the footing that for all the assessment years with which we are concerned as will be explained presently what has been taxed and is in dispute is agricultural income
Some more facts are necessary to bring out the real grievance of the appellant
We have already mentioned that although the first assessment related to the year 1939 40 the final pronouncement by the High Court came only in 1963
During this protracted pendency years rolled on
and at the base the tax officer was busy ritually repeating annually by his orders the tax impost on similar income accruing year after year treating it as non agricultural income
In deed the assessee had been assessed to tax for 21 years on this assumption but he filed appeals only for 8 years and even that only upto the Appellate Assistant Commissioner s level where he left it off apparently in the hope that if ultimately the High Court upheld his contention for one year the tax authorities would give effect to that holding for all the years not a fantastic assumption if Government were a virtuous litigant
At this stage we may state that for the years 1940 41 1941 42 1947 48 1949 50 1950 51 and 1958 59 to 1961 62 appeals had been preferred most of which were dismissed although in one year or so the appellate authority gave relief accepting the plea of agricultural income
So far as the Income tax officer was concerned he uniformly adopted the hostile line of treating the income as non agricultural and except for the years referred to above the assessee did not think it necessary was it wise or otherwise the sequel proves to challenge these assessment orders
But when the High Court held in his favour in 1963 for the assessment year 1939 40 he applied for refund to the Central Board of Direct Taxes of the tax paid by him for the other years on the glib ground that limitation apart the income having been found by the High Court to be agricultural had to be excluded from the tax
The Central Board of Revenue however
declined to oblige him and when on May 11 1968 his petition was rejected the assessee moved the High Court under article 226 seeking many reliefs including a direction to the Central Board to issue necessary instructions to the Income tax officer Faizabad for the purpose of passing final assessment orders for the assessment years 1940 41 to 1961 62 and for another writ quashing the order of the Central Board of Direct Taxes dated 11th May 1968 wherein the Board declined to interfere in the matter in dispute 
A Division Bench of that Court dismissed the writ petition on two grounds a that the assessment orders for the relevant years had become final the assessee not having taken advantage of his remedy provided for in the statute b that several years had lapsed between the last impugned order which related to the assessment year 1961 62 and the writ petition which was filed in September 1968
However the Court made an observation that if so advised the petitioner may file appeals under section 30 of the Indian Income tax Act 1922 and pray for condonation of delay under section 302 of the said Act
Surely discomfited
52 the assessee has come up to this Court hopefully and urged that the various assessment orders were void that the State was bound to refund what had been illegally levied that the Central Board should have exercised its power to give proper directions for refund and that in and case justice should be done to the party who should not be penalised for not having filed appeals and second appeals and references to the High Court year after year a repeat performance which would add to the totality of avoidable litigation since the High Court was seized of the identical point between the same parties
At the first flush it may seem that the assessee s agricultural income having been taxed illegally a refund was obligatory and the fanatical insistence on the legal pound of flesh  based on limitation and finality was not to be expected from a party like the State
Indeed one might go to the extent of quoting the cynical words of the ancient legal wit Law and equity are two things which God hath joined but which Man has put asunder
We have to examine the merits of the case in the light of the facts we have set out above and of the principles settled by this Court in regard to the exercise of the writ jurisdiction of the High Court
Shri Manchanda alive to the spinal weakness of his case in law in that his client had by option for inaction permitted the impugned order to become final and listless by lapse of limitation period played upon judicial sensitivity to justice equity and good conscience
He argued that regardless of statutory remedies and rules of limitation the High Court had power under Art 226 to quash orders loudly illegal deprivatory of property and promoting unjust enrichment by the State
He also urged that the assessment orders were void and the routine challenges through prescribed channels could be bypassed and frontal attack made under article 226 in such extraordinary situations
Sri Ramachandran appearing for the Revenue scouted the supplicant plea for equity as unavailable in a court of law
He also insisted that the orders of assessment having become conclusive could not be invaded by the back door that the orders were not nullities but good until set aside through the regular statutory processes and that the alleged jab on the face of justice is imaginary the party himself having been guilty of gross laches
We will examine these pleas not in the general terms set out but within the confines of the particular facts of the present case
We must pause to state one important aspect of the assessment orders since that oxygenates Sri Manchanda s submission on equity
The Income tax officer aware of the pendency in the High Court of the precise question confronting him about the agricultural character of the income had in some years eg 1952 53 recited in his order under section 233 of the Act words which kindled hope in the assessee somewhat in the following terms Income from Mango gul Mahuwa and Kathal have been excluded from the total income and treated as agricultural 11 income by the learned Appellate Asstt
Commissioner of In come Tax Banaras in this very case but this very point is 53 already under consideration before the Hon ble High Court of Judicature at Allahabad
However with respects to the learned AAC and pending the decision of the Hon ble High Court on this point the sum of Rs 7960 is being added back  But the palliative is absent in the orders relating to many other years and above all the orders are all made under section 233 which means final assessments neither provisional assessments being under section 233 nor conditional assessments such orders being unknown to the scheme of the Act
The points in controversy may be briefly formulated 1 Are the orders of assessment which have not been assailed amenable to challenge under article 226 of the Constitution or is such jurisdiction inhibited because the regular statutory remedies have not been pursued  2 Is the appellant guilty of laches to such an extent that the extra ordinary remedy in writ jurisdiction l should not be exercised in his favour 3 Are the orders of assessments nullities since they are taxes levied on agricultural income and if so is the appellant entitled to claim a refund  4 Is the Central Board of Direct Taxes charged with any statutory duty to grant refunds even in cases where orders of assessment though illegal have been allowed to become final by the wilful default of the assessee  5 If justice is on the side of the assessee but law against him can he seek redressal in a Court on that footing  We may deal with these points more or less as a package submission but not in the order in which they have been itemised
Counsel has placed considerable stress on the last point which we deal with first
It is true that two stark facts generate some considerations of conscience in favour of the assessee
The High Court having declared this kind of income which was taxed by the income tax officer agricultural income  it is not liable to tax under the Income tax Act section 48
In any case after the Constitution of India came into force the Union List in the Seventh Schedule expressly excluded agricultural income as forbidden zone for the Centre so much so it would be an unconstitutional levy if a taxing authority imposed tax on agricultural income purporting to act under the Income tax Act
It may therefore well be argued that all the assessments notwithstanding that no appeals were filed were void being beyond the jurisdiction of the officer to tax
There is a basic difference between the decision in Comm
of IT vs Tribune Trust 54 Lahore 1 cited by Sri Ramachandran and the present case
There one of the exemptions statutorily provided in favour of income derived from property held under trust wholly for religious or charitable purposes fell for consideration
The Judicial Committee held that such assessments regularly made which failed to give the exemption claimed were not nullities The assessments were duly made as they were bound to be made by the Income tax officer in the proper exercise of his duty
It does not appear to their Lordships that they were a nullity  in any other sense than that if they had been challenged in due time they might have been set aside
 True mere exemptions from taxation of income otherwise competently taxable fell wholly within the jurisdiction of the officer for determination
There is a fundamental difference where the claim is that agricultural income is beyond the legislative competence of Parliament to enact and altogether outside the jurisdiction of the Income tax officer
It may well be contended that the impost is ultra vires his powers and therefore a nullity
Merely because an order has been passed by the officer and has not been appealed against it does not become legal and final if otherwise it is void for instance if there is a flagrant violation of natural justice the order by a Tribunal may be a nullity
However we need not explore this penumbral area because we are satisfied for reasons to be set out below that the writ petition itself is misconceived and is bad for unexplained delay
Even so we may state that the levies for the various years would have undoubtedly been set aside and refund ordered if only the assessee had been diligent enough to make annual appeals to higher authorities
In that sense there is some justice on his side
What is more in some of the orders as earlier indicated the Income tax officer himself has stated that he is making the assessments finally but he takes note of the pendency of the identical question before the High Court
He has vaguely quickened wishful thinking in the assessee that in the event of his winning in the High Court he may somehow get a refund
We have set out what Mr Manchanda has pressed before us as the justice  of his case
Assuming for a moment that justice  is on his side law is against him because the assessment orders are now unassailable except perhaps under article 226 or article 32 with which we will deal separately
Can a court over ride law to effectuate what it conceives to be justice  Any legal system especially one evolving in a developing country may permit judges to play a creative role and innovate to ensure justice without doing violence to the norms set by legislation
But to invoke judicial activism to set at nought legislative judgment is subversive of the constitutional harmony and comity of instrumentalities
So viewed the appeal of Sri Manchanda for relief in the name of justice must fail
If the statute speaks on the subject the judge has to be silent and stop
In a contest between morality and legality
the court in clear cases has no option
Here both sides agree that 55 the assessments are final that limitation has long ago run out that the Central Board has no judicial power to upset what has been decided by lesser tribunals
Not being a fringe area for judicial activism to play the submission must suffer rejection
The surviving issue of some moment is whether the writ jurisdiction is muzzled by statutory finality to orders regardless of their illegality
We think not
If the levy is illegal the constitutional remedy goes into action
The Privy Council ruling does not contradict this rule of law because for one thing there the case was income taxable but for a statutory exemption here the income is agricultural and beyond the orbit of the Income tax Act
For another the Judicial Committee was not considering the sweep of the constitutional remedy de hors statutory changes but was construing the plea of nullity  with reference to an order Passed erroneously may be but within jurisdiction and impugned before the statutory tribunals
Even so the journey of the appellant is beset with insurmountable hurdles
article 226 is not a blanket power regardless of temporal and discretionary restraints
If a party is inexplicably insouciant and unduly belated due to laches the court may ordinarily deny redress
And if the High Court has exercised its discretion to refuse this Court declines to disturb such exercise unless the ground is too untenable
To awaken this Court s special power gross injustice and grievous departure from well established criteria in this jurisdiction have to be made out
In the present case long years have elapsed not only after the impugned orders but even after the High Court held the taxed income agricultural
The reason for the inaction is stated to be an illusory expectation of suo moto modification of assessment orders on representation by the party
The High Court has examined and dismissed the plea and consequentially refused relief
We do not think that in so refusing relief on ground of laches the High Court exercised its discretion arbitrarily or improperly
And the sorry story must thus close
When at the end of the legal tether the appellant made a plaintive plea for considerateness based on good conscience
No doubt we feel this is a case where had the party not been optimistically asleep but had diligently appealed the tax could not have been recovered by the State
We equally see some compassionate merit in his complaint that a few of the assessment orders made misleading reference to the pendency of the High Court being seised of the identical legal issue
But it is no good alibi in expiation of the sin of gross delay in coming to the High Court
It is doubtful if the Central Board can exercise any judicial power and direct refund
Nor is there a statutory duty cast on it to consider applications for refund and so a writ of mandamus could not issue from the Court
Even so it is always open to the State where the justice of the case warrants reconsideration of the levy of a tax illegally imposed to view the situation from an equitable standpoint and direct refund wholly or in part
This perhaps is case where a liberal approach may well be justified
The Court has however jurisdiction only when there is a statutory duty
There being 56 none the issuance of a writ hardly arises
We endorse the observations of the High
Court that despite inordinate delay the appellate authority if moved under section 302 will give due regard to the happenings in between in exercising its power of condonation of delay in filing appeals
We also make it clear that no observation made in this judgment with regard to delay on the part of the assessee in moving the High Court under article 226 shall be taken into account to the prejudice of the assessee while considering the condonation of the delay on his part in preferring the appealappeals if any filed by him to the
appropriate authority under the Act
The appeal fails and is dismissed
The circumstances are such that the parties may appropriately be directed to bear their respective costs
We direct accordingly
PHP Appeal dismissed


Summary:
The appellant an owner of a mango grove has been deriving income by was of fruits and fallen trees
In the year 1939 40 he claimed this income to be agricultural income and therefore immune to income tax
The Assessing Authorities negatived the claim of the appellant
The High Court in the year 1963 held the income to be agricultural income and therefore exempt from income tax
The State did not challenge the decision of the High Court
The appellant did not challenge the orders of the Assessing Authorities for the subsequent years ie 1940 to 1962 in the hope that if ultimately the High Court upheld his contention for one year the Tax Authorities would give effect to that holding for all the years
The appellant thereafter approached the Central Board of Revenue for refund of the tax paid by the appellant in respect of the subsequent years
The Central Board rejected the petition in 1968
The appellant moved the High Court under article 226
The High Court refused to interfere both on the ground of delay as well as on the ground that the assessment orders for the relevant years had become final the assessee not having taken advantage of his remedy provided for in the statute
The High Court
however made an observation that if so advised the appellant might file appeals under section 30 of the Income Tax Act 1922 and pray for condonation of delay under section 302 of the said Act
appeal by Special leave to this Court it was contended by the appellant
1 Since various assessment orders were void the State was bound to refund what had been illegally levied
2 The Central Board should have exercised its power to give appropriate directions for refund
3 Regardless of statutory remedies and rules of limitation the High l Court had power under article 226 to quash the illegal orders and to prevent unjust enrichment by the State
The respondents contended 1 The appellant is guilty of laches
High Court has rightly exercised its discretion
This Court may not interfere with it 2 The assessment orders have become final 3 The Central Board of Direct Taxes has no statutory duty to grant refund even in cases where orders of assessment though illegal have been allowed to become final by
wilful default of the assessee
Dismissing the appeal
 HELD 1 The imposition of tax on agricultural income is beyond the legislative competence of Parliament and altogether outside the jurisdiction of the Income Tax officer
It may well be contended that the impost is ultra vires
its powers and therefore a nullity
We need not consider this aspect especially since the writ petition itself is bad for unexplained delay
54C E 50 2 The writ jurisdiction is not measured by statutory finality to orders regardless of their illegality
If the levy is illegal the constitutional remedy goes into action
However article 226 is not blanket power regardless of temporal and discretionary restraint
of a party is inexplicably and unduly delayed due to laches the court may ordinarily deny redress
If the High Court has exercised its discretion to refuse the redress this court declines to disturb such exercise unless the ground is too untellable
The High Court I in refusing relief on ground of laches did not exercise its discretion arbitrarily or improperly
55B D E 3 It is doubtful if the Central Board can exercise any judicial power and direct refund
Even so it is always open to the state where the justice of the ease warrants reconsideration of the levy of a tax illegally imposed to view the situation from an equitable standpoint and direct refund wholly or in part
In this case a liberal approach may well be justified The Appellate Authority if moved under section 302 will give due regard to the happenings in between exercising its power of condonation of delay in filing appeals and no observations made in this judgment or in the High Court judgment shall be taken into account to the prejudice of the appellant while considering the condonation of delay by the appropriate authority
55G 56C