Case: Gurram Sreeramulu, Garlapati Anjaneyulu and Company and Others Vs. State of Andhra Pradesh and Another

MADHAVA REDDY, J. 1. In these three writ petitions, refund of sales tax recovered by the respondents under the Andhra Pradesh General Sales Tax Act is claimed by the petitioners on the ground that the same was paid under a mistake of law. 2. Writ Petitions Nos. 1426 of 1967 and 1427 of 1967 are by a firm of dealers in green ginger, garlic and other commodities carrying on business at Tenali, Guntur district. They claimed exemption in respect of the turnover on green ginger and garlic on the ground that they were vegetables and, therefore, exempt from tax under G.O.Ms. No. 1091, Revenue, dated 10th June, 1957. They were, however, assessed to tax on their turnover of green ginger and garlic for the assessment years 1957-58 to 1960-61, by the Commercial Tax Officer. The petitioner did not choose to prefer any appeal and the assessment orders became final. The petitioners paid a total tax of Rs. 41, 260.61 for those assessment years. W.P. No. 1426 of 1967 is for the refund of this tax. 3. For the assessment years 1961-62 to 1964-65, the petitioners claim exemption on the same grounds in respect of their turnover of green ginger and garlic but their claim was rejected and that the turnover was subjected to sales tax. The petitioners filed appeals against these assessment orders. The appeals against the assessment orders for the year 1961-62, 1962-63 and 1964-65 were dismissed by the Assistant Commissioner, Commercial Taxes, Guntur. An appeal against the assessment order for the year 1964-65 was, however, allowed but only to the extent of the turnover of sales representing green ginger by the petitioner directly. The petitioners carried the matters in appeals to the Sales Tax Appellate Tribunal in T.A. No. 861/64 (1961-62), T.A. No. 95/65 (1962-63), T.A. No. 865/65 (1963-64) and A.R. No. 193/66 (1964-65). The Sales Tax Appellate Tribunal held green ginger to be a vegetable and, therefore, exempt from tax under the aforesaid G.O., viz., G.O.Ms. No. 1091, Revenue, dated 10th June, 1957. The Tribunal, however, allowed exemption only in respect of the sales effected by the petitioners directly and refused to grant any relief in respect of the turnover which was assessed to tax in the hands of the commissioner agents. This portion of the turnover, however, does not form the subject-matter of this writ petition as separate T.R.Cs. are filed. The petitioners were thus assessed on the turnover representing the sales of garlic in the assessment years 1961-62 to 1964-65 whether they were directly by the petitioners or through their commission agents and assessed to a tax of Rs. 6, 543.52. They paid this tax.The petitioners in W.P. No. 3053 of 1967 are wholesale dealers in grain, garlic and other commodities carrying on their business at Guntur. They were assessed to tax of Rs. 41, 212.85 for the assessment years 1957-58 to 1964-65 in respect of their turnover representing sales of garlic effected by them directly or through their commission agents. The petitioners paid this amount and now claim a refund on the grounds which are common to all these petitions. 4. The petitioners contend that green ginger and garlic are vegetables which are exempt from tax under G.O.Ms. No. 1091, Revenue, dated 10th June, 1957, read with section 9(1) of the Act. It is only by a subsequent amendment issued in G.O.Ms. No. 1949 dated 3rd December, 1965, that this exemption was taken away. Although the Commercial Tax Officers refused the claim of the petitioners that green ginger and garlic were exempted from tax under G.O.Ms. No. 1091, Revenue, dated 10th June, 1957, and the orders of assessment had become final so far as the petitioners were concerned, on appeal by other assessees, the Sales Tax Appellate Tribunal by an order dated 6th December, 1965, in T.A. Nos. 861/64 and 95/65 held that green ginger was a vegetable and the turnovers representing the sales of green ginger are exempt from tax. 5. The Government filed T.R.C. Nos. 10 and 11 of 1966 in the High Court against the orders of the Sales Tax Appellate Tribunal in the aforesaid appeals but withdrew the same. Accordingly, the T.R.Cs. were dismissed by the High Court on 23rd November, 1966. The decision of the Sales Tax Appellate Tribunal holding green ginger to be vegetable and exempt from tax, thus became final and conclusive. Subsequently, the Tribunal disposing of an appeal by some other assessee by an order dated 5th July, 1968, held that garlic was also a vegetable within the meaning of G.O.Ms. No. 1091, Revenue, dated 10th June, 1957, and the turnover in respect thereof was also exempt from tax. The petitioners contend that the respondents acted illegally and without jurisdiction in collecting the sales tax in respect of the turnover of green ginger and garlic. They claim that they discovered their mistake in paying sales tax on the turnover of green ginger and garlic only after the decision of the Tribunal and that they are entitled to refund of the tax paid by them under section 72 of the Indian Contract Act.The respondents opposed these petitions on the ground that the assessment orders having become final and not having been set aside by any competent authority, the collection of the tax cannot be held to be either illegal or without jurisdiction and, therefore, they are not entitled to any refund. They urged that the petitioners have allowed the alternative remedy of questioning the correctness of the assessment orders to become barred by limitation and are, therefore, precluded from invoking the jurisdiction of the High Court. They also contend that there has been an inordinate delay in invoking the extraordinary jurisdiction of this court and that these are also otherwise not fit cases in which the discretion of the High Court should be exercised in favour of the petitioners under article 226 of the Constitution. 6. In the counter-affidavit it was, however, admitted that green ginger and garlic were assessed to tax under a mistake and the same was collected by the authorities and paid by the assessees under a mutual mistake. Whether an assessee, who has disputed the legality of the inclusion of the turnover in respect of these goods to sales tax before the assessing authority but has not chosen to avail himself of the remedies provided under the Act on the assessing authority overruling his objections, could be said to have paid the tax under a mistake does not call for consideration in view of the above averment in the counter-affidavit. We, therefore, now proceed on the footing that the petitioners herein paid the tax under a mistake mutual to both the assessee and the assessing authority and consider whether under section 72 of the Act they are entitled to the relied of refund of tax in a petition under article 226 of the Constitution.Mr. Veerabhadrayya, learned counsel for the petitioners, contends that when it is conceded by the respondents that the sales tax has been collected under mutual mistake, the petitioners are entitled to the issuance of a writ for the refund of the said tax if the writ is filed within three years of the discovery of such mistake. In support of his contention, he invited our attention to a decision of the Supreme Court in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf ([1958] 9 S.T.C. 747 (S.C.)), in which their Lordships held : On a true interpretation of section 72 the only two circumstances that entitled the party to recover the money back are that the moneys must have been paid by mistake or under correction. If mistake either of law or of fact is established, he is entitled to recover the moneys and the party receiving the same is bound to repay or return them irrespective of any consideration whether the moneys had been paid voluntarily ..... 7. He also invited our attention to another decision of the Supreme Court in State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450 (S.C.)), in which their Lordships were considering the question whether a person is entitled to the relief of refund of tax under article 226 of the Constitution of India which tax was paid under a void legislation and in that context observed : That the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 of the Constitution can be measured. The court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy, but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable.Applying that test their Lordships in that case upheld the order of refund directed, in cases which were filed within three years of the discovery of mistake, and upheld the rejection of the claim of refund in cases filed beyond three years. In another decision relied upon by the learned counsel for the petitioners in State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689 (S.C.)), their Lordships of the Supreme Court held that : money paid under a mistake of law comes within the word mistake in section 72 of the Contract Act, and there is no question of estoppel when the mistake of law is common to both the assessee and the taxing authority .... If refund is not made, remedy through court is open, subject to the same restrictions and also to the bar of limitation under article 96 of the Limitation Act, 1908, namely, 3 years from the date when the mistake becomes known to the person who has made the payment by mistake. It is the duty of the State to investigate the facts when the mistake is brought to its notice and to make a refund if the mistake is proved and claim is made within the period of limitation. In that view, their Lordships called for a finding whether the writ petition was filed within three years of the date on which the mistake first became known to the respondent so that a suit on that date preferred would not be barred under Article 96 of the Limitation Act, 1908. The learned counsel for the petitioners also invited our attention to a decision of this court in Challa Appa Rao & Co. v. Commercial Tax Officer, Narasapur ([1970] 25 S.T.C. 256; I.L.R. (1969) A.P. 418), to which one of us (Madhava Reddy, J.) was a party, wherein it was observed that : Where a suit under section 72 of the Indian Contract Act will lie to recover moneys paid under mistake, a writ petition for refund of tax within the period of limitation prescribed under article 96 of the Indian Limitation Act (9 of 1908) would also lie.Having carefully considered these decisions, we are of the view that there is nothing in these decisions which gives an unqualified right to obtain the relief of refund under article 226 of the Constitution of India and which makes it obligatory on the High Court to direct refund of the tax no sooner than it is found that it was paid under mistake of law. 8. In Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf ([1958] 9 S.T.C. 747 (S.C.)), even while holding that if mistake either of law or of fact is established, the assessee is entitled to recover the moneys and the party receiving the same is bound to repay or return them irrespective of any consideration whether the moneys had been paid voluntarily, the Supreme Court held : That such right was subject however to questions of estoppel, waiver, limitation or the like. Thus the right of a party claiming refund of money paid under a mistake is not an absolute right. Before ordering refund the court has to take into account if the claimant is not precluded on the ground of delay or on the ground that he has placed the other side in such a position as it would estop him or has given up his right or has done some similar act disentitling him to claim this discretionary relief under article 226 of the Constitution. 9. In State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450 (S.C.)), Das Gupta, J., speaking for the court while holding that the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law, held : At the same time we cannot lose sight of the fact that the special remedy provided in article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under article 226 of the Constitution is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under article 226 of the Constitution.Thus, either because the party has invoked the jurisdiction of the court after an unreasonable and unexplained delay or because there is a triable issue raised by the State in defence, the High Court would not ordinarily exercise its discretion in favour of the petitioner in a proceeding under article 226 of the Constitution claiming the relief of refund of tax paid under a mistake. In that case, petitions filed under article 226 of the Constitution of India within three years of the discovery of the mistake were allowed. Where there was a dispute as to when the mistake was discovered, the order of the High Court directing the refund was reversed and where the petitions were filed beyond three years the order dismissing the writ petition was upheld. Even in State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689 (S.C.)), the principles enunciated in State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450 (S.C.)), were followed. Thus a careful reading of the above decision of the Supreme Court makes it abundantly clear that no one is entitled to the relief of refund of moneys paid under mistake by way of a petition under article 226 of the Constitution of India, as a matter of course, no sooner than it is found or admitted that the amount was paid by the petitioner and received by the respondents under a mistake mutual to both the parties. This right to refund is still subject to other consideration of estoppel, waiver, limitation or the like. It may be that, as observed in that very decision and also in State of Kerala v. Aluminium Industries Ltd. ([1965] 16 S.T.C. 689 (S.C.)), where money is paid under a mistake which is common to both the parties no question of estoppel arises but yet there may be other considerations of limitation and the like. After all, issuance of a writ of mandamus is a matter of discretion with the court in exercise of its extraordinary jurisdiction. As observed in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf ([1958] 9 S.T.C. 747 (S.C.)) : Whether the principle of estoppel applies or there are circumstances attendant upon the transaction which disentitle the respondent (writ petitioner) to recover back the moneys, depends upon the facts and circumstances of each case. Though it may be ordinarily the duty of the State to refund the tax paid to it and collected by it under a mistake, still a direction to refund the tax under article 226 of the Constitution can be made only having regard to all the attendant circumstances. The question of limitation is one such circumstances. A suit for refund of tax paid under a mistake may be filed within three years of the discovery of the mistake in view of article 96 of the Indian Limitation Act, 1908, corresponding to article 113 of the Limitation Act, 1960. Though this period was adopted as the period within which a party may invoke the jurisdiction of the court under article 226 of the Constitution, what all the court observed in State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450 (S.C.)), was that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. It did not lay down as a general rule that where a writ petition is filed within three years of the date of discovery of mistake, it should be held to have been filed without unreasonable delay. It further held that it appears to us that the maximum period fixed by the Legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under article 226 can be measured. But it specifically left it to the discretion of the court to decide having regard to the facts and circumstances of each case, if the delay is reasonable. It laid down that the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy, but where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. Thus the period of limitation for a suit is not to be applied as an invariable rule for holding that a petition under article 226 of the Constitution filed for refund of tax is filed without unreasonable delay. This court has held in Eluru Venkata Subba Rao v. District Transportation Superintendent (Traffic), Vijayawada ((1957) 2 An. W.R. 233), that a petition under article 226 of the Constitution should be filed within a period of six months and the petitioner must explain satisfactorily the delay in approaching this court beyond that period. That applies to cases of refund as well. But as observed by the Supreme Court, that is a matter which has to be considered by the court having regard to the facts and circumstances of the particular case. Apart from the question of limitation, other considerations which may have to be taken into account and which are of like nature, may be, that the tax which was paid by the petitioner was not under a void law but only as a consequence of an interpretation of a valid law, which interpretation was subsequently found to be erroneous, the fact that the petitioner did not avail himself of the alternative remedies provided under the relevant statute and has allowed the assessment orders to become final and also the question whether or not he has any remedy under the general law. All the decisions which the learned counsel for the petitioner has cited are cases in which the imposition of tax was held to be either beyond the competence of the State Legislature or otherwise opposed to statute. In other words, the assessments were under void enactments. The authorities had no jurisdiction to levy the tax. In these circumstances, the assessment orders could be deemed to be void ab initio and, therefore, the State had no authority to collect the tax. The collection of such tax would be without the authority of law. Civil suits could always be filed for refund of the amounts so collected. In order to get refund of such tax it was not necessary for the petitioners to get the assessments quashed. Such assessment orders which were made under void enactments could be ignored and suits for refund could be straightaway filed. But in cases where the assessments were made under a valid legislation and turnover which was not subject to tax was held to be assessable turnover upon an erroneous view of law, could it be said that the assessing authority was acting without jurisdiction. Such assessment orders were only erroneous in law but not without jurisdiction and so long as the assessment order stood, it could (sic) be contended that the collection of the tax was without jurisdiction. Dealing with section 20 of the Bombay Sales Tax Act in Kamala Mills v. Bombay State ([1965 16 S.T.C. 613 (S.C.); A.I.R. 1965 S.C. 1942), the Supreme Court laid down as follows : Section 20 of the Bombay Sales Tax Act, 1946, protects assessment made under the Act or the rules made thereunder by appropriate authorities. The clause an assessment made does not mean the assessment properly or correctly made. The said clause takes in all assessments made or purported to have been made under the Act. An order of assessment, even if erroneous, and based on an incorrect finding of fact is nevertheless, an order of assessment within the meaning of section 20; and it will not be called in question in any civil court.It further held : That even an erroneous conclusion of the appropriate authority on the question about the character of the sale transactions on which a dealer has been taxed cannot be said to be without jurisdiction. If while exercising its jurisdiction and powers under the relevant provisions of the Act, the appropriate authority holds erroneously that a transaction, which is an outside sale (within the meaning of article 286 of the Constitution as it was in 1956), is not an outside sale and proceeds to levy sales tax on it, the decision of the appropriate authority cannot be said to be without jurisdiction. 10. It may be that irrespective of whether the assessment orders are void or merely erroneous, the payment of such tax would still be one made under a mistake and, therefore, the petitioner may be entitled to refund under section 72 of the Act. But still that fact cannot be wholly excluded from consideration in order to determine whether the petitioner is entitled to the discretionary remedy under article 226 of the Constitution. If the assessment order is not void but is only erroneous in law, the assessee is obliged to get the assessment order set aside. Otherwise as laid down in State of Vindhya Pradesh v. Raghunath Mannulal ([1952] 3 S.T.C. 256), if the sales tax authority has jurisdiction, and has exercised it, may be wrongly, then the aggrieved party cannot go to the civil court, but should go to the Tribunal mentioned in the Sales Tax Statute itself. If, on the other hand, this authority had acted without jurisdiction, then the aggrieved party must go to the civil court, because its grievance is a general grievance and not one under the special law. If the assessment order is merely erroneous in law, the assessee cannot claim refund without getting the assessment order quashed by availing himself of the alternative remedy provided under the statute. He cannot invoke the jurisdiction of a civil court for questioning the legality or propriety of the assessment order and if that order cannot be questioned, then the amount paid or recovered pursuant to that order cannot be directed to be refunded by a civil court. It that be so, then this court exercising jurisdiction under article 226 of the Constitution must necessarily take into account whether a party who has by his own laches has not chosen to avail himself of the alternative remedy provided by the statute for questioning the erroneous decisions of the assessing authorities by taking the matter in appeal or in revision and also by reference to this court and has allowed the assessment orders to become final, which assessment orders are not allowed by the statute to be questioned even by way of a civil suit, should be granted the indulgence to invoke the extraordinary jurisdiction of this court for the grant of the discretionary relief. Even this court cannot direct refund of tax paid in pursuance of such orders without quashing the assessment orders themselves. If the assessment orders have to be quashed, this court cannot shut its eyes to the long interval between the orders of assessment and the writ petitions. This petition was considered at some length in Challa Appa Rao & Co. v. Commercial Tax Officer, Narasapur ([1970] 25 S.T.C. 256; I.L.R. (1969) A.P. 418), to which one of us (Madhava Reddy, J.) was a party, wherein it was laid down that in cases where the levy, assessment and collection were made either under a law which was made without legislative competence or there was a constitutional inhibition or certain terms specified in the Constitution for levying the tax were not complied with, the orders levying the tax themselves being void, the money paid thereunder would be money paid under a mistake of law because both parties did not know until the final decision was given that the tax was not recoverable or payable. In such cases civil suits are not barred and writ petitions can also be filed to recover the tax paid. But in cases where an order under which sales tax was levied was not void, but was made in exercise of its jurisdiction, even on an erroneous interpretation of law, which order was not challenged, or where the order made by the sales tax authority was in accordance with the view taken by the High Court of that State, no suit could be filed to set aside or modify or question the validity etc., of the assessment order and consequently, no writ of mandamus could be filed to recover money. For so long as the order of assessment stands, the amount paid cannot be said to be an amount paid under a mistake of law. In that context it was also observed that even a delay of two years was a long delay disentitling the petitioner to refund of the tax.To sum up, in entitling the petitioners to refund of tax, the tax must have been collected by the State and paid by them under a mistake common to both the parties. But the petitioners would not be entitled to refund of tax as a matter of course merely because it has been paid under a mistake. 11. The right to such refund is subject to questions of estoppel, waiver, limitation and the like. While for a suit for refund of money paid under a mistake, the period of limitation is three years from the date of discovery of the mistake, for claiming the same relief by way of a petition under article 226 of the Constitution of India, the petitioner cannot contend that the filing of such petition within a period of three years is without unreasonable delay. Having regard to the facts and circumstances of the case the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of 1957-58 to 1960-61 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment years 1961-62 and 1962-63, which form the subject-matter of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment years 1957-58 to 1964-65 which form the subject-matter of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years 1963-64 and 1964-65 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and 95-65 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitions. 12. Mr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966. If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.

Decision:
0[ds]Having carefully considered these decisions, we are of the view that there is nothing in these decisions which gives an unqualified right to obtain the relief of refund under article 226 of the Constitution of India and which makes it obligatory on the High Court to direct refund of the tax no sooner than it is found that it was paid under mistake of lawAll the decisions which the learned counsel for the petitioner has cited are cases in which the imposition of tax was held to be either beyond the competence of the State Legislature or otherwise opposed to statute. In other words, the assessments were under void enactments. The authorities had no jurisdiction to levy the tax. In these circumstances, the assessment orders could be deemed to be void ab initio and, therefore, the State had no authority to collect the tax. The collection of such tax would be without the authority of law. Civil suits could always be filed for refund of the amounts so collected. In order to get refund of such tax it was not necessary for the petitioners to get the assessments quashed. Such assessment orders which were made under void enactments could be ignored and suits for refund could be straightaway filed. But in cases where the assessments were made under a valid legislation and turnover which was not subject to tax was held to be assessable turnover upon an erroneous view of law, could it be said that the assessing authority was acting without jurisdiction. Such assessment orders were only erroneous in law but not without jurisdiction and so long as the assessment order stood, it could (sic) be contended that the collection of the tax was without jurisdiction.It may be that irrespective of whether the assessment orders are void or merely erroneous, the payment of such tax would still be one made under a mistake and, therefore, the petitioner may be entitled to refund under section 72 of the Act. But still that fact cannot be wholly excluded from consideration in order to determine whether the petitioner is entitled to the discretionary remedy under article 226 of the Constitution. If the assessment order is not void but is only erroneous in law, the assessee is obliged to get the assessment order set asideIf the assessment order is merely erroneous in law, the assessee cannot claim refund without getting the assessment order quashed by availing himself of the alternative remedy provided under the statute. He cannot invoke the jurisdiction of a civil court for questioning the legality or propriety of the assessment order and if that order cannot be questioned, then the amount paid or recovered pursuant to that order cannot be directed to be refunded by a civil court. It that be so, then this court exercising jurisdiction under article 226 of the Constitution must necessarily take into account whether a party who has by his own laches has not chosen to avail himself of the alternative remedy provided by the statute for questioning the erroneous decisions of the assessing authorities by taking the matter in appeal or in revision and also by reference to this court and has allowed the assessment orders to become final, which assessment orders are not allowed by the statute to be questioned even by way of a civil suit, should be granted the indulgence to invoke the extraordinary jurisdiction of this court for the grant of the discretionary relief. Even this court cannot direct refund of tax paid in pursuance of such orders without quashing the assessment orders themselves. If the assessment orders have to be quashed, this court cannot shut its eyes to the long interval between the orders of assessment and the writ petitionsBut the petitioners would not be entitled to refund of tax as a matter of course merely because it has been paid under a mistake.The right to such refund is subject to questions of estoppel, waiver, limitation and the like. While for a suit for refund of money paid under a mistake, the period of limitation is three years from the date of discovery of the mistake, for claiming the same relief by way of a petition under article 226 of the Constitution of India, the petitioner cannot contend that the filing of such petition within a period of three years is without unreasonable delay. Having regard to the facts and circumstances of the case the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy of refund. But delay must always be held to be unreasonable if the petition is filed beyond three years. Among the facts and circumstances which would be relevant for holding whether the petitioner is entitled to refund or not, the fact that the assessment order is not void but is merely erroneous in law or on facts would be a relevant circumstance. If the assessment order cannot be questioned in a civil court, the refund of tax also cannot be ordered by a civil court. That being so, even in a petition under article 226 of the Constitution there cannot be an order of refund without the assessment order itself being quashed. And in considering whether the assessment order also should be quashed the fact that the petitioner has not availed himself of the alternative remedy provided under the Act cannot be ignored. The further fact that for getting the assessment order quashed the jurisdiction of this court should have been invoked within the period of six months, as repeatedly laid down by this court, must also be kept in view. If the petition is filed beyond that period, the petitioner must satisfactorily explain the delay in approaching this court. Even if the court is satisfied having regard to all the circumstances that the petitioners are entitled to refund of the tax, the petitioners may still not be granted this discretionary relief if it results in retention of the sales tax collected by them from the public and imposes the burden of refunding the tax on the State which it had collected under a valid assessment order. The discretionary jurisdiction of this court should be exercised for public good and not to facilitate the individual to make an unlawful gain at the expense of the public on the one hand and State on the other. The extraordinary jurisdiction of the High Court under article 226 must advance the cause of justice and not subserve the ends of the individual for retaining the sales tax illegally collected by him.Examining the petitioners claim of refund having regard to the principles noted above we find that the petitioner in W.P. No. 1426 of 1967 allowed the assessment orders in respect of1 to become final. He did not prefer any appeals either to the Appellate Assistant Commissioner or the Tribunal. Nor did he canvass the correctness of these assessments by moving this High Court by way of a tax revision case. The last of such assessment orders was made in 1962. In W.P. No. 1427 of 1967 the assessment orders as confirmed by the Assistant Commercial Tax Officer on appeal relating to the assessment yearsr of that writ petition, were likewise allowed to become final. The same is the case with regard to the assessment orders for the assessment yearsr of Writ Petition No. 3053 of 1967. The writ petitions were filed in 1967, i.e., in all cases after a period of six months and except in regard to the assessments for the assessment years5 concerning W.P. No. 3053 of 1967, all were made beyond three years of the filing of the writ petition. This ground itself is sufficient to disentitle them to the discretionary relief under article 226 of the Constitution. According to the petitioners they became aware of this payment under a mistake on account of the decision of the Sales Tax Appellate Tribunal in T.A. 861/61 and5 dated 6th December, 1965, holding green ginger to be vegetable. If that be so, there was no reason why they should have waited for nearly one year and three months for filing the writ petitionsMr. Veerabhadrayya, learned counsel for the petitioners contends that T.R.Cs. were filed against the decision of the Tribunal and they were dismissed only on 23rd November, 1966.If the mistake was discovered by the decision of the Tribunal there was no reason to await the decision in the T.R.Cs. They also stated that the Government themselves had excluded green ginger and garlic from out of vegetables by G.O.Ms. No. 1949 dated 3rd December, 1965, and thus subjected them to tax. If that be so, the amendment must have put them on enquiry as to whether they had not paid the tax under a mistake for, according to the amendment, green ginger and garlic were vegetables and would be exempted from tax, unless specially excluded from the entry vegetables. That would have been an occasion for a diligent assessee to claim refund. But the petitioners did not take any steps then. This exclusion of green ginger and garlic from the entry vegetables was even prior to the decision of the Tribunal. More than anything else, one fact which must strongly weigh against the claim of the refund of sales tax by the petitioners is that the petitioners have already collected the tax and any direction in these writ petitions to refund such tax as they have paid would result in allowing them to retain the tax illegally collected from the consumers and thus make an unauthorised gain for themselves, while the State, which is in charge of the public funds and which has collected the tax as per the final orders of assessment, would be now obliged to return the same for the personal benefit of the dealer at the expense of the public from whom he has collected the tax. The extraordinary jurisdiction of this court must not be allowed to be invoked and the discretionary relief granted for the benefit of a private individual in this manner at the expense of the public and the State. The discretionary jurisdiction of this court under article 226 of the Constitution must not be allowed to be exploited to defeat the ends of justice.