DHANYALAKSHMI RICE MILLS ETC v. THE COMMISSIONER OF CIVIL SUPPLIES AND Ai'\IOTHER

The State of Kerala etc. v. K. P. Govindan Tapioca Exporter etc. [1975] · 2 S.C.R. 635; State of Madhya Pradesh v. Bhailal Bhai [1964] 6 S.C.R. 261 and Shiba Prasad Singh v. Srish Chandra Nandi, 76 I.A. 244, referred to. (g) Where the High Court has. in the exercise of its discretion, refused [394E] to ·grant a writ of mandamus, this Court does not ordinari1y interfere. I) E F Municipal Corporation of Greater Bombay v. Advance Builders (India) Private Limited. rt9721 1 S.C.R. 408 at p. 420 and D. Cawasii & Co. v. State of Mysore (1975] 2 S.C.R. 511 at p, 527, referred to. G CIVIL APPELLATE JURISDICTION : Civil 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.) H 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. 685/72). • ( • DHANYALAKSHMI RICE MILLS V. C.C.S. 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 5779/71). 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, 622/72). Civil Appeals Nos. 281-286 of 1973 A B (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) c Civil Appeals No. 539-540 of 1973 (From the Judgment and Order dated 27.3.1972 of the High Court of Andhra Pradesh in Writ Petition Nos. 5170, 5173/71). Civil Appeals No. 2019-2034 of 1973. (From the Judgment and Order dated 28.3.1972 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. 653-662/74 D E (From the Judgment and Order dated 28.3.1972 of the High Court of Andhra Pradesh in Writ Petitions Nos. 603, 607, 609, 621, 627, 629, 738, 739, 744 and 746/72). Civil Appeals Nos. 637, 1837-1842 of 1973. (From the Judgment and Order dated 27.3.1972 of the Andhra F Pradesh High Court in Writ Petitions Nos. 343/72 and 5669/71, 254, 256, 260, 334, 562/72). A. K. Sen, for the appellants in CAs 2390-2391 & 2423- -2437 /72. P. A. Chowdhary, for the appellants in Cas 2019-2034/73. G N. Bhaskar Rao, for the appellants in CAs 2390-2391, 2423- 2437 /72. B. Kanta Rao, for all the appellants. A. K. Sen with S. Markandeya and N. Madhusudan Raj, for the appellants in CAs 604/75, 2584-2586/72 and 653-662/74. H A. K. Sen with N. Madhusudan Raj and G. N. Rao, for the appel lants in CAs 281-286/73. . 390 SUPREME COURT REPORTS (1976] 3 S.C.R . A P. Ram Reddv with P. P. Rao, for the respondents in CAs 2390- 2391 & 2423-2437/72, 281-282, 539, 540, 2019-2034/73; IT. 2-4 in CA No. 664/75, 653-662/74 and 2584-2586/72; rr. 1-3 in CA 1042/73 and for rr. in CA 636173, 1837-1841/73. P. P. Rao for Respondent No. 1 in CA 604/75. S. P. Nayar and Girish Chandra for respondent No. 1 in CAs B 653-662/74 & rr. in CAS 2584-2586/72. The Judgment of the Court was delivered by RAY, C.J. These appeals arc 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 from the appellants as administrative sums of money collected 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 Essential Commodities Act, 1955 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 and commerce therein. commodities and trade The State Government exercising powers delegated to it by the in accordance with the provisions of the to achieve the Central Government Essential Commodities Act issued severnl measures 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 admi.nistrative charge were Rs. 2.50 per quintal. The B type of permits was for export from the State o.f Andhra Pradesh to other States in the South. The administrative charges under the B type permits were Rs. 10/- per quintal. The C type pe1mits was for export to any State outside Andhra Pradesh. The administrative charges for C type permits were Rs. 8 /- per quintal. The fourth • C D E F G H I ) , DHANYALAKSHMI RICE MILLS V. C.C.S. (Ray, C.J.) 391 type of permits was for export of broken rice under the A type or the C type permits and the surcharges were Re. 1.00 per qmntal. (e), (f), (h), By an Order dated 24 July, 1967 under section 5. of the Essential Commodities Act 1955 the Central Government directed that the powers conferred ~n it by section 3 ( 1) of the Essenti~l Commodities Act 1955 to make orders to provide for matters specified m clauses (a)'. (b), (c), (d), (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 d1recttons, if any, as may be issued by the Central Government in this behalf, and (2) that before making aay order relating to any matter specified in clauses (a) and ( c) or in regard to regulation of transport of any the Essential foodstuffs under clause Commodities Act, the State Government shall also obtain prior concurrence of the Central Government. (d) of section 3 (2) of (i) and By an Order dated 30 September, 1967 in exercise of powers cQl;Jferred by section 5 of the Essential Commodities Act 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 distribution or disposal of foodstuffs to places outside the State or in regard to regulation of transport of any foodstuff uader 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 charge of Rs. 2.50 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 Pmdesh Rice Procurement (Levy and Restriction on Sale) Order, l 967 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 reprcsentat;on of the millers for permission to exnort rice outs;dc the block or the State was that the denial of permission to export rice would result in deterioration of stocks and consequ~.1tial 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 other was payment of administrative surcharges for every quintal of rice. In the petitions before the High Court the appellants alleged that they paid the surcharge under "trying circumstances", "mistaken belief and impression" that "the respondent has the right to collect the sur charge". The appellants alw alleged that having come to know about c E r· H A B c D E F G H 392 SUPREME COURT REPORTS- [1976] 3 S.C.R. 1 correct le~! .vosit!on in the matter they asked the respondents to refn'ild t~e _adm1;ll1Strallve surcharges. The respondents refnsed to refnnd any adm1mstrallve surcharge. The appellants contended iu 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 m1der 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 mis take of law. The High Court however held that the appellants were not entitled to any relief on three grounds. First, th~ administrative surcharges were paid voluntarily by t11e 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 with out giving due credit for the expenses or charges incurred by the Gov ernment 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 exercis ing discretion in favour of the appellants who voluntarily paid 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. Th.3 appellants contended that the three grounds on which 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, amount of charges paid, the number of permit against which payment was made as well as the challan 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 Gov ernment 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 corres pondence 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 made application for refund and the last reminder was on 30 Decem ber, 1971. Some of the appellants filed their writ petitions in time to DHANYALAKSHMI RICE MILLS V. C.C.S. (Ray, C.J.) 3 93 I , 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 paymentand the High Court should not have dis misse<.l 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 parti culars 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. v. K. P. Govindan Tapioca Exporter etc.(') as an autho rity for the proposition t!iat the levy of administrative surcharge illegal. In the Tapioca case (supra) under the. Kerala Tapioca Manu facture 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 Essential Commodities Act and no licence fee or fee for grant of permit was imposed by the Kerala Tapioca Control Order. The Kerala Tapioca Control Order only provided for levy of administra tive surcharge. The Kerala Tapioca Control Order came into existence on 9 June, 1966. Even before the promulgation of the Order admin istrative 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 Essential Commodities Act. The Scheme did not impose any licence fee. The scheme merely provided for levying of adminis trative surcharge. The orders surcharge which followed the Tapioca Control Order did not refer to the exer cise of any power under the Order. Therefore, this Court held that the administrative surcharge in the Tapioca case (supra) was bad and the realisations were without any authority of law. administrative levying The appellants contended relying on the decision of this Court in State of Madhya Pradesh v. Bhailal Bhai( 2 ) 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 that the State had no power under any statute or any authority (1) [~97$) 2 S.C.R. 635. (2) [1964] 6 S.C.R. 261. c D E F G H \ • 394 SUPREME COURT REPORTS [1976) 3 S.C.R. A impose and collect administrative surcharge and, therefore, the pay ments which were made by the appellants were made under mistake of law and the State was liable to refund them. The appellants con tended 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 It was said on the levy and collection of administrative surcharge. 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 administrative machinery had to be set up. The permits were grant ed on terms and conditions of payment of surcharge and the appel lants voluntarily paid sur,~harge and received benefits unJcr permits. The respondents also said that the permits were contractual obliga tions between the appellants and the respondents. The High Court in exercise of its discretion refused to grant a mandamus on a consideration of facts and circumstances of the High case. The two principal matters which weighed with 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 man damus, this Court does not ordinarily interfere. (See Municipal Corporation of Greater Bombay v. Advance Builders (India) Private Limited;(!) D. Cawasji & Co. v. State of Mysore.(') D E 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 In the present case fails, the collection of tax cannot be sustained. the claim for refund is to be judged between the rival contentions. The appellants contend that there is no legislative sanction for collec tion 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 main· tenance 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 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 ex port scheme initiated at the instance of the appellants. The respon dents deny the claim of the appellants on the further ground that the (I) [1972] I S.C.R. 408 at p. 420. (2) [1975] 2 S.C.R. 511 at p. 527 G H I ; DHANYALAKSHMI RICE MILLS V. C.C.S. (Ray, C.J.) 395 appellants having derived the benefit and caused detriment to Govermuent are estopped from questioning the validity of the pay ments 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 If it be assumed that the agreements are illegal, the res with State. pondent contends that the appellant being a party to the same cannot sue for recovery of money paid. I p ' All the matters were covered by the common judgment. In so!lle the claims were beyond three years from the date of the pay In some cases they were within a lesser time but the ground ments. of delay on which the High Court exercised discretion is not confined 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, estop pel and questions of fact in ascertaining the expenses incurred by the Government for administrative surcharges of the scheme and allocat ing the expenses with regard to quality as well as quantity of rice covered by the permits. In cases relating to refund of payments of The appellants contended that in all cases of claim for refund of money, the payments were voluntary and, therefore, the High Court was in error in refusing refund because of ti]e voluntary charac ter of payment. which is illegal the voluntary character of payment is that tax payer In the present cases the ques has no say but is compelled to pay. tions arc 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 orant ed to enable justice to be done. . Those are ·cases where justic.;' can not be done ?nl.ess a mand~mus is to go. R. V. Bristol and Exeter Rqtlway Co. ( ) is an authority for the proposition where the Corpor ation could b.e compelled to pay a sum of money pursuant to agreement which could not be enforced by action because the agree me~t w;s not under seal. This Court in Lekh Raj v. Deputy Cus todian( ). and Har Sh~nkar & Ors. v. Deputy Excise and Taxation Comm1ss1oner & Ors.,( ) held that contractual obligations cannot be enforced through a wnt of mandamus. (1) 1845 (3) Ry.& Can. Cas. 777. (2) [1966] I S.C.R.120, (3) A.I.R. 1975 S.C. 1121. • A B C D E F G II A B c D E F G 396 SUPREME COURT REPORTS [1976] 3 S.C.R. The view of this Court in Sales Tax Officer, Banaras & Ors. v. Kanhaiya Lal Mukundalal Saraf(') was that a mandamus could be issued when the assessments were found to be illegal. In Suganmal v. State of Madhya Pradesh & Ors. (2) this Court said that the man damus for recovery of·money could be issued only when the petitioner In Burmah was entitled to recover that money under some statute. Construction Co. v. State of Orissa( 3 ) 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 In the State of Kera/a v. Aluminium lndustries statutory obligation. Ltd. (4) 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 pur suant 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 occur red 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 unambigu ous 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 If a mistake of law had led to the Contract Act and not section 72. 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 dne under a valid contract, and if it had not been paid payment could have been enforced. v. See also Pollock & Mulla--Contract Act Srish Chandra Nandi( 5 ) 9th Ed. by J. L. Kapur pp. 519-520). In the present case, the res pondents 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 (See Shiba Prasad Singh H (1) [1959] S.C.R. 1350. (3) [19621Supp.1 S.C.R. 242. (2) A.LR. 1965 S.C. 1740. (4) 16 S.T.C. 689. (5) 76 I.A. 244. \ 1 •• I DHANYALAKSHMI RICE Mil-LS V. C.C.S. (Ray, C.J.) 397 term of agreement between the parties for the maintenance and sup ervision expenses for the scheme for export permits of rice from one block to another within the State or outside the State. A It may be stated here that in cases where the State collected administrative charges but could not grant permits the State refund It is only where millers have obtained ed moneys to such person. 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. B 1 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. V.P.S. Appeals dismissed . • • 11-1522SCI/76