PETITIONER:
SHIV SHANKER DAL MILLS ETC. ETC
Vs.
RESPONDENT:
STATE OF HARYANA & ORS. ETC.
DATE OF JUDGMENT09/11/1979
BENCH:
KRISHNAIYER, V.R.
BENCH:
KRISHNAIYER, V.R.
PATHAK, R.S.
KOSHAL, A.D.
CITATION:
1980 AIR 1037 1980 SCR (1)1170
1980 SCC (2) 437
CITATOR INFO :
F 1985 SC 218 (13,14,15)
R 1985 SC 901 (11)
R 1990 SC 313 (16)
R 1990 SC 772 (24,32)
ACT:
Constitution of India 1950, Article 226-High Court
holding levy illegal- Consequential liability to refund-
'Alternative remedy' available-Jurisdiction under-Whether
barred.
HEADNOTE:
In Kewal Krishan puri v. State of Punjab and others
[1979] 3 S.C.R. page 1217, this Court struck down payment of
market fees at the increased rate of 3 per cent (raised from
the original 2 per cent) under Haryana Act No.22 of 1977. A
consequential liability was therefore cast on the market
committees to refund the excess amounts collected.
The appellants and the petitioners who had paid under
mistake the excess sums demanded a direction to the effect
that these amounts be refunded.
On the question of refund of the excess amounts
collected by the market committees.
^
HELD| 1. Where public bodies under colour of public
laws recover people's money, later discovered to be
erroneous levies, the dharma of the situation admits of no
equivocation. There is no law of limitation especially for
public bodies on the virtue of returning what was wrongly
recovered to whom it belongs. In our jurisprudence it is not
palatable to turn down the prayer for high prerogative writs
on the negative plea of alternative remedy, since the root
principle of law married to justice, is ubi jus ibi
remedium.
2. In our jurisdiction, social justice is a pervasive
presence and save in special situation it is fair to be
guided by the strategy of equity by asking those who claim
the services of the judicial process to embrace the basic
rules of distributive justice, while moulding the relief by
consenting to restore little sums taken in little
transactions from little persons to whom they belong.
3. Article 226 grants an extraordinary remedy which is
essentially discretionary, although founded on legal injury.
It is perfectly open for the court exercising this flexible
power to pass such orders as public interest dictates and
equity projects.
In the instant case although the refund of excess
collections might be legally due to the traders, many of the
traders had themselves recovered the excess percentage from
the next purchasers. To the extent the traders had paid out
of their own, they were entitled to keep them, but not where
they had in turn collected from elsewhere. It would be hard
to leave every agriculturist to file a suit or other legal
proceeding for recovery of negligible sums which
cumulatively amount to colossal amounts.
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4. In Newabganj Sugar Mills v. Union of India and
others [1976] 1 SCR 803 this Court in a similar situation
devised a new procedure to deal with a new situation where
equity demanded redistribution but procedural expensiveness
and cumbersomeness effectively thwarted legal actions.
5. Situations without precedent demand remedies without
precedent.
[The Court devised a scheme of refund by the market
committees and redistribution of the small amounts to those
from whom unwarranted collections had been made.]
JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3220-
3234 of 1979.
Appeals by Special Leave from the Judgment and Order
dated 11-7-79, 23-8-79, 8-8-79, 15-10-79, 30-7-79, 18-9-79,
22-10-79, 18-10-79, 29-10-79, 16-10-79, and 12-10-79 of the
Punjab and Haryana High Court in Civil Writ Petitions Nos.
2306, 2966, 2737, 3617, 2588, 3277, 3749, 3697, 3820, 3625,
3624 and 315-317/79 respectively.
AND
Writ Petitions No. 892, 918, 921, 979-980, 1057-1058,
1095, 1234, 1273, 1051, 997, 940 and 981/79.
(Under Article 32 of the Constitution)
Dr. Y. S. Chitale (CA 3220/79), R. A. Gupta, Adarsh
Goel and S. K. Goel, for the Appellant in CA 3220/79 and
3222/79 for the Petitioner in W.P. 892, 918 and 921/79.
B. Datta and K. K. Manchanda for the Appellant in CA
3221/79, 3224-3226/79.
Anil B. Dewan, Adarsh Goel, S. K. Goel, and R. A. Gupta
for the Appellant in CA 3323/79.
Adarsh K. Goel, S. K. Goel and R. A. Gupta for the
Appellants in CA 3222/79, for the Petitioner in WP 892/79,
918/79, 921/79.
A. K. Goel and S. K. Goel for the Petitioner in WP
979/79.
B.Datta and K. K. Manchanda for the Petitioner in WP
980/79.
Sarwa Mitter, Ved Prakash Goel and B. S. Malik for the
Petitioner.
M. P. Jha, Gyan Chand Dhurtwala and Sanjee Walia for
the Petitioner in WP 1057-58/79.
M. P. Jha and P. C. Khunger for the Petitioner in W.P.
1095/79.
N. D. Garg and T. L. Garg for the Petitioner in WP
1234/79.
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R.K. Garg (WP 892/79 and CA 3220/79) Gian Singh and S.
C. Patel for the Respondents 2-3 in CAs. 3220/79, 3221,
3222, 3223, 3224 and for the Respondent in WP 892/79, 921,
979, 981, 1057-58/79, 1273, 997 and for Respondent in CA
3230, 3225/79.
Hardev Singh and R.S Sodhi for the Respondent in WP
918/79 and 980/79, 1095 and 1234/79.
Adarsh Goel and Gyan Sudha Misra for the Petitioner in
WP 1273/79.
The Order of the Court was delivered by
KRISHNA IYER, J. This big bunch of writ petitions shows
how litigation has a habit of proliferation in our
processual system since cases are considered in isolation,
not in their comprehensive implications and docket
management is an art awaiting its Indian dawn. The facts
being admitted, obviate debate. All these appellants and
writ petitioners had paid market fees at the increased rate
of 3 per cent (raised from the original 2 per cent) under
Haryana Act No. 32 of 1977. Many dealers challenged the
levies as unconstitutional, and this Court, in a series of
appeals (C.A. Nos. 1083 of 1977 etc.) (1) ruled that the
excess of 1 per cent over the original rate of 2 per cent
was ultra vires. This cast a consequential liability on the
market committees to refund the illegal portion. They were
not so ordered probably because they could not straightway
be quantified. The petitioners who had, under mistake, paid
large sums which, after the decision of this Court holding
the levy illegal, have become refundable, demand a direction
to that effect to the market committees concerned. There
cannot be any dispute about the obligation or the amounts
since the market committees have accounts of collections and
are willing to disgorge the excess sums. Indeed, if they
file suits within the limitation period, decrees must surely
follow. What the period of limitation is and whether Art.
226 will apply are moot as is evident from the High Court’s
judgment, but we are not called upon to pronounce on either
point in the view we take. Where public bodies, under colour
of public laws, recover people’s moneys, later discovered to
be erroneous levies, the dharma of the situation admits of
no equivocation. There is no law of limitation, especially
for public bodies, on the virtue of returning what was
wrongly recovered to whom it belongs. Nor is it palatable to
our jurisprudence to turn down the prayer for high
prerogative writs, on the negative plea of ‘alternative
remedy’, since the root principle of
1173
law married to justice, is ubi jus ibi remedium. Long ago
Dicey wrote:
“The saw ubi jus ibi remedium, becomes from this
point of view something more important than a mere
tautological proposition. In its bearing upon
constitutional law, it means that the Englishmen whose
labours gradually formed the complicated set of laws
and institutions which we call the Constitution, fixed
their minds far more intently on providing remedies for
the enforcement of particular rights or for averting
definite wrongs, than upon any declarations of the
Rights of Man or Englishmen….The Constitution of the
United States and the Constitutions of the separate
States are embodied in written or printed documents,
and contain declaration of rights. But the statesmen of
America have shown an unrivalled skill in providing
means for giving legal security to the rights declared
by American Constitutions. The rule of law is as marked
a feature of the United States as of England.”
Another point. In our jurisdiction, social justice is a
pervasive presence; and so, save in special situations it is
fair to be guided by the strategy of equity by asking those
who claim the service of the judicial process to embrace the
basic rule of distributive justice, while moulding the
relief, by consenting to restore little sums, taken in
little transactions, from little persons, to whom they
belong.
When we reminded counsel on both sides of these
guidelines of Good Samaritan jurisprudence and desired
consensual disposal of these cases, we gratifyingly found
welcome echo and we appreciatively record this stance.
The counsel for the market committees pointed out that
although refund of excess collections might be legally due
to the traders many of the traders had themselves recovered
this excess percentage from the next purchasers. So much so,
these tiny tittles if they are to return to the original
payers, should revert to the next purchasers themselves. The
traders who are the petitioners have no more right to keep
such small sums than the market committees themselves. To
the extent to which the traders had paid out of their own,
of course, they were entitled to keep them, but not where
they had, in turn, collected from elsewhere. It would be
hard to leave every agriculturist to file a suit or other
legal proceeding for recovery of negligible sums which
cumulatively amount to colossal amounts. Many a little makes
a mickle. A similar situation arose in Newabganj Sugar
1174
Mills case(1) where this Court devised a new procedure to
deal with a new situation where equity demanded
redistribution but procedural expensiveness and
cumbersomeness effectively thwarted such legal actions by
the “small” many. Situations without precedent demand
remedies without precedent.
We indicated to counsel that the procedure adopted in
the Newabganj Sugar Mills case (supra) may usefully be
adapted to the present case. In broad principle, counsel did
agree, and we proceed on that footing, that we devise a
scheme of refund by the market committees and
redistribution, to the extent indicated above, of small
amounts to those from whom unwarranted collections had been
made, may be unwittingly, by the traders who are appellants
or petitioners.
Article 226 grants an extra-ordinary remedy which is
essentially discretionary, although founded on legal injury.
It is perfectly open for the court, exercising this flexible
power, to pass such order as public interest dictates and
equity projects.
“Courts of equity may, and frequently do, go much
further both to give and withhold relief in furtherance
of the public interest than they are accustomed to go
where only private interests are involved. Accordingly,
the granting or withholding of relief may properly be
dependent upon considerations as of public
interest….”(2)
Keeping in mind these guidelines we make the following
directions:
I. Subject to the directions given below, all the sums
collected by the various market committees who are
respondents in these various writ petitions or appeals shall
be liable to be paid into the High Court of Punjab and
Haryana within one week of intimation by the Registrar of
the amount so liable to be paid into the court.
II. A statement of the amounts collected in excess (1%)
shall be put into this court by the dealers with copies to
the various market committees aforesaid within 10 days from
today, and if there is any difference between the parties it
shall be brought to the notice of this Court in the shape of
miscellaneous petitions. On final orders, if any, passed
thereon by this Court, those amounts, as so determined,
shall be treated as final.
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III. The Registrar of the High Court shall issue public
notice and otherwise give due publicity to the fact that
dealers who have not passed on the liabilities to others and
others who have contributed to or paid the excess one per
cent covered by these writ petitions and appeals may make
claims for such sums as are due to them from him within one
month or such other period as he may fix. The Registrar
shall scrutinise such claims and ascertain the sums so
proved. He will thereupon demand of all the market
committees concerned payment into the Registry of such sums
in regard to which proof of claims have been made. On such
intimation, the market committees shall pay into the
Registry the amounts so demanded by the Registrar within one
week of such intimation. The amount shall be paid together
with interest at 10 per cent per annum from today upto the
date of deposit with the Registrar.
IV. It shall be open to the Registrar to make such
periodical claims on appropriate proof by claimants on the
lines stated above.
V. He will devise the mechanics of processing the
claims as best as he may and, in the event of dispute, may
refer to the High Court for its decision of such disputes,
if he thinks it necessary. Otherwise, he may dispose of the
objections finally.
VI. If any further directions regarding the mechanics
of the claim of refund or otherwise are found necessary from
this Court, the High Court will report about such matter to
this Court and orders made thereon will bind the parties.
VII. If parties eligible for repayment of amounts do
not claim within one year from today the Registrar will not
entertain any further claims. It will be open to such
parties to pursue their remedies for recovery for any sums
that may be due to them.
VIII. Each State Marketing Board will deposit within 10
days from today a sum of Rs. 5,000/- before the Registrar
for the preliminary expenses of publicity and other
incidentals for the implementation of the directions given
above. Any unexpended amount, at the end of one year, will
be repaid to the respective State Marketing Board.
IX. We further direct that the unclaimed amounts, if
any, shall be permitted to be used by the respective
Marketing Committees for the purposes falling within the
statute as interpreted by this Court in the CA No. 1083/77.
1176
These appeals and writ petitions are disposed of on the
above lines, the winners being both the sides before us, the
invisible small consumers and above all, justice, equity and
good conscience to the inarticulate community, which is the
functional triumph of law in action within hailing distance
of each other.
We wind up with a word of satisfaction that each one
has had his meed and in recognition thereof we direct the
parties to bear their own costs.
N.V.K.
1177