TILOKCHAND MOTICHAND & ORS. versus H. B. MUNSHI & ANR.

Citation: [1969] 2 S.C.R. 824 · Decided: 22-11-1968 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 18 judgment(s) · cites 5 · see the full citation network in Lexace

Judgment (excerpt)

[M. 
TILOKCHAND MOTICHAND & ORS. 
v. 
H. B. MUNSID & ANR. 
Nuvember 22, 1968 
HIDAYATULLAH, C.J., S. M. SIKRI, R. S. BACHAWAT, 
G. K. MITTER AND K. S. HEGDE, JJ.] 
Constitution of India, 1950, Art. 32-Lache.T-Fundamental right-
E/Ject on. 
' 
Petition under Art. 226-Contention raised that" provision of law 
is 
ultra vires as violating junda1nental rights-Contention not considered but 
petition dismissed in limine--Order of High Court if res judicata, i11 rela-
tion to petition under Art. 32. 
The sales tax authorities directed that the sum realised as sales tax by 
the petitioners from their customers and paid over to the State should be 
refunded to the petitioners on condition that the petitioners passed on the 
amounts to their customers. Since the petitioners did not fulfil the con-
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dition, the sales tax officer forfeited the sum under s. 21 ( 4) of the Bom-
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bay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, 
the petltioners filed a writ petition in the High Court and contended that 
s. 21(4) was ultra vires the powers of the State Legislature and was viola-
tive of Arts. 19(1) (f) and 265 of the Constitution and hence, they were 
not liable to repay the amount. 
The single Judge dismissed the petition 
on the ground that the petitioners defrauded their customers and so were 
not entitled to any relief even if there was a violation of fundamental 
rights. 
The appellate bench of the High Court dismissed the appeal on 
the ground that it would not interfere with the discretionary order of the 
single Judge. 
On December 24. 1958, the Collector attached the proper-
ties of the petitioners for recovering the amount as arrears 'of land revenue 
and the petitioners paid the amount in instalments between August 1959 
and August 1960. On September 29, 1967 this Court in Kanti/al Babula/ 
v. H. C. Patel, 21 S.T.C. 174 (S.C.) struck down s. 12A(4) of llombav 
Sales Tax Act, 1946, corresponding to s. 21(4) of the 1953-Act, on the 
ground that it was violative of Art. 
19(1)\f) 
inasmuch as 
the power 
conferred by the section was unguided, uncanalised and uncontrolled and 
so was not a reasonable restriction on the fundamental right guaranteed 
under the Article. 
On the assumptioh that s. 21 ( 4) of the 1953-Act is 
also liable to be struck down on the same ground, on February 9, 1968, 
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the petitioners filed a writ petition under Art. 32 claiming a refund of the 
amount. 
The petitioners contended 
that 
they did not know that the 
section was ultra vires on the particular ground on which this Court struck 
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it down, that they paid the amounts under coercion or mistake, that the 
mistake was discovered on September 29, 1967 (the date of the judgment 
of this Court) and that they were entitled to the refund under s. 72 of 
the Indian Contract Act, 1872. 
On the questions : (1) Whether the petition is liable to be dismissed 
on the ground of /aches; and (2) Whether the petition is barred by res 
judicata in view of the decision of the High Court. 
H 
HELD : (Per Hidayatullah, C.J., Bachawat and Mitter, JJ.) 
(1) The 
petition must be dismissed on the ground of /aches. 
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T!LOK CHAND V. H. B. MUNSHI 
825 
Per Hidayatullah C.J. : Article 32 gives the right to move this Court 
by appropriate proceedings for enforcement of fundamental rights and the 
State cannot place any hindrance in the way of an aggrieved person. But 
once the matter has reached this Court, the extent or manner of interfe-
rence is for this Court to decide. This Court has put itself in restraint in 
the matter of petitions under Art. 32. 
For example, this Court refrains 
from acting under the Article if the party had already moved the High 
Court under Art. 226 and if the High Court had exercised its parallel 
jurisdiction. In such a case, this Court would not allow fresh proceed-
ings to be started under Art. 32 but would insist on the decision of the 
High Court being brought before it on appeal. 
Similarly, in inquiring 
into belated and stale claims, this Court should take note df evidence of 
neglect of the petitioner's own rights for a Jong time or of the rights of 
innocent parties which might have emerged by reason of the delay. The 
party aggrieved must therefore move this Court at the earliest possible 
time and explain satisfactorily all semblance of delay. It is not possible 
for this Court to Jay down any specific 
period as the ul

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