STATE OF GUJARAT v. M/s JANTA PAUVA FACTORY,pardi — 1982 DIGILAW 80 (GUJ)

A. P. RAVANI, S. L. TALATI, J. ( 1 ) THESE five appeals arise out of five different suit filed in the Court of Civil Judge (S. D) Navsari and the common questions of facts and law arise in these matters and therefore these five appeals are being decided by a common judgment. . . . . . . . . . . . . . . . . . . ( 2 ) THE Government of India had passed an Act No. 10 of 1955 known as The Essential Commodities Act 1955. In exercise of the powers conferred by sec. 3 of that Act the Government of Gujarat had passed an order called The Gujarat Rice Procurement (Levy) Order 1966 by an order dated 5/10/1966 In the said order in clause 3 after sub-clause (1) the following sub-clause was inserted namely (1a):" (1a) Subject to the provisions of clause 4 every person who obtains any quantity of paddy for preparation of Mamra or Poha shall before he prepares Mamra or Poha set apart the quantity of rice obtained by him after milling or getting milled 75% of the stock of paddy so obtained and shall sell the quantity of rice so set apart to the Purchase Officer at relevant purchase price at the place where such rice is obtained. "in pursuance of this order the plaintiffs of the five suits who were the persons who were to obtain Poha from paddy were asked to supply certain quantity of rice at a particular price. That happened in Samvat Year 2023. Ultimately a Writ Petition was filed in this High Court and that Writ Petition came to be numbered as Special Civil Application No. 113 of 1967. That application came to be decided on 16-3-1970 and it was ordered that clause 3 (1a) of the Gujarat Rice Procurement Levy Order 1964 in so far as it refers to poha and persons preparing poha is declared to be illegal ultra vires and void and not binding on the petitioners and a Writ will issue against the State of Gujarat directing its purchase officers not to compel the petitioners to get any part of the paddy milled and to sell the rice to the State Government. ( 3 ) AFTER the decision of the Writ Petition no levy was ever collected from any persons who were obtaining poha from paddy. ( 3 ) AFTER the decision of the Writ Petition no levy was ever collected from any persons who were obtaining poha from paddy. As the plaintiffs of various suits felt that they were compelled to pay levy under an illegal order they were entitled to be compensated for the loss which they incurred because they had under compulsion to give rice to the Government officers at a certain price which was fixed which according to the plaintiffs was less than the market price. For difference they filed suits. . . . . . . . . . . . . . . . . . ( 4 ) THE learned Assistant Government Pleader Shri S. T. Mehta who appeared on behalf of the State firstly urged that the suits were not maintainable in view of sec. 15 (2) of the Essential Commodities Act 1955 Sec. 15 (2) runs as under :"15. (2) No suit or other legal proceeding shall lie against the Government for any damage caused or likely to be caused by anything which is in good faith done or intended to be done in pursuance of any order made under sec. 3. " What was submitted to us was that an order under sec. 3 was passed and the Officers acted in good faith and therefore if any damage was caused the suit was not maintainable. The first thing therefore which was required to be considered was whether there was an order passed under sec. 3. The order must mean a legal order. So far as the notification is concerned it appears that there was a notification and is one reads the notification it might appear that on 5-10-1966 the order was passed which purported to have been passed in exercise of the powers conferred by sec. 3. But that order was challenged by filing Special Civil Application No. 113 of 1967 and this High Court declared that that order was ultra vires and therefore it was not a valid or legal order. Now that therefore when first requisite condition that there must exist an order which should have been made under sec. 3 the other questions are not required to be considered because they do not arise. There does not exist any legal order made under sec. 3. Now that therefore when first requisite condition that there must exist an order which should have been made under sec. 3 the other questions are not required to be considered because they do not arise. There does not exist any legal order made under sec. 3. There is no obligation cast on any person preparing Poha from paddy to give any levy in rice at the price fixed by the Government. The reason is that the order which was passed for this purpose was struck down and therefore that order was a nullity and it did not exist at all in the eye of law. Now that therefore when there was no legal order no authority had any power to purchase rice in levy under any legal order. Therefore when there was no legal order any amount of good faith would not held a person if he acts not in pursuance of any order but against the order as in the eye of law order never existed. Therefore the first submission of the learned Assistant Government Pleader fails. ( 5 ) THE second contention which was taken was in regard to the limitation. Before we enter into the question and decide this question we would like to refer to certain documents. ( 6 ) THE Collector of Bulsar addressed a letter dated 1-1-1971. That letter is exhibit 43 in Special Civil Suit No. 74 of 1973. By that letter the Collector offered to give such quantity of rice back to the plaintiff as the Government had taken in the year 1966-67 for the purpose of levy. Now that therefore the Collector Bulsar did realise that no rice could be procured as a levy in the year 1966-67. Ultimately therefore the Collector was willing to return equal quantity of rice in the year 1970. Now that therefore Government admitted the liability inasmuch as by this particular letter there was a clear admission that the levy of rice obtained in the year 1966-67 was not proper and that the Government was willing to remedy if not by payment of price atleast by return of equal quantity rice. Similiar letter on the same date is addressed to the plaintiff of Special Civil Suit No. 6 of 1974. That letter is exhibit 24. Again similar letter is addressed to the plaintiff on 22-12-1970 which is produced at Exh. 25. Similiar letter on the same date is addressed to the plaintiff of Special Civil Suit No. 6 of 1974. That letter is exhibit 24. Again similar letter is addressed to the plaintiff on 22-12-1970 which is produced at Exh. 25. Similar letter was addressed to the plaintiff of Civil Suit No. 5 of 1974 on 3-1-1971 which is exhibit 35. Now that therefore in three suits the plaintiffs were informed that the Government was willing to give back equal quantity of rice. That offer was rejected by the plaintiffs of the suits on the ground that the prices of 1966-67 could not be the same in 1970 and they were not willing to accept the rice of any other quality. We are mentioning the above facts only because the learned Civil Judge (S. D.) found in these three suits that these letters would amount to an acknowledgement of the liability of the Government. Here we may mention that the cause of action for the suits arose on 16-3-70 the date on which the High Court decided Special Civil Application No. 113 of 1967 That position is clear in view of the case of M/s. D. CAWASJI AND CO. ETC. ETC. V. STATE OF MYSORE AND ANOTHER REPORTED IN A. I. R. 1975 SUPREME COURT AT PAGE 813. In paragraph 8 of that judgment what was observed was as under:" 8. Therefore where a suit will lie to recover moneys paid under a mistake of law a writ petition for refund of tax within the period of limitation prescribed i. e. within three years of the knowledge of the mistake; would also lie. Forfiling writ petition to recover the money paid under a mistake of law this Court has said that the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered that would normally be the date on which the mistake becomes known to the arty. If any writ petition is filed beyond three years after that date it will almost always be proper for the court to consider that it is understable to entertain at petition though even in cases where it is filed within three years the court a discretion having regard to the facts and circumstances of each case not entertain the application. If any writ petition is filed beyond three years after that date it will almost always be proper for the court to consider that it is understable to entertain at petition though even in cases where it is filed within three years the court a discretion having regard to the facts and circumstances of each case not entertain the application. "in paragraph 9 of that judgment it was further observed as under :"9 We are aware that the result of this view would be to enable a person to recover the amount paid as tax even after several years of the date of payment some other party would successfully challenge the validity of the law under which the payment was made and if only a suit or writ petition is filed for refund by the person within three years from the date of declaration of the invalidity of he law. That might both be inexpedient and unjust so far as the State is concerned. " ( 7 ) NOW in these matters the learned Assistant Government Pleader tried to rely on Article 91 (b) of the Limitation Act 1963 which runs under : - Description of suit Period of Time from which period Limitation beings to run. "xxx xxx xxx xxx 91. For compensation (a) xxx xxx xxx xxx (b) for wrongfully taking or Three years When the property is wrongfully injuring or wrongfully taken or injured or when the detaining any other spe detainers possession becomes cific movable property. unlawful. -THIS Article would not help the State. The reason is obvious. The position of levy rice became unlawful on the date the High Court pronou- nced judgment. In fact the cause of action for these suits arose on that date and three years are required to be counted from 16-3-1970. Taking into consideration that a Notice under sec. 80 of the Civil Procedure Code is required to be issued before filing the suit clearly civil suits nos; 41 of 1973 and 42 of 1973 were within limitation while in the other three suits we have already pointed out that there was an acknowledgment as far back as in the year 1971. If those letters are considered as acknowledgment the other three suits are also within period of of limitation. If those letters are considered as acknowledgment the other three suits are also within period of of limitation. Here we may observe that in fact the authorities i. e the Mamlatdar and the Collector at the local level clearly assessed situation when they realised that the effect of the order passed in Special Civil Application was that the levy collected had become unlawful. They therefore tried to get statement from each of the plaintiffs and find out as to what loss they incurred. We may here say the plaintiffs of Civil Suit No. 74 of 1973 submitted a statement exh. 49. That was a detailed statement in which quality of rice rate of rice the date on which levey was given price paid by the Government the market price prevailing on that particular day and the difference amount was ultimately stated. Now in fact the Mamlatdar also prepared statement exh. 15 where except the market price all the figures are common and the Mamlatdar Pardi himself worked out that the difference between the market price and the levy price would come to Rs. 64 899 Similarly Mamlatdar Valsad prepared a statement exh. 87 in regard to Civil Suit No. 41 of 1973 and he worked out the difference to be at Rs. 82 253 The plaintiff of Civil Suit No. 42 of 1973 prepared a statement exh. 90 and he submitted it to the Mamlatdar. That statement was examined and forwarded to the Government. Similarly the Collectors office in Special Civil Suit No. 6 of 1974 also examined the statement prepared by the plaintiffs and the same was found by them to be correct. The statement exh 26 was prepared by the plaintiff of Civil Suit No. 5 of 1974 and submitted to the Government. Now here it may be stated that it clearly appears that immediately after Special Civil Application was decided the Collectors office and the Mamlatdars office contacted the plaintiffs statements were prepared in some cases by the plaintiff and also by the Mamlatdar. There was not much difference between those statements and ultimately the offer was made that Government was willing to hand over equal quantity of rice in there year 1970. There was not much difference between those statements and ultimately the offer was made that Government was willing to hand over equal quantity of rice in there year 1970. Now that therefore having realised that the first order which was issued was declared illegal and having further realised that there was a liability to compensate them it was considered as to how the plaintiffs were required to be compensated and according to them the best way to compensate was to return equal quantity of rice. This was not a proper method according to the plaintiffs and therefore they filed suits. Now that therefore in such a situation we believe that it was highly improper for the Government to have raised the plea of limitation. Howsoever improper that plea was we have examined it and we have come to the conclusion that the suits were filed within the period of limitation and the other three suits are also within the law of limitation because of the ackno wledgement which we have already discussed. Under the circumstances the plea of limitation raised in these appeals is required to be rejected. . . . . . . . . . . . . . . . . . . . . . . . Appeals dismissed. .