Judgment :- 1. Parties are agreed that O.P.No. 4512 of 1987, in which the pleadings are complete on both sides, may be taken as the representative case, and the decision therein applied to the other cases. I shall therefore state the facts in O.P.No. 4512 of 1987. 2. The pleadings in this case consist of the original petition, a reply affidavit dated August 8,1987 and an additional reply affidavit dated February 7,1988 on the side of the petitioner, and a counter affidavit dated June 12,1987 and an additional counter affidavit dated August 23,1987 on the side of the respondents. 3. The petitioner is a dealer engaged in buying coffee seeds, and selling coffee powder. The first respondent is the Coffee Board, which is a statutory authority constituted under S.4 of the Coffee Act VII of 1942, hereinafter referred to as 'the Act' for brevity. The Act was one to provide for the development of the coffee industry, under the control of the Union. The first respondent Board was constituted to achieve that object. Coffee cultivation is carried on in India in the States of Kerala, Tamil Nadu, Andhra Pradesh and Karnataka. Every owner of land planted with coffee plants, has to get himself registered as an owner in respect of his estate, with the registering officer appointed in that behalf by the State Government (vide S.14). S.28 requires every establishment for curing coffee to obtain a licence from the Board to operate as such. The control of the sale, export and re-import of coffee is regulated by the provisions contained in S.16 to 26 of the Act. S.16 enables the Central Government by notification in the official gazette, to fix the price or prices at which coffee may be sold, wholesale or retail, in the Indian market. No registered owner or licensed cures or dealer shall sell coffee, wholesale or retail, in the market at a price higher than that fixed under the section. S.17 provides that no registered owner shall sell or contract to sell in the Indian Market, coffee from any registered estate, if by such sale, the internal sale quota allotted to that estate is exceeded. He shall also not sell in the Indian market any coffee through a licensed curing establishment. S.17 provides that no registered owner shall sell or contract to sell in the Indian Market, coffee from any registered estate, if by such sale, the internal sale quota allotted to that estate is exceeded. He shall also not sell in the Indian market any coffee through a licensed curing establishment. Sub-section(1) of S.25 requires all coffee produced by a registered estate in excess of the internal sale quota allotted to that or in the absence of an internal sale quota, all the coffee produced in the estate, to the delivered to the Board for inclusion in the surplus pool, by the owner of the estate or by the curing establishment receiving the coffee from the estate. The proviso to the section enables the Chairman of the Board to allow the owner of the estate to retain with himself for purposes of consumption by his family, and for purposes of seed, such quantity of coffee as the Chairman may think reasonable. Sub-section (2) of the section deals with the manner in which the delivery is to be made. Sub-section (3) states that the coffee delivered for inclusion in the surplus pool shall upon delivery to the Board remain under the control of the Board, which shall be responsible for the storage, curing, where necessary, and marketing of the coffee. Sub-section (4) requires the Board to prepare a differential scale for the valuation of coffee, and to classify the coffee in each consignment in accordance with that scale, and to make an assessment of its value based on its quantity, kind and quality. S.26 directs the Board to take all practical measures to market the coffee included in the surplus pool, and provide that all sales thereof shall be conducted by or through the Board. The Board may also purchase for inclusion in the surplus pool coffee not delivered for inclusion in it. 4. Provisions regarding the finance of the Board are made in S.30 to 32. S.30 requires the Board to maintain two separate funds, a General Fund and a Pool Fund. The Board may also purchase for inclusion in the surplus pool coffee not delivered for inclusion in it. 4. Provisions regarding the finance of the Board are made in S.30 to 32. S.30 requires the Board to maintain two separate funds, a General Fund and a Pool Fund. Under S31, all amounts paid to the Beard by the Central Government under S.13(1) as the proceeds of the duty of customs or the duty of excise levied under the Act, reduced by the cost of collection; all sums transferred to the General fund under the proviso to S.32(2) and all fees levied and collected by the board under the Act, are to be credited to the General fund. The purposes for which the General fund is to be applied are specified in sub-section (2), namely to meet the expenses of the Board, and others. S.32 speaks of the Pool fund to which shall be credited all sums realised by the Board by sales of coffee from the surplus Pool. The Pool fund is to be applied only for the purposes specified in sub-section (2), namely to make payments to registered owners of the value of the coffee which they have delivered for inclusion in the surplus pool, the cost of storing, curing and marketing coffee, deposited in, and of administering, the surplus pool, and for the purchase of coffee not delivered for inclusion in the surplus pool. The proviso to which reference was made earlier while referring to S.31, stipulates that if there is any excess after meeting the requirements mentioned in sub-section (2), the Board may, with the previous sanction of the Central Government, transfer the whole or any part of such excess to the credit of the General fund. 5. S.34 is also relevant, in that it requires the Board at such times as it thinks fit, to make payment to the registered owners who have delivered coffee for inclusion in the surplus pool, such amounts out of the Pool fund as it may think proper. 6. The facts of the original petition may be stated in the light of these provisions. The petitioner, as stated earlier, is a dealer in coffee, who purchases coffee seeds and sells coffee powder. The coffee pooled by the owners of estates is sold by the Board in auction held for that purpose in three centres namely Coimbatore, Bangalore and Vijayawada. The facts of the original petition may be stated in the light of these provisions. The petitioner, as stated earlier, is a dealer in coffee, who purchases coffee seeds and sells coffee powder. The coffee pooled by the owners of estates is sold by the Board in auction held for that purpose in three centres namely Coimbatore, Bangalore and Vijayawada. The Board fixes a minimum reserve price at which the bid is to start. This is fixed after taking into account the minimum release price to be paid to the owners of the estates, and the cost and the expenses which the Board has to incur for the curing, storing and marketing of the coffee. The price fetched at the auctions is usually much higher than the minimum reserve price fixed by the Board. 7. Coffee was taxable under the sales tax laws of the States of Karnataka and Kerala at the point of first sale in the State. The State of Karnataka changed the point of levy from the first sale to first purchase. The State of Kerala followed suit with effect from April 1,1984 changing the point of levy to the point of first purchase by a dealer liable to tax under S.5 of the Kerala General Sales Tax Act, 1963. When the levy was changed to one on purchase, the Karnataka authorities imposed tax on the Board on their purchases of coffee from the growers. The Board challenged the levy with a writ petition in the High Court of Karnataka, in which two growers also joined. The contention was that the delivery of the coffee in the surplus pool was a compulsory delivery ordained by the Act, and therefore, there was no sale or purchase, justifying imposition of tax under the sales-tax enactment. The growers had joined the writ petition with the plea that the imposition directly affected them "as all payments made by the Board have to come out of the realisations from the sale of the coffee pooled by the growers". The writ petitions were dismissed by the High Court by judgment dated August 16,1985. The Board lookup the matter in appeal to the Supreme Court, which had been heard between 7 and 9 January, 1987, and was pending judgment at the time this original petition was filed. 8. The writ petitions were dismissed by the High Court by judgment dated August 16,1985. The Board lookup the matter in appeal to the Supreme Court, which had been heard between 7 and 9 January, 1987, and was pending judgment at the time this original petition was filed. 8. In view of the change in the point of levy in Kerala with effect from April 1,1984, the Board was faced with the necessity of making provision for payment of the purchase tax, in case it was held payable by the High Court of Karnataka in the pending writ petition. The Board therefore issued a communication to the pool agents, directing them to collect from the pool sale dealers like the petitioner, an amount equivalent to the purchase tax liability of the Board, as contingency deposits. This was in addition to the auction price, and was to be collected at the time the coffee was delivered to the dealers by the pool agents. A copy of this communication dated May 17,1984 is Ext. Pl. This direction from the Board obliged the petitioner and other dealers to make payment, by way of contingency deposit, of the amount mentioned in Ext.P1 at the time the coffee was delivered to them by the pool agents pursuant to the auctions. The petitioner has set forth in the statement Ext.P2, the details of the contingency deposits made by him during the years 1984-85 and 1985-861 must also note here that even though the levy of sales-tax was changed to the first purchase point, the Board collected tax from the petitioner on the sales in auction held in May 1984 as if the tax was payable at the point of first sale. The petitioner thus paid an amount of Rs.621/- by way of sales-tax as per a bill Ext.P6 dated May 3,1984 (the date March 5,1984 mentioned in the original petition being erroneous). 9. Petitioner has filed this original petition seeking a declaration that the "levy" of contingency deposit and the collection of sales tax are illegal, unauthorised and without jurisdiction and ultra vires the powers of the Board. 10. petitioner contends that under S.30, 31 and 32 of the Act, the finance of the Board can consist only of two categories of funds, namely the General fund and the pool fund. 10. petitioner contends that under S.30, 31 and 32 of the Act, the finance of the Board can consist only of two categories of funds, namely the General fund and the pool fund. What the Board has done by collecting the contingency deposit is to create a third category of fund, for which there is no warrant in the provisions of the Act. The Board has done something which is outside the purview of the Act, and made an unauthorised illegal exaction from the petitioner. Petitioner sent notice Ext.P4 through lawyer on April 7,1986 calling upon the Board to make refund of the amounts collected as contingency deposit as also the amount collected by way of sales-tax. The Board did not yield. They sent the reply Ext. P5 on September 5,1986 pointing out that the board's liability for the purchase tax was pending decision by the Supreme Court and that the question of refund will be taken up after the said decision. It was stated that the collection of the deposit was legal, as the amount was required to meet the contingency of the Board's purchase tax liability being upheld. It was further pointed out that the petitioner had made the payments without any protest whatsoever. The writ petition was then filed for the reliefs mentioned earlier. 11. The Board has filed a counter affidavit and an additional counter affidavit. It is their case that consequent on the amendment to the Kerala General Sales Tax Act, 1963, with effect from April 1,1984, the liability for tax on the sale by the grower to the Board was cast on the latter. The Board was canvassing the view that the receipt of coffee from the growers was one in which there was no element of sale or purchase involved. This matter was pending decision by the Supreme Court in the appeal against the judgment of the High Court of Karnataka. The finance of the Board has to be managed as set out in the Act. The Board has to pay the value of the coffee pooled to the growers. No portion of the proceeds realised by the sale of the pooled coffee is retained by the Board. The entire amount is paid to the growers in instalments after meeting the expenses, and paying the "taxes". The Board has to pay the value of the coffee pooled to the growers. No portion of the proceeds realised by the sale of the pooled coffee is retained by the Board. The entire amount is paid to the growers in instalments after meeting the expenses, and paying the "taxes". It is not open to the Board to pay the tax from out of the funds that may come into their hands in later years, as those funds will beheld by them in trust for the growers, who have pooled the coffee in those years. Therefore, there will be no funds left with the Board for payment of the purchase tax levied, if ultimately their liability was upheld. In the circumstances, the Board decided to provide for the contingency of payment of purchase tax, and for that purpose to increase the reserve price so as to include the purchase tax element as well. The pool sale dealers objected to this course of action, and actually boycotted the auction fixed on May 3,1984. (The figure "87" appearing in Para.9 of the counter affidavit is a mistake for "84", as stated in the additional counter affidavit). 12. The Board held discussions with the dealers on 3,4 and 10 May, 1984 to work out an acceptable solution which will safeguard the interests of all parties, namely the Board, the pool sale dealers and the growers. Based on these discussions, the pool sale dealers made representation dated May 10, 1984 requesting that the Board should accept and implement "the system" by which they will collect a contingency deposit based on "weighted average percentage" to be arrived at, and that the contingency deposit, less the expenses, should be refunded to the dealers if the Supreme court were to hold that there was no liability on the Board for the purchase tax. If on the other hand the Board's liability was upheld by the Supreme Court, the contingency deposit should be appropriated for payment of the purchase tax due. 13. The Board's decision taken on the basis of the discussions, and the representation, was communicated to all the pool sale dealers by the circular Ext.R1(a) dated May 16,1984. This is substantiated by the letter Ext. R1(b) which one dealer namely Food Specialities Limited, wrote to the Board on June 4,1985. 13. The Board's decision taken on the basis of the discussions, and the representation, was communicated to all the pool sale dealers by the circular Ext.R1(a) dated May 16,1984. This is substantiated by the letter Ext. R1(b) which one dealer namely Food Specialities Limited, wrote to the Board on June 4,1985. The system of receiving contingency deposits was thus evolved at the instance, and the request, of the pool sale dealers. 14. The Board contends further that the tax payable on the sale transactions constitutes an element in the cost of marketing, and of administering the surplus pool. Payment of tax is debited to the Pool fund, and only the amount so reduced, is available for payment to the growers. The Board has to make provision for such contingencies. The "contingency deposit" is only a convenient mode of making this provision, pending decision by the Supreme Court on the question of liability. 15. Regarding the collection of sales-tax as per Ext.P6 it is pointed out that the Board had perforce to collect the amount, as they did not have a copy of the amending legislation at the time the sale transaction took place. The collection so made was made over to the State as tax collected, so that the Board had no obligation to refund the amount. 16. The additional counter affidavit amplifies and explains in greater detail the circumstances leading to, and the rationale behind, the collection of the contingency deposit. It is also stated that, it is, in any event, part of the "total consideration" paid by the dealer for the purchase of the coffee. 17. The facts, and the contentions, in all the other writ petitions are admitted to be similar except for minor variations, which I shall mention. In O.P.No.10294 of 1985, this court had issued an interim direction to the respondents not to collect the contingency deposit, and therefore, no further amount was paid in that case. In all the other cases, the contingency deposit demanded has been paid. So also, in relation to sales-tax, some amount has been collected in all the cases except from the petitioners in O.P.Nos. 4804, 4822,4953 and 4978 of 1987. 18. The primary contention of the petitioners is that the Board is not entitled to collect contingency deposit and constitute a fund, which is not provided for in S.30, 3 land 32 of the Act. 4804, 4822,4953 and 4978 of 1987. 18. The primary contention of the petitioners is that the Board is not entitled to collect contingency deposit and constitute a fund, which is not provided for in S.30, 3 land 32 of the Act. S.30 contemplates only two categories of funds, namely the General Fund and the Pool Fund, comprising of the sums specified in S.31 and 32 respectively, and therefore creation of a third category of fund consisting of the contingency deposit, is outside the purview of the Act. 19. After hearing counsel for the petitioners, I do not find any substance in this contention. It is true that S.30 of the Act enumerates only two types of funds, General and Pool. S.31(1) directs certain categories of amounts to be credited into the General Fund; but on the face of it, the provision does not appear to be exhaustive of all the amounts that may be credited to the General Fund. What it does is to direct that certain kinds of receipts shall necessarily go into the General Fund as distinct from the Pool Fund. It is not as if receipt of other amounts is taboo, or that such amounts cannot go into the General Fund. At the same time, sums realised by the Board by sales of coffee from the surplus pool are credited to the Pool Fund. The distinction between the two funds is maintained with the mandate in S.32(2) that the Pool Fund shall be utilised only for the purposes specified therein. It cannot be utilised for any other purposes. Expenses of curing, storage and marketing are items for which the Pool Fund could be utilised. It will be too much to say that all categories of receipts by the Board are exhausted by S.31(1) and 32(1). Other kinds of amounts which the Board will come by, can certainly be postulated. The purpose of the specification of the categories is only to compel their being credited into the particular funds. There is no bar under the Act against constitution of a contingency fund to provide for a contingent liability, which may or may not arise. There is no express statutory inhibition to the creation of such a contingency fund for the purpose of meeting a liability which may arise, and which it will be the obligation of the Board to meet, if it arises. There is no express statutory inhibition to the creation of such a contingency fund for the purpose of meeting a liability which may arise, and which it will be the obligation of the Board to meet, if it arises. For this purpose it is not necessary to pigeonhole the receipt and classify it as part of the General Fund or Pool Fund so long as the receipt is one collected for a purpose connected with the Board's functions and duties under the Act. The Board is entitled to perform all those acts and do all those things which are necessarily incidental or ancillary to its functions or for the proper performance of its duties or for the purpose of achieving the objects of the Act. The Board is bound to safeguard the interests of the growers, as well as the dealers, and therefore any step taken by them, so long as it is in the course of the activities under the Act, should necessarily be deemed to be within the purview of the Act. The petitioner's contention based on S.30, 31 and 32 has therefore to fail. 20. The contingency fund was created under certain extraordinary circumstances, and in view of the dispute raised regarding the liability for payment of purchase tax. That question was in issue before the courts. The Karnataka High Court has held against the Board. The matter was pending in the Supreme Court. The Board then did what it would normally have done, namely to fix the minimum reserve price at an amount inclusive of the purchase tax as well. But this procedure, of fixing a higher minimum reserve price for the auction on May 3,1984, met with resistance and opposition from the pool sale dealers. They boycotted the auctions on that day. Though counsel for the petitioners denied this boycott, I am not inclined to accept their case, in the light of the subsequent events and the documents produced in the case. The Board therefore, discussed the matter with the dealers, and also considered their representation dated May 10,1984. If the Board did not raise the minimum reserve price, and if ultimately the liability for the tax was upheld, the amount of tax would have had to be paid out of the Pool Fund available for payment to the growers, causing detriment to the growers. If the Board did not raise the minimum reserve price, and if ultimately the liability for the tax was upheld, the amount of tax would have had to be paid out of the Pool Fund available for payment to the growers, causing detriment to the growers. If, on the other hand, a minimum reserve price was fixed, inclusive of the purchase tax, and ultimately it turned out that the tax was not payable, the pool sale dealers will be deprived of the benefit of the decision, in as much as the purchase tax element had not been separately shown in the minimum reserve price and they will therefore have no cause of action to get refund of the tax part of the amount. It was in these circumstances, and in order to be fair and equitable, both to the growers and the dealers, that the Board evolved the concept of contingency deposit. Thereby any verdict of the Supreme Court against the liability for tax will enable the dealers to take advantage of the decision by getting refund of the contingency deposit. On the other hand, if the verdict was adverse, upholding the liability, the contingency deposit will go in discharge of the tax liability without causing any prejudice to the growers. By this process, the pool sale dealers were protected with a possibility of getting refund of the contingency deposit, if the Supreme Court negated the liability for tax. At the same time, the growers were also safeguarded, as the fund available for payment to them will not in any manner be depleted by payment of the tax, if the liability for the tax was affirmed by the Supreme Court. What the Board did was therefore perfectly equitable, and just, to all the concerned parties. 21. As stated earlier, this concept of contingency deposit was arrived at after discussions with the pool sale dealers, and on the basis of their representation. That such discussions took place is evident from Ext. R1(b). May be, the petitioners by themselves were not parties. But, the fact remains that the pool sale dealers generally had agreed to the course. The Board had to have a uniform procedure adopted for all dealers. In any case, no consent of the petitioners was called for, though on the facts, I am inclined to feel that they had acquiesced in the procedure adopted, as mentioned herein below. 22. But, the fact remains that the pool sale dealers generally had agreed to the course. The Board had to have a uniform procedure adopted for all dealers. In any case, no consent of the petitioners was called for, though on the facts, I am inclined to feel that they had acquiesced in the procedure adopted, as mentioned herein below. 22. The Board had informed the dealers, by the circulars Exts.R1(a) and R1(d), about the necessity for this contingency deposit. There is no case for the petitioners that they demurred to the collection of the contingency deposit by the pool agents at the time of the delivery. On the other hand, the petitioners did make these deposits without any objection, obviously because they knew full well that it was necessary in their own interests. It is only after about two years after the deposit was introduced that the notice Ext.P4 was issued for the first time. I am therefore, inclined to infer acquiescence in the deposit on the part of the petitioners. 23. The Board's definite case is one of provision for the deposit at the instance, and at the request, of the dealers. That appears to be so, as stated earlier. If so, and if the Board has acted in accordance with the said agreement, the collection made by the Board is not open to challenge under Art.226. Even if it is an unauthorised collection, it is not collection of any illegal tax, for which proceedings for refund will lie under Art.226 read with Art.265. It is an amount deposited in the interests of the dealers themselves, and at their instance and request. The whole thing is consensual. 24. In any case, refund of the amounts so paid cannot be had in these proceedings under Art.226 because the whole thing lies in the realms of agreement and acquiescence. The petitioners' entitlement to the refund will depend upon investigation into questions of fact, particularly those raised by the respondents in their counter affidavits. It is not something to be decided based merely on the pleadings or upon an examination of the provisions of the Act. 25. Petitioners are riot therefore, entitled to get the declaration sought in elation to the contingency deposit. 26. So far as the sales tax collections are concerned, the Board had obviously committed an error in making such collections after April 1,1984. 25. Petitioners are riot therefore, entitled to get the declaration sought in elation to the contingency deposit. 26. So far as the sales tax collections are concerned, the Board had obviously committed an error in making such collections after April 1,1984. Any such collection should normally be refunded, but it is seen from the counter affidavits that the amounts have been paid over to the State as tax collected. The petitioners' entitlement to the amount will arise only if there is any amount remaining with the Board out of these sales-tax collections. No directions can therefore be issued in this regard. 27. Petitioners have another contention that the contingency deposit is in excess of the purchase tax due. Tax is payable on the purchase price, ie. on the amount payable by the Board to the growers. The contingency deposit is however collected on the bid amount which includes not merely the purchase price, but also other items like cost of storage, curing and marketing and others. The amount collected is therefore, stated to be much larger than what is due. This again is not liable to be canvassed in this original petition for the reason that the amount of the contingency deposit was fixed after discussion, and after considering the representation of the dealers. Nobody had any objection about the amount at that time. The petitioners themselves did not raise any objections about the collection for a long time This contention of the petitioners has also therefore to fail. 28. No other contentions are raised. I must observe that the conduct of the petitioners does not entitle them to any relief. The procedure of collecting the contingency deposit was evolved in the best interests of both the growers and the dealers, I should say, more in the interest of the dealers and to protect their interests. The Board would well have been justified in implementing their scheme to jack up the minimum reserve price so as to include the purchase tax element as well, which would have deprived the dealers, like the petitioners, of the opportunity of getting refund, even if the Supreme Court had struck down the liability for purchase tax. The Board acted fairly and equitably in the matter. The Board acted fairly and equitably in the matter. The claim of the petitioners, if accepted, will leave the Board to make payment of the tax out of the Pool Fund, thereby depriving the growers, whose interests have to be safeguarded, of amounts legally due to them. There is absolutely no equity or justice in the claim of the petitioners, which will only rob the growers of their dues, to the unjust enrichment of the petitioners. Such an avaricious attitude on the part of the dealers is only to be deprecated. I dismiss the original petitions. Dismissed.