( 1 ) THE point of law requiring adjudication in this petition is stated to be covered by Single Bench judgments of this Court in 'm/s. Rajatha Enterprises v. Commissioner, Corporation of City of Bangalore' (ILR 1996 Karnataka 1772) and 'j. Suresh v. Corpn. of City of Bangalore', ILR (1996) Karnataka 2430 : (1997 AIHC 783 ). Apparently agreeing with the submissions of the learned counsel for the petitioner to the effect that in view of the judgment of the Supreme Court in 'bhagwant Rai v. State of Punjab, AIR 1996 SC 95 , the law laid down by this Court in the earlier mentioned two judgments may not be correct, the learned single Judge felt it proper to refer this matter to the Division Bench for authoritative pronouncement. ( 2 ) ). In order to determine the plea of law it is necessary to have a resume of facts. The petitioner firm is stated to have taken the premises bearing Municipal Corporation No. 381/2 located at Sampige Road, Malleswaram, Bangalore on a long term lease of 40 years vide registered lease deed dated 27-3-1975. The old building was demolished by the lessee and a new building was constructed allegedly at the cost of Rs. 1,25,000/ -. After execution of the lease deed and construction of new premises, the petitioner firm is stated to have filed an application before the respondent - Corporation for assessment and determination of the annual rental value (ARV) of the premises. It is submitted that the respondent Corporation determined the ARV ignoring the law laid down by this Court with the result that the petitioner firm was subject to tax liability to the extent to which it was not liable. According to the petitioner, their tax liability is to the extent of Rs. 1,922/- per annum whereas, the Corporation was demanding Rs. 24,071. 25 which included the cesses of Rs. 5,696. 25. It is contended that against ARV of Rs. 7,500/-, the respondent corporation has determined the same at Rs. 73,500/- without following the principles of natural justice and mandatory provisions of law. The ARV is stated to have been enhanced from Rs. 45,750/- to Rs. 73,500/- vide notice dated 10-9-87. It is contended that after the original construction of the building during the year 1977-78, the petitioner had not made any addition to the building which could justify the enhancement of the ARV. The ARV is stated to have been enhanced from Rs. 45,750/- to Rs. 73,500/- vide notice dated 10-9-87. It is contended that after the original construction of the building during the year 1977-78, the petitioner had not made any addition to the building which could justify the enhancement of the ARV. The petitioner submits that property tax had been paid all along as demanded under a bona fide belief that the Corporation authorities were levying the tax in accordance with the provisions of law. Petitioner came to know through their counsel only in February, 1992 that the tax being paid by them was not in accordance with law. Immediately thereafter, the petitioner vide its letter dated 5-2-1992 called upon the respondent to revise the ARV and redetermine the tax in accordance with the provisions of law. Till the date of the filing of the writ petition, the respondent is stated to have collected the sum of Rs. 1,73,286/- towards property tax and cesses. According to the petitioner, the Corporation is liable to refund a sum of Rs. 1,54,066/- which is alleged to have been collected in excess. The respondent is alleged to have acted in violation of the provisions of Article 141 of the Constitution of India. Action of the respondent is also termed to be against the provisions of Sec. 66 of the Karnataka Municipal Corporations Act. It is further submitted that the Assistant Revenue Officer had no jurisdiction to issue notices or special notices for determining the ratable value of the building. The petitioner has prayed that a direction be issued to the respondent to refund all the taxes allegedly collected illegally and unauthorisedly. It is further submitted that the respondent be directed to determine the ratable value of the building in accordance with the provisions of the Karnataka Rent Control Act or in the alternative restrict the ARV of the building at Rs. 7,500/- as is claimed to have been determined by the petitioner under Annex-B attached with the petition. The petitioner has also prayed for payment of interest at the rate of 15% per annum on the alleged excess amount recovered by the respondent. ( 3 ) IN the statement of objections filed on behalf of the respondent it is submitted that the present petition suffers from inordinate delay and lacks bona fide. The petitioner has also prayed for payment of interest at the rate of 15% per annum on the alleged excess amount recovered by the respondent. ( 3 ) IN the statement of objections filed on behalf of the respondent it is submitted that the present petition suffers from inordinate delay and lacks bona fide. The tax on the building, in dispute, is stated to have been levied on the basis of actual rents received by the petitioner. The petitioner is stated to be receiving a rent of Rs. 7,350/- per month from the various tenants, and is therefore liable to pay the tax accordingly. The petitioner had earlier been assessed the property tax on the annual rental value of Rs. 40,750/- which was enhanced to Rs. 73,500/- with the result that the property tax liability was fixed at Rs. 19,257/- with effect from 1-4-87. Appeal filed by the petitioner was rejected and the ARV fixed by the Corporation was confirmed. Petitioner paid the property tax up to 1991 admitting the ARV of the property being Rs. 73,500/- without protest or prejudice. The petitioner is alleged to have been filed on frivolous grounds. The ARV cannot be determined according to the actual rents received or receiveable. The respondent Corporation claims to be only service oriented organisation rendering its services to the citizens of Bangalore and the main source of revenue is by way of property tax. It is claimed that the property tax collected from the petitioner was according to law and under the provisions of the Act. The petitioner is stated to be not entitled to the refund of any amount. ( 4 ) WE have heard the learned counsel for the petitioner at length and perused the record. No one has appeared for the respondent despite awaiting for a number of days. ( 5 ) IN view of the reference made by the learned single Judge vide his order dated 16-1-98, the present petition can be held to be having two facets, i. e. , (I), the legal aspect regarding the validity of the earlier judgments of this Court in the light of the Supreme Court judgment in Bhagwant Rai's case ( AIR 1996 SC 95 ) (supra) and (II) whether despite adjudication of the question of law, the petitioner is entitled to any relief in the present petition. We propose to take the question of law first. We propose to take the question of law first. ( 6 ) IN Rajatha Enterprises case (ILR (1996) Karnataka 1772) (supra), the learned single Judge of this Court referred to various provisions of the Karnataka Municipal Corporations Act a number of judgments of the apex Court and of this Court on the point and concluded that the fair rent can play as a measure for determining the property tax only if the property in respect of which the property tax is to be assessed is admitted to be subject to the rent control legislation. It was held that if it was found that the rent control statute was not applicable in an area where the property is located or there was no restriction on fixation of the rent in respect of any building, then the rent payable in respect thereof will be the contractual rent only, may be hypothetical or actual. It was concluded that Part-III of the Rent Act which provides for fixation of fair rent does not apply to buildings constructed after 1-8-1957 which includes part/s thereof like different floors for a period of five years from the date of construction of such building. ( 7 ) HOWEVER, In J. Suresh's case (1997 AIHC 783) (supra), the same learned single Judge concluded that under the provisions of the law applicable, the basis of the property tax would be the rental value according to the books of local authority irrespective of the fact as to whether the property was subject to and governed by the provisions of the rent control legislation. Clarifying the position, the learned single Judge held :"from bare reading of the said provision, it is clear that the fair rent of a building like the present one which was constructed after 1st of April, 1947, has to be determined by taking into consideration the rental value of the building as entered in the property tax assessment book of the local authority for the year in which the building was constructed. Therefore, even in the 6th and the subsequent years of completion of construction of the building, the ARV will remain the same because under the Rent Control Act, the fair rent has to be based only on the ARV. Therefore, the fair rent and the ARV have to remain the same. Therefore, even in the 6th and the subsequent years of completion of construction of the building, the ARV will remain the same because under the Rent Control Act, the fair rent has to be based only on the ARV. Therefore, the fair rent and the ARV have to remain the same. I may notice here that the measures provide for determination of fair rent under the proviso to sub-section (6) of Section 14 cannot be resorted to in the present case because those measures can be adopted only in a case where no records of the local authority showing determination of rental value are available. But in the present case, the said records are very much available. " ( 8 ) IN the various authorities of the Apex Court cited at the Bar, it has been held that the standard or the fair rent determinable under the provisions of the rent laws and not the actual rent received by the landlord was the correct measure to determine the ratable value of the building. In 'dr. Balbir Singh v. M/s. M. C. D. , AIR 1985 SC 339 , the Supreme Court held :"the rateable value of a building whether tenanted or self occupied, is limited by the measure of standard rent arrived at by the assessing authority by applying the principles laid down in the Rent Act and cannot exceed the figure of the standard rent so arrived at by the assessing authority. The standard rent determinable on the principles set out in the Rent Act is the upper limit of the rent which the landlord may expect to receive from a hypothetical tenant, but it may in a given case be less than the standard rent having regard to various attendant circumstances and considerations. If, for example, the building is not in a proper state of repair or is so situate that it has certain disadvantage from the point of view of easy accessibility or means of transport or any other similar cause, the actual rent which the owner may reasonably expect to receive from a hypothetical tenant may be less than the standard rent determinable on the principles laid down in the Rent Act. The test therefore is not what is the standard rent of the building but what is the rent which the owner reasonably expects to receive from a hypothetical tenant and such reasonable expectation can in no event exceed the standard rent of the building determinable in accordance with the principle laid down in the Rent Act, though it may in a given case be lower than such standard rent. " ( 9 ) THE Supreme Court again in Bhagwant Rai's case ( AIR 1996 SC 95 ) (supra) dealt with the same point and after relying upon its earlier judgments in 'diwan Daulat Rai Kapur v. New Delhi Municipal Committee', AIR 1980 SC 541 ; 'mrs. Shiela Kaushish v. CIT, AIR 1981 SC 1729 ; 'new Delhi Municipal Committee v. M. N. Soi', AIR 1977 SC 302 and Balbir Singh's case ( AIR 1985 SC 339 ) (supra) concluded :"thus, it is settled law that the actual rent received from a tenant is not the measure for determination of the annual ratable value but the reasonable standard rent expected to be received under the relevant Rent Act. The view taken by the authorities is, therefore, clearly illegal. " ( 10 ) ON the basis of various pronouncements and after going through the provisions of the Act and rent control legislation, we are of the opinion that the law laid down by this Court in Rajatha Enterprises' case (ILR (1996) Karnataka 1772) on the issue requiring our adjudication is the correct position of law. However, we feel that the learned single Judge was not correct in taking a different view in 'j. Suresh's case (1997 AIHC 783) and holding that notwithstanding the applicability of the provisions of rent control legislation an owner would be liable to pay tax on the ARV determined on the basis of actual rent received. ( 11 ) THE correct position of law is that in a case where it is admitted that the rent control Act is applicable to a building, the ARV would be determined on the basis of the hypothetical rent which the landlord can reasonably be expected to receive under such rent Act. In that case, the actual rent received by the landlord is not material. In that case, the actual rent received by the landlord is not material. The ratable value of the building, whether tenanted or self occupied shall be deemed to be determinable by the measures of standard rent arrived at by the assessing authority by applying the principle laid down in Rent Acts which cannot exceed the standard or fair rent so arrived; and the standard or the fair rent determinable on the principle set out in the rent laws would be the upper limit of the rent which the landlord may expect to receive from a hypothetical tenant. The applicability of the standard and fair rent shall however not be resorted where it is established that the building in dispute was not subject to the provisions of the rent control statutes. In that event, the actual rent received by the landlord shall be the basis for determining his tax liability. We are, therefore, of the opinion that the law laid down in J. Suresh's case (1997 AIHC 783) is not correct law. ( 12 ) PRAYING for refund of the alleged extra tax paid by the petitioner, the learned counsel has relied upon the judgments in 'salonah 'diwan Daulat Rai Kapur v. New Delhi Municipal Committee', AIR 1980 SC 541 ; 'mrs. Shiela Kaushish v. CIT, AIR 1981 SC 1729 ; 'new Delhi Municipal Committee v. M. N. Soi', AIR 1977 SC 302 dr. Balbir Singh v. M/s. M. C. D. , AIR 1985 SC 339 in Mahabir Kishore's case, the Supreme Court held that a tax paid under mistake of law was refundable under Sec. 72 of the Contract Act and in Salonah's case, the Court observed that normally in a case where tax or money is realised without the authority of law, the same should be refunded and the Court in appropriate cases can direct the refund unless there has been avoidable laches on the part of the petitioner. In Salonah Tea Company's case, the Court posed a question as to whether in a case where the tax shown to have been paid in excess, should a direction be issued requiring the refund of the amount in question, and observed :"courts have made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc. Normally speaking in a society governed by rule of law taxes should be paid by citizens as soon as they are due in accordance with law. Equally, as a corollary of the said statement of law it follows that taxes collected without the authority of law as in this case from a citizen should be refunded because no State has the right to receive or to retain taxes or monies realised from citizens without the authority of law. "it was further held :"we agree that normally in a case where tax or money has been realised without the authority of law, the same should be refunded and in an application under Art. 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause any injury either to respondent or any third party. It is true that in some cases the period of three years is normally taken as a period beyond which the Court should not grant relief but that is not an inflexible rule. It depends upon the facts of each case. In this case, however, the High Court refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed. It depends upon the facts of each case. In this case, however, the High Court refused to grant the relief on the ground that when the section was declared ultra vires originally that was the time when refund should have been claimed. But it appears to us, it is only when the Loong Soong case was decided by the High Court in 1973 that the appellant became aware of his crystal right of having the assessment declared ultra vires and in that view of the matter in October, 1973 when the judgment was delivered in July, 1973 the appellant came to know that there is mistake in paying the tax and the appellant was entitled to refund of the amount paid. That was the time when the appellant came to know of it. Within a month in November, 1973 the present petition was filed. There was no unexplained delay. There was no fact indicated to the High Court from which it could be inferred that the appellant had either abandoned his claims or the respondent had changed his position in such a way that granting relief of refund would cause either injury to the respondent or anybody else. On the other hand, refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice, equity and good conscience. We are, therefore, of the view that the view of the High Court in this matter cannot be sustained. " ( 13 ) THE settled position of law is that a litigant can not be allowed to utilise the writ jurisdiction for the enforcement of contractual obligations or for the recovery of the amounts allegedly illegally received. A distinction has to be made where the money would be refundable as a consequence of declaration and a case where the main relief itself is that of the refund of money paid allegedly in excess of the tax liability. In appropriate cases, the Court may mould the relief and direct the recovery of such amount which could be recovered under the general law, keeping in view the provisions of the limitation Act. Sec. 72 of the Contract Act casts a duty upon a person to repay that money which is paid to him by mistake or under coercion. In appropriate cases, the Court may mould the relief and direct the recovery of such amount which could be recovered under the general law, keeping in view the provisions of the limitation Act. Sec. 72 of the Contract Act casts a duty upon a person to repay that money which is paid to him by mistake or under coercion. It is a settled rule of equity that any person bound in a fiduciary character to protect the interests of another should not put himself in a position where his interest and duty conflict. If by availing himself of his position or entering into any dealing under the circumstances in which his interests are adverse to those of such other persons, he must hold for the benefit of such other persons the advantage so gained and on proof of the fact that he was not entitled to what he had gained on account of his position should refund such benefits, particularly, when such benefits are pecuniary in nature. Sec. 72 obliges a person to refund what has been received by him by mistake or under coercion. Every sum paid under a mistake is not recoverable unless the circumstances of the case so warrant. There may be circumstances which disentitle a person to demand refund by applying the principles of estoppel, laches or lack of bona fide. It is not the case of the petitioner that when he paid the amount, he was under any mistake of fact or law or that the amount paid was the result of coercion. The only plea raised is that on a proper interpretation of the provisions of law, the respondent Corporation was not justified in demanding the amount of tax on the basis of the liability ascertained by not applying various judgments of the Supreme Court despite the fact that the action of recovery effected had been held legal and approved even by the appellate authorities. ( 14 ) LITIGATION cannot be allowed to be treated as a profession as has been tried to be done in the instant case. The amount recovered is stated to have been utilised by the respondent Corporation for the welfare of the people. We are further of the view that the petitioner has failed to explain the delay and laches in approaching the Court. The amount recovered is stated to have been utilised by the respondent Corporation for the welfare of the people. We are further of the view that the petitioner has failed to explain the delay and laches in approaching the Court. The only fact that he got legal advice at a belated stage cannot be permitted to be made a basis for condoning the delay in approaching the Court. However, keeping in view the fact that the law with respect to the liability of the petitioner has been determined in his favour, we are of the opinion that the ends of justice would be met if the refund of amount is restricted only for a period of three years. ( 15 ) UNDER the circumstances, the writ petition is partly allowed by holding that after the applicability of the Rent Control Act, the petitioner was liable to pay property tax at the annual rental value to be assessed by hypothetically applying the principles of the Karnataka Rent Control Act and not on the basis of actual rent received. While confirming the judgment of the learned single Judge in M/s. Rajatha Enterprises's case (ILR (1996) Karnataka 1772) and not approving the judgment in J. Suresh's case (1997 AIHC 783), we direct the authorities to reassess the tax liability of the petitioner on the assumptionof the applicability of the Karnataka Rent Control Act, the standard rent being the basis for determining the tax liability and refund to the petitioner the excess of the tax received if any for a period of three years prior to the year 1992 when the petitioner filed this petition. If, after determination of his entitlement, the excess amount is not paid to the petitioner within a period of two months, he is held entitled to the payment of interest of 12% p. a. from the date of this judgment till the amount is actually paid to him. No costs. Petition partly allowed. --- *** --- .