Constitution of India, 1950, Art. 32-Laches Fundamental right- Effect on.

Petition under Art. 226 Contention raised that provision of law is ultra vires as violating fundamental rights Contention nos considered but petition dismissed in limine Order of High Court if res judicata, in 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- dition, the sales tax officer forfeited the sum under s. 21(4) of the Bom- bay Sales Tax Act, 1953, by order dated March 17, 1958. On March 28, the petitioners 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 Kantilal Babulul v. H. C. Patel, 21 S.T.C. 174 ($.C.) struck down s. 12A(4) of Bombav 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 assumption that s. 21(4) of the 1953-Act in also liable to be struck down on the same ground, on February 9, 1968, 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 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 laches; and (2) Whether the petition is barred by res judicata in view of the decision of the High Court.