Judgment:
Ashok Agarwal, J.
1. The petitioner carries on business of manufacturing and processing textile goods. It has two textile units, one at Jacob Circle and another at Gokhale Road. The said units have been supplied water by the respondent through separate water connections. Since the supply of water was initially measured by means of water meters the charges for the water supply was on the basis of actual meter readings.
2. The respondent, in pursuance of the powers vested in it under section 461(b) of the Bombay Municipal Corporation Act (hereinafter, for the sake of brevity, referred to as 'the Act'), framed bye-laws for the regulation, supply and use of water which, inter alia, contained provisions for the fixation of quota of water to be supplied. In pursuance of bye-law 34-A maximum quota of water to be supplied to the petitioner was fixed by the respondent from time to time. The said bye-law 34-A enjoins that no consumer to whom an order made under bye-law 34-A applies shall consume water in excess of the maximum quantity permissible under the said bye-law. Bye-law 34-C in so far as is relevant, prescribes as under :
'If any person contravenes any of the provisions of this Bye-law, Municipal Commissioner may, by order, take action under all or any of the following paragraphs, namely: (a) To charge such person penal water rates for water drawn in excess of the maximum quantity permissible under this bye-law, at such rates not exceeding 20 times the normal rate as he may deem fit.
3. The respondent in exercise of the powers conferred by section 169 and 276 of the Act framed Rules. The respondent has framed Water Charges and Sewerage and Waste Removal Rules, 1976. Rule III (d)(i) provides as follows :
'In the case of industries for which a quota of water has been fixed, if the recorded or computed consumption falls short of 9/10th of the quota of water for any month the consumption equal to 9/10th of the quota of water shall be charged .'
4. Bills were presented to the petitioners on the basis of the aforesaid Rule III (d)(i) and Bye-law 34-C. The respondent issued a Notice of Demand dated 9th January, 1980 calling upon the petitioner to make payment of a sum of Rs. 92,032/- in respect of the bills which had not been paid. The petitioner challenged the said Notice of Demand by filing the Writ Petition No. 407 of 1980. The writ petition came to be dismissed by a learned Single Judge. The petitioner carried the matter in appeal. The appeal was heard alongwith other similar matters including the petition filed by one Nagpal Printing Mills. By an order dated 16th September, 1987 the Appeal Court was pleased to hold that Rule III (d)(i) was ultra vires the provisions of section 169 of the Act and was liable to be struck down. The impugned notice of demand was struck down and the respondent was restrained from disconnecting the water supply on the ground of failure to make payment of water charges computed on the basis of the said Rule. The said judgment is reported in : AIR1988Bom91 M/s. Nagpal Printing Mills and another etc. v. Municipal Corporation of Greater Bombay and another. The respondent carried the matter to the Supreme Court by filing Special Leave Petition No. 13154 of 1987 whereunder the petition was dismissed and it was held that the Appeal Court was justified in striking down the said Rule III (d)(i). The judgment of the Supreme Court is reported in : [1988]3SCR274 , Municipal Corporation of Gr Bombay v. Nagpal Printing Mills and another. In the judgment the Supreme Court has observed to the following effect.
Rule 3(d)(i) empowers the Corporation to levy charge only in respect of water that has in fact been supplied to and consumed by the consumer and it is to be levied on the basis of measurement of estimated measurement. This has been conferred by the terms of section 277 of the Act. It is only that supply which can be measured. Where the measuring device has failed to record the correct consumption, it may be estimated. But that must be on sound guidelines otherwise it would be arbitrary and mere ipse dixit of the authorities concerned. The bye-laws made in 1968 by the Corporation empower the Commissioner to fix a quota. But no guideline is indicated. That is bad and unwarranted.
The supply referred to in section 169 of the Act, is a supply which is, in fact, supplied to the consumer and consumed by it. It is only that supply which can be measured. Where the measuring device has failed to record the correct consumption it may be estimated. The circumstances in which the measuring device could be said to have failed, the modes of estimation in such circumstances are provided for by Rule III(a),(b) and (c) of the Water Charges Rules. The Corporation cannot estimate and charge on the basis of water it makes available for use by a consumer. There is no warrant for such a construction. Therefore, there being no methodology in Rule III (d)(i) of the Water Charges Rules for measuring the actual water supply, that rule is beyond the powers of the Corporation and would be liable to be struck down.
5. In so far as Bye-law 34-C is concerned the same was the subject matter of consideration by the Division Bench of this Court in the case of Bharat Barrel and Drum Mf. Co. Pvt. Ltd. and another v. Municipal Corporation of Greater Bombay and another, reported in 1988 Maharashtra Law Journal, page 665. In the said case the Bye-law has been struck down by making the following observations ;
'Bye-law No. 34-C of the Water Bye-laws which came to be inserted with effect from 1st April, 1969 made in exercise of the power under section 461(b) of Bombay Municipal Corporation Act which purports to confer discretion on Municipal Commissioner to take action under all or any of the paragraphs, i.e. (a) to (c) is invalid and ultra vires. No guidelines or principles are indicated for exercise of discretion. No provision for issue of a show cause notice upon the person against whom penal action may be taken has been made. A person upon whom penal action under the different paragraphs of Bye-law 34-C may be taken has no opportunity to make representation against penal action. The administrative guidelines given by the Commissioner cannot cure the fatal infirmities in Bye-law 34-C. The Commissioner has no power to frame rules under section 461 and by issuing administrative directions he cannot prescribe the penal water rates. Special provision concerning water taxes and charges are governed by section 169 and have got to be prescribed only by the Standing Committee. The provision of section 461(b) which used the expression 'regulating all matters and things.....' has to be read as meaning 'except as otherwise provided elsewhere in the Act itself'. There is no limitation put upon the rule making power of the Standing Committee under section 169 and the said power is not confined merely to the charges levied for water consumption below the maximum quantity which may be fixed. The provisions of section 461(b) and the provisions of section 169 do not deal with the same subject or operate in the same field but are mutually exclusive. Corporation cannot make a demand for payment of penal charges on account of alleged consumption of water in excess of quota prescribed for particular premises.'
6. In view of the judicial decisions in respect of the aforesaid Bye-law and the rule, the petitioner has on 28th January, 1989 presented the present petition claiming refund in respect of various amounts collected by the respondent under the said provisions. The petitioner has annexed at Exhibits A-1 and A-2 a summary of water charges recovered by the respondent for under consumption under Rule III(d).
The petitioner has annexed at Exhibit-E, a summary of the water charges recovered for over-consumption on the basis of Bye-law 34-C. The petitioner before filing the present petition by its letters dated 12th September, 1988 and 19th September, 1988 claimed refund from the respondent. No reply was received and hence the petitioner filed the present petition. It cannot now be disputed that the said Rule III(d) and Bye-law 34-C are ultra vires and hence the levy of water charges imposed by the respondent on the petitioner, on the basis of the said Rule and Bye-law, is without the authority of law. The petitioner has approached this Court for refund of the levy which has been illegally collected.
7. Mr. Shroff the learned Counsel appearing on behalf of the petitioner has contended that the moment the levy of water charges on the basis of the aforesaid provisions, which have been struck down as ultra vires is found to have been collected without the authority of law, the petitioner is entitled to refund. Mr. Shroff has placed reliance on several judgments in support of his claim. In Hindustan Ciba Geigy Limited v. Municipal Corporation of Greater Bombay, Writ Petition No. 2278 of 1988, my learned brother Tipnis J., by his judgment and order dated 3rd May, 1991 in circumstances similar to the ones arising in the present petition has held that the petitioner in that case is entitled to refund. This is what was observed by Tipnis, J.:
'In so far as the facts before me are concerned, admittedly, the rule under which the Corporation recovered the water charges was struck down as invalid. As such, the respondent at no time had authority of law to recover the charge.'
Repelling the contentions advanced on behalf of the respondent in respect of unjust enrichment, the learned Judge observed :
'Firstly, there is absolutely no material on record to suggest that these charges were included in the price and were in fact recovered from the ultimate consumers.'
The learned Judge preferred the judgment of the Full Bench of this Court in New India Industries Ltd. v. Union of India, 1990 (4) E.L.T. 23 Bom, and found that except a bald statement that the petitioner had passed on the burden to the ultimate consumers, there is hardly any material to substantiate the said plea of unjust enrichment. As a matter of the fact, in the facts and circumstances of the case, it is very difficult even to broadly determine whether the burden in fact is shifted to the consumer and if so, to whom and in what proportion. Pursuant to the said findings, the right to refund was upheld.
8. The above judgment was carried by the respondent in Appeal, (Appeal Lodging No. 512 of 1991) and the Appellate Court Coram: P.D. Desai, C.J. and K. Sukumaran, J., by an order dated 27th June, 1991 dismissed the appeal summarily.
9. In the case of Bombay Tyres International Ltd. and another v. Municipal Corporation of Greater Bombay, Writ Petition No. 2415 of 1984 my learned brother S.P. Kurdurkar J., in similar circumstances, has granted a relief of refund. In regard to the objections raised on behalf of the respondent for refund, this is what Kurdurkar, J., has observed :
'Mr. Dalal, learned Counsel for the first respondent urged that there was enormous delay on the part of the petitioners in approaching this Court. He, therefore, urged that this Court may not interfere on such belated action. This submission has no substance because the bill in respect of January to September 1977 were served sometime in the year 1981 claiming penalty of Rs. 93,582/- for under consumption. The present writ petition was filed in the year 1984. Once it was concluded that the first respondent had no power to recover penalty charges for under consumption of water, the delay of 3 or 4 years would not be fatal to the merits of the petition.
'It was then urged by Mr. Dalal that the petitioners by their conduct accepted and paid the bill of Rs. 1,20,207/- for the period October 1977 to March 1981, and, therefore, the bill is binding upon them. This submission again does not appeal to me because the first respondent has no power to recover any penalty charges for under consumption.'
'Lastly it was contended by Mr. Dalal that no relief of refund should be granted to the petitioners as it would amount to unjust enrichment. This submission again has no force in the facts and circumstances of the present case.'
10. The respondents carried the above judgment by filing a direct Special Leave Petition to the Supreme Court. However on a notice of motion being taken out the respondents made refund to the petitioners therein.
11. In addition to the above case, Mr. Shroff relied upon the case of State of Madhya Pradesh and another v. Bhailal Bhai and others, reported in : [1964]6SCR261 , wherein it is observed as follows :
'Where sales tax, assessed and paid by the dealer, is declared by a competent Court to be invalid in law, the payment of tax already made is one made under a mistake within section 72 of the Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. In this respect, the High Court has, in exercise of its jurisdiction under Article 226 of the Constitution of India, power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.
'At the same time the special remedy provided in Article 226 is not intended supersede completely the modes of obtaining relief by an action in a Civil Court or to deny defence legitimately open in such actions. The power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where a person comes to the Court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the Court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may, however, be stated as a general rule that if there has been unreasonable delay the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima face triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a Civil Court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
'The provisions of the Limitation Act do not as such apply to the granting of relief under Article 226. However, the maximum period fixed by the Legislature as the time within which the relief by a suit in a Civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than the period, it will almost always be proper for the Court to hold that it is unreasonable.'
12. Mr. Shroff then placed reliance in the case of Salonah Tea Company Ltd. v. The Superintendent of Taxes, Nowgong and others, reported in : 1988(33)ELT249(SC) , wherein it was observed in the following terms :
'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 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.
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 Article 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.'
13. Mr. Shroff next relied on the case of HMM Ltd. and another v. The Administrator, Bangalore City Corporation, Bangalore and another, reported in : 1997(91)ELT27(SC) wherein the Supreme Court observed thus:
'We see no ground as to why amount should not be refunded. Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the Municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no scope of any possible dispute on the plea of undue enrichment of the petitioner. We are, therefore, of the opinion that the Division Bench was in error in the view it took. Where there is no question of undue enrichment, in respect of money collected or retained, refund, to which a citizen is entitled, must be made in a situation like this.'
14. Placing reliance on the above decisions, Mr. Shroff contended that the petitioner is entitled and the respondent is obliged to refund the water charges recovered illegally and without authority of law.
15. Mr. Singhvi, the learned Counsel appearing for the respondent, has, however, contended that there can be no right to claim refund. Even if the levy is found to be unauthorised, the right of refund cannot follow automatically or as a matter of course. The petitioner has approached this Court under Article 226 of the Constitution which provides for a discretionary relief. It is not that in each and every case where an impost is found to be without the authority of law that an order of refund has to follow. Whether refund should be ordered or refused would depend upon the facts and circumstances of each case. It is ultimately a matter of discretion of a Writ Court whether to grant or to refuse the relief of refund.
16. Mr. Singhvi placed reliance in the case of M/s. Orissa Cement Ltd. v. State of Orissa and others, reported in : [1991]2SCR105 , wherein the Supreme Court observed as follows :
'We have given our earnest consideration to these contentions and we are of opinion that the ruling in India Cement concludes the issue. There the Court was specifically called upon to consider an argument that, even if the statutory levy should be found invalid, the Court may not given directions to refund the amounts already collected and the argument found favour with the Bench of seven Judges. We are bound by their decision in this regard. It is difficult to accept the plea that, in giving these directions, the Court overlooked the provisions of Articles 246 and 265 of the Constitution. The Court was fully aware of the position that the effect of the legislation in question being found beyond the competence of the State legislature was to render it void ab initio and the collections made thereunder without the authority of law. Yet the Court considered that a direction to refund all the cesses collected since 1964 would work hardship and injustice. The directions, now impugned, were given in the interests of equity and justice after due consideration and we cannot take a contrary view.
In our view, we need not enter into a discussion on the principles of prospective validation enunciated by at least some of the Judges in Golaknath, : [1967]2SCR762 (supra) as the direction in India Cement, can be supported on another well settled principle applicable in the area of the writ jurisdiction of courts. We are inclined to accept the view urged on behalf of the State that a finding regarding the invalidity of a levy need not automatically result in a direction for a refund of all collections thereof made earlier. The declaration regarding the invalidity of a provision and the determination of the relief that should be granted in consequence thereof are two different things and, in the latter sphere, the Court has, and must be held to have, a certain amount of discretion. It is a well-settled proposition that it is open to the Court to grant, mould or restrict the relief in a manner most appropriate to the situation before it in such a way as to advance the interests of justice. It will be appreciated that it is not always possible in all situations to give a logical and complete effect to a finding. Many situations of this type arise in actual practice. For instance, there are cases where a Court comes to the conclusion that the termination of the services of an employee is invalid, yet it refrains from giving him the benefit of 'reinstatement' (i.e. continuity of service) or 'back wages'. In such cases, the direction of the Court does result in a person being denied the benefits that should flow to him as a logical consequences of a declaration in his favour. It may be said that, in such a case, the Court's direction does not violate any fundamental right as happens in a case like this where an 'illegal' exaction is sought to be retained by the State. But even in the later type of cases relief has not been considered automatic. One of the commonest issues that arose in the context of the situation we are concerned with is where a person affected by an illegal exaction filed an application for refund under the provisions of the relevant statute or files a suit to recover the taxes as paid under a mistake of law. In such a case, the Court can grant relief only to the extent permissible under the relevant rules of limitation. Even if he files an application for refund or a suit for recovery of the taxes paid for several years, the relief will be limited only to the period in regard to which the application or suit is not barred by limitation. If even this instance is sought to be distinguished as a case where the Court's hands are tied by limitations inherent in the form or forum in which the relief is sought, let us consider the very case where a petitioner seeks relief against an illegal exaction in a writ petition filed under Article 226. In this situation, the question has often arisen whether a petitioner's prayer for refund of taxes collected over an indefinite period of years should be granted once the levy is found to be illegal. To answer the question in the affirmative would result in discrimination between persons based on their choice of the forum for relief, a classification which, prima facie, is too fragile to be considered a relevant criterion for the resulting discrimination. This is one of the reasons why there has been an understandable hesitation on the part of courts in answering the above question in the affirmative.
'So far as the present cases are concerned, it is difficult to point out that all the decided cases unmistakably show that, even where the levy of taxes is found to be unconstitutional, the Court is not obliged to grant an order of refund. It is entitled to refuse the prayer for good and valid reasons. Laches or undue delay or intervention of third party rights would clearly be one of those reasons. Unjust enrichment of the refunded may or may not be another. But we see no reason why the vital interests of the State, taken note of by the learned Judges in India Cement, , should not be a relevant criterion for deciding that refund should not be granted. We are, therefore, unable to agree with the learned Counsel for the petitioners that any different criterion should be adopted and that the direction in paragraph 35 of India Cement should not be followed in these cases.'
17. Mr. Singhvi next relied upon the case of Indian Aluminium Company Limited v. Thane Municipal Corporation, : AIR1992SC53 , wherein, following the decision of the Orissa Cement case (supra) the Supreme Court observed as follows :
'In the instant case the octroi duty paid by the petitioner-company would naturally have been passed on to the consumers. Therefore, there is no justification to claim the same at this distance of time and the Court in its discretion can reject the same.'
18. Mr. Singhvi next relied upon the case of The Federation of Mining Associations of Rajasthan and etc. v. State of Rajasthan and another, reported in : AIR1992SC103 , wherein the Supreme Court observed as follows :
'Counsel for the respondents has, however, rightly pointed out that the declaration of invalidity of the levies should only be prospective and not retrospective. Both in India Cement, as well an in Orissa Cement cases, : [1991]2SCR105 (supra), this Court has, for reasons discussed therein, declared similar legislations invalid only prospectively. In paragraphs 72 and 73 of the judgment in Orissa Cement case (supra), it has been held that the levy of such tax in a State should be declared to be unconstitutional only with effect from the date of the first judgment which declares the legislation to be invalid and not earlier. In the present case, since the High Court has upheld the levy and the levy is being declared unconstitutional only by this order, we direct that our declaration will take effect only from the date of this judgment. In other words, any tax collected under the statute so far need not be refunded by the State Government and if any amount of tax remains to be paid in respect of earlier periods, it will have to be paid by the assessee. However, as and from the date of this judgment, the impugned tax imposed by the Act in question will not be enforceable.'
19. Relying upon the above decisions Mr. Singhvi contended that the petitioner should not be awarded refund. According to Mr. Singhvi, the petition suffers from delay and latches. The petitioner had knowledge that the levy was illegal. It indeed challenged the levy by filing a writ petition. In the appeal the levy was held invalid. This, therefore, is not a case where the payments have been made under mistake of law. It is the case of the petitioner that payments were made under mistake of law. That case is not borne out. According to Mr. Singhvi payments have been made by the petitioner and the burden must have been passed on by the petitioner on its consumers. The parties have settled their positions and it would be unjust, in any event inequitable to order refund, especially when the said amounts have already been utilised by the respondents for meeting their public obligations. Mr. Singhvi emphasised that the aforesaid decisions lay down that any levy, which is recovered without the authority of law, is ordinarily required to be refunded. This, however, is not an hard and fast rule. Whether to grant refund or refuse it is a matter of discretion left to the Court, the discretion has to be exercised judiciously. It is to be based on facts and circumstances of each case.
19a. In my view the above case generally and broadly lay down that when a levy is found to have been recovered illegally without the authority of law the exchequer is bound to make refund. This however is not a hard and fast rule. There may be cases when the refund can be denied. There may be several reasons on which refund can be denied. Courts have only given some instances when refund can legitimately be denied. Courts have advisedly not embarked upon laying down exhaustive instances on which refund can be denied. The matter has been left to the discretion of the Court. The discretion has of course to be judicially exercised based on facts and circumstances of each individual case. No case can form a precedent in the matter of exercise of discretion. It will have to be decided on the particular facts of each individual case. I will now proceed to examine the facts of the present case in the light of the above observations and the decisions discussed herein above.
20. In the instant case the petitioner, in respect of one of its units, had received a notice of demand dated 9th January, 1980 claiming payment of water charges in a sum of Rs. 92,032/-. The payment was made placing reliance on Rule III(d)(i). The petitioner protested and challenged the Notice of demand by filing Writ Petition bearing No. 407 of 1980. The said writ petition was decided by a learned Single Judge some time in December, 1983. The petitioner carried the matter in appeal. The appeal was heard alongwith several other matters involving a similar point. The Appeal Court by its judgment and order dated 16th September, 1987 allowed the appeal and struck down Rule III(d)(i) M/s. Nagpal Ptg. Mills, Bombay and another v. Municipal Corporation of Gr. Bombay, : AIR1988Bom91 . In that case the petitioner had not made payment of the bills in dispute and hence the Appeal Court restrained the respondent from disconnecting the water supply on the ground that the petitioner had failed to make payment of the water charges computed on the basis of the said rule. The said judgment was carried in appeal to the Supreme Court by filing Special Leave Petition No. 13154 of 1987 and the same was dismissed by a judgment which is reported in : [1988]3SCR274 (supra). Though the petitioner was not a party to the Supreme Court proceedings, as far as it is concerned the matter was finally decided between it and the petitioner by the judgment of the Appeal Court which was decided on 16th September, 1981.
21. The petitioner has annexed at Exhibits A1 and A2 a summary of water charges bills paid by the petitioner for under consumption. The summary at Exhibit A-1 shows that the bills in question relate to the period 1984 and 1985. The total amount claimed is a sum of Rs. 59,346/- the summary at Exhibit A-2 shows that the period of bills relates to the years 1979 to 1986. The total amount of the bills comes to Rs. 4,83,174/-. At Exhibit-E the petitioner has given the summary of the bills for over consumption. The bills relate to a period from January 1976 to June 1987.The bills total to an amount of Rs. 40,596/-.
22. In my view, the present petition, which has been filed on 20th January, 1989, has been filed after undue delay. The petitioner knew and was in fact agitating that the levy is illegal and unauthorised. It has filed Writ Petition No. 407 of 1980. Despite pendency of the challenge, the petitioner has made payments and that too without a murmur, and without raising objections. If the challenge of the petitioner was pending nothing prevented the petitioner form taking timely action of filing a petition when the levy was imposed, and from obtaining a restraint from recovering. The petitioner could have atleast done so after the issue was decided in its favour in appeal which was decided on 16th September, 1987. The petitioner kept mum and took no action till 20th January, 1989 when the present petition was filed. The explanation offered by the petitioner is that the Bombay Mill Owners' Association by its letter dated 3rd August, 1988 brought to its notice the decision of the Supreme Court reported in : [1988]3SCR274 (supra). I do not find the said explanation convincing as the petitioner was not a party to the appeal before the Supreme Court. As far as it was concerned the issue was finally decided between it and the respondent by a judgment of Appeal Bench of this Court on 16th September, 1987. Despite the judgment, the petitioner did not approach this Court expeditiously. I, therefore, find that the claim suffers from vice of latches. However, in my view, the petitioner can be granted refund of the claim which is within the period of limitation, and not the claim in respect of the amounts computed and recovered prior to the period of three years of the date of the filing of the petition. The petition, in the instant case, is filed on 28th January, 1989. Hence the petitioner is not entitled to refund in respect of any of the bills mentioned in Exhibit A-1 to the petition inasmuch as the bills pertain to a period between January 1984 and May, 1985. Since the said claim is beyond the period of three years the said claim would not be available to the petitioner even if he were to have filed a suit. The said claim, therefore, stands rejected.
23. In so far as the claim in Exhibit-A2 is concerned, it relates to a period between July 1979 and December, 1986. On a parity of reasoning, which I have already given, the petitioner will be entitled to refund only in respect of payments made after 21st January, 1989. As regards the bills mentioned at Exhibit-E to the petition are concerned the bills at Item Nos 1 and 2 relate to the period from January 1976 to June 1976. The said claim is rejected as time barred. The bills at Serial No. 3 pertain to a period April 1987 to June 1987. These are within the period of limitation. The petitioner will be entitled to refund of the same.
24. In the result, the petition partly succeeds. The respondents are directed to compute the amount which the petitioner will be entitled in terms of the present order and make refund to the petitioner. This be done within a period of six weeks from the date of the petitioner producing material before the respondent in regard to payments. In the event of there being delay beyond the aforestated period, the refund will carry interest at 18%.
25. The Rule is made partly absolute in the above terms. In the circumstances of the case, there shall be no order as to costs.
Expedite the issue of certified copy.