STATE OF UTTAR PRADESH Vs. KANHAIYA LAL MAKUND LAL SARRAF
LAWS(ALL)-1955-12-6
HIGH COURT OF ALLAHABAD
Decided on December 01,1955

STATE OF UTTAR PRADESH Appellant
VERSUS
KANHAIYA LAL MAKUND LAL SARRAF Respondents

JUDGEMENT

Mootham, C.J. - (1.) This is an appeal from an order of Chaturvedi J. dated 30-11-1954. The respondent firm is a dealer in bullion and in gold and silver ornaments, and as part of its business it entered into forward contracts in silver. In respect of such contracts it was assessed to Sales Tax for the years 1948-49, 1949-50 and 1950-51 in the sums of Rs. 150/12/-, Rs. 474/- and 741/- a total of Rs. 1,365/12/- and these amounts were duly paid. In 1952 this Court held in -- 'Budh Prakash Jai Prakash v. Sales Tax Officer, Kanpur', AIR 1952 All 764 (A), that the provisions of the U. P. Sales Tax Act purporting to impose a sales tax on forward contracts were ultra vires -- a decision later upheld by the Supreme Court in the --'Sales Tax Officer Pilibhit v. Budh Prakash Jai Prakash', AIR 1954 SC 459 (B) -- and thereupon the respondent firm applied to the Commissioner of Sales Tax U. P., for a refund of the aforesaid sum of Rs. 1,365/12/-. A refund was refused, and the respondent firm filed the petition out of which this appeal arises praying for the issue of a writ of mandamus requiring the Sales Tax Officer, the Commissioner of Sales Tax and the State Government to refund the sum of Rs. 1,365/12/-. Before the learned Judge the liability of the State Government to repay this amount does not seem to have been seriously opposed, and the writ sought for, was directed to issue.
(2.) The opposite parties to the petition now appeal, and it is argued by the Advocate General of their behalf that the amount in dispute was paid by the respondent firm under a mistake of law and is therefore irrecoverable. The Advocate General also stated categorically that in this appeal he did not contend that the respondents ought to have proceeded for the recovery of the amount claimed by them otherwise than by way of a petition under Article 226 of the Constitution.
(3.) The respondent firm contended that the principle upon which the Advocate General relies has no application in India; it founds its claim on Section 72, Indian Contract Act which provides that A person to whom money has been paid" or any-thing delivered, by mistake or under coercion, must repay or return it." To this the Advocate General replies that the State Government is not a "person" within the meaning of this section and that the mistake to which the section refers must be a mistake of fact.;


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