G.C.MATHUR, J. - (1.) THE Municipal Board, Kanpur, had been levying, from before coming into force of the Constitution, terminal tax upon the import or export of certain commodities, at specified rates. From 1st Jan., 1960, the Municipal Board was replaced by the Nagar Mahapalika, Kanpur. By a notification dt. 15th Jan., 1960, published in the U. P. Gazette dt. 16th Jan., 1960, the Nagar Mahapalika enhanced the reter of terminal tax. On 18th May, 1970, the respondent filed a writ petition in this Court challenging the notification enhancing the rates of terminal tax on the ground that after the coming into force of the Constitution it was no longer permissible for the Nagar Mahapalika to impose terminal tax, as under the Constitution the jurisdiction to levy this tax had been given to the Union of Indian. The writ petition was allowed by Gulati, J. on 11th Oct., 1971. The operative part of his judgment reads thus :- "The petitioner has also prayed for a refund. There is no doubt that the petitioner is entitled to the refund of the Tribunal Tax which it has paid in excess. The petitioner shall, however, apply to the Nagar Mahapalika for the refund of the excess payment made by it towards the Tribunal Tax and the Nagar Mahapalika would refund the excess amount subject to such objections as regards limitation etc. as may be open to it under the law. The Nagar Mahapalika will dispose of the claim for refund expeditiously."
(2.) THEREAFTER the respondent applied to the Nagar Mahapalika for a refund of the excess amount paid by it. The Nagar Mahapalika refunded a sum of Rs. 67,500.23, but declined to refund the balance of Rs. 2,50,000/-, admittedly paid by the respondent in excess in pursuance of the impugned notification. The reason given by the Nagar Mahapalika for declining to refund the balance amount was that the recovery of this amount was barred by limitation. The respondent then moved an application for taking proceedings for contempt against the Nagar Mahapalika. during the course of these proceedings the respondent was advised to file an application for review of the judgment of Gulati, J. dt. 11th Oct., 1971, and it did so. After hearing the parties, Gulati, J. by order dt. 9th Oct., 1974, allowed the review application holding that no question of limitation really arose in the case and even if it arose, no part of the claim for refund was barred by time. He, accordingly, deleted the following words from his judgment dt. 11th Oct., 1971 :- "Subject to such objections as regards limitation as may be open to it under the law."- Against this order of review the Nagar Mahapalika has filed this appeal. Two questions have been canvassed before us in this appeal, namely : (i) whether the question that a claim for refund is wholly or partly barred by limitation under the ordinary law can arise in a writ petition or not ? and (ii) if such a question can arise, whether the Nagar Mahapalika was right in declining to pay the balance to the respondent on the ground that it was barred by limitation ?
(3.) IN the counter-affidavit filed by the Nagar Mahapalika in the writ petition it was stated in paragraph 7 :- "That the question as to the amount, if any, to which the petitioner may be entitled by way of refund can only be determined in regular suit. Several disputed questions will have to be decided viz., whether the claim of refund is within limitation and also as to whether proper notice has or has not been given in accordance with law." In reply to this defence, it was stated in the rejoinder affidavit that the claim for refund was not beyond time. Thus, the question of limitation had been specifically raised in the writ petition and the learned single Judge is not right in his observation in the review order that no question of limitation was really raised in the writ petition and that he should have given no directions in that regard. In our opinion a plea of limitation can legitimately be raised even in writ petitions where claims for refund one made. In Burmah Construction Co. vs. The State of Orissa AIR (1962) SC 1320 the question regarding limitation for the refund of Sales-tax illegally levied on works contracts arose for consideration. The supreme Court observed:- "The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may some times be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable; but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.;