- (1.) D. K. Seth, J. By an order dated 23-1-1992 Civil Misc. Writ Petition No. 1184 of 1991 was dismissed as in fructuous. The said order has been sought to be reviewed by means of this review applica tion.
(2.) MR. S. P. Gupta, learned Counsel for the petitioner contends that having regard to the prayers made in the writ petition, the ground on which the writ petition was dismissed as in fructuous, is an error apparent on the face of the record. The Court had committed a mistake in holding that the writ petition had become in fructuous because of the facts disclosed in the order, oblivion of the fact that the entire relief claimed in the writ petition could not be said to be fulfilled. The Court having mistaken the statement of the Counsel as a concession which in fact was not, the same was a ground for review in view of the ratio decided in the case of M. M. B. Catholicos v. M. P. Athanasius, AIR 1954 SC 527. He also relies on the decisions in the cases of Geep Industrial Syndicate Ltd. v. Union of India, 1990 (47) ELT 311 (All), Prestige Engineering (India) Pvt. Ltd. v. Union of India, 1991 (51) ELT 255 (All) and Secretary, Irrigation Depart ment, Government of Orissa and others v. G. C. Roy, JT 1991 (6) SC 349, in support of his contention that refund is liable to be made with interest since it was assessee's money that has been utilised by the Government. Therefore, according to him, non-payment of interest while refunding the principal after such a long detention of the money during which the same was utilised by the Government, it self shows that this Court had arrived at a wrong conclusion which is an error ap parent on the face of the record. In ordr to appreciate the conten tion of Mr. Gupta, it is necessary to briefly refer to the facts of the case. Certain import duty or auxilliary duty were charged by the Government on news print at a higher rate. The imposition of such higher import duty etc. was chal lenged by the petitioner in Writ Petition No. 5576 of 1981. The said writ petition was connected with the writ petitions of other consumers, all of which were heard and decided by a common judgment dated 6-12-1984 since been reported in 1985 (1) SCC 641. In the said judgment, the Government of India was directed to reconsider within six months entire ques tion of levy of import duty or auxilliary duty payable by the petitioners on newspapers, periodicals etc. with effect from March 1981. If on such reconsideration, the Government decides to modify the levy of import duty or auxiliary duty, it may take necessary steps to implement such decision and till such determination the Government would not insist upon payment of such duties. If after such deter mination, it is found that the petitioner is entitled to any such refund, the same shall be made by the Government within four months from the date of such determina tion. The refund clause in the said order has been couched in the following manner: " (5 ). If, after such determination, it is found that any of the petitioners is entitled to any refund such refund shall be made by the Government within four months from the date of such determination. " Pursuant to the said order, admitted ly the Government had reconsidered and reduced the duty from Rs. 825 per M. T. to Rs. 550 per M. T. Accordingly the petitioners filed 23 refund claims relating to the aforesaid imports effected between 1981 and 1984 on 20-6-1989. The said refund claims having not been allowed, the Writ Petition No. 1184 of 1991 was filed on 10th September, 1991 with a claim that the petitioner was entitled to refund of excess amount paid by it being Rs. 3,59,854. 60 P. together with interest at the rate of 18% per annum for the period during which the said amount was utilised by the Govern ment namely, according to it, for the period between 5-10-1985 till the date of filing of the writ petition. Such interest was calculated in the writ petition to be Rs. 4,37,223. 37. According to the petitioner, the period for refund as directed in the order of Honble Supreme Court had ex pired on 5-10- 1985. Therefore, detention of the said amount by the Government makes it liable to pay interest thereon.
(3.) THIS writ petition was disposed of by order dated 23-1-1992 on the ground that by an affidavit filed by the respon dents, it was pointed out that the authority has sanctioned the refund of sum of Rs. 3,58,398. 11 P. against 23 refunds filed by the petitioner and that Mr. S. P. Gupta, learned Counsel for the petitioner, stated that his client had received the refund vouchers and therefore in view of above, the petition had become in fructuous and accordingly it was dismissed as in fructuous. The text of the order dated 23-1-1992 is quoted below: "in this petition, the learned Senior Stand ing Counsel on behalf of the Central Govern ment has filed an application for disposing of the petition in view of the circumstances mentioned in the affidavit. In para 2 of the affidavit filed in support of the application, it has been stated that the Bombay authorities have sanctioned the refund of Rs. 3,58,398. 11 P. against 23 refund filed by the petitioner. Sri S. P. Gupta, learned Senior Advocate appearing for the petitioner states that his client has received the refund vouchers. In view of the above, the petition has become in fructuous. It is accordingly dismissed as in fructuous. " From the prayer clause in the writ petition, it appears that the petitioner had claimed a sum of Rs. 3,59,854. 60 P. together with sum of Rs. 4,37,223. 33 P. as interest by way of damages. It was also prayed that the refund money should not be withheld on the ground that the petitioner had passed on the enhanced duty to customers and also to examine for verification of the fact that the petitioner did not pass on the enhanced duty to its customers. Thus, it appears that the ques tion of payment of interest by way of damages as claimed was a matter for deter mination in the writ petition itself. The order dated 6-12-1984 passed by the Apex Court as quoted earlier does not specify that the refund should accompany inter est. Therefore, right of the petitioner to claim damages in the form of interest does not flow directly from the said order, under which refund is being claimed. Then again, the refund was the result of con sideration that was to be undertaken by the Government in terms of the said order dated 6-12-1984. The situation which has arisen out of the above facts, does not clearly lay down any entitlement of the petitioner to obtain damages in the form of interest or otherwise. Therefore, it was a case open for decision in the writ petition itself. THIS fact was well within the knowledge of the petitioner, who had as serted the same in order to obtain the relief claimed. It cannot be said that either the petitioner or its lawyer was uncon scious of the claim or relief involved in the writ petition. When the writ petition was dismissed as in fructuous as apparent from the order dated 23-1-1992, it was clear that only a part of the claim in respect of the original amount of which refund was sought, was allowed inasmuch as the prin cipal amount of which refund was sought was mentioned as Rs. 3,59,854. 60 P. whereas sum of Rs. 3,58,398. 11 P. was sanctioned for refund in consideration of 23 refund claims filed by the petitioner. Having regard to such a situation, learned Counsel for the petitioner had informed the Court that the petitioner had received the refund vouchers. Admittedly, the affidavit was filed on 23-1-1992 and the order was passed on the same day. Learned Counsel for the petitioner did neither ask for time to seek instructions on the same nor he had op posed the application nor did he point out that the relief with regard to interest by way of damages has not been acceded to by the Government and therefore the writ petition has not become in fructuous in as much as if the petitioner or its learned Counsel had insisted on the claim of inter est by way of damages, it could have been pointed out to the Court that simply be cause of sanction of the alleged amount and receipt of refund vouchers by the petitioner, the writ petition could not have been rendered in fructuous. It cannot be said when a statement to the effect that refund voucher has been received is being made, the learned Counsel was uncon scious of the situation that would arise out of such statement particularly when he had allowed the writ petition to be dis missed as in fructuous in his presence. The very statement that his client had received refund vouchers, indicates that the Coun sel had been in receipt of instructions from his client otherwise he could not have made such statement.;