JAIN, J. - (1.) THIS judgement will dispose of the above mentioned two writ petitions.
(2.) THE petitioner was appointed as the authorised auctioneer of the Western Railway for conducting the auction of coal ash, half-burnt coal and scrap stores on behalf of the Union of India under the supervision of the District Controller of Stores, Western Railway, Ajmer during the years 1962-63 and 1963-64 under an agreement dated 7th April, 1962. Condition No. 17 of this agreement was that the auctioneer will be responsible to recover from the purchasers, sales tax and other charges, if any, leviable on such sales, conducted by him or obtain necessary licence or permission from the concerned Governments. THE assessee collected sales tax from the buyers in pursuance of this arrangement and also deposited the amount with the Government but of course under a protest that he was not a dealer and that he was entitled to refund of the tax paid by him. In the year 1963, the petitioner worked as a sole proprietor in the name of Messrs. M. H. Shah Contractors, He was assessed to tax by the Sales Tax Officer, Ajmer, in respect of the auctions conducted by him, by two separate orders dated 3-12-1963 at the rate of 2%. One order relates to the period 1. 4. 1962 to 31-3-1963 and the amount assessed was Rs 22,762. 90 paise against which Rs 23,000/- had been deposited on 25-9-1963. Second order relates to the period from 1-4-1963 to 2. 10. 1963 and the amount of tax assessed was Rs. 17,139. 70 paise. This amount was deposited on 28. 11. 1963 and 13. 12. 1963. Upon an objection raised by the Accountant General regarding the rate of tax, notice under sec 12 of the Rajasthan Sales Tax Act, 1954, (hereinafter called 'the Act') was issued for re-assessment. The petitioner was reassessed by one order of the same authority dated 10. 9. 1965 for the aforesaid two periods of assessment. The rates of tax now applied were @ 5% and 6% respectively. Since tax had already been levied @ 2%, it was reassessed at 3% and 4% mote respectively and an amount of Rs. 68,423. 75 paise was found more payable against which no deposit was made. An appeal was filed against this reassessment order to the Deputy Commissioner, Commercial Taxes Department, which was rejected by him on 19. 5. 1966. For the period 2. 10. 1963 to 31. 3. 1964 the business seems to have been converted into a partnership business in the name of Messrs. M. N. Shah and Co. The petitioner M. H. Shah functioned as a partner. For this period the firm was assessed on 1 10-1964 at 2% instead of 6% The amount of tax payable was deter-mined at Rs. 21,254. 94 paise. The amount was paid on two different dates, namely, 15-9-1964 and 22-12-1964. The assessee was re-assessed on 10. 1. 1965 and the revised demand was raised at Rs. 24,067 64 paise more at the rate of 4% Against this, an amount of Rs. 10,000/- was deposited on 5-2 1966. An appeal was filed against the re assessment order which was rejected by the Deputy Commissioner, Commercial Taxes Department on 1965-1966. The petitioners then filed two revisions Nos. 273 and 274 of 1966 in the Board of Revenue, Ajmer. The revision No. 273 related to the re-assessment for the year 1962-63 and the revision No. 274/1966 related to reassessment for the year 1963-64 One more revision No. 275/1966 was filed but that is not relevant for our purpose. The Board of Revenue by its order dated 28-4-1967 held that the petitioners were not dealers and the reassessment proceedings were not justified. The Board accepted the revision petitions, set aside the orders of the subordinate authorities on that ground and directed that the tax may be realised from the actual owner of the goods, namely, the Western Railway. The Commercial Taxes Officer, Ajmer, filed applications under sub-s. (1) of section 15 of the Act for reference but the Board of Revenue failed to dispose of those applications within the then prescribed period of 120 days. The said Commercial Taxes Officer then filed two applications under section 15 (3a) of the Act before this Court which by its judgment dated 17. 4. 1969 refused to direct the Board to state a case as the Court agreed with the view that petitioners were not a dealer within the meaning of sections 2 (f) of the Act so an to make them liable to payment of sales tax. The petitioner then applied to the Commercial Taxes Officer, Ajmer on 2 2-1970 for the refund of the entire amount of tax deposited by the petitioner. The Commercial Taxes Officer did make no order and the petitioner filed another application with a similar request on 29. 6. 70. Reminder were also given on 15. 3. 1971 and 5. 8. 1971. Eventually the Commercial Taxes Officer made an order on 19. 1. 1972 that the tax cannot be refunded on account of the provisions of section 23-B of the Act which had been inserted with effect from 4 5-1964 and according to which the tax can be refunded only to the persons from whom it was recovered by the assessee and not to the assessee. Thereupon,, two writ petitions wore filed on 20-10 1972 in the court; (1) by Messrs. M. H. Shah which is writ Petition No. 1812/1972 and (2) by M. N. Shah and Co , which is writ Petition No. 1813/1972, praying that section 23-B of the Act be declared ultra vires the Constitution and the order of the Sales Tax Officer dated 19. 1. 1972 be quashed and the respondents be directed to refund the amounts deposited by the petitioners as sales tax under the Act. Argument for the petitioners were addressed by Mr. N. M. Kasliwal mainly but Mr. S. M. Mehta, who a similar point to urge in another rase, was also allowed to intervene and address the court. The learned counsel for the revenue raised a preliminary objection that the writ petitions were belated and should be rejected on the ground of laches as having been filed after the period of limitation had expired. This period according to Article 113 of the Limitation Act is three years from the date when the right to sue accrued that is when the mistake was known. The mistake came to be known to the petitioner at least on 17-4 1969 when the High Court rejected the reference applications while the petitions were filed on 20. 10. 1972. He relied in this connection upon State of Madhya Pradesh vs. Bhailal Bhai (1 ). In this case, it was observed : "the provisions of the Limitation Act do not as such apply to the granting of relief under Art. 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 this period, it will almost always be proper for the court to hold that it is unreasonable.
(3.) IN the State of Kerala vs. Aluminum INdustries Ltd. (2), M. K. Krishan Swamy vs. Union of INdia (3) and D. Cawasji and Co. vs. State of Mysore (4) the Supreme Court appears to have endorsed the rule laid down in Bhailal Bhai's case. The learned counsel for the petitioner on the other hand submitted that the remedies under Art 32 and 226 of the Constitution are extraordinary remedies provided by the Constitution, and the rules of limitation can not be applied to such petitions, though while granting or refusing reliefs, the courts may consider whether such powers be exercised or not in cases which are fairly belated. He referred us to Trilok Chand Motichand vs. H. B. Munshi. Commissioner of Sales-tax, Bombay (5 ). In this case the Supreme Court was dealing with the writ petitions under article 32. Sikri and Hegde, JJ. were of the view that the decision in the aforesaid two cases could not be applied to petitions under. 32. Bachawat and Mitter, JJ. held that the measure of delay shall be the same whether the petition is under Article 32 or Article 226. Hidayatullah C. J. however, struck a middle course. He observed that the question is one of discretion for the court to follow from case to case. There is no lower limit and there is no upper limit. In R. S. Deodhar vs. The State of Maharashtra (6) also the court was dealing with a petition under Art. 32 of the Constitution. It observed that the rule is not a rule of law but a rule of practice and there is no inviolable rule that whenever there is delay the Court must necessarily refuse to entertain the petition. We have considered this matter and it appears to us that if a petition is filed beyond time within which a suit could be brought, then ordinarily the delay would be considered unreasonable and almost always it should be so held. But at the same time, it is more a rule of prudence then of law as the court cannot go into the notices of the provisions of the Limitation Act because than it will be called upon to enter into controversies which cannot conveniently be decided in writ proceedings. The statute of limitation applies not in terms but by analogy to such a petition. The State Legislatures are not empowered to circumscribe the power under Articles 32 and 226 by laying down a limitation of time during which alone such petitions could be brought The period of limitation prescribed by the Limitation Act will usually be applied in the absence of special circumstances and only where the remedy sought is akin to a relief which can bo claimed in a suit. That is to say that the statute of limitation is strictly not applicable to all the cases coming under Art 226 of Art. 32 of the Constitution. There may be cases in which the relief claimed under a petition under Article 226 or 32 of the Constitution may not correspond to a remedy available in a suit and ever in cases where the remedy so corresponds, special circumstances may justify a departure from the provisions of the Limitation Act. That being so, it is not possible to adopt any hand and fast line in this matter. Indeed, in Surajmal vs. State of Rajasthan (7) a Division Bench of this Court stated the rule in the following manner: ''save in exceptional cases, if a petitioner comes to a court of law after the period of limitation prescribed by particular relief the court would ordinarily decline to grant it on the ground of delay and it does not make any difference whether the relief claimed is claimed in regard to fundamental rights or otherwise. " ;