TRILOKCHAND MOTICHAND V. H.B. MUNSHI , AIR 1969 SC 966 

TRILOKCHAND MOTICHAND V. H.B. MUNSHI , AIR 1969 SC 966 

FACTS OF THE CASE 

The sale tax authorities took the sales tax from the petitioner from their customers and should be refunded on condition that petitioners passes the amount to the customers . The petitioners did not fulfil the condition , so the sales tax officer (respondent) forfeited an amount of the Bombay sales tax act . The petitioner in the case filed a writ petition in the Bombay high court challenging the order . The petition was dismissed and held that they were not liable to repay the amount . The appeal was filed after a ten-year delay and the appeal was dismissed due to delay .

 Doctrine of laches means lack of action in making legal proceedings . There is no time limitation but the appeal should be made under the reasonable time period . The petitioner filed the appeal after the reasonable time period . It is difficult to state down a precise period but a period of one year may be taken as the period after which the claim would be a stale claim unless the delay is justified . Article 32 gives the right to move to the court for enforcement of rights and the state cannot place any hindrance to the aggrieved person . 

Article 32 (2) of the constitution refers to a judicial power on the court unless there is a express provision , it must be exercised according to the fundamental principles of justice. The aggrieved person shall move to the court at the earliest possible time and explain the reason of delay .  A person to whom money has been given by mistake shall be returned or repaid. Payment by mistake in section 72 means payment which was not legally due , the mistake is thinking that the money paid . Res Judicata means a thing that has been juridically decided on its merits and cannot be litigated between the same parties . 

ISSUES OF THE CASE 

1. Whether the petition is liable to be dismissed on the ground of delay ?
2. Whether the petition is barred by res judicata in view of this decision of the high court ? 

ARGUMENTS 

In the case of Joseph v. State of Kerala , it says that every citizen whose fundamental right is infringed by the state has a fundamental right to approach the court for enforcing the right . There is an  invasion of a fundamental right of a citizen he can be allowed to come to the court , no matter how much time he takes to file the appeal in the court , the doctrine of res judicata may be invoked. But where there is no decision at all , there is no scope to call in its aid . 

Revoking of any fundamental right of a person can be filed in the court at any time . There is no restriction , but the person has to explain the satisfactory reason of the delay to the court . The petitioners in the case had not made a mistake in thinking that the money paid was due when in fact it was not due . They not only opposed the claim of the sales tax authorities but filed a writ petition contending that there was violation of an act . They did not accept the decision of the single judge but filed an appeal raising the same contention .

 They complained about the violation of the fundamental rights , the illegality of the order of forfeiture and the reason . They protested against the order of forfeiture not only out of the court but in the court and paid the amounts only when the legal process is done. They never failed to appreciate the correct position in  law . The fact that the petitioners have no equity in their favour is an irrelevant circumstance in deciding the nature of the right available to the aggrieved a number of years if the fundamental rights are to be enforceable without any time limit , a petitioner can only enforce an existing right .

There is no reason for rejecting the plea of the petitioners that they became aware of the invalidity after the decision of the court . When a petition under article 226 is dismissed not on the merits but because of the laches , alternative remedy was available to him , such removal is a subsequent petition under section 32 except in cases when the facts found by the high court might be relevant under article 32 .

JUDGEMENT OF THE CASE 

The present petitioner should have taken the right ground in the high court and taken it in the appeal to this court after the high court was against it . When the petitioner approaches the high court and fails , it could not be said that payments made by him therefore were not under a mistake of law , even the point on which the court ultimately strikes down the provision under which the payments were made was never raised in the high court . 

The court does not convert civil and criminal actions into proceedings for the obtainment of the writs . This court insists on bringing the decision before this court for review is the existence of another jurisdiction . The party claiming the fundamental rights must move the court before other rights came into existence. The court help those who are not slumber over their rights . If less time was prescribed , the fundamental right might be frustrated . 

The discretion of the time depends from case to case . There is no upper limit and lower limit .  If the petitioner comes to the court 11 years after the possession was taken by the state , it would be dismissed on the ground of delay unless there is some reasonable explanation . The petitioner filed the petition and the order got quashed on the ground of delay as the appeal was made after 11 years and there was no reason for the delay . 

In the case of Basheshar Nath v. The Commissioner of Income Tax Delhi , Rajasthan and anr. , it held that there could be no waiver of the fundamental right founded on article 14 and only the fundamental rights which are intended to the benefit of a party can be waived . A right may be lost due to an earlier decision of a competent court or due to other reasons . According to the opinion of the majority , the petitions fails and gets dismissed with costs on the grounds of delay . 

REFERENCES 

https://indiankanoon.org

https://main.sci.gov.in

Written by Jiya Mongia an intern under legal vidhiya.

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