ORDER

In Adhyaksha Mathur Babu s Sakti Oushadhalaya Dacca (P) Ltd. & Ors. v. Union of India1, the main question raised and argued in writ petitions under Article 32 of the Constitution was whether State Governments were entitled to tax three ayurvedic preparations, namely, Mritasanjibani, Mritasanjibani Sudha and Mritasanjibani Sura, under the Excise Acts in force in the respective States. A Constitution Bench of this Court came to the conclusion that the said medicinal preparations could not be taxed under the Excise Acts in force in the States and that they could be taxed only in accordance with the provisions of the Medicinal and Toilet Preparations (Excise Duties) Act. This Court stated that it passed "no order as to the claim for refund for that is a matter which the petitioners can take up with the State Governments concerned according to law". The judgment was delivered on 7th September, 1962.

2. The appellants were one of the many writ petitioners before the Court. (Their Writ Petition was No. 354 of 1961). They were, therefore, thus empowered to take up with the respondent-State their claim for refund, and they did so on 17th October, 1962. It is the case of the respondent-State itself that it rejected the claim for refund on 29th November, 1973, and communicated the rejection to the appellant on 7th December, 1973. The letter of 7th December, 1973, gave no reasons for the rejection.

3. Thereupon, the appellant filed a writ petition in the High Court at Patna to quash the order of the respondent-State refusing to refund and to direct the respondent-State to make the refund. The refund that was prayed for was for the period 20th August, 1960, to 30th September, 1962, in the sum of Rs. 91,723.80. The principal contention in the counter-affidavit filed by the respondent-State and raised at the hearing was that the writ petition was not maintainable in that the claim for refund could not be determined in the writ jurisdiction. The High Court found that the writ petition, in essence, sought to obtain only a money decree and this could not be allowed. The appellant was permitted to file a suit to recover the amount of the refund that it claimed.

4. Our attention is drawn by learned counsel for the appellant to the judgment of this Court in Salonah Tea Company Ltd. v. Superintendent of Taxes Nowqonq & Ors. Etc.2. The appellants had filed a writ petition seeking refund of tax paid under mistake, relying upon a judgment of the High Court which had declared the assessment to be without jurisdiction. The question that arose for consideration was whether in a petition under Article 226 the Court should have directed refund. It was noted that the Courts had made a distinction between those cases where a petitioner approached the High Court seeking only the relief of obtaining a refund and those where refund was sought as a relief consequential upon the striking down of an order of assessment. Normally speaking, it was observed, in a society governed by the rule of law taxes should be paid by citizens as soon as they were due in accordance with law. Equally, as a corollary, it followed that taxes collected without the authority of the law from a citizen should be refunded because no State had the right to receive or retain monies realised from citizens without the authority of law. The Court referred to the judgment in Suganmal v. State of Madhya Pradesh & Ors., to which we shall presently advert, and found that, this Court having earlier come to the conclusion that the tax was illegal, the money would be refundable on a petition under Article 226.

In Suganwal v. State of Madhya Pradesh & Ors.3, a Constitution Bench applied its mind to the precise question and held that though the High Courts had the power to pass any appropriate order in the exercise of powers conferred under Article 226, a writ petition solely praying for the issue of a writ of mandamus directing the State to refund monies was not ordinarily maintainable for the reaso