Judgment

RAGHUBAR DAYAL, J. :- This appeal, by special leave, arises out of a petition under Art. 226 of the Constitution presented by the appellant for the issue of a writ of mandamus against the State of Madhya Bharat and its officers the Special Tax Commissioner and the Assessing Officer, Industrial Tax to refund a sum of Rs. 62,809.52 which had been illegally collected by the Industrial Tax Officer in the years 1943-48 on account of industrial tax. The petition was dismissed by the High Court on various grounds.

2. The facts leading to the petition are these. The appellant is the Managing Proprietor of Bhandari Iron and Steel Company which had its foundry at Shilnath Camp, Indore where it carried on the business of Mechanical Engineers, Iron, Brass and Malleable Iron founders and Rerollers in Steel. There was in force in the Indore State the Indore Industrial Tax Act, 1927 for the imposition of industrial tax on cotton mills. Excess profits duty was payable under Indore Excess Profits Duty Order, 1944. The company did not run any cotton mill, Still when the company was called upon to submit its returns and to deposit industrial tax whenever its balance-sheet showed profits, it did so. In all, the company paid a sum of Rs.18,234-5-2 in 1944 in advance on account of industrial tax prior to the tax being provisionally assessed by the assessing officer. The provisional assessment for the years 1941-43 was made in 1945 and for the years 1945-46 in 1946. The tax was assessed at Rs. 62,809-5-2. Deducting the amount of Rs. 18234-5-2 deposited in advance in 1944, an amount of Rs. 44,575 was deposited by the appellant on or before June 9, 1948. The tax for different years was finally assessed in 1951 and 1952. The appellant filed appeals against the various assessment orders to the appellate authority. The appeals were decided in June 1955. The appeals against the assessment of industrial tax were allowed on the ground that the company was not liable to pay industrial tax as it did not carry on any business which was liable to be assessed to that tax and the various assessment orders under appeals were quashed. No direction was, however, given by the appellate authority for the refund of tax which had been realised from the appellant.

3. Thereafter, the appellant approached the various officers of the State Government of Madhya Bharat for the refund of tax amounting to Rs. 1,37.770-14-2, after appropriating Rs. 37,951-7-0 to Excess Profits Duty from Rupees 1,75,722-5-2 paid by the company towards the tax and excess profits duty. The Government adjusted the amount due for excess profits duty as requested by the appellant and refunded Rs.74,961-9-0 paid subsequent to January 26, 1950 when the Constitution came into force. It however, refused to admit the claim for refund of the amount of Rs. 62,809-5-2 which had been realised from the appellant prior to that date and, therefore, refused to refund that amount.

4. When the Government refused to refund the amount the appellant filed the writ petition praying for the issue of a writ of mandamus against the State of Madhya Bharat and the other respondents directing them to perform their statutory duty and/or to refund or cause to be refunded to the appellant the amount of Rs. 62,809-5-2 which it was alleged they were entitled in law to receive. The respondents contested the claim and the High Court dismissed the writ petition holding that there was no statutory obligation on the State to refund the amount that the order of the appellate authority did not necessarily imply an order to the State to refund the amount and that the writ of mandamus could not be issued for the purpose of refund of the tax wrongly realised as held by the appellate authority as that would amount to ordering the execution of the decisions of the appellate authority. It is this order of the High Court against which the appellant has appealed after obtaining special leave from this Court.

5. Two questions arise for deter