Judgment

MATHEW, J.:- The appellants filed writ petitions before the High Court of Mysore under Art. 226 of the Constitution for a declaration that the Mysore Elementary Education Act, 1941, and the amendments to it by the Mysore Elementary Education (Amendment) Act (XII of 1955) providing for levy and collection of Education Cess on items on which Education Cess is being levied as prescribed in the schedules of the respective Acts were beyond the competence of the Mysore State Legislature and for refund of the Educational Cess paid during 1951-52 to 1965-66 on shop rentals and tree tax in respect of toddy and duty of excise in respect of arrack and special liquor. The High Court dismissed the Writ Petitions by a common judgment and these appeals are directed against that judgment.

2. The High Court of Mysore had, in D. Cawasji and Co. v. State of Mysore, (1968) 2 Mys LJ 78 struck down the provisions of the Mysore Elementary Education Act and the amendments to it on May 2, 1968. That decision was affirmed by this Court in State of Mysore v. D. Cawasji and Co., (1971) 2 SCR 799 . Before the decision of this Court, the Mysore Legislature had passed the Mysore Education Cess (Validation and Levy) Act, 1969 on September 10, 1969 validating the levy and the collection of cess under the Act. But the Validation Act was held to be invalid by the Mysore High Court. The writ petitions were filed before the High Court in June and July, 1968, i. e. after the decision of the Mysore High Court in (1968) a Mys LJ78 and before this Court rendered its judgment

3. The contention of the appellants before the High Court was that the payments of cess in question were made by them under a mistake of law; that they discovered the mistake only on May 2,1968 when the High Court, by its judgement, declared that the provisions of the Act and the amendments thereto were unconstitutional, and that, as they filed the writ petitions within three months of that decision, the writ petitions were within time.

4. The High Court found that there was delay in filing the petitions and, it was mainly for that reason that the High Court dismissed them.

5. In State of Madhya Pradesh v. Bhailal Bhai, (1964) 6 SCR 261 Das Gupta, J. who delivered the Judgment of the Court, while holding that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law, said that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions and that among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and the excuse there is for it. He further said that if a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment; and that whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances and that it is not easy nor is it desirable to lay a general rule. He was of the view that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. On the question of the period of limitation within which the petition must be filed, he observed that the period of limitation prescribed for recovery of money paid under a mistake of law is three years from the date when the mistake is known and that that period may ordin