2020 Supreme(Guj) 467

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. Pardiwala, Bhargav D. Karia, JJ.
M/S Onshore Construction Company Private Limited - Petitioner
Versus
State of Gujarat - Respondent
R/Special Civil Application No. 12847 of 2019 With R/Special Civil Application No. 16510 of 2019
Decided On : 27-02-2020

Point of Law:
Article 226 grants an extraordinary remedy, which is essentially discretionary, although founded on legal injury. It is perfectly open for the court, exercising this flexible power, to pass such order as public interest dictates and equity projects. Courts of equity may, and frequently do, go much further both to give and withhold relief in furtherance of the public interest than they are accustomed to go where only private interests are involved. Accordingly, the granting or withholding of relief may properly be dependent upon considerations as of public interest.

Headnote:

Motor Vehicles Act - Section 2(28) - Constitution of India,1950 - Article 226 - Petition writ-applicant through its power of attorney has prayed for following pleased to issue writ of mandamus or any other appropriate writ order or direction in nature of mandamus holding and declaring that Compounding Fees is also liable to be refunded with interest - Petition cause for filing present petition has arisen because there are different judgments but it is unfortunate that RTO is not implementing same and once it is declared that Crawler Cranes are not motor vehicles and therefore any tax and penalty recovered is illegal and cannot be levied department is charging not only tax but penalty and compounding fees are also charged - That several cases in which tax and penalty have been refunded but this petition is filed because Compounding Fees with interest is not refunded that illegal tax is collected which is in violation of provisions of Constitution of India and hence this petition - Held, Court of India in case of excess of per cent over original fees having been declared ultra virus became refundable to respective dealers from whom they were recovered by Market Committee concerned - Demand for refund of excess amounts illegally recovered from them not having been complied with dealers filed Writ Petitions Constitution for a direction to that effect to Market Committee concerned contended that although refund of excess collections might be legally due to dealers many of them had in turn recovered this excess percentage from next purchasers - While disposing of petition and laying down guidelines Hon'ble Supreme Court of India has held as - Court observed that the legal formulations cannot be enforced divorced from realities of fact situation of case - While administering law it is to be tempered with equity and if equitable situation demands after setting right legal formulations not to take it to logical end High Court would be failing in its duty if it does not notice equitable considerations and mould final order in exercise of its extraordinary jurisdiction - Any other approach would render High Court a normal Court of Appeal which it is not - Appeal dismissed (Para 53)

Facts of the Case:

Cause for filing the present petition has arisen because, there are different judgments, but, it is unfortunate that RTO is not implementing the same and once it is declared that the Crawler Cranes are not motor vehicles and therefore, any tax and penalty recovered is illegal and cannot be levied, the department is charging not only the tax but penalty and compounding fees are also charged. That several cases in which tax and the penalty have been refunded, but this petition is filed because the Compounding Fees with interest is not refunded. That illegal tax is collected, which is in violation of the provisions of the Constitution of India and hence, this petition.

Finding of the Court:

Court of India in case of excess of per cent over original fees having been declared ultra virus became refundable to respective dealers from whom they were recovered by Market Committee concerned - Demand for refund of excess amounts illegally recovered from them not having been complied with dealers filed Writ Petitions Constitution for a direction to that effect to Market Committee concerned contended that although refund of excess collections might be legally due to dealers many of them had in turn recovered this excess percentage from next purchasers - While disposing of petition and laying down guidelines Hon'ble Supreme Court of India has held as - Court observed that the legal formulations cannot be enforced divorced from realities of fact situation of case - While administering law it is to be tempered with equity and if equitable situation demands after setting right legal formulations not to take it to logical end High Court would be failing in its duty if it does not notice equitable considerations and mould final order in exercise of its extraordinary jurisdiction - Any other approach would render High Court a normal Court of Appeal which it is not.

Result: Appeal dismissed