1. These four connected appeals arise out of O. S. Nos. 31 and 33 of 1956, which were tried together with another suit (O. S. No. 61 of 1957) and a common judgment rendered on 28-9-1957. The two suits (O. S. Nos. 31 and 33 of 1956) were filed under the following circumstances:
2. The plaintiff in O. S. No. 31 of 1956 and the plaintiff in O. S. No. 33 of 1956 are motor transport operators plying their vehicles in the Krishna District. The State Government in exercise of its powers under Section 43 (1) (ii) fixed by a notification the maximum fare for passengers at seven pies per mile, and fares were being collected by the plaintiffs at that rate. In 1952, the composite State of Madras enacted the Madras Motor Vehicles (Taxation of a Passengers and Goods) Act XVI of 1952, which came into force on 1-2-1953. Section 3 of the said Act provided that a tax of nine pies in the rupee be levied and collected on passengers and goods on the fares and freights payable to the operators of the stage carriages. The first proviso to Section 3 of the said Act enacted that the fare charged by the operators, inclusive of the tax leviable under Section 3 shall not exceed the maximum fare prescribed by the Government under the Motor Vehicles Act, 1952. Some of the stage carriage operators, like the two plaintiffs filed petitions under Article 226 of the Constitution in the High Court of Madras, praying for a writ of Mandamus directing the State Government to forbear from collecing the tax. By a decision dated 18-9-1953 (which has been reported as Mathurai Pillai v. State of Madras, : AIR1954Mad569 a Bench of the Madras High Court consisting of Rajamannar, C. J., and Venkata Rama Ayyar, J. held that there was no force in either of the contentions. They, however, held that the 1st proviso to Section 3 of the Act was bad and should be struck down.
After the judgment of the High Court the plaintiffs issued notices to the Government and to the Regional Transport Officer demanding the refund of the sums already paid by them under the provisions of Act XVI of 1952. In the meantime with effect from 1-10-1953 the Andhra State was constituted and it became the successor State in respect of all the rights and liabilities of the State of Madras. On 24-10-1953 some of the operators made a representation (Ex. B-1) that they would thereafter collect the tax from the passengers. The Regional Transport Officer, Vijayawada, intimated to them that the maximum rates as fixed in the notification could not be increased, and any contravention by the operaors will be regarded as violation of the conditions of the permit. The plaintiffs continued to pay the tax as compounded under Section 4 of the Act. On 27-5-1954, the Government issued a notification under Section 43(1)(ii) of the Act amending its previous notification and stating that the maximum fares fixed are exclusive of any lax leviable under the Madras Vehicles Act XVI of 1952. On 16-8-1954, the Andhra Government passed an Ordinance (No. III of 1954) deleting the first proviso to Section 3 of Act XVI of 1952 with effect from 18-9-1953. On 13-12-1954 the Ordinance was replaced by the President's Act XI of 1954.
3. The plaintiffs after giving notices as provided under the law instituted two suits for the refund of the money alleged to have been illegally collected under the Act. In both the suits, the plaintiffs allege that by reason of the striking down of the proviso by the High Court the entire levy and collection of the tax under Section 3 had become illegal and that the Government was bound to refund the sum to them on the foot of moneys had and received. The plaintiff in O. S. No. 31 of 1956 claims that a sum of Rs. 6,879-14-6 was illegally collected from him from 1-2-1953 to 31-8-1954. He claimed interest in a sum of Rs. 894-0-0 and prayed for a decree for the payment by the 1st defendant. The State of Andhra a sum of Ps. 7,773-14-6. The plaintiff in O. S. No. 33 of 1956 claims that a sum of Rs. 5,386-6-8 bad been illegally collected from him. He claimed an interest in a sum of RS. 761-12-0. He prayed for a decree in a sum of Rs. 6,148-2-8.
4. The State of Andhra Pradesh is the defendant in both the suits. In their written statement, it is alleged that the levy and collection of tax cannot be considered illegal, because Section 3 of the Act was not struck down by the High Court. It is also urged that since the tax was compounded under Section 4 of the Act, the payment must be deemed to be voluntary, and as such there may be no question of refund. It is further alleged that there was no mistake of law as the plaintiffs were aware of the decision of the High Court of Madras, and that there were no equities in favour of the plaintiffs.
5. The learned Subordinate Judge framed the appropriate issues, and held that inasmuch as the proviso to Section 3 of the Act was struck down on 18-9-1953, by the High Court, the collection of the tax by the Government uptill that date was invalid and the plaintiffs are entitled to refund of the sums paid by them. He also held that after the decision of the High Court there was nothing to preclude the operators from collecting the tax from the passengers and since there was no inhibition against their doing so, the levy and collection of the tax after 18-9-1953, was perfectly legal and no question of refunding the sums would arise. The learned Subordinate Judge disallowed the claim of the plaintiffs as regards interest. Accordingly, he passed a decree in O. S. No. 31 of 1956 for a sum of Rs. 2,320-10-6 and in O.S. No. 33 of 1956 for a sum of Rs. 2,516-11-6. The learned Subordinate Judge directed each party to bear its own costs. The Government have filed A. S. Nos. 292 and 293 of 1958 against the decrees passed against them. The plaintiffs in the two suits have filed A. S. Nos. 353 and 354 of 1958 against the portions of their claim disallowed. I shall now take up for consideration the appeals filed by the Government.
5a. A.S. Nos. 292 and 293 of 1958: In these two appeals, the learned Government Pleader, contended, first, that the High Court of Madras held that Section 3 of the Act was intra vires and therefore, the collection of the tax under that section cannot be said to be illegal; (ii) that the plaintiffs in the two suits had not made the payments, now sought to be recovered, either under a mistake of law, or fact, but that they made them voluntarily with the full knowledge of all the facts and circumstances and that, therefore, they cannot seek to recover the amounts; and (iii) in any event, since the amounts paid by the plaintiffs were in the nature of a composition under Section 4. there can be no question of restitution. These contentions will be examined in the above order.
6. I do not think that the first contention of the learned Government Pleader is right. It is true that in : AIR1954Mad569 the Madras High Court held that the charging provision confined in Section 3 of the Act is infra vires and valid. It was, however, held that the first proviso of Section 3 was violative of the rights guaranteed under Article 10(1)(a) of the Constitution in respect of the stage carriage permit holders who were already charging the maximum fare for the passengers. The basis of the decision is formulated by the learned Chief Justice in these words:
'In our opinion, the proviso does injuriously affect the exercise of the petitioners' right to carry on their business. It diminshes their income without any justification. So long as they have been charging the maximum fare prescribed by the Government, they are well within their rights. Now Act XVI of 1952 imposes a burden which they haves to discharge. The effect of the proviso is that they have got to discharge this from their own pocket. The proviso appears to offend not only Article 19 but also Article 14 because of the discrimination made between operators who were charging the maximum fare at the commencement of the Act and those who were not.'
7. The main provision contained in Section 3 cannot be detached from the proviso. The effect of a qualifying proviso is to qualify something contained in the main provision, which but for the proviso would be within it. (Vide Craies on Statute Law, Fifth Edition page 201). Therefore, the charging provision contained in Section 3 must be regarded subject to the qualification that a stage carriage permit holder who has been charging the maximum fare prescribed by the Government cannot pass on the tax to the passengers, or the consignors of the goods in accordance with the purport and intendment of the Act as disclosed in the preamble.
8. Now, in this case, the Government had fixed prior to the coming into force of the Act, the maximum fare for passengers and goods and the plaintiffs were charging according to those maximum rates. The contention of the learned Government Pleader is wholly opposed to the reasoning of the decision of the Madras High Court and is, otherwise untenable on principle. In my view, the learned Subordinate Judge was right in holding that as long as the proviso stood, it was not possible for the plaintiffs to pass on the tax, in the passengers or the consignors of the goods and that, therefore, the amounts collected from the plaintiffs must be deemed to be illegal collections liable to be refunded.
9. The next contention urged on behalf of the Government is that the plaintiffs cannot seek to recover the amounts in question, as they were paid neither under a mistake of fact or of law, but voluntarily. The learned Government Pleader contended that the suit for the recovery of money wrongfully collected by a taxing authority is in the nature of an action for moneys had and received based upon an obligation arising under a quasi-contract.
10. In England, the doctrine of quasi-contract has had a long history. It started in an action Indebitatus Assumpsit. which by a device in pleading imported a promise in an action for the recovery of debt or for account. The assumed promise was based upon a pure legal fiction unrelated to the substance of the obligation sought to be enforced by the action for debt. In the celebrated case of Moses V. Macferlan, (1760) 2 Burr 1005 Lord Mansfield gave a theoretical basis for the doctrine of quasi-contract. He said:
'If the defendant be under an obligation from the ties of natural justice to refund, the law implies a debt and gives this action founded in the equity of the plaintiff's case, as it were, upon a contract... It lies for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied); or extortion; or oppression; or an undue advantage taken of the plaintiff's situation......In one word, the gist of this kind of action is, that the defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to refund the money.'
11. In spite of the various comments made on the decision of Lord Mansfield, it has been recognised that the great Judge was right as to the fundamental principles of quasi-contract that a debt or obligation arises because, in the circumstances of the case, justice requires it.
12. It is unnecessary for me to refer to subsequent leading cases on this question, such as: Sinclair v. Brougham, 1914 AC 398, United Australia Ltd. v. Barclays Bank Ltd., 1941 AC 1 and Fibrosa Spolka Akcyjna v. Fairbairn, Lawson Combe Barbour Ltd., 1943 AC 32. Some eminent Judges and Jurists in recent times have taken the view that the theoretical foundation for this doctrine is to be sought not in any implied or notional promise, but on the theory of unjustified enrichment The following definition of a quasi-contract suggested by Professor Winfield (The Law of Quasi-contract by Winfield, page 1) seems to have elicited she approval of several eminent Jurists and Judges in recent times:
'Liability not exclusively referable to any other head of the law, imposed upon a particular person to pay money to another particular person on the ground that non-payment of it would confer on the former an unjust benefit.'
13. The various actions founded on quasi-contract may be grouped in three broad categories: ill Restitution proper; (ii) Reimbursement; and (iii) Recompense on the foot of Quantum meruit and quantum valebant claims. In the first group. 'Restitution Proper' are included such actions for recovery of moneys paid under: (i) A mistake of facts: (ii) Fraud; (iii) Duress; (iv) Extortion by threats; (v) Undue influence; (vi) Extortion colors officii: (vii) Total failure of consideration; and (VIII) Money paid under illegal contract.
14. But, in this country, many of the heads of claim above referred to have been made parts of positive law. It is, therefore, not necessary to refer in or deal with the modern developments of the theory of quasi-contract in England.
15. The Indian Contract Act contains provisions for the recovery of moneys in stated situations and contingencies. Section 72 of the Act provides for the recovery of money paid under mistake or coercion. The section reads thus:
'Section 72: A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.'
16. There was a conflict of judicial opinion that the above section refers only to a mistake of fact, and not of law. The Bombay High Court in Wolf and Sons v. Dadiba Khimji and Co., ILR 44 Bom 631; (AIR 1920 Bom 192) and the Madras High Court in Appavoo Chettiar v. South Indian Ry. Co., AIR 1929 Mad 177 following the English rule that moneys paid under a mistake of law are not recoverable, held that the expression 'mistake' in Section 72 of the Indian Contract Act, refers only to a mistake of fact. On the contrary in Jagdish Prosad v. Produce Exchange Corporation Ltd., AIR 1946 Cal 245 the Calcutta High Court took a different view. This conflict was resolved by the decision of the Privy Council in Shiba Prasad Singh v. Maharaja Srish Chandra Nandi, 76 Ind App 244; (AIR 1949 PC 297) where it was held that there was no warrant for limiting the scope of the expression 'mistake' and confining it only to a mistake of fact. The Supreme Court has expressly approved of this view of the Privy Council in Sales Tax Officer Banaras v. Kanhaiya Lal Mukund Lal Saraf, : 1SCR1350 . In that case, a person paid the sales tax on forward transactions (under U. P. Sales Tax Act). The levy of tax on forward contracts was held to be ultra vires by the High Court of Allahabad in Messrs. Budh Prakash Jal Trakash v. Sales Tax Officer, Pilibhit, 1952 All LJ 332 : (AIR 1952 ATI 764). That decision was subsequently affirmed by the Supreme Court in Sales Tax Officer, Pilibhit v. Budh Prakash Jai Prakash, : 1SCR243 . In the meantime certain amounts were paid by the assessee as sales tax on forward transactions. After the act was struck down the assessee filed a writ of Mandamus for directing the State to refund the amounts paid by him. On a review of a large number of authorities the Supreme Court held that the amounts paid as tax held invalid, could be recovered as they were paid under a mistake of law.
17. The learned Government Pleader contends that the above decision of the Supreme Court may not directly apply to this case as the plaintiffs did hot pay the money under a mistake of fact or of law. There is, in this case, of course, no allegation at all that the moneys were paid by the plaintiffs under a mistake of fact. It is argued by the learned Government Pleader that the payments were not made under a mistake of law, because the plaintiffs were at no stage under a misapprehension about their legal liability. Even before the Act came into operation they were challenging its validity. They filed writ petitions in the High Court. After the High Court allowed the writ petitions they demanded the refund of the moneys and issued notices to the Chief Secretary of the Government and the Regional Transport Officer, Vijayawada. It is, therefore, contended that at no time were the plaintiffs under a belief that the taxing provisions were legal and made the payment in that belief. There may be some force in this contention. But, nevertheless it has to be seen whether the case will not fall within the second part of Section 72, i.e., moneys paid under coercion In Kanhaiya Lal v. National Bank of India Ltd., ILR 40 Cal 598 (PC), the Privy Council held that the word 'coercion' in Section 72 of the Indian Contract Act, is used in its general and ordinary sense and its meaning cannot be controlled by the definition of 'coercion' contained in Section 15 of the Act. In Municipal Committee, Karanja v. New East India Press Co. Ltd., Bombay, AIR 1949 Nag 215 Bose A.C.J. and Mudholkar, J., held that in a case where taxes are illegally recovered, the money is recoverable, as payment made under coercion, within the meaning of Section 72 of the Indian Contract Act.
18. It is then argued by the learned Government Pleader that the payments made by the plaintiffs cannot be recovered, because they were not made under compulsion, but made voluntarily. In Twyford v. Manchester Corporation, (1946) 1 Ch 236 at 241, Romer, J., had to consider a case where a Mounmental mason could recover back the moneys that he paid under Section 34 of the Burial Act of 1862. On the facts of that case, the learned Judge held hat the payments were voluntary, but he laid down he general rule in these terms:
'If money is paid voluntarily, without compulsion, extortion, or undue influence, without fraud by the person to whom it is paid and with full knowledge of all the facts, it cannot be recovered, although paid without consideration, or in discharge of a claim which was not due or which night have been successfully resisted.'
19. In the leading case on this subject, Maskell v. Horner, (1915) 3 KB 106 at 118 the Court of Appeal had to consider a case where a person sought to recover certain moneys paid as market fee to another, who had no right in law to collect the fee. Lord Reading C. J. observed:
'If a person with knowledge of the facts pays money, which he is not in law bound to pay, and in circumstances implying that he is paying it voluntarily to close the transaction, he cannot recover it. Such a payment is in law like a gift, and the transaction cannot be reopened. If a person pays money, which he is not bound to pay, under the compulsion of urgent and pressing necessity or of seizure, actual or threatened, of his goods he can recover it as money had and received. The money is not paid under duress in the strict sense of the term, as that implies duress of person, but under the pressure of seizure or detention of goods which is analogous to that of duress. Payment under such pressure establishes that the payment is not made voluntarily to close the transaction (Per Lord Abinger C. G. and per Parke B. in Atlee v. Backhouse, (1838) 3 M and W 633). The payment is made for the purpose of averting a threatened evil and is made not with the intention of giving up a right but under immediate necessity and with the intention of preserving the right to dispute the legality of the demand (Per Tindal C. J. in Valpy v. Manley, (1845) 1 CB 594).'
20. The question is whether there has been compulsion in this case. The Act contains certain punitive provisions. D. W. 1, the Regional Transport Officer, Vijayawada, in his evidence, stated that if the plaintiffs had not paid the tax, he would have destrained the bus and collected the tax as arrears of land revenue. It is under that threat that the plaintiffs paid the money and it cannot be said that the payments were made voluntarily.
21. The learned Government Pleader contended that, in any case, the payments were made without protest and in that connection he invited my attention to the decisions of the Madras High Court in Municipal Council, Tuticorin v. Ralli Brothers, AIR IW4 Mad 420 and Municipal Council, Rajahmuudry v. Subba Rao, AIR 1937 Mad 559. The facts in the case of AIR 1934 Mad 420 are wholly different and the principle of decision of AIR 1937, Mad 559 has been held by a Bench of this Court to be no longer good law in view of the decision of the Supreme Court in : 1SCR1350 . On the contrary, the decisions of Chagla C. J., in Trikamdas v. Bombay Municipal Corporation, : AIR1954Bom427 and of the Nagpur High Court in AIR 1949 Nag 215 are definitely against the contention pressed upon me by the learned Government Pleader. The principle of the decision of the Patna High Court in Indian Steel and Wire Products Ltd. v. Superintendent of Commercial Taxes, : AIR1957Pat112 is also in conformity with the principle of the above two decisions. In a recent decision, a Bench of this Court consisting of Umamaheswaram and Qamar Hasan, JJ. in Municipal Council, Tenali v. Sri Rama Talkies, Tenali, 1960-2 Andh WR 45 held that where a Municipality has no legal right to levy a tax it cannot be said that the payments made by the assessee were not under a mistake of law, or were made voluntarily. In my view, this decision directly applies to the facts of the present case and accordingly, I hold that the judgment of the learned Subordinate Judge that the moneys were not paid voluntarily, is correct.
22. It is lastly contended by the learned Government Pleader that because the taxes were compounded under Section 4 of the Act, they cannot be recovered. I am unable to assent to this proposition. The compounding of taxes under Section 4 of the Act is obviously intended for the convenience of all parties by obviating the need to submit the monthly returns and for the meticulous examination of the same. The character of the money paid by way of composition is still the same. A money paid by way of composition does not shed its character as a tax (Vide the observations of the Supreme Court in Sainik Motors, Jodhpur v. State of Rajasthan, 0065/1961 : 1SCR517 ).
23. I therefore, hold that there are no merits in these appeals and they are consequently dismissed with costs.
24. A. S. Nos. 353 and 354 of 1958.--The facts have all been stated in the earlier part of this judgment. It is unnecessary to restate them. The learned Subordinate Judge held that after the High Court rendered its decision on 18-9-1953, there was nothing in law to preclude the motor operators from collecting the tax from the passengers and the consignors of the goods, and if they had not done so, they cannot seek to recover the moneys that they paid under the provisions of Act XVI of 1952 on the ground of mistake of fact or of law. On behalf of the plaintiffs it was contended that to the representation of the transport operators contained in Ex. B1 the Regional Transport Officer, Vijayawada, issued a memo dated 2-11-1953, informing the operators that the notification issued by the Government fixing maximum fares under Section 43(1)(ii) of the Act at 7 pies per mile cannot be increased. The memorandum is of some importance and, therefore, it is necessary to extract it in extenso. It is in these terms:
'The maximum fare that can be collected from the passengers on the stage carriages inclusive of the tax paid under the Madras Motor Vehicles (Taxation of Passengers and Goods) Act, 1952, can not exceed the rates fixed up in G.O.Ms. No. 120, Home, dated 10-1-1950 and, therefore, the maximum rate of 7 pies per mile can in no case be exceeded. It is, however, open to the operators to make representations, if so advised, to the Government urging for the increase of the maximum fare fixed already, under Section 43(2)(b) of the Madras Motor Vehicles Act, 1939, and obtain orders therefor. Till then, increase in the rate of fare beyond the maximum rates fixed up already will not be in order and action against the permit-holder for violation of the conditions of permit for collecting more than the scheduled rates, will be taken.'
25. The learned Subordinate Judge has taken the view that after the decision of the High Court on 18-9-1953, the plaintiffs need not have solicited the orders of the Regional Transport Officer, and in any case, the Government is not bound by what the Regional Transport Officer has done. I am unable to share this view. The Regional Transport Officer is the immediate authority under the Motor Vehicles Act with whom the operators have to deal. Rightly or wrongly, and wrongly in this case, the Regional Transport Officer had notified to the operators that if they increase the fare than that fixed by the Government already, they will stand the peril of action being taken against them for violation of one of the conditions of the permit. If, in consequence of such a communication, the operators paid the tax by compounding it under Section 4, it cannot be said that they paid it without threat and paid it voluntarily. Nor can it be said that the Government can wholly repudiate the action of the Regional Transport Officer, Vijayawada. I hold, therefore, that even after 18-9-1953, the payments made by the plaintiffs were the direct consequence of the memorandum issued by the Regional Transport Officer, (Ex. A-4) on 2-11-1953, and that being so, the plaintiffs must be held to have made the payments for the purpose of avoiding penal consequences with which they were threatened.
26. The plaintiffs however contended that all payments made till the promulgation of the Ordinance (Andhra Ordinance No. III of 1954) deleting the first proviso to section 3 should be held to be illegal collections. I am unable to agree with this contention so broadly put forward.
27. In my view, the position is certainly altered after the issue of the amendment notification on 27-5-1954. That notification is in these terms:
'In exercise of the powers conferred by Section 43(1)(ii) of the Motor Vehicles Act, 1939 (Central Act IV of 1939) the Governor of Andhra hereby makes the following amendments to the Madras Government, Home Department, Notification No. 1460 dated the 18th November, 1947, published at pages 992-993 of Part T of the Fort St. George Gazette dated the 25th November, 1947 as subsequently amended.
The amendment shall be deemed to have come into effect on the 18th September, 1953.
In the said notification the following note shall be added in the end namely: Note:-- The maximum fares hereby fixed are exclusively of any tax leviable under the Madras Motor Vehicles (Taxation of Passengers and Goods) Act, 1952'.
28. The above notification clearly shows that from and after the date of its issue the operators can collect the amount that they were paying as tax from the passengers and the consignors of the goods. Any payment made by the operators subsequent to 27-5-1954 cannot be said to be made under a mistake of fact or law, or made involuntarily for the purpose of avoiding any penal consequences. Payments made after this notification will be strictly gratuitous payments which are not recoverable.
29. I have requested the learned counsel for both sides to give a memorandum containing the payments made by the plaintiff in O. S. No. 31 of 1956 and the plaintiff in O. S. No. 33 of 1956. They have stated that from February, 1953 to April 1954, the plaintiff in O. S. No. 31 of 1956 has paid Rs. 5,005-10-6 and the plaintiff in O. S. No. 33 of 1956 has paid Rs. 4,903-15-2. They have also informed me that subsequent to the issue of the G. O. No. 166 dated 27th May, 1954, the plaintiff in O. S. No. 31 of 1956 has paid Rs. 1,874-4-0 and the plaintiff in O. S. No. 33 of 1956 has paid Rs. 482-8-0. In the view I have taken that the payments made after 27th May, 1954, are wholly voluntary and cannot be recovered, I hold that the plaintiff in O. S. No. 31 of 1956 and the plaintiff in O. S. No. 33 of 1956 are not entitled to the sum of Rs. 1,874-4-0 and Rs. 482-8-0 paid respectively by them. With regard to the sums actually paid by them upto April, 1954, there is already a decree in favour of the plaintiff in O. S. No. 31 of 1956 (appellant in A. S. No. 354 of 1958) for Rs. 2,320-10-6. He has paid in all, according to the memorandum Rs. 5,005-10-6. There shall, therefore, be a decree for the balance of Rs. 2,685-0-0 . The plaintiff in O. S. No. 33 of 1956 (appellant in A. S. No. 353 of 1958) has paid in all upto April, 1954 Rs. 4,903-15-3. There is already a decree in his favour for Rs. 2,516-11-6. There shall, therefore, be a decree for a sum of Rs. 2,387-3-8. To that extent, these two appeals are allowed. Since the appellants have succeeded in part, there shall he no order as to costs.