1. In this revision petition which has come up before us on a reference made by one of us the question raised is whether the non-applicants suit for refund of sales tax on tobacco recovered from them under the Madhya Bharat Sales Tax Act, 1950, is maintainable. The levy of the tax of which refund is sought by the non-applicants was declared by this Court to be illegal as offending Article 301 of the Constitution in Bhailal Bhai v. State of Madhya Pradesh, 1960 MPLJ 601. The decision of this Court was later confirmed on this point in State of M.P. v. Bhailal Bhai, (1964) 6 SCR 261 = (AIR 1964 SC 1006). The plaintiff-non-applicants contend that the tax was illegally collected from them being against the constitutionalprohibition in Article 301 and they are, therefore, entitled to get back the amount paid by them.
2. Before the Civil Judge, Class I, Mandsaur, who is trying the suit an objection was raised on behalf of the State on the authority of a Division Bench decision of this Court in State of M.P. v. Dhulabhai, First Appeal No. 68 of 1961. D/-16-12-1964 (Madh Pra -- Indore Bench) that the plaintiffs' suit was not maintainable. In Dhulabhai's case (supra) the plaintiff who had not taken recourse to the provisions of Article 226 of the Constitution for challenging the validity of the sales tax on tobacco imposed on them, under, the Madhya Bharat Sales Tax Act, 1950, filed a salt for challenging the legality of the imposition and prayed for a refund of the tax paid by them on the ground that, it was illegally collected from them in violation of Article 301. The Division Bench held that the suit was not maintainable. The learned Civil Judge, Mandsaur, distinguished the decision of the Division Bench in Dhulabhai's case (supra) by observing that the plaintiff in that case had not challenged in this Court by an application under Article 226 of the Constitution the validity of the sales tax recovered from them. He held that the suit of the non-applicants was maintainable.
3. After the making of this reference an appeal was preferred to the Supreme Court by Dhulabhai and others against the decision of the Division Bench in First Appeal No. 68 of 1961 (Madh Pra) (supra). That appeal was decided by the Supreme Court on 5th April, 1968 Dhulabhai v. State of Madhya Pradesh, Civil Appeals Nos. 260-263 of 1967 in AIR 1969 SC 78 holding that the suit filed by Dhulabhai and others was maintainable. One of the propositions which the Supreme Court has laid down in the case Dhulabhai v. State of M. P. (supra) is:--
'Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under Act Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of Certiorari may include a direction for refund if the claim is clearly within time prescribed by the Limitation Act but it is not compulsory remedy to replace a suit.'
4. Following the decision of the Supreme Court in Civil Appeals Nos. 260-263, D/- 5-4-1968 = (reported in AIR 1969 SC 78) (supra), it must be held in this case that the suit filed by the non-applicants for the refund of the tax on the ground that it was illegally collected from them being against the prohibition contained in Article 301 of the Constitution ismaintainable. It is true that the appellants in Supreme Court Civil Appeals Nos. 260-263 of 1967 had not resorted to Article 226 of the Constitution for challenging the legality of the sales tax imposed on them under the Madhya Bharat Sales Tax Act, 1950, whereas in the present case the non-applicants successfully challenged in this Court the validity of the sales tax on tobacco (1960 MPLJ 601). But that does not make any difference to the applicability of the decision of the Supreme Court in Civil Appeals Nos. 260-263 of 1967, D/- 5-4-1968 = (reported in AIR 1969 SC 78) (supra) in the present case.
5. For these reasons, we are ofopinion that the learned Civil Judge reached the right conclusion in holding that thenon-applicants' suit was maintainable. Thepetition is, therefore, dismissed. In thecircumstances of the case, we leave theparties to bear their own costs.