1. This judgment will dispose of Civil Revisions Nos. 988, 989 and 1122 of 1977 which contain similar questions of law and fact. The facts in the judgment are being given from civil Revision No. 989 of 1977.
2. The plaintiff is carrying on the business of manufacturing bricks. For that purpose he took from private persons land on lease. It is alleged that on 6th November, 1968, the Government recovered an amount of Rs. 312.77 from him as royalty under the provisions of Mines and Minerals (Regulation and Development) Act, 1957. It is further averred that payment was made by mistake by the plaintiff to the State. On 25th March, 1971, a Full Bench of the Punjab &Haryana; High court decided the civil writ petition entitled Amar Singh Modi Lal v. State of Haryana, AIR 1972 Punj & Har 356, wherein it was held that in the absence of a subsisting agreement or contract between the brick manufacturers and the Government with regard to the minor mineral brick earth, no royalty could be levied by the Government. It is alleged that there was no such agreement between the plaintiff and the Government and, therefore, it was not entitled to charge royalty from the plaintiff. He, therefore, instituted a suit for recovery of Rs. 312.77 against the defendant.
3. The suit was contested by the defendant who controverted the allegations of the plaintiff. It inter alia pleaded that the Civil Court had no jurisdiction to try the suit, the suit was not within limitation and that the land taken by the plaintiff vested in the State.
4. The learned trial court held that the Civil Court had the jurisdiction to try the suit, that the suit was within limitation and that the land did not vest in the State. It further held that the state was not entitled to charge royalty from the plaintiff. Consequently it decreed the suit in favour of the plaintiff. The defendant went up in appeal before the Additional District judge who held that the Civil Court had no jurisdiction to try the suit and that the suit was not within limitation. In view of the aforesaid findings he accepted the appeal, reversed the judgment and decree of the trial Court and dismissed the suit. The plaintiff has come up in revision to this Court.
5. The first question that arises for determination is whether the civil court has the jurisdiction to try the suit. It is not disputed that the land had been taken on lease by the plaintiff from private persons and there was no subsisting agreement regarding it between the parties to the suit. It has been settled by a Full Bench of this court in Amar Singh Modi Lal's case, (AIR 1972 Punj & Har 356) (Supra) that if there is no agreement between the brick manufacturers and the Government with regard to the brick earth, no royally can be levied by the Government on them. Therefore, the Government was not entitled to charge royalty from the petitioners. It is well settled that if the government realises any amount from a citizen which it is not entitled to charge, he can file a suit for recovery of that amount in the Civil Court. Consequently I hold that the Civil Court has the jurisdiction to try the suit and the finding of the learned appellate Court to the contrary is erroneous.
6. The second question that requires determination is as to whether the suit is within time. The case of the plaintiff-appellant is that the amount was paid under a mistake and that mistake was detected on 25th September, 1971 when Amar singh Modi Lal's case (supra) was decided by the Full Bench and the suit is within three years from the aforesaid date. It is not necessary to elaborate the reasoning as the question has been settled by the Supreme court in State of Kerala. v. Aluminium Industries Ltd., (1965) 16 STC 689, and D. Cawasji and Court. v. State of Mysore, AIR 1975 SC 813. In Aluminium Industries Limited's case (supra) the sales tax was paid by the assessee and subsequently it was sought to be recovered from the State Government on the ground that it was paid under a mistake of law. It was observed by Wanchoo, J., speaking for the Court, that money paid under a mistake of law comes within the word 'mistake' in S. 72, contract Act, and there is no question of estoppel when the mistake of law is common to both the assessee and the taxing authority. where the assessee does not raise the question that the relevant sales were outside the taxing State and were therefore exempt under Art. 286(1)(a) of the Constitution, the Sales Tax Officer has no occasion to consider it, and sales tax levied is by mistake of law. Consequently it is ordinarily the duty of the State, subject to any provision of law relating to sales tax, to any provision of law relating to sales tax, to refund the tax. If refund is not made, remedy through Court is open, subject to the same restriction and also to the bar of limitation under Art. 96. Limitation Act, 1908, namely 3 years from the date when the mistake becomes known to the person who has made the payment by mistake. It is the duty of the state to investigate the facts when the mistake is brought to its notice and to make a refund if the mistake is proved and the claim is made within the period of limitation. Reference in the above case has been made to Art. 96, Limitation Act. 1908. In the Limitation Act, 1963, there is no article equivalent to Art. 96 and, therefore, now such cases will be governed by residuary Art. 113. This Article also provides a period of three years from the date when the right to use accrues. From the above observations it is evident that the right to sue accrues when the mistake is discovered. Therefore a suit can be filed within a period of three years from the date when the mistake is discovered. Similar view has been taken in D. Cawasji and Company's case, (AIR 1975 SC 813) (supra).
7. Now it is to be seen as to when the mistake will be deemed to be discovered. It has been settled in D. Cawasji and Company's case (supra)that the mistake of law is deemed to be discovered when a Court makes a declaration regarding the invalidity of the law. The relevant observations of the learned Bench are as follows:
'In a case where payment is made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a Court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a Court makes a pronouncement, it is seldom that a person can, even with a reasonably diligence, discover a mistake of law before a judgment adjudging the validity of the law.'
8. It is thus clear that in the present case the mistake of law will be deemed to be detected on 25th September, 1971, when the judgment in Amar singh Modi Lal's case (AIR 1972 Punj. & Har. 356) (FB) (supra) was pronounced. The present suit has been filed within three years from the said date. Thus it is within limitation. As already observed, the state had no right to recover the royalty from the plaintiff-appellant in view of the judgment of the Full Bench in Amar Singh Modi Lal's case (supra). Consequently the plaintiff is entitled to the refund of the said amount.
9. The facts of Civil Revision Nos. 988 and 1122 of 1977 are similar and no additional argument was advanced therein.
10. For the aforesaid reasons I accept all the three revision petitions, set aside the judgment and decree of the appellate Court and decree the suit of the plaintiffs with costs throughout.
11. Revision allowed.