Gopalan Nambiyar Actg. C.J. - The appeal is directed against the judgment in O.P. No. 337 of 1970. The question raised in the writ petition was regarding the constitutionality of differential rates of levy of water-tax in the Mattancherry and the Ernakulam areas both of which are comprised in the limits of the corporation of Cochin, which was formed on and from 1-11-1967. In the Mattancherry area of the Corporation, water-charges are levied at the rate of Rs. 8/- per 1,000 gallons for non-domestic use; and in the Ernakulam area, at the rate of Rs. 3/- per 1,000 gallons for non-domestic use. We need not enter into the further details of the levy as the learned Single Judge has held the levy to be unconstitutional as discriminatory and no appeal against the said judgment has been filed by the Corporation.
2. The only grievance of the petitioner is against the learned Judge having confined the relief granted to the petitioner from the date of pronouncing judgment on the theory of what the learned Judge described as 'prospective overruling'. This is what the learned Judge stated :
'9. I think that this is an eminently proper case for applying the doctrine of prospective over-ruling recognised and applied by the Supreme Court in Golak Nath vs. State of Punjab (A.I.R. S.C. 1643). Different rates of water charges were in force in Ernakulam and Mattancherry Municipalities. After the Corporation of Cochin was formed on 1-11-1967, these different rates were continued to be levied in the Ernakulam area and the Mattancherry area of the Corporation without any objection from any person. The petitioners before me are persons who being well aware of the said fact, applied for supply of water for industrial purpose at the prevailing rates, and made use of the same on that basis. There is no equity on their part in questioning the past. Striking down the relevant order or bye-law which fixed the rates of charges for supply of water in the Mattancherry area with retrospective effect would have very drastic effect on the finance of the Corporation, and may create serious difficulties. The counter affidavit filed on behalf of the Corporation states among other things, that 'after the commencement of the Corporation, bye-laws have been framed by the Corporation informing the rates and these have been forwarded to the Government for its approval'. It further states that approval has not been granted by the Government so far, and hence the old rates are being continued. This is a tacit admission that the existing differential rates cannot be justified. The delay in taking the necessary steps cannot justify the continuance of a discriminatory levy.
10. For the reasons stated above, I quash the order or bye-law under which the Corporation is charging a higher rate for the supply of water for non-domestic purpose within the Mattancherry area than the rate charged within the Ernakulam area with prospective effective, and also prohibit respondents 1 to 3 from collecting from the petitioners in the future a higher rate of charge than the rate fixed for the Ernakulam area. The above writ petitions are allowed to this limited extent, and dismissed in other respects. In the circumstances of the case the parties will bear their own costs.'
With respect, we are unable to subscribe to the reasoning or conclusion of the learned Judge confining the relief granted to the petitioner only from the date of judgment and not from the date of the filing of the petition. Indeed, this part of the judgment of the learned Judge was not supported by Counsel appearing for the Corporation. We are also of the opinion that neither on principle nor on authority can the conclusion be rested the theory of 'prospective overruling' referred to in the decision of the Supreme Court in Golak Nath vs. State of Punjab. The said decision has been overruled in Kesavananda Bharathys case. The doctrine of prospective overruling is as yet in the melting crucible; and after the pronouncement in Kesavananda Bharathys case, noted supra, was see no justification for applying the theory. We should ordinarily grant the petitioner a full and complete refund of all the water charges collected at the discriminatory rate of levy. But the petitioners Counsel stated that he would confine his claim for refund for the period from the date of filing the writ petition.
3. We allow this appeal set aside the judgment of the learned Judge, and, in view of what the appellants Counsel stated, direct that the appellant be granted refund of water charges collected from the date of filing the petition i.e. 1-4-1972. In the light of this declaration there is no need for any mandamus not to collect at a rate exceeding Rs. 3/- per 1,000 gallons as we expect the Corporation to act in conformity with this judgment, and in accordance with law. No costs.