Civil Appeal No 1654 of 1979
From the Judgment and order dated 2831979 of the Allahabad High Court in Second Appeal No 3064 of 1972
JP Goyal and SK Jain for the Appellant
SN Kacker and OK Garg for the Respondent
The Judgment of the Court was delivered by RANGANATHAN J
The question which has come up for consideration in this appeal from judgment of the Allahabad High Court is whether the deposit of rent by a tenant under section 7 C of the Uttar 419 Pradesh Temporary Control of Rent and Eviction Act 1947 hereinafter called the Act  as such entitles him to resist successfully eviction under the provisions of the Act on the ground of default in payment of rent
The appellant Ram Sewak was a tenant of the respondent Munna Lal in respect of a shop on a rent of Rs25 per month
The rent upto 30
1166 had been paid by the tenant
The landlord however claimed that the rent for the period from 1 1266 till 2821971 less an amount of Rs275 which had been received by him by way of money order was due from the appellant tenant
This remained unpaid despite notices of demand dated 22371 and 1241971 and a notice of termination of the tenancy dated 2741971
On these allegations
The landlord instituted a suit for ejectment of the tenant on the ground of non payment of rent
He also claimed the recovery of arrears of rent
mesne profits and certain taxes which were alleged to be payable by the tenant
This suit was decreed by the learned Munsif Jhansi
A first appeal was unsuccessful insorfar as the decree related to the eviction of the petitioner was concerned but the claim for arrears of rent was rejected in part on the ground of limitation
A second appeal was also dismissed by the High Court and hence the present appeal
The defence of the tenant to the suit was that he had tendered the rent to the plaintiff landlord but the latter had refused to accept it
The rent was sent by money order but even then it was refused
It was submitted that the tenant had thereupon made an application on 3171967 under section 7 C of the Act in the court of the learned Munsif Jhansi for permission to deposit the rent in the court
The Court issued a notice to the landlord which was also duly served on him
On the date of hearing there was no appearance on behalf of the landlord
Thereupon the learned Munsif passed an order on 11111967 permitting the tenant to deposit the arrears of rent as well as future rent in court
It was claimed that the tenant had deposited arrears of rent amounting to Rs200 for the period from 1 121966 to 3171967 in the court along with application and that he continued to deposit in court the rent thereafter from month to month
It was therefore submitted that there were no arrears of rent due from the tenant to the landlord and that therefore the suit for eviction was not maintainable
The learned Munsif and on appeal the learned Subordinate Judge found as a fact that the plaintiff had failed to prove that he had tendered the rent to the landlord or that the latter that the latter had refused to 420 accept it
This being so they held the statutory conditions requisite for a valid deposit under section 7C were not fulfilled
Neither the application made by the plaintiff under section 7C nor the order passed by the learned Munsif on 111167 could therefore help the plaintiff
In this view of the matter both the courts held that the default in payment of rent within the meaning of sec
31a of the Act stood established and the plaintiff was therefore liable to eviction
Before us as before the courts below learned counsel for the tenant based his case solely on the order under the provisions of section 7C of the Act
That section reads as follows 7 C Payment by Deposit of Rental When a landlord refuses to accept any rent lawfully paid to him by a tenant in respect of any accommodation the tenant may in the prescribed manner deposit such rent and continue to deposit any subsequent rent which becomes due in respect of such accommodation unless the landlord in the mean time signifies by notice in writing to the tenant his willingness to accept
2 Where any bona fide doubt or dispute has arisen as to the person who is entitled to receive any rent referred to in sub section I in respect of any accommodation the tenant may similarly deposit the rent stating the circumstances under which such deposit is made and may until such doubt has been removed or such dispute has been settled by the decision of any competent court or by the settlement between the parties continue to deposit in like manner the rent that may subsequently become due in respect of such building
3 The deposit referred to in sub section 1 or 2 shall be made in the Court of the Munsif having jurisdiction in the area where the accommodation is situate
4 on any deposit being made under sub section 1 the Court shall cause a notice of the deposit to be served on the landlord and the amount of deposit may be withdrawn by the landlord on application made by him to the Court in this behalf
5 When a deposit has been made under sub section 2 the amount of the deposit shall be held by the Court for 421 the benefit of the person who may be entitled to it and the same shall be payable to such person
6 In any case where a deposit has been made as aforesaid it shall be deemed that the rent has been duly paid by the tenant to the landlord
 Learned counsel submitted that in the event of a landlord s refusal to accept the rent the tenant had no other alternative but to deposit the same in the court under the above special provision
It was open to the landlord to have appeared before the learned Munsif at the time of hearing of the application for deposit and put forward any pleas which he might have had
The landlord not having done this it was claimed that the order passed by the learned Munsif on 11111967 provides a complete defence to the action under section 31a of the Act against the tenant particularly in view of the language of sub section 6 of section 7C
It was contended that the statute should not be constured as requiring that a tenant should prove the fact of his having tendered the rent and the landlord having refused it twice over once while making a deposit under section 7C and again in proceedings under section 31a
If despite a deposit under section 7 C an action under section 31a were to be permitted it was urged section 7 C would be rendered nugatory and otiose
Learned counsel also made a point that though the landlord in this case had knowledge that the rent was being deposited in court since August 1967 he chose to keep quiet for a period of four years before issuing a notice calling upon the appellant to pay the arrears of rent
Prima facie the arguments of the appellant appear to have some force
However after hearing learned counsel for the respondent and considering the facts of this case and the relevant statutory provisions we have come to the conclusion that this appeal must fail both on technicalities as well as on equities
section 7C is no doubt a provision intended to protect the interests of the tenant
But there is the authority of this Court holding that the mere fact of a deposit under this Section in itself cannot be an answer to an action section 31a
In Brahmanand vs Kaushalya Devi   the relations between the landlord and tenant were highly strained
The tenant therefore deposited the moneys into court and pleaded this as a defence to an action section 31a
The High Court rejected this plea on the ground that there was nothing to show that the tenant had tendered the rent physically to the landlord and so the 422 deposit could not be treated as a valid deposit section 7CI so attract the deeming effect in section 7C6
This Court held that the High Court had taken too narrow a view of the words paid to  the landlord
Krishna Iyer J Observed a liberal construction of the expression paid to him by a tenant
in section 7 Cl is necessary
Physically offering payment when the relations between the parties are strained is to ask for trouble and be impractical
But harassing the landlord by straight way depositing the rent in court without fulfilment of the conditions required by section 7 C l is also unwarranted
Section 7 C6 by using the expression where the deposit has been made as aforesaid  takes us back to section 7 C I
That is to say the deposit is permissible only when the condition in section 7 Cl is complied with
If the landlord refuses to accept rent paid to him a deposit is permissible
But payment need not be by physical tender person to person
It can be by money order or through messenger or by sending a notice to the landlord asking him to nominate a bank into which the rents may be regularly paid to the credit of the landlord
If the landlord refuses under these circumstances then a court deposit will be the remedy
 In the present case on account of the bad blood between the parties a physical tender of the rent is ruled out
At the same time the Courts below have not considered whether the circumstances which drove the appellant into depositing the rent in court were such as eliminated the other possibilities of direct payment we have indicated
It is therefore fair to set aside the finding of the Courts below and remand the case to the lower appellate Court which is the final court of fact under ordinary circumstances to ascertain whether any of the alternatives we have indicated or may otherwise be made out by the tenant as equivalent to payment of rent is present in the case
if no such circumstances is made out by the tenant justifying deposit of rent in court the decree for eviction will stand
Other wise the petition for eviction will be dismissed
 It is important to note that this Court did not view the deposit section 7C as conclusive of the issue
On the other hand it held that if no circumstance was made out by the tenant justifying the deposit in 423 court the decree for eviction will stand
In other words this Court the view that irrespective of the fact of deposit section 7C the tenant has to show when a suit is under section 31a that the existence of circumstances justifying a deposit under section 7C
In the present case the Courts have been concurrently found that there was no valid tender of rent by the tenant or refusal thereof by the landlord
There is no ground therefore to interfere with the decision of the Courts below
A careful perusal of section 7C and the rules and forms made thereunder also supports the above conclusion
The application for a deposit under this section has to be made in the form prescribed in Appendix A to the rules framed under the Act
The appellant s application to the court was filed in this form
Column 6 of the application form is filled in by the tenant may be extracted A B 6
Whether deposit is made the deposit is being under sub section 12 made under sub section1 of Section 7 C
In case of of 7 C of the Act
Fact in Sub section1 briefly brief is that the landlord state the circumstances of has reused to accept the refusal by the owner
in rent
It is being deposited case of sub section2 under section 7 c of the UP mention circumstances of act 3 of 1947
 doubt or dispute about ownership
The rules framed under the Act also prescribed the form in which notice is to be served on the respondent when an application is made under section 7 C This form reads as follows XXXX XX To Whereas    has deposited Rs   as rent for the period  for the premises 
Of which you have been mentioned as the land lord
424 Notice is hereby given to you under sub section 4 of Section 7 C of the UP Temporary Control of Rent and Eviction Act 1947 that the said amount will be paid to you on an application for withdrawal being presented to this Court
Given under my hand seal this day of 
 Munsif
 Reading section 7 C the rules framed thereunder and the above statutory forms together it would appear that this provision envisages that where a tenant finds that the landlord refuses to accept the rent or there is some dispute regarding the ownership he can in order to protect his interests seek the permission of the Court to deposit the arrears of rent as well as future rent in the court instead of running after the landlord
Though the applicant is asked to indicate briefly the circumstances in which he wants to make a deposit there is no procedure contemplated for an enquiry into those circumstances
The section or rules do not seem to contemplate the transmission of this application to the landlord the fixing of a date of hearing on which both the tenant and the landlord could be heard or the passing of a considered order by the court after hearing both sides and being satisfied that there was in fact a tender of rent by the tenant and a refusal by the landlord to receive the rent or a dispute regarding the ownership of the property which rendered it difficult or impossible for the tenant to send the money to the landlord straight
The notice which is sent to the landlord merely sets out that money has been deposited in the court and that the landlord is at liberty to withdraw it if he so desires
All that the landlord can do on receipt of the notice is either to withdraw the moneys deposited or stop future deposits by expressing a willingness directly to the tenant to accept direct payment of rent thereafter
On the language of the statutory provisions therefore it is not possible to say that a deposit section 7C is necessarily a valid one preceded by an enquiry or satisfaction of the court that the condition precedent set out in section 7C I is fulfilled
Counsel for the petitioner submits that in Fateh Chand vs Bal Saroop Goel  and other cases the Allahabad High Court has held that a deposit section 7C is not a mere formality and that before directing or permitting a deposit the court has to go into the question whether there has been a tender and a refusal
In fact the 425 High Court has gone further and held that the Court has to go into that question at two stages one when an application is presented and before issuing notice to the landlord and the other when the landlord appears before the court and disputes the validity of the procedure sought to be invoked by the tenant
Perhaps these requirements have been read into the section on grounds of equity and natural justice
Whatever that may be we are constrained to say that such procedure does not appear to have been followed in this case
As we have already mentioned the application in the present case gave no details in the space against column 6
Instead of setting out the circumstances in which it was alleged that the landlord had refused to receive the rent the application barely asserted that the landlord had refused to accept the rent
There is no information as to the nature of the notice served on the landlord but it must have been only in the form of Appendix already set out
Again though the application of the appellant under section 7 C appears to have come up before the Munsif on 11111967 and the order mentions that the landlord is absent though served sufficiently the order is only that the landlord may withdraw the amount deposited on proper application
It does not indicate any application of mind by the learned Munsif as to whether the conditions precedent for a valid deposit section 7C were satisfied
There is certainly no finding at that stage on this vital requirement
The grant of permission to deposit under section 7C in the circumstances of the case cannot therefore be treated as conclusive that a valid deposit had been made under that section
Sri Kackar took up the stand that even if section 7C is interpreted as providing an opportunity to both parties and even if a clear finding is recorded in these proceedings after hearing both parties that the preconditions of a valid deposit under that section are satisfied that will not constitute res judicata or take away the court s rights in an action section 31a of being satisfied on the evidence before it to the same effect
He relied in this context on two decisions of the Allahabad High Court
It is sufficient to refer to extract some portions from the head note of one of them viz Hazi Abdul Karim vs Mohd Ismail
1978 UP Rent Cases 691 P A finding merely on a collateral fact of jurisdiction cannot operate as res judicata in later proceedings between the same parties
It has been stated in Halsbury s Laws of England Third Edition Volume XV paragraph 367 at page 192
It is a fundamental rule that a judgment is not conclusive to anything but the point decided or of any matter 426 which came collaterally in question or of any matter incidentally cognizable
The principle behind this rule seems to be that even though in the previous proceedings a decision on a collateral fact about jurisdiction wrongly given may be binding on the parties for a limited purpose ie only so far as those proceedings are concerned yet it would completely defeat the ends of justice if such erroneous decision were allowed to become final and perpetuate itself
It would be conducive to the ends of justice that in later regular proceedings the parties should not be thwarded by an earlier wrong 
finding and should be afforded full opportunity of demonstrating that the condition precedent to the exercise of jurisdiction were absent
It cannot therefore operate as res judicata and the parties must be left free to agitate the same question again in a subsequent suit for ejectment or other appropriate proceedings
The whole scheme of Section 7 C is inconsistent with any adjudication of the rights of the parties
Under this section the learned Munsif is not required to determine the rights and obligations of the landlord and the tenant in these proceedings
All that he has to do on deposit of rent under Section 7 C 1 is to issue a notice to the landlord informing him that such deposit has been made
The deposit made under section 7 C is by itself a neutral act and it acquires its legal completion only when F the rights of the parties are later determined in appropriate proceedings
The deposit is thus without prejudice to the rights of the parties which ought to be determined in the appropriate proceedings
X x x x x X   the entire scheme of Section 7 C leads to the inescapable conclusion that it is merely a tentative or provisional forum provided for the purpose of checkmating any sinister attempt on the part of the landlord for letting it appear that no rent had been actually paid to him and thereby procuring the ejectment of a tenant
It is a legal fiction operating 427 for the benefit of tenant in order to destroy a substerfuge which may unjustly result in the eviction of the tenant
A deposit therefore per se does not decide the rights of the parties
Its significance and legal impost actually take shape according to the tenor and upshot of other subsequent proceedings in which such rights any be actually adjudicated
For the purposes of the present case we need not go into this larger question
In view of our conclusion regarding the scope of section 7C and our finding that here
there was no enquiry or finding recorded in the proceedings u section 7C which could at all operate as res judicata against the landlord in the suit section 3 la
Learned counsel for the appellant strongly relied on two decisions of this court in support of his contention
The first was Kaloo and others vs GauriShanker 51
Learned counsel relied on certain passages in paragraphs 13 19 and 23
In our opinion this decision is not of much help as the court in that case was concerned with a clear case of refusal of rent by the landlord fully justifying the deposit under section 7 C
This is cleary from various passages in the judgment particularly in paragraphs 19 and 20
The other judgment relied upon is that of this court in Kameshwar Singh Srivastava vs IV Addl
District Judge Lucknow and others  This was a decision under a later Act of Uttar Pradesh namely Act 13 of 1972
Section 3 of the said Act is a provision similar to section 7 C of the Act presently in question
In this case also it was found as a fact that there had been a tender of rent to the landlord who did not accept the same and this was held to be a complete answer in proceedings for eviction
There can be no doubt that by virtue of section 7 C6 a deposit properly and justifiably made under section 7 C would be deemed to be a payment of rent to the landlord himself
Once there is a proof of a valid deposit then there can be no eviction of the tenant under section 31a since the section equates such a deposit to a payment to the landlord thus negativing the existence of any arrears of rent or any wilful default
But at the same time it is necessary for the courts to ensure that the tenants do not resort to the provisions of section 7 C merely to harass the landlord
The decision in Kameshwar Singh s case emphasises this aspect in paragraph 7 7
We should not be understood to have laid down that the tenant should deposit rent in court instead of paying the same to the landlord
Primarily a tenant is under a legal obligation to pay rent to the landlord as and when due and 428 if he fails to pay the same on demand from the landlord and if he is in arrears for a period of more than four months he would be liable to ejectment
Where there is a bona fide dispute regarding the landlord s right to receive rent on account of there being several claimants or if the landlord refuses to accept the rent without there being any justification for the same the tenant would be entitled to take proceedings under section 30 of the Act and deposit the rent in court thereupon he would be deemed to have paid the rent to the landlord consequently he would be relieved of his liability of eviction
It does not however follow that the tenant is entitled to disregard the landlord or ignore his demand for payment of rent to him
The provisions of the Act safeguard tenants interest but it must be kept in mind that the landlord s right to receive rent and in the event of the tenant s being in arrears of rent for a period of more than four months his right to evict the tenant is preserved if the tenant makes the deposit in court without there being any justification for the same or it he refuses to pay the rent even on the service of notice of demand by the landlord he would be liable to eviction
However the question whether the tenant is justified in depositing the rent in court and whether deeming provision of s 306 would be available to him to relieve him from the liability of eviction would depend upon facts of each case
As noted earlier on the special facts of the instant case we have no doubt in our mind that the appellant had relieved himself from the liability of eviction and he was not in arrears of rent for a period of more than four months
 This decision also incidentally proceeds on the basis that despite an order section 30 it is open to the Court in the proceedings for eviction to consider whether the deposit was a valid one or not
In the light of the above observations also were justified having regard to the facts and circumstances of the present case in ordering eviction
Learned counsel for the appellant submitted that such an interpretation as we have upheld would completely render section 7 C a dead letter
This is not so
Section 7 C as we have pointed out earlier is only intended as a protection to the tenant to tide over a particular genuine difficulty
It enables the tenant to deposit the rent from time to time in the court so that the arrears of rent do not accummulate and he is not constrained to pay large sums of money owing to the landlord on a future date
Secondly it safeguards the landlord inasmuch as the 429 rent from month to month is being deposited in the court and the landlord is not prejudiced by a huge accummulation of rent which he may find it later on difficult to recover
Thirdly it also protects the tenant in this that if ultimately he is able to show in the eviction proceedings that the deposit was made because of the refusal of the landlord to accept the rent it provides a complete answer to the plea of eviction under section 31a
It cannot therefore be said that section 7 C loses all its meaning and becomes otiose if it is interpreted in the restrictive manner above discussed
This leaves only the equities of the matter to be considered
The contention of the learned counsel for the appellant that though the landlord was aware that the rent was being deposited in the court ever since August 1967 he waited for a period of four years before issuing a notice of demand for arrears of rent is seen to be without substance
Shri Kacker has pointed out that the appellant had filed a suit No 786 of 1968 claiming that he had paid Rs275 towards rent by money order and claiming refund of the same
This suit was pending till April 197 1
On 194197 1 the suit was dismissed
The Third Additional Munsif Jhansi found that the sum of Rs275 had been paid towards rent for the period ending 30111966 and that the appellant was not entitled to the refund thereof
Shri Kacker rightly points out that since the appellant had raised a plea in this suit that the sum of Rs275 had been paid by him towards the arrears of rent due after November 1966 the landlord was disabled from instituting proceedings for eviction until this issue was decided in the suit
In other words the delay from August 1967 when the appellant started depositing the rent in court till 1971 when the proceedings for ejectment were started was not due to any laches on the part of the respondent but was caused on account of the pendency of the litigation instituted by the tenant
Indeed it is rather unbelievable that after having alleged in the application under section 7 C that the landlord had refused to accept the amount tendered and deposited the arrears of rent in court the tenant would have sent a sum of Rs275 by money order on 301167 as alleged
In fact the findings in that suit incidentally also negative the tenant s allegation that he had sent several money orders which the landlord had refused to receive
But this aspect need not detain us as all the three courts have concurrently found that in the present case the appellant had not been able to prove that there had been a tender of the rent by him and refusal thereof by the landlord
In the result we have come to the conclusion that both in law and in equity the appellant has no case and that the ejectment suit was 430 properly decreed by the courts below
The appeal therefore fails and is dismissed
We however make no order as to costs since the arrears of rent are available to the landlord for being withdrawn from the court PSS Appeal dismissed


Summary:
 The Assam Taxation on Goods Carried by Road or Inland Water ways Act1954 was struck down as ultra vires the Constitution in Atiabari Tea Co Lld
vs State of Assam  A new Act was thereafter passed which received the President s assent on April 6 1961
The High Court declared the said Act to be ultra vires on August 1 1963
The State and other respondents preferred appeals before Supreme Court against the decision
In the meantime in Khyerbari Tea Co Ltd  Anr
vs State of Assam  the Court held the Act to be intra vires on December 13 1963
Following the decision in Khyerbari case the appeals filed by the State and others were allowed by this Court on April 1 1968
After this decision the respondents required the appellants by notices under section 72 of the Act issued on July 8 1968 to submit return for the period ending June 30 1961 September 30 1961 December 31 1961 and March 31 1962
Due to the penal consequences mentioned in the said notices the appellants filed returns on July 11 1968
The assessment orders were passed under section 93 of the Act
The tax was duly paid
In November 1973 the appellants filed writ petitions before the High Court seeking direction for refund of the tax paid under mistake relying on the High Court s Judgment in Loong Soong Tea Estate Civil Rule No 1005 of 1969 dated July lO 1973 declaring the assessment as without jurisdiction
475 The High Court set aside the orders and notices of demand but refused claim of refund on the ground of delay and laches
It took the view that it was possible for the appellants to know about the legality of the tax sought to be imposed as early as 1963 when the Act in question was declared ultra vires
The taxes having been paid in 1968 the claim in November 1973 was belated
It however held that the claim for refund was a consequential relief
In the appeals to this Court it was contended for the appellants that they had paid the tax under a mistake of law and were entitled to seek refund thereof and a writ petition seeking refund of tax realised without the authority of law cannot be rejected on the ground of limitation or delay unless such delay can be said to amount to laches or has caused some irreparable prejudice to the opposite party
Allowing the appeals  HELD By the Court Per Sabyasachi Mukharji  Ranganathan JJ The money was refundable to the appellants
The writ petitions were within time
4X4H Per Mukharji J 1
No State has the right to receive or to retain taxes or monies realised from citizens without the authority of law
There is in such cases concomitant duty to refund the realisation as a corollary of the constitutional inhibition that should be respected unless it causes injustice or loss in any specific case or violates any specific provision of law
480H 485E F In the instant case tax was collected without the authority of law
The notices were without jurisdiction
So was the assessment made under section 93 of the Act
The respondents therefore had no authority to retain the money so collected and as such the money was liable to refund
480D 21 In an application under Article 226 of the Constitution the Court has power to direct the refund unless there has been avoidable laches on the part of the petitioner which indicate either the abandonment of his claims or which is of such nature for which there is no probable explanation or which will cause an injury either to respondent or any third party
484C D 476 22 Courts have however made a distinction between those cases where a claimant approaches a High Court seeking relief of obtaining refund only and those where refund is sought as a consequential relief after striking down of the order of assessment etc
A petition of the former nature is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit wherein it is open to the State to raise all possible defences to the claim defences which cannot in most cases be appropriately raised and considered in the exercise of writ jurisdiction
480F H 48B In the instant case s23 of the Assam Act provided for refund to a producer or a dealer any sum paid or realised in excess of the sum due from him under that Act
The section thus applies only in a case where money is paid under the Act
If there is no provision for realisation of the money under the Act the act of payment was ultra vires the money had not been paid under the Act
In that view of the matter the case did not come within section 23 of the Act
The High Court having found that the claim for refund was a consequential relief it could have directed the State to refund the amount in question
483 G H484A B 23 Exercise of every discretion must be fair and equitable
The period of limitation prescribed for recovery of money paid by mistake under the was three years from the date when the mistake was known
In the instant case knowledge is attributable from the date of judgment in Loong Soong s case on 10th July 1973
There being a statement that the appellants came to know of that fact in October 1973 and there being no denial by the averment made on this ground the High Court was in error in presuming that there was a triable issue on this ground and refusing to grant refund
Within a month in November 1973 the present petitions were filed
There was no unexplained delay
The appellants had proceeded diligently
There is nothing to indicate that had they been more diligent the appellants could have discovered the constitutional inhibition earlier
The position is not clear even if there is a triable issue
The position becomes clearer only after the decision in Loong Soong s case
It could not therefore be said that the appellants had abandoned their claims
487B D Suganmal vs State of Madhya Pradesh and others
 AIR 1965 SC 1740 Tilokchand Motichand  Ors
vs HB Munshi  Anr  Kantilal Babulal vs HC Patel 21 STC 174 Chandra Bhushan  Anr
vs Deputy Director of Consolidation Regional UP  Ors   RL Kapur vs State of Madras   State of Madhya Pradesh vs Bhailal Bhai  Ors
J 1964 6 477 SCR 261 Ramchandra Shankar Deodhar  ors
vs The State of Maharashtra  Ors   AV Venkateswaran Collector of Customs Bombay vs Ramchand Sobhraj Wadhwani and another   Shiv Shankar Dal Mills etc
vs State of Haryana  Ors etc
  and State of Madhya Pradesh and others etc
vs Nandlal Jaiswal and others etc
  referred to
It is only on the delivery of the judgment in Loong Soong s case in 1973 the appellants realised the right to claim the relief of refund as a consequential relief setting aside the assessment and the assessment was set aside by the very order itself
That right has been granted by the High Court
The High Court has not refused the setting aside on the ground of delay
It would be inconsistent for the High Court to refuse to grant consequential relief after setting aside the assessment
If the realisation was without the authority of law and that was declined by the High Court by the judgment in the instant case which claimed also the consequential relief that relief must automatically follow
Refunding the amount as a consequence of declaring the assessment to be bad and recovery to be illegal will be in consonance with justice equity and good conscience
489F H 4
The challenge to the assessment on the ground that the assessment was bad could not be made in an appeal under the Act because the right to appeal being a creature of the Act if the Act is ultra vires that right would not ensure to the benefit of the appellant
Section 16 of the Act under which an appeal lay within thirty days from the date of service of an assessment order therefore had no application
Similarly rule 55 of the Rules framed under the Act barring claims of refund unless made within one year from the date of the original order of assessment being unconstitutional had no application
485H 486A B 487H 1
The assessments on the appellants were illegal
The taxes demanded on the basis thereof had been collected without the authority of law
The High Court therefore while allowing the appellant s prayer for quashing the assessment should also have allowed the refund of the illegally collected taxes
490D Superintendent of Taxes vs Onkarmal Nathmal Trust 1975 Supp
SCR 365 applied
478 The petitions filed in November 1973 were within the period of limitation prescribed in Article 113 of the read with section 23 of the Assam Act
The appellants  averment that they realised their mistake only when they came to know about the decision of Loong Soong Tea Estate case in July 1973 stands uncontroverted
There is nothing on record to show that the appellants had realised their mistake earlier491D f State of M P vs Bhailal Bhai 19646 SCR 261 referred to
It was considered unnecessary therefore to consider the larger question whether the bar of limitation would be fatal to a writ petition for refund