1984 Supreme(Raj) 84

Rajasthan High Court
D.L. MEhta & S.S. Byas, JJ.
Mohd. Usman - Appellant
Versus
The Union of India - Respondents
D.B. Civil Special Appeal No. 580 of 1982
Decided On : April 04, 1984

Headnote:(a) Constitution of India—Art. 227-Suppression of material facts- Facts missed but brought to the notice of court before admission/stay order is obtained— Suppression is not material, writ cannot be dismissed on this ground.(b) Constitution of India—Art. 226—Latches — Waiting of result of another similar writ—No vested right accrued in favour of third party—Delay is immaterial and can be condoned.(c) Constitution of India—Writ—Refund money—Acceptance under protest or in the impression that property is not being delivered to him—Not amount to discharge of contract.(d) Constitution of India—Art. 14—Equality— Similar decision of another High Court—Same relief also be given to another. In Amarnath V.B.H. Electricals (12). sent consequences of disconnection of the

       The next question which s rises for our consideration is about the latches on which our learned brother dismissed the writ petition. Learned counsel for the appellant submits that the question of latches does not arise at all and should not be considered in a case like this. He submits that the impugned order of the Controller of Stores, Northern Railway has been set aside by the Delhi High Court. It is clear that the property is still lying with the respondents and no vested right has accrued in favour of any third party. This is an important consideration for condoning the delay if any. Apart from the position of the law is that the illegality committed by any party should not be allowed to perpetuate and the relief should not be denied only on the ground that there is delay in filing the writ petition. If during the period of delay, if any interest accrues in favour of third party or if any third party gets the vested right then the delay cannot be condoned as it will adversely affect the party in whose favour the rights are vested. We are in disagreement with the view taken by the learned single Judge in the matter of delay and we think it proper that the writ petition should not be rejected on this ground. (Paras 15, 18 & 20)

       In Amranath V.B.H. Electrucals (12) their Lordships observed as under: "Acceptance under protest of payment in full satisfaction of amount due under contract is no accord of satisfaction in the sense of bilateral consensus of intention and does not discharge the contract so as to disentitle the person accepting payment to enforce the term in the contract to refer the dispute arising under the contract to arbitration." In Bhanwarlal V. The Pali Electricity Co. Ltd. Pali (13), this Court had occasion to consider the matter of payment under protest. In that case, the defendants Secretary sent a letter (Ex. 7) intimating that the matter was under consideration and asking the plaintiff to make the pay ment if he wanted to avoid the disconnection of the supply. The plaintiff again wrote letter (Ex. 8) to the defendants Engineer in which he clearly alleged a breach of the contract and threatened action in a Court of law- This shows that the plaintiff did not agree at any stage to the payment of annas 8 per unit and was, on the other hand, protesting against the increase. In these circumstances, this Court took a view that the plaintiff made the payment only under protest and for the purpose of avoiding the threatened unpieasent consequences of disconnection of the supply, and the matter remained pending as a live issue between the parties untill the date of the institution of the suit. In such circumstances, this Court accepted the case of the plaintiff and directed the refund of the excess payment. In the instant case, the authorities cited by the learned counsel for the appellant reported in Amarnaths case and Bhanwarlals case (supra) apply with full rigour. The appellant have accepted the payment under protest and there was no bilateral intention to repass the property. The appellant accepted the money only looking to the fact that the property is not being delivered to him by the authority concerned and thus, he will be deprived of his valuable money and as such, lie will have to undergo heavy losses. In our opinion, the petitioner-appellant is entitled to take delivery after re-payment of total costs and sales tax etc. It will not be out of place to mention here that by accepting the appeal, we are putting the petitioner-appellant on the same footing on which the persons equally situated have been placed and it is expedient that there should not be discrimination between the persons equally situated. (Para 24)