Gujarat High Court
Ketanbhai Rajnibhai Patel vs State Of Gujarat on 17 July, 2019
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/4099/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4099 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 4142 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
==========================================================
KETANBHAI RAJNIBHAI PATEL Versus STATE OF GUJARAT & 1 other(s) ========================================================== Appearance:
MR. DEVEN PARIKH, SENIOR ADVOCATE WITH MR ATIT D THAKORE(5290) for the Petitioner(s) No. 1 MS. JYOTI BHATT, AGP, (1) for the Respondent(s) No. 1,2 IN SPECIAL CIVIL APPLICATION NO. 4099 of 2014 & MR. AMIT BAROT, AGP, (1) for the Respondent(s) No. 1,2 IN SPECIAL CIVIL APPLICATION NO. 4142 of 2014 ========================================================== CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI Date : 17/07/2019 Page 1 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT COMMON CAV JUDGMENT
1. Both the petitions involving similar issues and having been filed by the same petitioner, were heard together. For the sake of convenience, the facts stated in the Special Civil Application No. 4099 of 2014 are taken into consideration. Following main prayers have been sought in the said petition : -
"A. Your Lordships be pleased to issue a writ of certiorari/mandamus of any other appropriate writ order or direction quashing and setting aside the subsequent order/notation dated 04.06.2012 of the Collector and be pleased to direct the respondents to refund the sum of Rs. 85,60,800/- (Eighty Five Lacs Sixty Thousand and Eight Hundred only) with interest @ 12% as being the difference between the premium as determined by the Collector by his order granting permission dated 08.07.2010 and his subsequent notation dated 04.06.2012;
B. Your Lordships, pending the present petition be pleased to refund the amount of Rs. 85,60,800/- (Eighty Five Lacs Sixty Thousand and Eight Hundred only) subject to such terms and conditions as may be deemed fit by this Hon'ble Court in the interest of justice."
2. The short facts as emerging from the record of the petition are that the petitioner and his family members had collectively purchased the land bearing Final Plot No. 608 admeasuring 2610 sq. mtrs. Town Planning Scheme No. 204 situated at village Makarba, Taluka, City and District Ahmedabad (hereinafter referred to as 'the said Page 2 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT land') on 22.07.2004. The petitioner, thereafter had applied to the Collector on 12.05.2010 seeking permission to convert the land from new tenure to old tenure for N.A. use under the provisions contained in the Bombay Tenancy and Agricultural Land Act, 1948 (hereinafter referred to as 'the said Act'). On 18.05.2010, the Collector, in terms of Government Resolution dated 04.07.2008 had forwarded the said application for verification to the Mamlatdar along with the checklist. The Collector had thereafter vide the communication dated 08.07.2010 forwarded the matter to the Government seeking prior permission to fix the amount of premium to be recovered from the petitioner in view of the Government Resolution dated 04.07.2008. The Government in Revenue Department vide the communication dated 17.09.2010 sought clarification on the issues of the entries made in the revenue record in connection with the petitioner's land, which was responded by the District Collector vide the letter dated 31.03.2011 answering the said queries. The Government in the Revenue Department again raised other queries vide the letter dated 13.06.2011, which were answered by the District Collector vide letter dated 19.03.2012. The Revenue Department, thereafter, granted permission for conversion of the land from new tenure to old tenure, for using the same for non-agriculture purpose subject to the Page 3 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT conditions mentioned therein and on payment of premium of Rs. 1,90,00,000/- as per the Jantri rate vide the order dated 15.05.2012 (Annexure 'G'). The petitioner thereafter was called upon by the District Collector vide the impugned communication dated 04.06.2012 to pay the said amount of Rs. 1,90,00,000/- in view of the order dated 15.05.2012 passed by the Government in Revenue Department (Annexure 'A'). According to the petitioner, he had no choice but to pay the said amount of premium as directed, and therefore, he had paid the same on 26.06.2012. The petitioner, thereafter, filed an application under the RTI Act on 27.11.2013 asking for all the documents pertaining to the processing of his application and upon the procurement of the said information on 11.12.2013, the petitioner came to know that the Collector had taken the decision about the amount of premium payable by the petitioner as early as on 08.07.2010, however, the Revenue Department delayed the processing of his application and granting approval. The petitioner therefore has prayed to set aside the communication dated 04.06.2012 of the Collector and to direct the respondents to refund the sum of Rs. 85,60,800/- with interest @ 12% per annum being the difference between the premium determined by the Collector as per the order dated 08.07.2010 and his subsequent letter dated 04.06.2012.
Page 4 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT3. The Special Civil Application No. 4142 of 2014 has been filed in respect of the land bearing Final Plot No. 607 admeasuring 2974 sq. mtrs. Town Planning Scheme No. 204, situated at Village makarba, Taluka, City and District Ahmedabad. In the said petition, the petitioner has prayed to quash and set aside the communication dated 27.06.2012 passed by the Collector and sought direction against the respondent to refund the sum of Rs. 97,54,720/- with interest @ 12% per annum as being the difference between the premium determined by the Collector vide the order dated 08.07.2010 and his subsequent order dated 27.06.2012.
4. Both the petitions have been resisted by the respondents by filing affidavits-in-reply challenging the very maintainability of the petitions contending inter alia that there was no violation of any of the fundamental rights or legal rights of the petitioner. It has been further contended that the petitioner on the receipt of the letter dated 04.06.2012, had paid the amount of premium of Rs. 1,90,00,000/- as directed in the said letter and earlier also the petitioner on 11.05.2010, had undertaken before the Talati-cum-Mantri that he was ready and willing to pay the amount of premium as decided by the respondents. Even otherwise, the respondent - Collector had directed to pay the amount of premium as decided by the State Page 5 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT Government vide the letter dated 15.05.2012, which was binding to the petitioner.
5. The learned Senior Advocate Mr. Deven Parikh for the petitioner heavily relied upon the decisions of the Supreme Court in the case of M/s. Burmah Construction Company versus the State of Orissa and others reported in AIR 1962 SC 1320, in the case of State of Madhya Pradesh and another versus Bhailal Bhai and others reported in AIR 1964 SC 1006, in the case of Suganmal versus the State of Madhya Pradesh and others reported in AIR 1965 SC 1740, in the case of Salonah Tea Co. Ltd. and others versus Superintendent of Taxes Nowgong and others reported in 1988 (1) SCC 401, and in the case of Godavari Sugar Mills Limited versus State of Maharashtra and others reported in (2011) 2 SCC 439, to submit that the writ petition under Article 226 of the Constitution of India for refund of money was maintainable. According to him, none of these judgments has laid down the law that the writ jurisdiction of the High Court was restricted to the refund of tax amount only. Pressing into service the provisions contained in Section 85 and Section 85A of the said Act, he submitted that the jurisdiction of Civil Court is barred in respect of the matter which is required to be decided by the authorities under the said Act. Taking the Court at length to the correspondence made between the State Page 6 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT Government and the Collector, he submitted that the Collector had forwarded the application along with the check-list to the State Government within the time limit prescribed in the circular dated 04.07.2008, however, the State Government kept on raising the queries one after the other and delayed the proceedings of granting permission, during which period, the rates of jantri were revised and the petitioner was called upon to pay higher premium at the revised rates of jantri. Mr. Parikh submitted that the State cannot be permitted to take advantage of its own delay and own wrong, and that the permission granted by the State has to relate back to the order of checklist prepared by the Collector. Mr. Parikh also relied upon the decision of the Supreme Court in the case of Gohil Jesangbhai Raysangbhai and others versus State of Gujarat and another reported in (2014) 5 SCC 199, to submit that the circular dated 04.07.2008 was challenged in the High Court to submit that the time limits mentioned in the said circular, at each stage was very relevant, and merely because no time limit was fixed for the State Government when the application was required to be forwarded to the State Government by the Collector for prior approval, the State Government could not have kept the matter pending for such a long time without taking any decision.
Page 7 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT6. The learned AGP Ms. Bhatt for the respondents however supporting the decisions of the State Government and the Collector with regard to the payment of premium submitted that the same were in consonance with the circular dated 04.07.2008, and that the petitioner having undertaken in writing before the Talati-cum- Mantri to pay the premium as directed and having also paid the premium as per the letter dated 04.06.2012 of the Collector, he was not entitled to claim refund of the said premium amount as prayed for in the petition. She also submitted that the petition suffers from delay, laches and acquiescences inasmuch as the petitioner after complying with the directions contained in the letter dated 04.06.2012 of the Collector by making payment of the premium amount without any protest, had filed the petition in March, 2014, for refund of the said amount.
7. Having regard to the submissions made by the learned advocates for the parties and to the documents on record, it appears that the letter dated 04.06.2012 of the Collector based on the order dated 15.05.2012 passed by the State Government, has been sought to be challenged by the petitioner for seeking refund of the amount of premium paid by the petitioner, without challenging the order dated 15.05.2012 passed by the State Government, and that too after a period of about two years of the amount Page 8 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT deposited by him without any protest. It is also pertinent to note that the petitioner had neither sought demand of justice nor the respondents had denied or neglected to carry out any statutory or legal obligation. Hence, apart from the fact that prayers contained in the petitions for refund of amount are of civil nature, and the petitions suffer from delay, laches and acquiescences, the petitions are also not entertainable, the same being for issuance of Writ of Mandamus without complying with the general rule that the demand for justice and its refusal must precede to the filing of the petition asking for Writ of Mandamus. Beneficial reference of the decision in the case of Amrit Lal Berry and others versus Collector of Central Excise Central Revenue and others reported in AIR 1975 SC 538 be made in this regard, in which it has been observed as under :
"25. In the petition of K.N. Kapur and others, we do not even find an assertion that any representation was made against any violation of a petitioner's right. Hence, the rule recognised by this Court in Kamini Kumar Das v. State of West Bengal, AIR 1972 SC 2060 at p. 2065 that a demand for justice and its refusal must precede the filing of a petition asking for direction or Writ of Mandamus, would also operate against the petitioners."
8. In the case of State of Haryana and another versus Chanan Mal etc. reported in AIR 1976 SC 1654 also it has been laid down as under: -
"42. We proceed to record our conclusions as follows :Page 9 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT
1. xxxxxxx
2. xxxxxxx
3. Any petitioner who applies for a writ or order in the nature of a Mandamus should, in compliance with a well known rule of practice, ordinarily, first call upon the authority concerned to discharge its legal obligation and show that it has refused or neglected to carry it out within a reasonable time before applying to a Court for such an order even where the alleged obligation is established."
9. In case of Saraswati Industrial Syndicate Ltd. etc. versus Union of India reported in AIR 1975 SC 460, also it has been held as under : -
"24. As the appeals fail on merits we need not discuss the technical difficulty which an application for a writ of certiorari would encounter when no quasi-judicial proceeding was before the High Court. The powers of the High Court under Article 226 are not strictly confined to the limits to which proceedings for prerogative writs are subject in English practice. Nevertheless, the well-recognised rule that no writ or order in the nature of a Mandamus would issue when there is no failure to perform a mandatory duty applies in this country as well. Even in cases of alleged breaches of mandatory duties, the salutary general rule, which is subject to certain exceptions, applied by us, as it is in England, when a writ of Mandamus is asked for, could be stated as we find it set out in Halsbury's Laws of England (3rd edition, Vol. 13, p. 106):
"As a general rule the order will not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that that demand was met by a refusal."Page 10 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT
10. In the instant case, the petitioner has neither made any distinct demand of justice calling upon the respondent authorities to discharge their legal obligations nor is there any material on record to show that such demand was refused or neglected by the respondents. The petitioner instead of complying with the well known rule of practice seeking demand for justice from the respondents before invoking extraordinary jurisdiction of this Court, has filed the petition seeking Writ of Mandamus claiming relief of civil nature, which could not be entertained.
11. At this juncture, it would be also very apposite to regurgitate the ratios laid down by the Constitutional Benches of the Supreme Court in the cases relied upon by the learned Senior Advocate Mr. Parikh.
12. In the case of M/s. Burmah Construction Company versus the State of Orissa and others (Supra), the petitioner - appellant in the said case had claimed refund of tax and penalty amount allegedly improperly and illegally collected by the Salex Tax Officers. The Constitution Bench held as under : -
"6. It is not necessary to consider in this case whether S. 14 prescribes the only remedy for refund of tax unlawfully collected by the State. The appellants have not filed any civil suit for a decree Page 11 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT for refund of tax unlawfully collected from them. This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under S. 14 of the Act. The High Court normally does not entertain a petition under Art. 226 of the constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a- tax illegally collected and it was maintainable: but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable."
13. In the case of State of Madhya Pradesh and another versus Bhailal Bhai and others (Supra), the petitioners were the dealers of tobacco and were assessed the sales tax. They had prayed for appropriate writs for refund of the taxes that were collected from them. The Constitution Bench held as under : -
"14. A portion of the tax thus assessed has been already paid by the petitioners. It cannot now be disputed that this payment was made under a mistake within S.72 of the Indian Contract Act and so the Government to whom the payment has been made by mistake must in law repay it. The question is whether the relief of repayment has to be sought by the tax-
Page 12 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENTpayer by an action in a civil court or whether such an order can be made by the High Court in exercise of its jurisdiction under Art. 226 of the Constitution. The jurisdiction conferred by Art. 226 is in very wide terms. This Article empowers the High Court to give relief by way of enforcement of fundamental rights and other rights by issuing directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. According to the petitioners a writ in the nature of mandamus can be appropriately used where money has been paid to the Government by mistake to give relief by commanding repayment of the same. That in a number of cases the High Courts have used the writ of mandamus to enforce such repayment is not disputed. In a recent case in Firm Mehtab Majid & Co., v. The State of Madras, AIR 1963 SC 928, this Court made, in a petition under Art. 32, an order for refund of tax illegally collected from the petitioner under Rule 16 of the Madras General Sales Tax (Turnover and Assessment) Rules, 1939. The question whether the Court has this power to order refund was not however raised there. In Sales Tax Officer, Banaras v. Kanhaiya Lal Mukundlal Saraf, 1959 SCR 1350 : (AIR 1959 SC 135) the appellants disputed the correctness of the High Court's order made in an application under Art. 226 of the Constitution directing refund of taxes that had been paid under the U.P. Sales Tax Act on the respondent's forward transactions in silver bullion. After the levy of sales tax on such transactions was held to be ultra vires by the High Court of Allahabad the respondent asked, for refund of the tax paid and when that was refused he applied to the High Court under Art. 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for Page 13 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT refund was affirmed by this Court in appeal. In this case also the power of the High Court to order such refund was not challenged either before the High Court or before this Court.
15. We see no reason to think that the High Courts have not got this power. If a right has been infringed-whether a fundamental right or a statutory right- and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely declares the existence of such right or the fact that that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat only and the right has not been actually infringed an application under Art. 226 would lie and the courts would give necessary relief by making an order in the nature of injunction. It will hardly be reasonable to say that while the court will grant relief by such command in the nature of an order of injunction where the invasion of a right has been merely threatened the court must still refuse, where the right has been actually invaded, to give the consequential relief and content itself with merely a declaration that the right exists and has been invaded or with merely quashing the illegal order made."
14. In the case of Suganmal versus the State of Madhya Pradesh and others (supra), the petitioner had sought prayer for refund of the amount allegedly illegally collected by the Industrial Tax Officer and the Constitution Bench held as under : -
"6. On the first point, we are of opinion Page 14 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT that though the High Courts have power to pass any appropriate order in the exercise of the powers conferred under Art. 226 of the Constitution, such a petition solely praying for the issue of a writ of mandamus directing the State to refund the money is not ordinarily maintainable for the simple reason that a claim for such a refund can always be made in a suit against the authority which had illegally collected the money as a tax. We have been referred to cases in which orders had been issued directing the state to refund taxes illegally collected, but all such cases had been those in which the petitions challenged the validity of the assessment and for consequential relief for the return of the tax illegally collected. We have not been referred to any case in which the courts were moved by a petition under Art. 226 simply for the purpose of obtaining refund of money due from the State on account of its having made illegal exactions. We do not consider it proper to extend the principle justifying the consequential order directing the refund of amounts illegally realised, when the order under which the amounts had been collected has been set aside, to cases in which only orders for the refund of money are sought. The parties had the right to question the illegal assessment orders on the ground of their illegality or unconstitutionality and, therefore, could take action under Art. 226 for the protection of their fundamental right and the Courts, on setting aside the assessment orders exercised their jurisdiction in proper circumstances to order the consequential relief for the refund of the tax illegally realised. We do not find any good reason to extend this principle and, therefore, hold that no petition for the issue of a writ of mandamus will be normally entertained for the purpose of merely ordering a refund of money to the return of which the petitioner claims a right.
8. We may also refer to Burmah Page 15 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT Construction Co. v. State of Orissa (1962) Supp 1 SCR 242 : (AIR 1962 SC 1320) where it was prayed that an appropriate writ directing the State of Orissa to refund the amount of sales tax and penalty realised from the appellant be issued Shah J., speaking for the court, said :
"The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay any amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation."
9. We therefore hold that normally petitions solely praying for the refund of money against the State by a writ of mandamus are not to be entertained. The aggrieved party has the right of going to the civil court for claiming the amount and it is open to the State to raise all possible defenses to the claim, defences which cannot, in most cases, be appropriately raised and considered in the exercise of writ jurisdiction."
15. The Supreme Court in the case of Godavari Sugar Mills Limited versus State of Maharashtra and others (supra), after considering all the aforestated judgments has clarified the legal position in para 8 as under : -
"The observations in Suganmal, AIR 1965 SC 1740 related to a claim for refund of tax and have to be understood with reference to the nature of claim made therein. The decision in Suganmal has Page 16 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT been explained and distinguished in several subsequent cases, including in U.P. Pollution Control Board v. Kanoria Industrial Ltd., 2001 (2) SCC 549 : (AIR 2001 SC 787 : 2001 AIR SCW 439) and ABL International Ltd. v. Export Credit Guarantee Corporation of India Ltd., 2004 (3) SCC 553. The legal position becomes clear when the decision in Suganmal read with the other decisions of this Court on the issue, referred to below :
(i) Normally a petition under Article 226 of the Constitution of India will not be entertained to enforce a civil liability arising out of a breach of a contract or a tort to pay an amount of money due to the claimants. The aggrieved party will have to agitate the question in a civil suit. But an order for payment of money may be made in a writ proceeding, in enforcement of statutory functions of the State or its officers, [Vide Burmah Construction Co.
v. State of Orissa, (1962) Supp 1 SCR 242] : (AIR 1962 SC 1320).
(ii) If a right has been infringed -
whether a fundamental right or a statutory right - and the aggrieved party comes to the court for enforcement of the right, it will not be giving complete relief if the court merely declares the existence of such right or the fact that existing right has been infringed. The High Court, while enforcing fundamental or statutory rights, has the power to give consequential relief by ordering payment of money realized by the Government without the authority of law (Vide State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006).
(iii) A petition for issue of writ of mandamus will not normally be entertained for the purpose of merely ordering a refund of money, to the return of which the petitioner claims a right. The aggrieved party seeking refund has to approach the civil court for claiming the amount, though the High Courts have the Page 17 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT power to pass appropriate orders in the exercise of the power conferred under Article 226 for payment of money. (Vide Suganmal v. State of Madhya Pradesh, AIR 1965 SC 1740).
(iv) There is a distinction between cases where a claimant approaches the High Court seeking the relief of obtaining only refund and those where refund is sought as a consequential relief after striking down the order of assessment etc. While a petition praying for mere issue of a writ of mandamus to the state to refund the money alleged to have been illegally collected is not ordinarily maintainable, if the allegation is that the assessment was without a jurisdiction and the taxes collected was without authority of law and, therefore, the respondents had no authority to retain the money collected without any authority of law, the High Court has the power to direct refund in a writ petition [Vide Salonah Tea Co. Ltd. v. Superintendent of Taxes, Nangaon (1988) 1 SCC 401] : (AIR 1990 SC 772).
(v) It is one thing to say that the High Court has no power under Article 226 of the Constitution to issue a writ of mandamus for making refund of the money illegally collected. It is yet another thing to say that such power can be exercised sparingly depending on facts and circumstances of each case. For instance, where the facts are not in dispute, where the collection of money was without the authority of law and there was no case of undue enrichment, there is no good reason to deny a relief of refund to the citizens. But even in cases where collection of cess, levy or tax is held to be unconstitutional or invalid, refund is not an automatic consequence but may be refused on several grounds depending on facts and circumstances of a given case. (Vide U.P. Pollution Control Board v. Kanoria Industrial Ltd., 2001 (2) SCC 549) : (AIR 2001 SC 787 : 2001 AIR SCW 439).
Page 18 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT(vi) Where the lis has a public law character, or involves a question arising out of public law functions on the part of the State or its authorities, access to justice by way of a public law remedy under Article 226 of the Constitution will not be denied. [Vide Sanjana M. Wig v. Hindustan Petroleum Corporation Ltd. (2005) 8 SCC 242] : (AIR 2005 SC 3454 :
2005 AIR SCW 4535).
We are, therefore, of the view that reliance upon Suganmal (AIR 1965 SC 1740) was misplaced, to hold that the writ petition filed by the appellant was not maintainable."
16. If the facts of the instant petitions are appreciated in the light of the aforestated legal position, it clearly transpires that the petitioner has filed the petitions seeking refund of the part of premium amount paid by him pursuant to the orders passed by the State Government granting N.A. permission in respect of the lands in question, without challenging the said orders whereby the premium amounts were fixed by the State Government at the prevailing Jantri rate. Though repeatedly asked by the Court, learned Senior Advocate Mr. Parikh for the petitioner had failed to point out any statutory or legal right much less fundamental right of the petitioner to seek refund of the part of premium amount as prayed for, nor had he pointed out breach of any legal or statutory duty or obligation on the part of the respondent authorities, which would entitle the petitioner to seek Writ of Mandamus under Article 226 of Page 19 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT the Constitution of India. Since the petitioner has not challenged the substantive orders of the State Government fixing the amount of premium and has challenged only the communication of the said orders by the respondent Collector, it is required to be treated that the petitioner has filed the petitions substantially seeking refund of amount paid by him towards premium. Such petitions for refund of money only would not be maintainable and could not be entertained in view of the aforestated legal position.
17. Having said that, let us examine the merits of the petitions. The petitioner had applied to the Collector seeking conversion of land in question from new tenure to old tenure for using the same for non-agriculture purpose on 12.05.2010. The amount of premium payable by the petitioner as tentatively assessed by the Collector being more than one crore, the District Collector had forwarded the application of petitioner along with the checklist to the State Government for the prior permission as per the letter dated 08.07.2010, in view of the circular dated 04.07.2008 issued by the Government of Gujarat in Revenue Department. It may be incidentally mentioned that the legality of the circular dated 04.07.2008 was challenged earlier, however, the said circular was upheld by this Court and by the Supreme Court as per the decision in case of Gohil Jesangbhai Page 20 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT Raysangbhai and others versus State of Gujarat and another (supra). Hence, the matter of granting permission in view of the said circular was pending before the State Government, during which time certain correspondence had taken place between the Revenue Department and the Collector. The Revenue Department had sought certain clarification from the Collector with regard to certain doubtful entries made in favour of the petitioner showing him an agriculturalist and with regard to his inheritance of lands in question pursuant to the Will executed in his favour. The first correspondence appears to have taken place on 17.09.2010, which was replied by the Office of the District Collector on 31.03.2011 after making necessary inquiry from the City Mamlatdar and Deputy Collector. Again a query was raised by the Revenue Department vide the letter dated 13.06.2011 seeking clarification from the Collector as to whether there was any violation of the provisions contained in Section 43 or 63 of the said Act in view of the judgment delivered by the High Court in respect of the transfer of land through execution of Will. The said query was replied by the District Collector vide the letter dated 19.03.2012 enclosing the papers running into 137 pages. The City Deputy Collector also had asked the petitioner vide the letter dated 02.03.2012 to clarify the issues mentioned in the said letter for processing his Page 21 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT application dated 12.05.2010 for the purpose of deciding the premium amount. The said explanation was furnished by the petitioner to the City Deputy Collector vide the letter dated 14.03.2012 again requesting him to fix the amount of premium.
18. Thereafter, the State Government in the Revenue Department passed the order dated 15.05.2012 granting N.A. permission to the petitioner subject to the conditions mentioned therein. Pursuant to the said order passed by the State Government, the respondent - District Collector vide communication dated 04.06.2012 called upon the petitioner to deposit Rs. 1,90,00,000/- towards premium within 21 days and produce the receipt to his office through the Office of City Mamlatdar (West), Ahmedabad. It is not disputed that the petitioner deposited the said amount as directed in the said communication dated 04.06.2012 without any protest, and subsequently filed the present petition in March, 2014 challenging the said communication dated 04.06.2012 of the Collector and seeking direction against the respondents to refund the sum of Rs. 85,60,800/- (Rs. 97,54,720/- in Special Civil Application No. 4142 of 2014) with interest @ 12% per annum being the difference between the premium as determined by the Collector and the premium mentioned in his subsequent communication dated Page 22 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT 04.06.2012. As noted earlier, the petitioner has chosen not to challenge the order dated 15.05.2012 of the State Government in Revenue Department granting N.A. permission to the petitioner in respect of the land in question, subject to the conditions mentioned therein, and has challenged only the communication dated 04.06.2012 of the Collector made pursuant to the said order dated 15.05.2012. The petitioner has challenged the said communication dated 04.06.2012 and sought refund of the amount of premium mainly on the ground that the State Government had taken delayed decision, as a result of which the petitioner had to pay the premium at the revised rates of jantri. In this regard, it may be noted that undisputedly, in view of the circular dated 04.07.2008, the Collector had to seek prior approval of the State Government if the amount of premium was more than Rupees one crore. Hence, the Collector could not have passed any order on the application of the petitioner without the prior approval of the State Government. If the Collector while processing the application of the petitioner, tentatively had assessed the amount of premium, and sent the same to the State Government for approval, it could not be said that the Collector had fixed the premium. When the prior permission was required to be obtained by the Collector from the State Government, final fixation of premium amount Page 23 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT would be made only as per the order passed by the State Government and the amount tentatively fixed by the Collector while forwarding the application of the petitioner to the State Government could never be said to be the amount required to be paid by the petitioner towards the premium. Hence, the entire claim of the petitioner for the refund of the amount is totally misplaced and untenable in the eye of law.
19. The submission made by the learned Senior Advocate Mr. Parikh that since the jurisdiction of Civil Court was barred under Section 85 of the said Act, and therefore the petitions were filed, has also no substance. Section 85 would apply to the cases where the question is required to be settled, decided or dealt with by the authorities mentioned therein. So far as the relief claimed in the present petitions are concerned, the same could not be said to be required to be settled, decided or dealt with by any of the authorities mentioned in the said provision. The Court, therefore, is of the opinion that the petitions in the present form seeking refund of money without seeking enforcement of any legal, statutory or fundamental right are thoroughly misconceived and not tenable at law.
20. In that view of the matter, both the Page 24 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019 C/SCA/4099/2014 CAV JUDGMENT petitions being sans the merits are dismissed. Notices are discharged in both the petitions.
Sd/-
(BELA M. TRIVEDI, J) AMAR SINGH Page 25 of 25 Downloaded on : Fri Jul 19 02:06:02 IST 2019