POPATRAO VYANKATRAO PATIL versus THE STATE OF MAHARASHTRA & ORS. on 14 February 2020

[2020] 3 S.C.R. 789

POPATRAO VYANKATRAO PATIL

v.

THE STATE OF MAHARASHTRA & ORS.

(Civil Appeal No. 1600 of 2020)

FEBRUARY 14, 2020

[S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]

Constitution of India: Art.226 – Scope of interference –Auction of sand blocks of river – Appellant was highest bidder andhe deposited the entire auction amount but he was not put inpossession – He filed representation for refund of auction amount– The Panchnama prepared by the Circle Officer exhibited thatneither possession of the sand block was given to the appellant norexcavation of sand was done from the said sand block – The saidposition was reiterated by the Tehsildar, Sub-Divisional Officer andalso Collector – However, in the transit the file was lost and as suchappellant was not granted possession of sand block nor refundwas made to him – State Government also rejected his prayer forrefund – Appellant filed writ petition – High Court refused toentertain the petition on the ground that it involved question offacts – On appeal, held: Normally, when a petition involves disputedquestions of fact and law, High Court would be slow in entertainingthe petition under Art.226 of the Constitution – However, it is a ruleof self- restraint and not a hard and fast rule – Even if there aredisputed questions of fact which fall for consideration but if theydo not require elaborate evidence to be adduced, the High Court isnot precluded from entertaining Art.226 petition – However, such aplenary power has to be exercised by the High Court in exceptionalcircumstances – In this case, undisputedly, the appellant was highestbidder for the sand block in question and made deposit of fullauction amount – Subsequently after all the authorities found thatneither the possession of the sand block was handed over to himnor the excavation of sand from the said sand block was done, atthe instance of the Collector, the file for grant of refund was beingprocessed – However, appellant was denied the refund on the groundthat the file in transit was misplaced – It could thus be seen that thedenial on the part of the respondents to refund the amount to

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Aappellant was unreasonable – The action of authorities, in denyingrefund of the amount of the appellant, when they themselves hadfailed to give possession of the sand block and as a result of whichthe appellant could not excavate the sand, would smack ofarbitrariness – In this premise, High Court was not justified inrelegating the appellant to file a suit – Respondents directed to refundBthe entire amount received from the appellant along with interest.Government litigant: The State should act as a model litigant.

Allowing the appeal, the Court

HELD: 1. Even if there are disputed questions of fact whichCfall for consideration but if they do not require elaborate evidenceto be adduced, the High Court is not precluded from entertaininga petition under Article 226 of the Constitution. However, such aplenary power has to be exercised by the High Court inexceptional circumstances. The High Court would be justified inexercising such a power to the exclusion of other availableDremedies only when it finds that the action of the State or itsinstrumentality is arbitrary and unreasonable and, as such,violative of Article 14 of the Constitution of India. In any case, inthis case, there were hardly any disputed questions of facts. [Paras5, 6][794 E-H]

EABL International Ltd. & Anr. v. Export CreditGuarantee Corpn. of India Ltd. & Ors. (2004) 3 SCC553 – relied on.

2. It is undisputed, that the appellant was the highest bidderfor the sand block in question. The appellant has deposited anFamount of Rs. 62,26,085/-. The Panchnama prepared by the CircleOfficer clearly exhibited that neither possession of the sand blockin question was given to the appellant nor excavation of sand wasdone from the said sand block. The said position was reiteratedby the Tehsildar in his report submitted to the Collector. TheGSub-Divisional Officer in his report addressed to the Collectoralso confirmed the said position. It appears, that subsequentlyafter all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither thepossession of the sand block was handed over to the appellantnor the excavation of sand from the said sand block was done, atH

the instance of the Collector, the file for grant of refund was beingprocessed. It further appears, that the file in transit was misplacedand on this ground the appellant was denied the refund. It couldthus be seen, in these admitted facts, that the denial on the partof the respondents to refund the amount to the appellant can, byno stretch of imagination, be called as reasonable. The action ofthe respondents, in denying the refund of the amount, when therespondents themselves had failed to give possession of the sandblock and as a result of which the appellant could not excavatethe sand, would smack of arbitrariness. In this premise, the HighCourt was not justified in relegating the appellant to file a suit.[Paras 7, 8][794 G-H; 795 A-F]

3. The State should act as a model litigant. In view of theundisputed position, that in spite of the appellant being the highestbidder and in spite of him depositing the entire amount of auction,since the possession of the sand block was not given to him forreasons not attributable to him and he could not excavate thesand, he will be entitled to get refund of the amount deposited byhim. [Paras 9, 10][797 B-E]

Urban Improvement Trust, Bikaner v. Mohan Lal (2010)1 SCC 512 – relied onCase Law Reference(2004) 3 SCC 553relied onPara 5(2010) 1 SCC 512relied onPara 9

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1600of 2020.

From the Judgment and Order dated 06.08.2018 of the High Courtof Judicature at Bombay in Writ Petition No. 8708 of 2017.

Sudhanshu S. Choudhari, Yogesh S. Kolte, Mahesh P. Shinde andPrashant Papatrao Patil, Advs. for the Appellant.

Aaditya A. Pande and Sachin Patil, Advs. for the Respondents.

The following Judgment of the Court was delivered :

JUDGMENT

1. Leave granted.

2. Heard the learned counsel for the parties.

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A3. The appellant has approached this Court being aggrieved bythe order dated 6.8.2018, passed by the Division Bench of the HighCourt of Judicature at Bombay in Writ Petition No. 8708 of 2017 thereby,declining to entertain the petition since the petition involves question offacts.B4. The facts, in brief, giving rise to the present appeal are asunder:

The respondent – District Collector, Satara had issued a notice ofpublic auction for auctioning the sand blocks of Krishna river in the year2012. The appellant had submitted his bid for excavation of sand insofarCas Gat No. 956A, Plot No. 2 at village Rethare Khurd, Taluka Karad.The agreed quantity of excavation was 8500 brass. The appellant’s bidbeing the highest i.e. Rs. 59,75,000/-, he was awarded the tender.

On 3.1.2012, the appellant deposited Rs.15,00,000/- as one-fourth(1/4[th]) amount of auction with Government treasury. On 16.1.2012, theDappellant deposited remaining auction amount of Rs. 44,83,500/-. Theappellant also deposited Rs. 1,19,500/- towards environmental cost andRs. 1,23,085/- towards income tax. As such, the total deposit made bythe appellant was Rs. 62,26,085/- towards allotment of sand block.

However, since the said sand block was at a distance of aboutE100 ft. from the school, the villagers of Rethare Khurd village had opposedthe excavation of sand. As such, though the appellant had deposited theentire amount, he was not put in possession of the said sand block. Inthe circumstances, the appellant made a representation to the RevenueMinister, Government of Maharashtra for refund of the auction amount.As the appellant’s representation was sent to the Collector, Satara toFmake enquiry, the Collector, Satara (respondent No. 2 herein), in turn,by letter dated 11.6.2012 sought a report from the Tehsildar, Karad.

On 15.6.2012, statement of the appellant came to be recorded bythe Circle Officer, Kale (respondent No. 5 herein). He also prepared aPanchnama of the sand block in question which exhibited that possessionGof sand block was never given to the appellant and that there was noexcavation of sand from the said sand block.

The Tehsildar, Karad - respondent No. 4, submitted a detailedreport dated 9.8.2012 to the Collector, Satara pointing out the factualposition. The Sub-Divisional Officer, Karad – respondent No. 3, in turn,Hsubmitted a report on 4.9.2012 reiterating the factual position. It appears, that in the transit the file was lost and as such, though the appellant wasnot granted possession of the sand block and though yet he had notexcavated any sand, the refund of the amount could not be made to him.It appears that there were further correspondences between theauthorities and finally, the Desk Officer of the respondent No.1 – StateGovernment vide order dated 25.3.2014 rejected the prayer of theappellant seeking refund of the auction amount.

The appellant again made several representations. Since therewas no response, the appellant approached the High Court by filing WritPetition No. 8708 of 2017. As stated earlier, by the impugned order, theHigh Court refused to entertain the petition on the ground that it involvesquestion of facts.

5. No doubt that, normally, when a petition involves disputedquestions of fact and law, the High Court would be slow in entertainingthe petition under Article 226 of the Constitution of India. However, it isa rule of self-restraint and not a hard and fast rule. In any case, thisCourt in ABL International Ltd. & Anr. vs. Export Credit GuaranteeCorpn. of India Ltd. & Ors.[1 ]has observed thus:

“19. Therefore, it is clear from the above enunciation of law thatmerely because one of the parties to the litigation raises a disputein regard to the facts of the case, the court entertaining suchpetition under Article 226 of the Constitution is not always boundto relegate the parties to a suit. In the above case of GunwantKaur [(1969) 3 SCC 769] this Court even went to the extent ofholding that in a writ petition, if the facts require, even oralevidence can be taken. This clearly shows that in an appropriatecase, the writ court has the jurisdiction to entertain a writ petitioninvolving disputed questions of fact and there is no absolute barfor entertaining a writ petition even if the same arises out of acontractual obligation and/or involves some disputed questions offact”

While summing up the conclusions in the aforesaid case, this Courtconcluded thus:

“27. From the above discussion of ours, the following legalprinciples emerge as to the maintainability of a writ petition:

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(a) In an appropriate case, a writ petition as against a State or aninstrumentality of a State arising out of a contractual obligation ismaintainable.

(b) Merely because some disputed questions of fact arise forconsideration, same cannot be a ground to refuse to entertain aBwrit petition in all cases as a matter of rule.

(c) A writ petition involving a consequential relief of monetaryclaim is also maintainable.

28. However, while entertaining an objection as to themaintainability of a writ petition under Article 226 of the ConstitutionCof India, the court should bear in mind the fact that the power toissue prerogative writs under Article 226 of the Constitution isplenary in nature and is not limited by any other provisions of theConstitution. The High Court having regard to the facts of thecase, has a discretion to entertain or not to entertain a writ petition.DThe Court has imposed upon itself certain restrictions in theexercise of this power. (See Whirlpool Corpn. v. Registrar ofTrade Marks [(1998) 8 SCC 1].) And this plenary right of theHigh Court to issue a prerogative writ will not normally be exercisedby the Court to the exclusion of other available remedies unlesssuch action of the State or its instrumentality is arbitrary andEunreasonable so as to violate the constitutional mandate of Article14 or for other valid and legitimate reasons, for which the Courtthinks it necessary to exercise the said jurisdiction.”

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6. It could thus be seen, that even if there are disputed questionsof fact which fall for consideration but if they do not require elaborateFevidence to be adduced, the High Court is not precluded from entertaininga petition under Article 226 of the Constitution. However, such a plenarypower has to be exercised by the High Court in exceptionalcircumstances. The High Court would be justified in exercising such apower to the exclusion of other available remedies only when it findsGthat the action of the State or its instrumentality is arbitrary andunreasonable and, as such, violative of Article 14 of the Constitution ofIndia. In any case, in the present case, we find that there are hardly anydisputed questions of facts.

7. It is undisputed, that the appellant was the highest bidder forthe sand block in question. The appellant has deposited an amount ofH

Rs. 62,26,085/-. The Panchnama prepared by the Circle Officer,Kale - respondent No. 5, clearly exhibited that neither possession of thesand block in question was given to the appellant nor excavation of sandwas done from the said sand block. The said position is reiterated by theTehsildar, Karad – respondent No.4 in his report submitted to theCollector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer,Karad – respondent No.3 in his report dated 4.9.2012, addressed to theCollector, Satara also confirmed the said position. A perusal of the letterdated 3.10.2012, addressed by the Collector, Satara to the Tehsildar andSub-Divisional Officer also does not dispute the said position. However,he directed his subordinates to submit original file of the appellant’s sandblock with his office for refund of the amount deposited by the appellant.

8. It appears, that subsequently after all the authorities includingCircle Officer, Tehsildar, Sub-Divisional Officer and the Collector foundthat neither the possession of the sand block was handed over to theappellant nor the excavation of sand from the said sand block was done,at the instance of the Collector, the file for grant of refund was beingprocessed. It further appears, that the file in transit was misplaced andon this ground the appellant was denied the refund. It could thus beseen, in these admitted facts, that the denial on the part of the respondentsto refund the amount to the appellant can, by no stretch of imagination,be called as reasonable. The action of the respondents, in denying therefund of the amount of the appellant, when the respondents themselveshad failed to give possession of the sand block and as a result of whichthe appellant could not excavate the sand, would smack of arbitrariness.In this premise, we find that the High Court was not justified in relegatingthe appellant to file a suit.

9. This Court, has time and again held, that the State should act asa model litigant. In this respect, we can gainfully refer to the followingobservations made by this Court in Urban Improvement Trust, Bikanervs. Mohan Lal[2]:

“6. This Court has repeatedly expressed the view thatGovernments and statutory authorities should be model or ideallitigants and should not put forth false, frivolous, vexatious, technical(but unjust) contentions to obstruct the path of justice. We mayrefer to some of the decisions in this behalf.

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7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 :1974 SCC (L&S) 89] this Court extracted with approval thefollowing statement [from an earlier decision of the Kerala HighCourt (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union ofIndia, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ723] , AIR pp. 107-08, para 5)]: (SCC p. 562, para 25)

“25. … ‘5. … The State, under our Constitution, undertakeseconomic activities in a vast and widening public sector andinevitably gets involved in disputes with private individuals. Butit must be remembered that the State is no ordinary party tryingto win a case against one of its own citizens by hook or bycrook; for the State’s interest is to meet honest claims, vindicatea substantial defence and never to score a technical point oroverreach a weaker party to avoid a just liability or secure anunfair advantage, simply because legal devices provide suchan opportunity. The State is a virtuous litigant and looks withunconcern on immoral forensic successes so that if on themerits the case is weak, Government shows a willingness tosettle the dispute regardless of prestige and other lessermotivations which move private parties to fight in court. Thelayout on litigation costs and executive time by the State andits agencies is so staggering these days because of the largeamount of litigation in which it is involved that a positive andwholesome policy of cutting back on the volume of law suitsby the twin methods of not being tempted into forensicshowdowns where a reasonable adjustment is feasible and everoffering to extinguish a pending proceeding on just terms, givingthe legal mentors of Government some initiative and authorityin this behalf. I am not indulging in any judicial homily but onlyechoing the dynamic national policy on State litigation evolvedat a Conference of Law Ministers of India way back in1957.’ ”

8. In Madras Port Trust v. Hymanshu International [(1979) 4SCC 176] this Court held: (SCC p. 177, para 2)

“2. … It is high time that Governments and public authoritiesadopt the practice of not relying upon technical pleas for thepurpose of defeating legitimate claims of citizens and do whatis fair and just to the citizens. Of course, if a Government or a

public authority takes up a technical plea, the Court has todecide it and if the plea is well founded, it has to be upheld bythe court, but what we feel is that such a plea should notordinarily be taken up by a Government or a public authority,unless of course the claim is not well founded and by reason ofdelay in filing it, the evidence for the purpose of resisting sucha claim has become unavailable.”

9. In a three-Judge Bench judgment of Bhag Singh v. UT ofChandigarh [(1985) 3 SCC 737] this Court held: (SCC p. 741,para 3)

“3. … The State Government must do what is fair and just tothe citizen and should not, as far as possible, except in caseswhere tax or revenue is received or recovered without protestor where the State Government would otherwise be irretrievablybe prejudiced, take up a technical plea to defeat the legitimateand just claim of the citizen.”

10. In view of the undisputed position, that in spite of the appellantbeing the highest bidder and in spite of him depositing the entireamount of auction, since the possession of the sand block was notgiven to him for reasons not attributable to him and he could notexcavate the sand, he will be entitled to get refund of the amountdeposited by him.

11. In the premises, the appeal is allowed. The impugned order ofthe High Court dated 6.8.2018 is set aside. The respondents aredirected to refund the entire amount received from the appellantalong with interest at the rate of 6% per annum from the date onwhich the appellant made the first request for refund till the dateof realisation. There shall be no order as to costs.

Devika Gujral

Appeal allowed.

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