R.B. Yadav vs Haryana Urban Development Authority and another

Paramjeet Singh, J.—Present petition has been filed by the petitioner under Articles 226/227 of the Constitution of India for directing the respondent to refund a sum of Rs. 25,98,766/- along with interest @ 18% charged illegally and wrongly by the respondents, from the date of deposit of the amount till its realization. The brief facts of this case, as projected in the writ petition, are that the petitioner purchased Plot SCO No. 5, Sector Old Judicial Complex, Gurgaon, measuring 136.125 Sqm. in open auction held on 20.08.2001 on free-hold basis for a consideration of Rs. 63,40,000/-. The petitioner deposited an amount of Rs. 6,34,000/- as earnest money being 10% of the price of the Plot No. 5. Thereafter, the petitioner deposited another an amount of Rs. 9,51,000/- to make it 15% of the total price of the plot. In this manner, total sum of Rs. 15,85,000/- had been deposited to make it 25% of the total sale consideration of the plot in question. The allotment letter dated 20.09.2001 is Annexure P/1. The remaining amount of Rs. 47,55,000/- would be paid in 7 half yearly installments along with interest @ 15% on the remaining amount. It is one of the terms of the allotment letter that interest would accrue from the date of delivery of its possession to the allottee. The petitioner has averred that there was no development in the area and a big tree was standing in it. So, the possession of the plot could not be delivered to the petitioner. The delivery of possession mentioned in the papers is only a paper transaction. The petitioner made many representations for removal of the tree. The petitioner wrote a letter dated 23.01.2002 (Annexure P/3) to respondent No. 2 requesting him to remove the tree and to deliver the possession. The Estate Officer wrote a letter dated 22.03.2002 (Annexure P/6) to the Executive Engineer, HUDA Horticulture Division, Gurgaon, to removal the trees from all plots of judicial complex. But no action was taken for the removal of the tree from the site of the plot. The petitioner felt harassed for non-action of the respondents and ultimately, filed a complaint before the District Consumer Forum, Gurgaon, (Annexure P/7) with a prayer for removal of the tree and handover the actual physical possession of the plot to him. The petitioner intended to make construction at the earliest and has deposited Rs. 4750/- on 20.08.2002 with the building plan as malba fee and map charges etc. The petitioner also deposited Rs. 2 lacs with the Estate Officer and requested him to deliver the possession of the plot, but nothing happened. Thereafter, the petitioner was given personal hearing on 30.10.2002. The petitioner had requested respondent No. 2 not to charge any interest or penalty from him as he could not raise the construction for no fault of his.

When no action was taken, the petitioner filed an appeal before the Chief Administrator, HUDA, which was allowed on 13.09.2006 (Annexure P/9) and the direction was issued to the Executive Engineer to remove the tree from the site, that would be a deemed date of offer of possession. The Estate Officer was directed to calculate the outstanding amount along with interest from the date of actual offer of possession.

We have heard learned counsel for the petitioner and have perused the record.

The relief sought in this writ petition is for refund of Rs. 25,98,766/- illegally and wrongly charged by the respondents along with interest @ 18% till realization. So, the crucial question regarding the maintainability of writ petition under Articles 226/227 of the Constitution of India arises in this writ petition:-

Whether writ petition is maintainable for refund of Rs. 25,98,766/- illegally and wrongly charged by the respondents along with interest @ 18% till realization?

At the outset, we asked the learned counsel for the petitioner to satisfy this Court how such a writ petition is maintainable. The learned counsel for the petitioner relied upon the judgment of the Apex Court in the H.U.D.A. Vs. Raj Singh Rana, , to support his contention that such writ petition is maintainable,

We are of the considered view that this judgment is not applicable in the facts of the present case. The referred judgment has arisen out of the proceedings before the Consumer Foras. In the Apex Court, the order impugned was of the National Commission passed under the Consumer Protection Act, so this judgment is not applicable in the facts of the present case. That issue has not arisen from the writ jurisdiction.

Learned counsel for the petitioner further relied upon the judgment of the Division Bench of this Court in the matter of Smt. Kanta Devi Budhiraja v. State of Haryana through the Commissioner and Secretary to Government, Haryana and others, 2000 H.R.R., 78. This judgment is also not applicable in the facts and circumstances of the present case. In this case, the issue is that whether the compound interest is payable or not. This is not a case here. Here the case of the petitioner is that excess amount has already been charged, so, he is asked for refund of the excess amount charged along with interest.

Another judgment on which the learned counsel for the petitioner has relied upon is in the matter of Brij Lal Garg Vs. Haryana Urban Development Authority and Another, . In this judgment too, the issue was regarding the compound interest and penalty on the delayed amount has arisen from appeal filed by the authorities under the Haryana Urban Development Authority Act, 1977. This judgment too is not applicable in the facts and circumstances of this writ petition.

We are of the opinion that the petitioner has ample alternative remedies to seek refund of alleged excess amount charged and interest thereon from him. Admittedly, no order of resumption or direction to hand over the possession is involved in this writ petition, nor any order is impugned. Only pure and simple direction for refund of the interest has been prayed for in the writ petition, either by filing civil suit or any other remedy under law, and the main relief being a money claim, the writ petition is not maintainable.

In Suganmal Vs. State of Madhya Pradesh and Others, , it was held that 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 power to pass appropriate orders in the exercise of the power conferred under Article 226 of the Constitution of India for payment of money. The principle laid down in Saganmal''s case (supra) was further considered in various other judgments, i.e. Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others, , U.P. Pollution Control Board and Others Vs. Kanoria Industrial Ltd. and Another, and Mrs. Sanjana M. Wig Vs. Hindustan Petro Corporation Ltd., . In Salonah Tea Co. Ltd''s case (supra), it was laid down that 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.

Further, in U.P. Pollution Control Board''s case (supra), the Hon''ble Apex Court observed that 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. In Sanjana M. Wig''s case (supra), it was held that 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.

We have taken similar view in M/s S.S. & Company, New Delhi v. Union of India and others, in C.W.P. No. 15920 of 2011, decided on 08.11.2011.

In the present case, the petitioner is claiming refund of the money and interest, which is arising from the terms of the allotment of Plot SCO No. 5, but not for violation of its fundamental/statutory rights.

Apparently, the petitioner intends to avoid court fee and other charges by taking recourse of the writ petition which is not maintainable. When the claim is purely for recovery of the excess amount paid along with interest thereon, that claim is purely a money suit. So, the writ does not lie against such demand. The remedy of the civil suit is one of the effective remedy.

We are of the opinion that a writ of mandamus directing the instrumentality of the State to refund the money alleged to be illegally collected is not ordinarily maintainable, particularly when the amount so collected is not without any jurisdiction or without any authority of law. In the instant case, the petitioner was liable to pay the monthly installments after the allotment/delivery of possession, in terms of the allotment letter. The claim of the petitioner is based on the fact that he was not delivered actual physical possession of the plot in question for want of development in the area and removal of tree from the plot. So, disputed question of facts are involved which cannot be gone into writ jurisdiction, particularly, when claim is only money term, without thereby a lis having a public law character, or involving a question arising out of" public law functions on the part of the instrumentality of the State, we are of the opinion that the petitioner cannot be permitted to access to justice by way of a public law remedy under Article 226 of the Constitution of India. Thus, in the facts and circumstances of the present case, and keeping in view the fact that the primary relief of the petitioner is to get the refund of the excess amount charges and interest thereon, we are not inclined to entertain this writ petition and dismiss the same being not maintainable and grant liberty to the petitioner to avail the remedy of civil suit or any other appropriate remedy as may be available to him under law.