IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 4-3-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.23924 of 2006 M.P.No.2 of 2006 M/s.Reckitt Benckiser (India) Ltd., Plot No.176, SIPCOT Industrial Complex, Hosur - 635 126 rep.by its Authorised signatory.. Petitioner Vs. M/s.State Industries Promotion Corporation of Tamil Nadu Limited, No.19-A, Rukmani Lakshmipathi Road, Egmore, Chennai - 600 008. ... Respondent Prayer: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of Certiorarified mandamus calling for the records of the respondent comprised in impugned communication dated 13.5.2004 bearing reference No.P-11/ICH-1/Reckitt/161/80 and consequential communication dated 15.6.2004 bearing reference No.P-11/ICH- 1/Reckitt/161/80 and quash the same as being arbitrary and illegal and direct refund of the excess water charges collected by the respondent of an amount of Rs.26,53,874/- together with interest @ 18% on the said sum from the date of payment by the petitioner to the date of refund. For Petitioner : Mr.Sathish Parasaran For Respondent : Mr.M. Devaraj O R D E R By consent of both sides, the writ petition itself was taken up for final disposal. 2. Prayer in the writ petition is to quash the order dated 13.5.2004 and the consequential communication issued by the respondent dated 15.6.2004 and direct the respondent to refund the excess water charges collected from the petitioner amounting to https://hcservices.ecourts.gov.in/hcservices/ Rs.26,53,874/- together with interest at 18% per annum on the said sum from the date of payment to the date of refund. 3. The brief facts necessary for disposal of the writ petition are as follows: (a) Petitioner, a Multi-National Corporation has a manufacturing Unit at SIPCOT Industrial Complex in Hosur. Petitioner was originally carrying on the business in the name and style of 'Reckitt & Colman of India Ltd.' and after restructuring it is renamed as 'Reckitt Benckiser India Ltd.'. (b) Petitioner entered into a lease-cum-sale agreement on 30.4.1980, which was executed for an extent of 30.08 acres. The land had been leased for putting up the manufacturing unit, which is essentially a chemical manufacturing plant for manufacturing bulk drugs. The requirement of water for its units is to be provided at the Industrial Estate by the respondent. (c) Petitioner sought for water supply from the respondent on 9.2.1995 and an agreement to that effect was executed between the petitioner and the respondent. The said agreement sets out the manner of supply of water and payments to be made therein. The water charges have to be paid by the petitioner to the respondent based on the actual consumption as per clause 10 of the Water Supply agreement. The water charges are to be paid based on the measurement recorded in the water meter that is to be installed in the pipeline connecting the water supply. The readings were required to be done monthly or at convenient intervals and the charges were to be paid accordingly. The agreed quantity of water to be supplied was one lakh gallons per day. The respondent is the sole provider of water in the Industrial Estate. (d) According to the petitioner, right from the beginning there was difficulty in getting required water supply as the supply was deficient. In spite of repeated requests the respondent was not in a position to supply the agreed quantity of water, because of which there was imminent risk of closure of the petitioner unit. Therefore, the petitioner had to arrange for alternative source of water supply. (e) In June, 2002, the respondent raised a demand alleging unauthorised drawal of water on the ground that the respondent had spent huge amount for arranging water supply and since some of the units were not drawing full requirement of water from SIPCOT, but getting water from the private sources. The demand for water charges was raised for the period from April, 1996 to April, 2002 based on the difference between the average consumption for the period and the actual quantity of water purchased. On 11.10.2002, a further demand was made for the period from May, 2002 to September, 2002 on the above basis. The first demand was for a sum of Rs.4,33,894/- through letter dated 10.6.2002 and the second demand was for a sum of Rs.12,38,750/- by letter dated 11.10.2002. https://hcservices.ecourts.gov.in/hcservices/ A further demand was raised for the subsequent months by another letter dated 13.11.2002 for a sum of Rs.2,45,097/-. (f) According to the petitioner, even 1/4th of the required water was not supplied by the respondent through its water source. The conditions of lease-cum-sale agreement in respect of the lands having been complied with, petitioner requested the respondent to execute the sale deed. Since the petitioner faced demand with alleged water charges of a total sum of about Rs.19,00,000/-, a protest letter was also made by the petitioner on 8.11.2002 and 18.11.2002 and sought for execution of the sale deed. The respondent informed the petitioner that to execute the sale deed it was mandatory that no due certificate is to be obtained from the Project Officer of the respondent, which would be a condition precedent and the execution would be done only on payment. (g) In view of the urgent requirement for execution of the sale deed, the petitioner requested to waive the water charges demanded and the said request having not been acceded and the respondent having insisted for the payment of dues for the execution of the sale deed, petitioner made the payment of a sum of Rs.2,61,156/- with a covering letter dated 4.3.2003 and paid the same under protest. Petitioner received other communications on 5.12.2002 and 5.1.2003 for a total sum of Rs.5,12,904/- for which the petitioner issued two cheques for the sum of Rs.2,52,248/- and Rs.2,60,656/- which were paid also under protest for execution of the sale deed. (h) The respondent constituted a three member committee to consider the constant request for the settlement of vexed issue of payment of water charges on 21.3.2003 and the committee resolved to recommend for waiver of the payment of water charges. Since the petitioner paid the water charges under protest as stated supra, it has requested for refund of the said sum by sending a representation dated 21.8.2003, followed with reminder dated 3.11.2003. The respondent issued a reply on 14.4.2004 and requested the petitioner to submit the details of payment, which was also furnished. (i) The respondent in its Board meeting held on 26.4.2003, resolved not to accept the request for refund and the same was communicated to the petitioner by letter dated 13.5.2004. By communication dated 25.5.2004 petitioner sought for reasons for such rejection of refund, for which reply was given on 4.6.2004 by stating that the request had been rejected as the decision taken was to waive the collection of arrears of water charges and the petitioner having remitted Rs.26,53,874/- prior to the Board decision, it is not entitled to get refund. (j) The said orders are challenged in this writ petition contending that the respondent having admitted that it was not able to supply the agreed quantity of water and due to the said reason took a decision to waive the water charges, it is not justified in ordering refund of the payment already paid by the https://hcservices.ecourts.gov.in/hcservices/ petitioner under protest and it is violative of Articles 14 and 300A of the constitution of India. The demand itself having been found erroneous and the payment made under protest will not enure the respondent to retain the amount and the payment made by the petitioner under protest is only to comply with a pre-condition for the execution of the sale deed, the same cannot be put against the petitioner, particularly when the amount was paid under protest. Therefore, the petitioner is seeking refund with 18% interest from the date of payment to the date of refund. 4. The respondent filed counter affidavit wherein it is contended that the petitioner Company requested for the execution of the sale deed and the sale deed was executed after the petitioner Company complied with all the requirements of the lease-cum-sale agreement. One of the condition for execution of the sale deed was to get a no due certificate from the Project Officer of the respondent. Since the petitioner was having arrears of water charges amounting to Rs.26.54 lakhs, no due certificate was not issued and on payment, the sale deed was executed on 11.3.2003. The amount having been paid to comply with a pre-condition for the execution of the sale deed, petitioner is not entitled to seek refund of the amount and the request of the petitioner to refund the amount was placed before the Managing Director, who in turn placed the same before the Board and the Board, after detailed discussion decided not to consider the request. For the short supply of water it is stated that due to continuous monsoon failure the respondent made alternate arrangement by drawing surplus water from the nearby KPRP dam, but the petitioner company failed to draw water from the said source. It is further stated that the petitioner having made the payment, the Board decided not to waive the water charges. As the petitioner has already paid the amount, nothing is left for waiver and therefore the question of waiver will not arise. Hence the refund request sought for was rejected. 5. A reply affidavit was filed stating that mere payment of the amount by the petitioner cannot be a reason to penalise the petitioner, that too when the amount was paid under protest. It is also denied in the reply that the other units are drawing water through the water source of the respondent and the petitioner failed to avail the said benefit and drew water through alternative sources are denied. The condition in the lease-cum- sale agreement to get no due certificate will not apply for the payment of water charges. The waiver of water charges having been granted to other units for the same period, denial of the said benefit to the petitioner is arbitrary. 6. I have considered the rival submissions made by the learned counsel for the petitioner as well as respondent. https://hcservices.ecourts.gov.in/hcservices/ 7. The point in issue is whether the respondent is justified in denying refund claim made by the petitioner after a decision is taken to waive the water charges to other units for the same period. 8. The resolution of the respondent dated 26.4.2004 clearly states that after examining the representation of the allottees the Chairman and Managing Director constituted a committee consisting of three General Managers to look into the grievance and the committee considered the representation of the six allottees including the petitioner on 28.3.2003 and 29.3.2003 and discussed the issues relating to non-drawal of water from SIPCOT source. The findings and recommendations of the committee were placed before the Board meeting held on 30.5.2003. The Board considered the mode for relaxation of collection of arrears of water charges as per the contracted quantity in respect of Hosur Complex. The Board finally decided to waive the arrears of water charges as per the contracted quantity in respect of industrial units located in SIPCOT Industrial Complex, Hosur. 9. As per the said resolution of the Board, the Project Officer has not insisted the six units to remit the arrears of water charges. Petitioner Company is also one among the six units. However, in order to get the sale deed executed, the petitioner unit was compelled to pay the water charges of Rs.26,53,874/- for the period from April 1999 to January, 2003. The said payment was made under protest. 10. (i) In the Law Dictionary of P.Ramanatha Iyer, 3rd Edition, the word 'under protest' is described as 'payment under protest'. The phrase signifies payment of money accompanied by a declaration that the demand is illegal or in excess of what is justly due and implying the need of a future rectification. (ii) In Black's Law Dictionary, 7th Edition, the word 'protest' is described as 'a formal statement in writing, disputing a debt's legality or validity but agreeing to make payment while reserving the right to recover the amount at a later time. The disputed debt is described as under protest.' 11. The power of the High Court to issue writs for refund is considered by the Supreme Court in the case of U.P. Pollution Control Board v. Kanoria Industrial Ltd., (2001) 2 SCC 549 and in paragraphs 17, 26 and 27 held thus, "17 . ................... 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 https://hcservices.ecourts.gov.in/hcservices/ of each case. For instance, in the cases on hand where facts are not in dispute, collection of money as cess was itself without the authority of law; no case of undue enrichment was made out and the amount of cess was paid under protest; the writ petitions were filed within a reasonable time from the date of the declaration that the law under which tax/cess was collected was unconstitutional. There is no good reason to deny a relief of refund to the citizens in such cases on the principles of public interest and equity in the light of the cases cited above. However, it must not be understood that in all cases where collection of cess, levy or tax is held to be unconstitutional or invalid, the refund should necessarily follow. We wish to add that 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. 18. ......... 19. ......... 20. ......... 21. ......... 22. ......... 23. ......... 24. ......... 25. ......... 26 . The stand of the petitioners that the respondents were not entitled for refund on the ground that the amount of cess collected was passed on to the State Government, which in turn gave it to the Central Government and the Central Government has appropriated the same by passing on the money back to various State Pollution Control Boards, does not help them. Before the High Court, they only stated that they made reference to the Government in regard to the claim made by the respondents for refund and they were waiting for response. It was also not made out by the petitioners as to how they had difficulties in making the refund to the respondents. It may also be kept in view that https://hcservices.ecourts.gov.in/hcservices/ immediately after the notices were issued demanding water cess they were challenged. Even in some cases interim orders were also passed in the High Court; the amount of water cess was paid under protest. So, in this situation when finally this Court held that the very collection of water cess was without the authority of law, the claim of the respondents for refund cannot be denied merely on the ground that the petitioners passed on the money to the State Government and in turn the money was sent to the Central Government and later the Central Government appropriated the same by passing it back to the various State Pollution Control Boards. 27 . The High Court in our view having taken all aspects into consideration was right in allowing the claims of the respondents made for refund in the writ petitions. We do not see any good ground or valid reason to interfere with the judgments and orders of the High Court impugned in these petitions. Hence the special leave petitions are dismissed. The parties shall bear their own costs." 12. In the present case, the payment made already under protest is not entitled to be retained by the respondent in view of the decision already taken to give waiver of water charges in respect of the industrial units located in SIPCOT Industrial Complex, Hosur. If the petitioner has not paid the amount under protest, the respondents are not entitled to demand the said amount. Hence the payment made under protest is to be treated without prejudice to the petitioner's claim to seek refund, if ultimately the Board take a decision to waive the water charges. 13. The waiver having been granted to all the Industrial Units, it is inequitable on the part of the respondents to deny waiver which was paid under protest. The only difference insofar as the petitioner and to other units is that the petitioner has paid the same under protest and the other units have not paid any amount. The waiver having been given to all the Units, merely because petitioner Unit paid the amount under protest, it cannot be denied refund as the denial of the same benefit to the petitioner is in violation of Article 14 of the Constitution of India. 14. The contention of the learned counsel for the respondent that payments were made without accepting the claim of the petitioner under protest is contrary to the records. Even the https://hcservices.ecourts.gov.in/hcservices/ Chairman and Managing Director while placing the case of the petitioner before the Board by his proceeding dated 20.4.2004 stated that the petitioner Company remitted an amount of Rs.26,53,874/- for the period from April, 1999 to January, 2003 under protest, a copy of which was produced by the petitioner to the respondent, which was also placed in the Board meeting held on 26.4.2004. 15. In the light of the above undisputed fact of remittance of the amount under protest by the petitioner, petitioner is entitled to get waiver of water charges for the above period and the denial of refund, which was paid by the petitioner under protest, is irrational. 16. The writ petition is allowed with a direction to the respondent to refund the amount of Rs.26,53,874/- with prevailing bank interest rate within a period of eight weeks from the date of receipt of copy of this order. No costs. Connected miscellaneous petition is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. vr to M/s.State Industries Promotion Corporation of Tamil Nadu Limited, No.19-A, Rukmani Lakshmipathi Road, Egmore, Chennai - 600 008. 1 cc to Mr.Satish Parasaran, Advocate, sr. 12049 1 cc to Mr.M. Devaraj, Advocate, Sr. 12177 W.P.No.23924 of 2006 & connected MP. NG (CO) kk 14/3 https://hcservices.ecourts.gov.in/hcservices/