1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. WRIT PETITION NO. 2793 OF 2009. Jaleel Ahmed S/o Haji Abdul Hameed, Proprietor, Saudagar Agency, Rahim Market, Dr. Ambedkar Road, Parbhani – 431 401. .. PETITIONER. VERSUS 1) Municipal Counsil, Parbhani through its Chief Officer. 2) The Collector, Parbhani. 3) The Regional Director and Additional Commissioner, Office of the Divisional Commissioner, Aurangabad Division, Aurangabad. 4) The State of Maharashtra Through the Secretary to the Government of Maharashtra, Urban Development Department, Mantralalaya, Mumbai. 5) The Manager, State Bank of India, Station road, Parbhani . RESPONDENTS. ... Ms. Neeta Bhide, Advocate holding for Shri S.P. Bhandarkar, Advocate for Petitioner. Shri S.S. Bora, Advocate for Respondent No. 1. Shri V.H. Dighe, Assistant Government Pleader for respondent Nos. 2,3 & 4. ... 2 CORAM : A.M. KHANWILKAR AND S.S. SHINDE, JJ. RESERVED ON: 25.01.2010. PRONOUNCED ON: 02.02.2010. PER COURT: (Per S.S. SHINDE,J) 1. The principal grievance raised in this petition is that the Chief Officer, Municipal Council, Parbhani and Respondent No.4 have not deposited the amount as detailed in letter at Annexure “HH” of the petition dated 13-12-2001/ 26-06-2002 issued by the respondent No.1, Chief Officer, Municipal Council, Parbhani. 2. The brief facts of the case as narrated in the petition are as under: It is the case of the petitioner that, the petitioner is the proprietor of proprietary concern ‘Saudagar Agency”. On 29-03-1997 the petitioner has entered and executed a contract with the Chief Officer, Municipal Council, Parbhani i.e. respondent No.1 herein, as provided Under Section 143(A) of the Maharashtra Municipal 3 Councils, Nagar Panchayats and Industrial Township Act, 1965 (for short, the Act) for collection of octroi of the said Municipal Council, during the accounting year from 01-04-1997to 31-03-1998. The said contract was on the basis of revised octroi rates for the accounting year, as fixed by the Council by resolution No.1(B) adopted by the Council in General Body meeting held on 28-02-1997, which was approved and confirmed in the General Body meeting held on 15-03-1997. The said resolution shows that, the octroi leviable on as many as nineteen different items was substantially revised and increased by the council during the said accounting year. The petitioner placed reliance on the proviso below clause 3 of the contract, which is relevant for the purposes of the present Writ Petition, which reads: “However, the rates of octroi will not be changed by the Municipal Council during the period of contract.” 4 It is the case of the petitioner that, the contract was awarded to him on the terms that, the amount of Rs.3,21,00,786/- (Rs. Three Crores twenty one lakh Seven hundred and eighty six only) was supposed to be paid by him to the council during the said accounting year. The said amount was to be paid in 50 equal weekly installments being due to be paid on 08-04-1997. In order to ensure that the said installments were punctually and regularly paid by the petitioner to the council, the petitioner was required to furnish a Bank Guarantee of Rs. 46,25,000/- (Rs. Forty five lakh twenty five thousand only) from a Nationalised Bank, which was furnished by the petitioner on 29-03-1997, from the State Bank of India, Parbhani in favour of the Council on 29-03-1997. On the said Bank Guarantee furnished by the petitioner, the respondent No.1 herein authroised the petitioner to start collecting octroi as per the sanctioned schedule with effect from 01-04-1997. As per the terms and conditions contained in the contract, the petitioner paid the first two weekly 5 installments of Rs.6,42,016 (Rs. Six lakh forty two thousand sixteen). On 17-04-1997 the respondent No.1 directed the petitioner not to levy octroi at the revised increased rates till the said rates were approved by the Collector, Parbhani. As a result of the direction respondent No.1, the petitioner was constrained to levy octroi only at the old pre-revised rates, contrary to the provisions contained in the contract, thereby causing great economic hardship to him. On 07-08-1997 the respondent No.2 directed the respondent No.1 to levy octroi at the revised increased rates, as per Resolution 1(B) of the Council dated 28-02-1997. On 01-09-1997, the respondent No.1 authorised the petitioner to levy octroi at the revised increased rates with effect from 01-09-1997. The petitioner thereafter started levying octroi at the revised increased rate with effect from 01-09-1997. However, the respondent No.2 directed the respondent No.1 not to levy the octroi at the revised increased rates on account of the public discontent against the said rates. In pursuance 6 of the said letter, the respondent No. 1 directed the petitioner not to levy octroi at the revised increased rates. As a result of which, the petitioner further was constrained to levy octroi at the old pre-revised rates thereby causing great economic hardship to him. The petitioner received telegraphic notice from the Additional Commissioner, Aurangabad - respondent No.3 directing petitioner to appear before him on 11-09-1997. After hearing the parties concerned, the respondent No.3 rejected the representation of the Zilla Vyapari Mahasangh, Parbhani praying for stay to the revised increased rates of octroi by his order dated 16-09-1997. Upon receiving a copy of order on 24-09-1997, the petitioner addressed a letter to respondent No.1 seeking permission to levy octroi at the revised increased rates. Simultaneously, the petitioner also addressed a letter to respondent No.2 seeking the implementation of the revised increased rates of octroi. On 04-10-1997 the petitioner received a letter from respondent No. 1 directing him not to levy octroi at the revised increased rates until further orders. On 7 05-10-1997 the petitioner addressed a letter to respondent No.1 inviting attention to the relevant facts and circumstances of the case and cautioned him that he would be responsible and answerable for the injustice and hardship caused to the petitioner. On 07-10-1997 the respondent No.1 requested to respondent No. 2 to vacate the direction contained in the letter dated 03-09-1997 directing the respondent No. 1 not to levy octroi at the revised increased rates until further orders. Since the petitioner did not receive any communication from respondent Nos.1 & 2 allowing him to levy octroi at the revised increased rates, he approached the Secretary to the Government of Maharashtra, Urban Development Department, respondent No. 4 herein, on or about 20-10-1997 requesting him to issue appropriate orders in the matter allowing him to levy octroi at the revised increased rates. As per the Rules of Business of the Government of Maharshtra, on 20-12-1997 the said matter was placed before the Minister of State for Urban Development Department, who passed 8 order and issued directions in the matter. The said order shows that the Government of Maharashtra directing the respondent No.1 to calculate and compute the actual loss and/or damage caused to the petitioner, for compelling petitioner to levy octroi only at the old pre- revised rates as against payment of weekly installments on the basis of the revised rates and to adjust the said loss and/or damage against the remaining installments payable by him to respondent No.1 within eight days of the said order. In pursuance to the aforesaid order, on 22-12-1997 the petitioner addressed letter to respondent No.1 urging to implement and act in accordance with the said order. Instead of complying with aforesaid order, the respondent No.1 passed an order which is placed at Annexure “P” of the petition. According to the said order, the tenders for appointment as an octroi agent for the relevant accounting year were invited by the Council on the estimate that the revised increased rates of octroi would yield an 9 additional collection of only an amount of Rs. 8,55,000/- (Rs. Eight lakh fifty five thousand) and, it being so, petitioner was entitled to only said amount of Rs. 8,55,000/- from the remaining weekly installments paid by him to the Council. It is the case of the petitioner that, the view taken by the respondent No. 1 is clearly contrary to the directions of Government and the actual damage caused to the petitioner, as a result of arbitrary and wrongful act and omission on the part of the respondent Nos.1 & 2, works out to about Rs.31,00,000/- (Rs. Thirty one lakh) and is expected to amount about Rs. 41,33,000/- (Rs. Fourty one lakh thirty three thousand only) up to the end of the relevant accounting year. Aggrieved by the order passed by the respondent No.1 dated 03-01-1998, the petitioner approached the concerned authorities in the Urban Development Department, Mantralaya, Mumbai, Government of Maharshtra seeking an intervention in the matter. On 23-01-1998 the petitioner served notice to respondent No.1, however, the respondent No.1 did not respond to said notice. 10 3. The petitioner herein had filed Writ Petition No.1127 of 1998 before this Court praying therein that, the respondent No.1 should strictly and punctually abide and implement the order passed by the Government of Maharashtra dated 20th December, 1997, and further to quash and set aside the order passed by respondent No. 1 dated 3rd January, 1998. The said writ Petition came to be dismissed as withdrawn with a liberty to seek appropriate remedy before appropriate forum. This Court also vacated interim order granted in favour of the petitioner. 4. On 17-08-2000 the petitioner made application before respondent No.4 laying claim under Section 319 of the Act for enforcement of the order passed by the Government of Maharashtra on 28-12-1997. In pursuance of the same, the respondent No.1 was called upon to submit its reply which was filed before the Collector. The respondent No.1 vide his reply had quoted the reason for non-payment of the petitioner’s amount to be financial crunch faced by the Municipal 11 Council, Parbhani due to the civic amenities and implementation of Fifth Pay Commission and implementation of water supply scheme etc. 5. On 11-01-2001 the petitioner moved application before respondent No.4 for expeditious enforcement of order passed by the Ministry of Urban Development Department directing the respondent No.1 to pay the amount of loss suffered by the petitioner. However, since it was not decided, the respondent No.4 issued communication whereby the matter was directed to be heard before the Minister of State, Urban Development Department on 17-01-2001. On 18-01-2001 after the meeting, the Section Officer directed the respondent No.1 to communicate the entire report within 15 days. In pursuance to the said communication, on 19-01-2001 the respondent No.1 had communicated to respondent No.1 that four persons have been appointed to verify the exact statistical data of the collection of the octroi by the petitioner. On 12-03-2001 the respondent No. 1 communicated to the respondent No.4 that the data verification 12 of the octroi collected by the petitioner is complete to the extent of about 40% and the same is continuing. Since the dispute was pertaining to the old and new rates of the octroi collected and the difference thereof was the loss suffered by the petitioner, the petitioner had duly cooperated the respondent No. 1 for arriving at a correct figure by furnishing the relevant record. On 08-09-2001 the petitioner submitted the certificate of the M/s. Arvind Nirmal and Associates, Chartered Accountants, Pune to respondent No.1. On 06-01-2001 the respondent No. 1 did not take any action in spite of communication by the respondent No. 1. The respondent No.4 issued communication to respondent No.1 on 06-10-2001 seeking development of investigation into the losses suffered by the petitioner. On 13-01-2001 the respondent No.4 constrained to issue another communication to respondent No.1 seeking details. On 22-01-2001, the petitioner endlessly kept on waiting and ultimately had issued the communication requesting respondent No.4 for taking necessary 13 action for disbursement of the amount to him. Again one more communication was issued to the respondent No.4 by the petitioner on 27-02-2002. Thereafter, the respondent No.4 issued letter to the respondent No.1 to supply necessary information within one month. On 15-03-2002 the respondent No.1 issued letter to respondent No.4 giving the reasons as to why he could not sent the information to the respondent No.4. It is further case of the petitioner that, the petitioner thereafter, went on making communications to respondent No. 4 from time to time but as usual, in vain. On 22-06-2002, the respondent No.1 issued communication to respondent No.4 informing that net amount payable to the petitioner is Rs. 42,09,987/- (Rs. Fourty two lakh nine thousand nine hundred eighty seven). On 11-07-2003 the petitioner issued communication for disbursement of the admitted amount. However, respondents as usual did not respond. The petitioner went on making communication for release of his admitted amount. On 13-09-2006 the Additional Commissioner, Aurangabad had also issued communication to the 14 Collector pertaining to necessary action to be taken on the petitioner’s application dated 19-08-2006. It is further case of the petitioner that, on 16-04-2007 notice was issued by him requesting to pay 42,09,987/-, in spite of said notice respondent No.1 did not respond. On 10-01-2008 he had written letter to the Minister of State for Urban Development Department, Mantralaya, Mumbai agitating his grievance for not receiving payment of Rs. 42,09,987/- from the respondent No. 1. According to the petitioner the present case is a classic example of illegal enrichment of statutory authority at the cost of a citizen, wherein huge amount of Rs.42,09,987/- is admittedly due against the Statutory body but for no reason, the same has not been paid to the petitioner. Therefore, the petitioner has filed this Writ Petition. 6. The learned counsel appearing for the petitioner invited our attention to the pleadings and grounds taken in the petition and submitted 15 that, since the petitioner deposited an amount of Rs.42,09,987/- in pursuance of order passed by this Court in Writ Petition No.1127 of 1998 and also in pursuance of agreement entered into by the petitioner on 29-03-1997, for collection of octroi, these respondents should have refunded the amount as they cannot withheld the same illegally. However, this amount is unnecessarily lying with respondent No.1 as a deposit, though it cannot enjoy the same. It is further submitted that, the quantification has been done in accordance with the order passed by respondent No. 4, and therefore, it is the duty of the respondent/State to enforce the order passed by the respondent No. 4. The petitioner had been promised from time to time by respondent No.1 that his amount of Rs.42,09,987/- will be returned back, however, it has not been returned and respondent Nos. 2,3 & 4 are not taking necessary steps in this regard. The State Government itself has adjudicated the matter in the year 1997 and in spite of several reminders directing the Municipal Council to pay the amount,by various technical defects / defense the 16 amount is still not paid to the petitioner. According to the counsel for the petitioner it will be travesty of justice if this Writ Petition is not entertained by this Court and petitioner is relegated to alternate remedies of Civil suit thereby asking the party, to pay court fee and have a long drawn procedure. According to the counsel for the petitioner, in the present case there are accepted admitted legal dues, that too against State or other authorities the principle which which be applicable governing the dispute between two parties even if it exists by relegating the party on the ground of disputed question of facts to alternate remedy of civil suit, will not be applicable in the instant case because here firstly there are no disputed questions of facts; secondly, claim is being adjudicated and granted but amount remained unpaid because of various circumstances and reasoning placed by the Municipal Council, which is not permissible in law. The State and other authorities within the meaning of Article 12, like Statutory Bodies like Municipal Councils, Zilla Parishads and other authorities cannot be 17 permitted to have unjust enrichment at the cost of citizens. Therefore, learned counsel for the petitioner would submit that this petition may be allowed. 7. The learned counsel appearing for the respondent No.1 raises preliminary objection regading maintainability of the Writ Petition on the ground that, the petition involves so many disputed questions of facts, and therefore, filing of the suit is the appropriate remedy available before the Civil Court. According to the learned counsel for respondent No.1, the controversy raised in the petition can be resolved only by the Civil Court, in case of filing Civil Suit by the present petitioner. Further, the claim of the petitioner is already barred by limitation. The sum and substance of the arguments advanced by the counsel for the respondent No.1 is that, since the matter arises out of the contract and petition involves disputed questions of facts, proper remedy for the petitioner is to file Civil Suit before the Civil Court and present Writ Petition Under Article 226 cannot be entertained by this Court. 18 In support of his contention the learned counsel for the respondent No.1 placed reliance on the reported judgment of the Apex Court in case of “ State of Madhya Pradesh V/s. Bhailal Bhai & others [reported in 1964DGLS(Soft.)7]”, the learned Counsel invited our attention to the para No.17 of the said judgment and submitted that, the remedy provided under Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defenses legitimately open in such actions. The learned counsel further submitted that, the Writ Petition is filed to over come the delay in seeking appropriate remedy by the petitioner, and therefore as a general rule, if there is unreasonable delay, the Court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. The learned counsel further invited our attention to the reported judgment of the Apex Court in case of “ Kulchindr Singh and others V/s. Hardayal Singh Brar & others [reported in 1976 Supreme Court, 2216]”, more particularly, para No. 11 of the said judgment. The learned counsel for the 19 respondent No.1 relying on the afore said pronouncement by the Apex Court as well other judgments taking same view and submitted that, the remedy available to the petitioner lies some where else and if petitioner is advised he can file Civil Suit before the Civil Court. Therefore, the counsel for the respondent No.1 prays for dismissal of the petition. 8. The learned Assistant Government Pleader for the State supported the stand taken by the respondent No. 1, and submitted that in view of the remedy of filing suit before the Civil Court available to the petitioner, this Court may not entertain the Writ Petition. 9. We have heard counsel appearing for the petitioner and also counsel appearing for the respondent No. 1 and learned Assistant Government Pleader for the State at length, and we are of the considered opinion that, the present writ petition raises disputed questions of facts and same cannot be entertained under Article 226 of the Constitution of India. We find considerable 20 substance in the preliminary objection raised by the counsel for the respondent No.1 that, controversy involved in the present petition is arising out of contract between the respondent No.1 and the petitioner and also it raises disputed questions of facts, and Petition is also filed belatedly from the date of cause of action. We also find considerable substance in the arguments advanced by the counsel for the respondents that, the Writ Petition is filed to over come latches and delay. It is not necessary for us to go into the merits of the matter. Suffice it to say that, the alleged financial recovery by the petitioner from the respondent No. 1 is arising out of terms of contract for collection of octroi for the accounting year 1997-1998. In our opinion, proper remedy is to file civil suit in the civil Court. The Hon’ble Apex Court in case of State 21 of Madhya Pradesh V/s. Bhailal Bhai & others cited (Supra) in para No. 17 held that :- “ At the same time we cannot lose sight of the fact that the special remedy provided in Art.226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Court rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that 22 the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution.” 23 The observations by the Apex Court in afore said paragraph is clear rider that the special remedy provided under Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court to deny defences legitimately open in such actions. The Apex court further observed in afore said para that, it is not easy nor desirable to lay down any rule for universal application. It may however, be stated as a general rule that if there has been unreasonable delay, the court ought not ordinarily to lend its aid to a party by extraordinary remedy of mandamus. The Apex Court further observed that,even if there is no such delay the government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on grounds like limitation, the court should ordinarily refuse to issue the writ of mandamus for such payment. In both these kinds of cases, it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to 24 refuse to exercise in his favour the extraordinary remedy under Art. 226 of the Constitution. In case of Kulchhinder Singh and others V/s. Hardayal Singh Brar & others cited (Supra) in para No. 11, the Hon’ble Suprme Court held that :- “ There is no doubt that some of the legal problems argued by Shri Ramamurty deserve in an appropriate case jurisprudential study in depth although much of it is covered by authority. But assuming for argument’s sake, that what he urges has validity, the