IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.W.P. No. 15920 and 15933 of 2011 DATE OF DECISION : 08.11.2011 M/s S.S. & Company, New Delhi .... PETITIONER Versus Union of India and others ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE PARAMJEET SINGH Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Sunish Bindlish, Advocate, for the petitioner. * * * SATISH KUMAR MITTAL , J. This order shall dispose of Civil Writ Petitions No. 15920 and 15933 of 2011. Both these petitions have been filed by one and the same firm, namely M/s S.S. & Company, New Delhi, against the common order dated 20.4.2011, copy of which has been annexed as Annexure P-21 in CWP No. 15920 of 2011, passed by the Financial Commissioner & Principal Secretary to Government of Haryana, Mines & Geology Department, Chandigarh, whereby two separate appeals filed by the petitioner firm pertaining to the mining contracts for two areas i.e. the districts of Panipat and Sonepat have been dismissed. Primarily, the claim of the petitioner firm in both these writ CWPs No. 15920 & 15933 of 2011 -2- petitions is to get the refund of the contract money for the period from 1.3.2010 to 4.8.2010 pertaining to the mining contract for Panipat District and from 1.3.2010 to 1.7.2010 regarding the mining contract for Sonepat District, which had already been deposited by the petitioner firm as per the terms of the agreement. It is the case of the petitioner firm that it was not liable to pay the contract money for the said period, because it could not undertake mining operations due to non-obtaining of the prior Environmental Clearances, which according to the petitioner firm was required to be obtained by the department and not by the petitioner. Undisputedly, in the present case, auctions for granting contract to extract sand from the minor mineral quarries of district Panipat and Sonepat were held on 27.3.2008 and 28.3.2008, respectively. The petitioner firm was the highest bidder in both the auctions. Accordingly, the contracts for both the districts were granted in favour of the petitioner firm. As per the terms and conditions of the auction notice, the petitioner firm was under obligation to commence and undertake mining operations only after obtaining the requisite Environmental Clearance from the competent authority under EIA notification dated 14.9.2006 issued by the Ministry of Environment & Forests, Government of India. It was also a specific condition that the period of contract would be reckoned with effect from the date of grant of such Environmental Clearance by the competent authority or after 12 months from the date of acceptance of the bids, whichever was earlier. The acceptance of both the bids on the aforesaid conditions was CWPs No. 15920 & 15933 of 2011 -3- conveyed to the petitioner on 24.4.2008. It is an admitted fact that after 12 months from the date of acceptance of the bids, i.e. from 23.4.2009, the petitioner firm commenced mining operations without obtaining the Environmental Clearances, because the applicability of the notification dated 14.9.2006 was stayed by this Court vide interim order dated 7.4.2008, passed in CWP No. 4758 of 2008, filed by a third party. Consequently, the petitioner firm also started depositing the monthly contract money. Subsequently, vide order dated 15.5.2009, the said writ petition was disposed of and obtaining Environmental Clearance was held necessary. However, certain procedure was provided for grant of mining contracts. In the said petition, this Court also permitted the mining operations without obtaining the Environmental Clearance upto 28.2.2010. The petitioner firm continued the mining operation upto 28.2.2010 and thereafter, tried to get the Environmental Clearances. Ultimately, the petitioner firm got the Environmental Clearances from the competent authority on 20.5.2010 for Sonepat and on 28.6.2010 for Panipat, and resumed mining operations with effect from 1.7.2010 for Sonepat and 4.8.2010 for Panipat. Subsequently, the petitioner moved the respondents for grant of exemption from payment of contract money for the period from 1.3.2010 to 1.7.2010 for Sonepat and from 1.3.2010 to 4.8.2010 for Panipat, during which the mining operations remained suspended due to non getting of the Environmental Clearances. The prayer of the petitioner was declined by the Director, Mines and Geology vide two separate orders 15.7.2010 and the appeals filed by the CWPs No. 15920 & 15933 of 2011 -4- petitioner against the said order have been dismissed by the Financial Commissioner & Principal Secretary to Government of Haryana, Mines & Geology Department, Chandigarh vide the impugned order dated 20.4.2011 (Annexure P-21). Though the petitioner is praying for quashing of the aforesaid orders dated 15.7.2010 and 20.4.2011, but in essence, claim of the petitioner is to get the refund of the contract money for the aforesaid periods, i.e. from 1.3.2010 to 4.8.2010 pertaining to the mining contract for Panipat District and from 1.3.2010 to 1.7.2010 regarding the mining contract for Sonepat District, which according to the petitioner firm has been illegally collected from it, in spite of the fact that it did not undertake mining operations during the said periods. In both these writ petitions, the petitioner has also raised certain disputed questions of fact with regard to the delay in getting the Environmental Clearance from the competent authority and this delay has been attributed to various Government authorities. After hearing learned counsel for the petitioner and in the facts and circumstances of the case, we are of the opinion that the petitioner has ample alternative remedies to seek refund of the contract money for the aforesaid periods, either by filing civil suit or by seeking arbitration reference, and the main relief being a money claim, the writ petitions are not maintainable. In Suganmal Versus State of MP, AIR 1965 SC 1740, 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 CWPs No. 15920 & 15933 of 2011 -5- 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 Suganmal's case (supra) was further considered in various other judgments, i.e. Salonah Tea Co. Ltd. Versus Superintendent of Taxes, Nangaon (1988) 1 SCC 401, UP Pollution Control Board Versus Kanoria Industrial Ltd., 2001 (2) SCC 549 and Sanjana M. Wig Versus Hindustan Petroleum Corporation Ltd. (2005) 8 SCC 242. 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 UP 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 CWPs No. 15920 & 15933 of 2011 -6- 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. In the present case, the petitioner firm is claiming refund of the money, which is arising from the contracts, but not from the violation of its fundamental or statutory rights. 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 contract money after commencement of the contract, which has been commenced on 24.4.2009, in terms of the contract. The petitioner firm is claiming that for the period, during which it has actually not undertaken the mining operations because of non-obtaining of Environmental CWPs No. 15920 & 15933 of 2011 -7- Clearances, it is not liable to pay the monthly contract money. However, it is an admitted fact that under the garb of an interim order passed by this Court in a writ petition (CWP No. 4758 of 2008), filed by a third party, the petitioner firm continued the mining operations for both the Districts from 23.4.2009 to 28.2.2010, and that too without getting the Environmental Clearances, whereas according to the terms of the contract, it was the duty of the petitioner to obtain Environmental Clearances. The petitioner firm has raised certain disputed questions of facts with regard to the delay in getting the Environmental Clearance from the competent authority, and the responsibility to obtain the Environmental Clearances. In view of the involvement of such questions of facts, which cannot be gone into in the writ jurisdiction, and particularly when only the monetary claim is involved in these writ petitions, without there being a lis having a public law character, or involving a question arising out of public law functions on the part 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. In our view, the judgment in ABL International Ltd. & Anr. Versus Export Credit Guarantee Corporation of India Ltd. & Ors., 2004 (3) SCC 553, cited by learned counsel for the petitioner, to argue that a writ petition involving disputed question of fact can be entertained by a writ Court and there is no absolute bar in regard to the same, cannot help the petitioner, because in both these writ petitions, the primary claim of the petitioner firm is to get the refund of the money, which CWPs No. 15920 & 15933 of 2011 -8- according to it has been illegally collected under the agreement/contract. 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 contract money, we are not inclined to entertain these writ petitions and dismiss the same with liberty to the petitioner to avail the remedy of civil suit or getting the dispute resolved by invoking the arbitration clause. ( SATISH KUMAR MITTAL ) JUDGE November 08, 2011 ( PARAMJEET SINGH ) ndj JUDGE