Case: POPATRAO VYANKATRAO PATIL Vs. THE STATE OF MAHARASHTRA  &amp; ORS

4. The facts, in brief, giving rise to the present appeal are as under:      The respondent – District Collector, Satara had issued a notice of public auction for auctioning the sand blocks of Krishna river in the year 2012. The appellant had submitted his bid for excavation of sand insofar as Gat No.956A, Plot No.2 at village Rethare Khurd, Taluka Karad. The agreed quantity of excavation was 8500 brass. The appellants bid being 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 (1/4th) amount of auction with Government treasury. On 16.1.2012, the appellant deposited remaining auction amount of Rs.44,83,500/-. The appellant also deposited Rs.1,19,500/- towards environmental cost and Rs.1,23,085/- towards income tax. As such, the total deposit made by the appellant was Rs.62,26,085/- towards allotment of sand block.      However, since the said sand block was at a distance of about 100 ft. from the school, the villagers of Rethare Khurd village had opposed the excavation of sand. As such, though the appellant had deposited the entire amount, he was not put in possession of the said sand block. In the circumstances, the appellant made a representation to the Revenue Minister, Government of Maharashtra for refund of the auction amount. As the appellants representation was sent to the Collector, Satara to make 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 by the Circle Officer, Kale (respondent No.5 herein). He also prepared a Panchnama of the sand block in question which exhibited that possession of sand block was never given to the appellant and that there was no excavation of sand from the said sand block.      The Tehsildar, Karad - respondent No.4, submitted a detailed report dated 9.8.2012 to the Collector, Satara pointing out the factual position. The Sub-Divisional Officer, Karad – respondent No.3, in turn, submitted 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 was not granted possession of the sand block and though yet he had not excavated any sand, the refund of the amount could not be made to him. It appears that there were further correspondences between the authorities and finally, the Desk Officer of the respondent No.1 – State Government vide order dated 25.3.2014 rejected the prayer of the appellant seeking refund of the auction amount.      The appellant again made several representations. Since there was no response, the appellant approached the High Court by filing Writ Petition No. 8708 of 2017. As stated earlier, by the impugned order, the High Court refused to entertain the petition on the ground that it involves question of facts.

Reasoning: 5. No doubt that, normally, when a petition involves disputed questions of fact and law, the High Court would be slow in entertaining the petition under Article 226 of the Constitution of India. However, it is a rule of self-restraint and not a hard and fast rule6. It could thus be seen, that even if there are disputed questions of fact which fall for consideration but if they do not require elaborate evidence to be adduced, the High Court is not precluded from entertaining a petition under Article 226 of the Constitution. However, such a plenary power has to be exercised by the High Court in exceptional circumstances. The High Court would be justified in exercising such a power to the exclusion of other available remedies only when it finds that the action of the State or its instrumentality is arbitrary and unreasonable and, as such, violative of Article 14 of the Constitution of India. In any case, in the present case, we find that there are hardly any disputed questions of facts7. It is undisputed, that the appellant was the highest bidder for the sand block in question. The appellant has deposited an amount of Rs.62,26,085/-. The Panchnama prepared by the Circle Officer, Kale - respondent No.5, clearly exhibited that neither possession of the sand block in question was given to the appellant nor excavation of sand was done from the said sand block. The said position is reiterated by the Tehsildar, Karad – respondent No.4 in his report submitted to the Collector - respondent No.2 dated 9.8.2012. The Sub-Divisional Officer, Karad – respondent No.3 in his report dated 4.9.2012, addressed to the Collector, Satara also confirmed the said position. A perusal of the letter dated 3.10.2012, addressed by the Collector, Satara to the Tehsildar and Sub-Divisional Officer also does not dispute the said position. However, he directed his subordinates to submit original file of the appellants sand block with his office for refund of the amount deposited by the appellant8. It appears, that subsequently after all the authorities including Circle Officer, Tehsildar, Sub-Divisional Officer and the Collector found that neither the possession of the sand block was handed over to the appellant 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 being processed. It further appears, that the file in transit was misplaced and on this ground the appellant was denied the refund. It could thus be seen, in these admitted facts, that the denial on the part of the respondents to refund the amount to the appellant can, by no stretch of imagination, be called as reasonable. The action of the respondents, in denying the refund of the amount of the appellant, when the respondents themselves had failed to give possession of the sand block and as a result of which the appellant could not excavate the sand, would smack of arbitrariness. In this premise, we find that the High Court was not justified in relegating the appellant to file a suit10. In view of the undisputed position, that in spite of the appellant being the highest bidder and in spite of him depositing the entire amount of auction, since the possession of the sand block was not given to him for reasons not attributable to him and he could not excavate the sand, he will be entitled to get refund of the amount deposited by him.