POPATRAO VYANKATRAO PATILversusTHE STATE OF MAHARASHTRA & ORS.

                         [2020] 3 S.C.R. 789                              789


               POPATRAO VYANKATRAO PATIL                                  A
                                  v.
            THE STATE OF MAHARASHTRA & ORS.
                   (Civil Appeal No. 1600 of 2020)
                        FEBRUARY 14, 2020                                 B
  [S. A. BOBDE, CJI, B. R. GAVAI AND SURYA KANT, JJ.]
       Constitution of India: Art.226 – Scope of interference –
Auction of sand blocks of river – Appellant was highest bidder and
he deposited the entire auction amount but he was not put in
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possession – He filed representation for refund of auction amount
– The Panchnama prepared by the Circle Officer exhibited that
neither possession of the sand block was given to the appellant nor
excavation of sand was done from the said sand block – The said
position was reiterated by the Tehsildar, Sub-Divisional Officer and
also Collector – However, in the transit the file was lost and as such    D
appellant was not granted possession of sand block nor refund
was made to him – State Government also rejected his prayer for
refund – Appellant filed writ petition – High Court refused to
entertain the petition on the ground that it involved question of
facts – On appeal, held: Normally, when a petition involves disputed
                                                                          E
questions of fact and law, High Court would be slow in entertaining
the petition under Art.226 of the Constitution – However, it is a rule
of self- restraint and not a hard and fast rule – 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 Art.226 petition – However, such a        F
plenary power has to be exercised by the High Court in exceptional
circumstances – In this case, undisputedly, the appellant was highest
bidder for the sand block in question and made deposit of full
auction amount – Subsequently after all the authorities found that
neither the possession of the sand block was handed over to him
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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 – However, appellant was denied the refund on the ground
that the file in transit was misplaced – It could thus be seen that the
denial on the part of the respondents to refund the amount to
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                                 789
790            SUPREME COURT REPORTS                         [2020] 3 S.C.R.


A     appellant was unreasonable – The action of authorities, in denying
      refund of the amount of the appellant, when they 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, High Court was not justified in
      relegating the appellant to file a suit – Respondents directed to refund
B
      the entire amount received from the appellant along with interest.
      Government litigant: The State should act as a model litigant.
            Allowing the appeal, the Court
             HELD: 1. Even if there are disputed questions of fact which
C     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
D     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
      this case, there were hardly any disputed questions of facts. [Paras
      5, 6][794 E-H]
E           ABL International Ltd. & Anr. v. Export Credit
            Guarantee Corpn. of India Ltd. & Ors. (2004) 3 SCC
            553 – relied on.
            2. It is undisputed, that the appellant was the highest bidder
      for the sand block in question. The appellant has deposited an
F     amount of Rs. 62,26,085/-. The Panchnama prepared by the Circle
      Officer 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 was reiterated
      by the Tehsildar in his report submitted to the Collector. The
G     Sub-Divisional Officer in his report addressed to the Collector
      also confirmed the said position. 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
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     POPATRAO VYANKATRAO PATIL v. THE STATE OF                          791
               MAHARASHTRA & ORS.

the instance of the Collector, the file for grant of refund was being   A
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
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the respondents, in denying the refund of the amount, 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, the High
Court was not justified in relegating the appellant to file a suit.
[Paras 7, 8][794 G-H; 795 A-F]                                          C
      3. The State should act as a model litigant. 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           D
sand, he will be entitled to get refund of the amount deposited by
him. [Paras 9, 10][797 B-E]
      Urban Improvement Trust, Bikaner v. Mohan Lal (2010)
      1 SCC 512 – relied on
                       Case Law Reference                               E
(2004) 3 SCC 553             relied on                  Para 5
(2010) 1 SCC 512             relied on                  Para 9
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1600
of 2020.
      From the Judgment and Order dated 06.08.2018 of the High Court    F
of Judicature at Bombay in Writ Petition No. 8708 of 2017.
      Sudhanshu S. Choudhari, Yogesh S. Kolte, Mahesh P. Shinde and
Prashant Papatrao Patil, Advs. for the Appellant.
      Aaditya A. Pande and Sachin Patil, Advs. for the Respondents.
                                                                        G
      The following Judgment of the Court was delivered :
                               JUDGMENT
      1. Leave granted.
      2. Heard the learned counsel for the parties.
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792              SUPREME COURT REPORTS                          [2020] 3 S.C.R.


A            3. The appellant has approached this Court being aggrieved by
      the order dated 6.8.2018, passed by the Division Bench of the High
      Court of Judicature at Bombay in Writ Petition No. 8708 of 2017 thereby,
      declining to entertain the petition since the petition involves question of
      facts.
B              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
C     as Gat No. 956A, Plot No. 2 at village Rethare Khurd, Taluka Karad.
      The agreed quantity of excavation was 8500 brass. The appellant’s 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
D     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
E     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 appellant’s representation was sent to the Collector, Satara to
F     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
G     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,
H     submitted a report on 4.9.2012 reiterating the factual position. It appears,
         POPATRAO VYANKATRAO PATIL v. THE STATE OF                                793
                   MAHARASHTRA & ORS.

that in the transit the file was lost and as such, though the appellant was       A
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
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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.                                                                C

       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 rule. In any case, this
Court in ABL International Ltd. & Anr. vs. Export Credit Guarantee                D
Corpn. of India Ltd. & Ors.1 has observed thus:
         “19. Therefore, it is clear from the above enunciation of law that
         merely because one of the parties to the litigation raises a dispute
         in regard to the facts of the case, the court entertaining such
         petition under Article 226 of the Constitution is not always bound       E
         to relegate the parties to a suit. In the above case of Gunwant
         Kaur [(1969) 3 SCC 769] this Court even went to the extent of
         holding that in a writ petition, if the facts require, even oral
         evidence can be taken. This clearly shows that in an appropriate
         case, the writ court has the jurisdiction to entertain a writ petition   F
         involving disputed questions of fact and there is no absolute bar
         for entertaining a writ petition even if the same arises out of a
         contractual obligation and/or involves some disputed questions of
         fact”
      While summing up the conclusions in the aforesaid case, this Court          G
concluded thus:
         “27. From the above discussion of ours, the following legal
         principles emerge as to the maintainability of a writ petition:

1
    (2004) 3 SCC 553
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794            SUPREME COURT REPORTS                             [2020] 3 S.C.R.


A           (a) In an appropriate case, a writ petition as against a State or an
            instrumentality of a State arising out of a contractual obligation is
            maintainable.
            (b) Merely because some disputed questions of fact arise for
            consideration, same cannot be a ground to refuse to entertain a
B           writ petition in all cases as a matter of rule.
            (c) A writ petition involving a consequential relief of monetary
            claim is also maintainable.
            28. However, while entertaining an objection as to the
            maintainability of a writ petition under Article 226 of the Constitution
C           of India, the court should bear in mind the fact that the power to
            issue prerogative writs under Article 226 of the Constitution is
            plenary in nature and is not limited by any other provisions of the
            Constitution. The High Court having regard to the facts of the
            case, has a discretion to entertain or not to entertain a writ petition.
D           The Court has imposed upon itself certain restrictions in the
            exercise of this power. (See Whirlpool Corpn. v. Registrar of
            Trade Marks [(1998) 8 SCC 1].) And this plenary right of the
            High Court to issue a prerogative writ will not normally be exercised
            by the Court to the exclusion of other available remedies unless
            such action of the State or its instrumentality is arbitrary and
E           unreasonable so as to violate the constitutional mandate of Article
            14 or for other valid and legitimate reasons, for which the Court
            thinks it necessary to exercise the said jurisdiction.”
              6. 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
F     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
G     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 facts.
            7. It is undisputed, that the appellant was the highest bidder for
      the sand block in question. The appellant has deposited an amount of
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         POPATRAO VYANKATRAO PATIL v. THE STATE OF                                   795
                   MAHARASHTRA & ORS.

Rs. 62,26,085/-. The Panchnama prepared by the Circle Officer,                       A
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,
                                                                                     B
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 appellant’s sand
block with his office for refund of the amount deposited by the appellant.           C
        8. 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             D
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               E
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 suit.
      9. This Court, has time and again held, that the State should act as           F
a model litigant. In this respect, we can gainfully refer to the following
observations made by this Court in Urban Improvement Trust, Bikaner
vs. Mohan Lal2:
         “6. This Court has repeatedly expressed the view that
         Governments and statutory authorities should be model or ideal              G
         litigants and should not put forth false, frivolous, vexatious, technical
         (but unjust) contentions to obstruct the path of justice. We may
         refer to some of the decisions in this behalf.

2
    (2010) 1 SCC 512                                                                 H
796     SUPREME COURT REPORTS                            [2020] 3 S.C.R.


A     7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 :
      1974 SCC (L&S) 89] this Court extracted with approval the
      following statement [from an earlier decision of the Kerala High
      Court (P.P. Abubacker case [Ed.: P.P. Abubacker v. Union of
      India, AIR 1972 Ker 103 : ILR (1971) 2 Ker 490 : 1971 Ker LJ
      723] , AIR pp. 107-08, para 5)]: (SCC p. 562, para 25)
B
         “25. … ‘5. … The State, under our Constitution, undertakes
         economic activities in a vast and widening public sector and
         inevitably gets involved in disputes with private individuals. But
         it must be remembered that the State is no ordinary party trying
         to win a case against one of its own citizens by hook or by
C        crook; for the State’s interest is to meet honest claims, vindicate
         a substantial defence and never to score a technical point or
         overreach a weaker party to avoid a just liability or secure an
         unfair advantage, simply because legal devices provide such
         an opportunity. The State is a virtuous litigant and looks with
D        unconcern on immoral forensic successes so that if on the
         merits the case is weak, Government shows a willingness to
         settle the dispute regardless of prestige and other lesser
         motivations which move private parties to fight in court. The
         layout on litigation costs and executive time by the State and
         its agencies is so staggering these days because of the large
E        amount of litigation in which it is involved that a positive and
         wholesome policy of cutting back on the volume of law suits
         by the twin methods of not being tempted into forensic
         showdowns where a reasonable adjustment is feasible and ever
         offering to extinguish a pending proceeding on just terms, giving
F        the legal mentors of Government some initiative and authority
         in this behalf. I am not indulging in any judicial homily but only
         echoing the dynamic national policy on State litigation evolved
         at a Conference of Law Ministers of India way back in
         1957.’ ”
G     8. In Madras Port Trust v. Hymanshu International [(1979) 4
      SCC 176] this Court held: (SCC p. 177, para 2)
         “2. … It is high time that Governments and public authorities
         adopt the practice of not relying upon technical pleas for the
         purpose of defeating legitimate claims of citizens and do what
H        is fair and just to the citizens. Of course, if a Government or a
      POPATRAO VYANKATRAO PATIL v. THE STATE OF                                  797
                MAHARASHTRA & ORS.

           public authority takes up a technical plea, the Court has to          A
           decide it and if the plea is well founded, it has to be upheld by
           the court, but what we feel is that such a plea should not
           ordinarily be taken up by a Government or a public authority,
           unless of course the claim is not well founded and by reason of
           delay in filing it, the evidence for the purpose of resisting such
                                                                                 B
           a claim has become unavailable.”
       9. In a three-Judge Bench judgment of Bhag Singh v. UT of
       Chandigarh [(1985) 3 SCC 737] this Court held: (SCC p. 741,
       para 3)
           “3. … The State Government must do what is fair and just to           C
           the citizen and should not, as far as possible, except in cases
           where tax or revenue is received or recovered without protest
           or where the State Government would otherwise be irretrievably
           be prejudiced, take up a technical plea to defeat the legitimate
           and just claim of the citizen.”
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       10. 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.                                                         E

       11. In the premises, the appeal is allowed. The impugned order of
       the High Court dated 6.8.2018 is set aside. The respondents are
       directed to refund the entire amount received from the appellant
       along with interest at the rate of 6% per annum from the date on
       which the appellant made the first request for refund till the date       F
       of realisation. There shall be no order as to costs.


Devika Gujral                                                  Appeal allowed.

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