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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION  

CIVIL APPEAL No.    1600     OF 2020 (Arising out of SLP(C) No. 5290 of 2019)

POPATRAO VYANKATRAO PATIL   ...APPELLANT(S)

VERSUS

THE STATE OF MAHARASHTRA  & ORS.      .... RESPONDENT(S)

J U D G M E N T   

Leave granted.

2. Heard the learned counsel for the parties.  

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

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Petition No.8708 of 2017 thereby, declining to entertain the

petition since the petition involves question of facts.  

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

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 one­fourth (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

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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 appellant’s 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.  

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The Tehsildar, Karad ­ respondent No.4, submitted a

detailed report dated 9.8.2012 to the Collector, Satara

pointing out the factual position.  The Sub­Divisional 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.  

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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 self­restraint

and not a hard and fast rule.  In any case, this Court in ABL

International Ltd.  & Anr.  vs.  Export  Credit  Guarantee

Corpn. of India Ltd. & Ors.1 has observed thus:

“19. Therefore, it is clear from the above enunci­ ation of law that merely because one of the par­ ties 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  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  re­ quire, 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 involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contrac­ tual obligation and/or involves some  disputed questions of fact”

1 (2004) 3 SCC 553

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While summing up the conclusions in the aforesaid

case, this Court concluded thus:

“27. From the above discussion of ours, the fol­ lowing  legal principles emerge as to the main­ tainability of a writ petition:

(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 writ peti­ tion 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 Ar­ ticle 226 of the Constitution 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 lim­ ited 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 en­ tertain a writ  petition. 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 un­ less such action of the State or its instrumental­

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ity is arbitrary and 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 ju­ risdiction.”

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 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 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  Rs.62,26,085/­.  The  Panchnama

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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  Sub­Divisional  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 Sub­Divisional 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.  

8. It appears, that subsequently after all the authorities

including Circle Officer, Tehsildar, Sub­Divisional Officer and

the Collector found that neither the possession of the sand

block was handed over to the appellant nor the excavation of

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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

suit.

9. This Court, has time and again held, that the State

should  act as a  model litigant.   In this respect,  we can

gainfully refer to the following observations made by this

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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 litigants  and should not put forth false, frivolous, vexatious, techni­ cal (but unjust) contentions to obstruct the path of justice. We may refer to some of the decisions in this behalf.

7. In Dilbagh Rai Jarry v. Union of India [(1974) 3 SCC 554 : 1974 SCC (L&S) 89] this Court ex­ tracted 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. 107­08, para 5)]: (SCC p. 562, para 25)

“25. … ‘5. … The State, under our Consti­ tution, undertakes economic activities in a vast and widening public sector and in­ evitably 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 crook; for the State's interest is to meet honest claims, vindicate a substantial de­ fence and never to score a technical point or overreach a weaker party to avoid a just lia­ bility or secure an unfair advantage, simply because legal devices provide such an oppor­ tunity.  The State is  a  virtuous  litigant  and looks with unconcern on immoral forensic

2 (2010) 1 SCC 512

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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 litiga­ tion costs  and executive time  by the  State and its agencies is so staggering these days because of  the  large amount of  litigation  in which it is involved that a positive and whole­ some 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 of­ fering to extinguish a pending proceeding on just terms, giving the legal mentors of Gov­ ernment 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 Confer­ ence of  Law Ministers of  India way back in 1957.’ ”

8. In Madras Port Trust v. Hymanshu Interna­ tional [(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 pur­ pose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to 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 au­

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thority, 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 a claim has become unavailable.”

9. In a three­Judge 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 the citizen and should not, as far as possible, except in cases where tax or revenue is received or recovered with­ out  protest  or  where  the State  Government would otherwise be irretrievably be preju­ diced, take up a technical plea to defeat the legitimate and just claim of the citizen.”

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.

  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

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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 of realisation.

There shall be no order as to costs.  

…....................CJI.                              [S.A. BOBDE]

......................J.                                                          [B.R. GAVAI]

......................J.                                                          [SURYA KANT]

NEW DELHI; FEBRUARY 14, 2020