IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF FEBRUARY, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 23600 OF 2018 (BDA) BETWEEN:
SRI SOMASHANKAR S/O LATE HUCHAIAH, AGED ABOUT 67 YEARS RESIDING AT 243, NAGARABHAVI MAIN ROAD, PATTEGARAPALYA, BDA LAYOUT, BANGALORE-560079.
(BY SRI. PRASAD H C, FOR SRI. S NATARAJ, ADVOCATES) AND:
BANGALORE DEVELOPMENT AUTHORITY BY ITS COMMISSIONER, T.CHOWDAIAH ROAD, KUMARA PARK WEST, BANGALORE-560020.
(BY SRI.SACHIN B S, ADVOCATE) … PETITIONER … RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ENDORSEMENT DATED 26.05.2017 ISSUED BY THE RESPONDENT ENCLOSED AS ANNEXURE-P; AND QUASH THE ENDORSEMENT DATED 28.04.2016 ISSUED BY THE RESPONDENT ENCLOSED AS ANNEXURE-N AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER The petitioner the vendee of original grantee of the BDA site having paid excess amount towards the sital value in ignorance of law has invoked the writ jurisdiction of this Court seeking a direction to the respondent-BDA to refund the amount on the ground that the BDA was not entitled to retain the amount wrongly paid.
2. After service of notice, the respondent – BDA has entered appearance through its Senior Panel Counsel. Sri Sachin B S who makes submission resisting the grant of prayer sought for in the writ petition.
3. Learned Counsel Mr. Prasad H.C. vehemently contends that one Mr. Krishna was allotted a BDA site vide Allotment letter dated 30.01.2001; the BDA had given the possession on 20.05.2002 and a Lease cum Sale Agreement came to be executed by the BDA on 14.09.2002; the petitioner having bought the site in question from the original allottee Mr. Krishna vide Registered Sale Deed dated 26.11.2013, ought not to have paid any extra money to the BDA on its wrongful demand and therefore, the amount paid in the absence of an obligation to pay is liable to be refunded to the petitioner.
4. The learned Senior Panel Counsel for the respondent-BDA, Sri. Sachin per contra submits that the site was admittedly allotted to Mr. Krishna; the BDA was obliged to give the sale deed in favour of Krishna and not in favour of the petitioner; the petitioner having obtained a sale deed from the BDA was asked to make extra payment and he having accordingly made the same, is not justified in seeking refund thereof.
5. I have heard the learned counsel for the petitioner and the learned Senior Panel Counsel for the respondent-BDA; I have perused the writ petition papers as also the Statement of Objections filed by the respondent-BDA and I have adverted to the decision of the Apex Court in Mafatlal Case.
6. The contention of the petitioner that the BDA was obliged to give a Regular Sale Deed in favour of original allottee Mr. Krishna without insisting upon any more payment than what was paid by him pursuant to the allotment is legally justifiable; Mr. Krishna being the original allottee had a vested interest by way of leasehold in respect of the site in question by virtue of registered Lease cum Sale Agreement dated 14.09.2002; it is a settled legal position that a leasehold is also a property capable of transfer under Section 6 of the Transfer of Property Act, 1882; he has stood in the stead of Mr. Krishna the original allottee who was otherwise entitled to a regular sale deed from the BDA sans any further payment. That being so, petitioner was not obliged to make any payment to the BDA on its wrongful demand.
The respondent – BDA being a statutory body created under the provisions of the Bangalore Development Authority Act, 1976 is an instrumentality of the State under Article 12 of the Constitution of India which is subject to constitutional discipline. It could not have extracted any amount from the petitioner which the original allottee of the site Mr. Krishna was not liable to pay. The amount paid by the petitioner in the ignorance of law, only with intent to have conveyance from the BDA is liable to be refunded to him vide decision of the Apex Court in the case of MAFATLAL INDUSTRIES VS. UNION OF INDIA, 1997 (5) SCC 536, “35. Now, what are the propositions emerging from this decision? They are: (1) Section 72 of the Contract Act does not make any distinction between a mistake of law and the mistake of fact; it takes in both kinds of mistakes. (2) The rule then obtaining in England and certain other countries that taxes paid under a mistake of law are not recoverable has no relevance to this country. Here, the matter is governed by Section 72 of the Contract Act. (3) Where the taxes are paid under a mistake of law, the person paying is entitled to recover the same from the State on establishing the mistake. This consequence flows from Section 72 of the Contract Act. On such mistake being established, the State is bound to repay or return the amounts irrespective of any other consideration. (4) The right to recover or the obligation to refund mentioned in (3) above is subject, however, to “questions of estoppel, waiver, limitation or the like”. (5) There is no question of estoppel where both parties were labouring under a mistake of law. (6) Equitable considerations cannot be imported when there is a clear and unambiguous provision of law which entitles the plaintiff to the relief claimed by him. (7) The fact that the State has spent away the taxes for the purposes of State is no defence to a claim for refund of taxes paid under a mistake of law, in view of the plain terms of Section 72.”
In the above circumstances, this writ petition succeeds; a Writ of mandamus issues to the respondent- BDA to refund all that money to the petitioner which it had taken from him whilst executing the sale deed, within a period of eight weeks subject to petitioner complying with the legally admissible conditions which would otherwise have bound the original allottee Mr. Krishna.
Sd/- JUDGE Bsv