Allowed

V. Ramasamy, v. Government of Tamil Nadu, Rep.

Madras HC15 Apr 2013WP/8279/2006

Case brief

AI extract

What is this about?

The High Court allowed a writ petition seeking mandamus directing municipal authorities to refund a layout development deposit. The Court held that upon satisfactory completion of prescribed works, the petitioner is statutorily entitled to the refund, and a subsequent circular cannot override the legislative mandate.

What did the court decide?

The respondents are directed to refund the sum of Rs.5,38,941/- deposited by the petitioner within six weeks.

V. Ramasamy, Vs Government of Tamil Nadu, Rep. — Property and Title | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 15.04.2013

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CORAM

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THE HONOURABLE MR.JUSTICE S. TAMILVANAN

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W.P. No.8279 of 2006

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V.Ramasamy ... Petitioner

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-vs-

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Government of Tamil Nadu rep. by its Secretary to Government Municipal Administration & Water Supply, Fort St. George, Chennai

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Town & Country Planning Department, rep. by its Special Commissioner, No.807, Anna Salai, Chennai-2

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Coimbatore City Municipal Corporation rep. by its Commissioner, Coimbatore ... Respondents

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Writ Petition filed under Article 226 of the Constitution of India praying for issuance of writ of mandamus directing the respondents to refund the deposit, a sum of Rs.5,38,941/- which the second respondent is statutorily liable to refund pursuant to completion of the work done by the petitioner, as per the planning permission for layout granted effective from 15.5.1997.

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For Petitioner : Mr.N.L.Rajah For Respondents : Mr.S.Navaneethan, AGP for R1 & R2 Mr.J.Sathya Narayana Prasad for R3 O R D E R

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Heard the learned counsel appearing for the petitioner as well as the learned Additional Government Pleader appearing for respondents 1 and 2 and the learned Standing Counsel appearing for the third respondent.

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The Writ Petition has been filed under Article 226 of the Constitution of India seeking an order in the nature of writ of mandamus directing the respondents to refund a sum of Rs.5,38,941/deposited by the petitioner towards layout development deposit.

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https://hcservices.ecourts.gov.in/hcservices/

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It is an admitted fact that the layout development deposit was made by the petitioner relating to layout of plots in T.S.Nos.546, 547, 562 and 563 measuring an extent of 6 acres 8 cents in Kumarapalayam Village within the Corporation limit of Coimbatore, as per the Rules.

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The petitioner has stated that the aforesaid land belongs to the petitioner and a layout plan was prepared for the said land making provisions for laying of roads, drainage facilities, street lighting and also leaving common area for public purpose, as per the guidelines of Town and Country Planning and as per Coimbatore Corporation Rules and accordingly, the layout was approved by the third respondent.

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Mr.N.L.Rajah, learned counsel appearing for the petitioner submitted that as per Section 250 of the Coimbatore City Municipal Corporation Act 1981, the petitioner, who formed the layout and seeking approval should deposit 25% of the developing costs and if development is done, as per the specifications, the said amount is to be refunded to the petitioner, in case the same is not done by the person who forms the layout, the Corporation itself would make development and collect the money spent towards the development from the person seeking approval of the layout. In the instant case according to the learned counsel for the petitioner, the aforesaid amount Rs.5,38,941/- was deposited by the petitioner and the development work was also done by the petitioner, to the satisfaction of the third respondent in this regard, hence, the respondents should refund the deposit to the petitioner.

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Learned counsel for the petitioner referred a copy of the letter dated 17.02.1997 issued in Roc.No.137481/94/H1 available in the typed set of papers, whereby the Executive Engineer of the third respondent has certified that the layout of the site belonging to the petitioner was inspected by the authorities and there was formation of B.T. roads, construction of S.W. drain and circular pipe culverts in the layout and all the works were done in good condition as per specification by the petitioner, hence, the layout was taken over for the maintenance of the Corporation. It is not in dispute that the developmental work was done to the satisfaction of the third respondent by the petitioner herein.

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Learned counsel appearing for the petitioner also drew the attention of this Court to the copy of the proceedings of the third respondent that is available at page No.20 of the typed set of papers wherein it has been recommended by the District Collector-cumSpecial Officer, Coimbatore Municipal Corporation, for refund of the deposit made towards developmental charges to a similarly placed person, as per Resolution No.704 dated 21.08.1996 in No.29072/95/H2, since he had satisfactorily completed the work relating to the layout.

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Per contra, Mr.J.Sathya Narayana Prasad, learned counsel appearing for the third respondent submitted that the amount Rs.5,38,941/- deposited by the petitioner as 25% of the estimated developmental costs, is not refundable, in view of the circular dated 15.10.1993, issued by the Commissioner, Coimbatore Corporation. He referred the following portions of the said circular issued by the third respondent, which reads as follows:

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"..... There is no provisions in the Act or the rules and bylaws made thereunder for adoption of such a procedure and what is being adopted is quiet against rules. All the refunds of development charges already made in the case of layouts approved so far amount to irregular refunds. The Town Planning Officer is requested to review all such cases of irregular refunds and to take urgent action to recover the amounts and to regularise the irregular refunds. The irregular procedure hither to adopted should be stopped forthwith and correct procedure as per rules should be strictly followed. ...."

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It is not in dispute that the layout of the petitioner was approved by the City Municipal Corporation, Coimbatore for the purpose of laying roads, making drainage facilities, culverts and other works to make it a full-fledged layout and as per Section 250 (2) of the Coimbatore City Municipal Corporation Act, 1981, the petitioner was directed to deposit 25% of the costs towards developmental expenses.

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Though as per Section 250(2) of the Coimbatore City Municipal Corporation Act, 1981, the respondents were empowered to ask the petitioner to deposit upto 50% of the estimated cost, in this case admittedly 25% cost was directed to be deposited by the petitioner, accordingly, the same was deposited, which is not in dispute in this writ petition.

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The only question involved in this writ petition is whether the petitioner is entitled to get refund of the deposit amount, in view of the completion of the work by the petitioner.

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Learned counsel appearing for the petitioner drew the attention of this Court to various decisions rendered by the Hon'ble Supreme Court in this regard, to have proper legal interpretation of Section 250 of the Coimbatore City Municipal Corporation Act. It is seen that Section 250 (2)(3) & (4) of the said Act reads as follows:

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"(2) In regard to the laying out or making of any such street or streets the provisions of Section 251 shall apply, subject to the conditions that the owner shall remit a sum not exceeding 50 percent of the estimated cost of layout improvements in the land and that the owner shall also reserve not exceeding 10 percent of the

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layout for the common purposes in addition to the area provided for laying out street. If any owner contravenes any of the conditions specified above he shall be liable for prosecution.

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(3) If, in any case, the provisions of subsections (1) and (2) have not been complied with, the Commissioner may, by notice, required the defaulting owner to layout and make a street or streets, on such land and, in such manner and within such time as may be specified in the notice.

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(4) If such street or streets are not laid out and made in the manner and within the time specified in the notice, the Commissioner may layout and make the street or streets, and the expenses incurred shall be recovered from the defaulting owner."

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As per sub-section 4 of Section 250 of the Act, if street or streets are not laid out and made in the manner and within the time specified, the Commissioner may layout and make the street or streets and the expenses incurred shall be recovered from the defaulting owner. Therefore, as contended by the learned counsel appearing for the petitioner, in case, the owner of the land or the person who formed the layout, fails to perform the duty of making street or streets and other infrastructure relating to the layout, the Commissioner of the Corporation is empowered to do the work within time and collect the money from the defaulting owner of the land.

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As contended by the learned counsel appearing for the petitioner, if the amount deposited by the petitioner is not refunded to the petitioner, that would be an act against the law, since a person who discharged his duty within time to the satisfaction of the third respondent, he would be entitled to get back the money deposited by him. According to him, retaining the money would not be a just and proper and further, drew the Court to the latin maxim "ubi jus ibi remedium", which says when there is a right there must be remedy. In this regard, learned counsel drew the attention of this Court to the decision in V.C.Rangadurai vs. D.Gopalan and others reported in 1979 (1) SCC 308 wherein it has been held as follows:

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"8. Speaking frankly, Section 35(3) has a mechanistic texture, a set of punitive pigeon holes, but we may note that words grow in content with time and circumstances, that phrases are flexible in semantics, that the printed text is a set of vessels into which the court may pour appropriate judicial meaning. That statute is sick which is allergic to change in sense which the times demand and the text does not countermand. That court is superficial which stops with the cognitive and declines the creative function of construction. So, we take the view that

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'quarrying' more meaning is permissible out of Section 35(3) and the appeal provisions, in the brooding background of social justice, sanctified by Article 38, and of free legal aid enshrined by Article 39A of the Constitution.

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.... 11. Wide as the power may be, the order must be germane to the Act and its purposes, and latitude cannot transcend those limits. Judicial 'Legisputation' to borrow a telling phrase of J.Cohen Dickerson: The interpretation and application of Statutes p.538 is not legislation but application of a given legislation to new or unforeseen needs and situations broadly falling within the statutory provision. In that sense, interpretation is inescapably a kind of legislation. This is not legislation stricto sensu but application, and is within the court's province."

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It cannot be disputed that there must be creative interpretation of law, considering the legislative mandate, innovation within the framework of the law is the essence of the evolutionary process of judicial development.

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Similar view was taken in the decision M/s.Hindustan Sugar Mills vs. State of Rajasthan and others reported in 1980 (1) SCC 599 wherein it reads as follows:

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".... Where there is such a clause, the Central Government is bound to pay the amount of sales tax on the freight component of the price and we hope and trust that the Central Government will honour its legal obligaiton and not drive the appellant to file a suit for recovery of the amount of such sales tax. We hopefully expect that the Central Government will not try to shirk its legal obligation by resorting to any legal technicalities, for we maintain that in a democratic society governed by the rule of law, it is the duty of the State to do what is fair and just to the citizen and the State should not seek to defeat the legitimate claim of the citizen by adopting a legalistic attitude but should do what fairness and justice demand...."

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In M/s.Shiv Shankar Dal Mills etc. etc. vs. State of Haryana and others etc. and Inder Sain and others etc. etc. vs. State of Haryana and others etc. reported in AIR 1980 SC 1037, Full Bench of the Supreme Court held as follows:

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"... Where public bodies, under colour of public laws, recover people's money, later discovered to be erroneous levies, the Dharma of the situation

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admits of no equivocation. There is no law of limitation especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of alternative remedy since the root principle of law married to justice, is ubi jus ibi remedium. Long ago Dicey wrote:

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"The law ubi jus ibi remedium, becomes from this point of view something more important than a mere tautological proposition. In its bearing upon constitutional law, it means that the Englishmen whose labours gradually formed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or for averting definite wrongs, than upon any declarations of the Rights of Man or Englishmen... The Constitution of the United States and the Constitution of the separate States are embodied in written or printed documents, and contain declaration of rights. Bu the statesmen of have been shown as unrivaled skill improviding means for giving legal security to the rights declared by American Constitution. The rule of law is as marked a feature of the United States as a England."

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It has been made clear by the Hon'ble Supreme Court that under Article 226 of the Constitution of India, while exercising the extraordinary jurisdiction, it is perfectly open to the Court to exercise the power to pass orders, as per public interest dictates and also considering equity projects.

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Mr.Sathya Narayana Prasad, learned counsel appearing for the third respondent argued that the 25% of the amount deposited by the petitioner, could not be re-funded, in view of the circular, since the same may be utilised for the future maintenance of the said layout and hence a decision was taken not to refund the deposit. Subsequently though certain earlier land owners got refund of the deposit amount, the aforesaid contention of the learned counsel appearing for the third respondent cannot be accepted because the circular cannot prevail over the Government Order.

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It is well settled that a Subordinate legislation or circular of the respondents cannot prevail over the statutory law, Section 250 of the Coimbatore City Municipal Corporation Act. As per Section 250, the work may be done either by the owner or by the Corporation and if it is done by the owner of the land or the person seeking approval of the layout, he should deposit 25% of the estimated costs, in case, the owner fails to make the roads and other amenities, as per the

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layout, within the time limit, the Corporation itself is empowered to perform the work and collect the balance amount from the owner of the land or person, seeking approval of the layout.

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On the aforesaid circumstances, it is made clear that the petitioner has done the works, such as formation of road, drainage and culverts to the satisfaction of the Executive Engineer of the third respondent that has been certified to that effect, for which supporting document is available in the typed set of papers. On the aforesaid circumstances, if 25% of the amount collected from the petitioner towards developmental charges, is not refunded, as contended by the learned counsel appearing for the petitioner it would be a penalty on the person, who performed his duty properly, as directed by the third respondent. Keeping the money by the third respondent would certainly be construed as unjust enrichment. As the entire work was done by the petitioner to the satisfaction of the Executive Engineer of the respondents, it is the duty of the third respondent to refund the amount collected by way of deposit from the petitioner as 25% of the estimated costs. The circular cited by the learned counsel for the third respondent cannot prevail over the statute, as contended by the learned counsel for the petitioner.

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In the light of various decisions referred to above, there must be a creative interpretation and it must require to study the mind of the legislation, while enacting the law. Though the word refund the deposit, is not available under Section 250 of the Coimbatore City Municipal Act, a careful reading of the Section and the Sub Section would clearly show that the developmental work could be done either by the owner who got approval of the layout by himself or by the Municipal Corporation. If it is done by the owner of the land seeking approval of the layout, he should deposit 25% of the estimated costs and if the owner or the person who seeks approval, fails to do the work within the time limit, the Municipal Corporation itself can carryout the work and collect the money from the owner.

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Therefore, it is crystal clear that the petitioner having completed the work within the time limit to the satisfaction of the Executive Engineer of the third respondent, the petitioner is entitled to get refund of the 25% estimated costs deposited by him towards the development of the layout. As found by the Hon'ble Supreme Court, the maxim "ubi jus ibi remedium" referred to above, is also applicable to this case, since there is a right, there should be remedy available to the person having the right, as per the maxim.

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In the instant case having completed the work, as per the layout, to the satisfaction of the Executive Engineer of the third respondent, it is a right of the petitioner to get back the 25% of the amount deposited by him and there is no justifiable defence on the side of the respondents. The respondents unilaterally cannot decide that the 25% amount deposited by the petitioner would be utilised for future contingency. It is not in dispute that for a similarly placed person, the deposit amount was refunded and hence,

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denial of refund of the deposit to the petitioner is violative of Article 14 of the Constitution and hence, not sustainable in law. Having gone through the petition, the counter filed by the third respondent and also the arguments advanced by both the learned counsel, I find it just and reasonable to allow this petition, to meet the ends of justice.

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In the result, the writ petition is allowed and the respondents are directed to refund the amount of Rs.5,38,941/-, deposited by the petitioner, within a period of six weeks from the date of receipt of a copy of this order. No order as to costs.

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Sd/-
Deputy Registrar.
/true copy/
Sub Asst. Registrar.
vga / tsvn
To
1. The Secretary to Government
Government of Tamil Nadu
Municipal Administration &
Water Supply, Fort St. George, Chennai.
2. The Special Commissioner
Town & Country Planning Department,
No.807, Anna Salai, Chennai-2.
3. The Commissioner
Coimbatore City Municipal Corporation, Coimbatore.
1 CC to Government Pleader SR 22395
1 CC To Mr.N.L.Rajah, Advocate SR NO.22977
1 CC To Mr.J.Sathya Narayana Prasad, Advocate SR NO.21839
W.P. No.8279 of 2006
ss[co]
gp/4.6

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V. Ramasamy, v. Government of Tamil Nadu, Rep.

Case brief

What is this about?

What did the court decide?

V. Ramasamy, v. Government of Tamil Nadu, Rep.

Case brief

What is this about?

What did the court decide?

What the court decided

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