(Santanu Ssengupta & Anr vs State Of West Bengal
2022 Latest Caselaw 594 Cal

jdt.

16.02.2022 jb.

W.P.A. 1484 of 2022 (Santanu Ssengupta & Anr. vs. State of West Bengal & Ors.)

Mr. Samim Ahammed Mr. Arka Maiti Ms. Gulsanwara Pervin .... For the Petitioners

Mr.Chandi Charan De Mr. Anirban Sarkar .... For the State

Mr. Satyajit Talukder Mr. Abhishek Sarkar .... For the KMDA

Learned counsel appearing for the petitioners

submits that during pendency of the writ petition, the

deed of conveyance has been registered by the

Authority. Accordingly, besides the alternative relief

claimed by the petitioners, other prayers in the writ

petition are redundant.

Challenging the alternative relief claimed by the

petitioners directing the KMDA to pay the penal interest

paid by the petitioners before the registering Authority,

learned counsel for the KMDA has submitted that the

claim of the petitioners is purely a money claim, which

cannot be entertained by this Court in exercise of its

jurisdiction under Article 226 of the Constitution of

India.

Learned counsel has placed reliance on the

decisions of the Hon'ble Supreme Court in Godavari

Sugar Mills Limited vs. State of Maharashtra and

Others reported in (2011) 2 Supreme Court Cases

439 and in Joshi Technologies International INC.

vs. Union of India & Others reported in (2015) 7

Supreme Court Cases 728 . Therein the Hon'ble

Supreme Court has observed that a writ of mandamus

for the purpose of refund of money, in other words, a

money claim is not normally to be entertained by a writ

Court except in exceptional circumstances. The

aggrieved party seeking relief should approach the civil

Court for redressal of his claim. Learned counsel also

relies upon a decision of a co-ordinate Bench of this

Court passed on April 26, 2017 in W.P. 11273(W) of

2017 which says that adjudication of money claim by

and between the parties is not amenable to writ

jurisdiction. Learned counsel points out that such

exceptional circumstance under which the writ petition

can be entertained has not been satisfied by the

petitioners and recording of evidence is necessary in

order to deal with the disputed question of fact involved

herein.

Per contra, it is submitted on behalf of the

petitioners that this Court has ample jurisdiction to

deal with the claim made by the petitioners for refund of

the penal interest paid by the petitioners to the

registering Authority for the reason that there is no

disputed question of fact involved herein and the matter

may be adjudicated on the facts already available on

record. Learned counsel has placed reliance on the

judgments of the Hon'ble Supreme Court in Smt.

Gunwant Kaur and Others vs. Municipal

Committee, Bhatinda and Others reported in 1969(3)

Supreme Court Cases 769, M/s Hyderabad

Commercials vs. Indian Bank and Others reported in

1991 Supp (2) Supreme Court Cases 340 and ABL

International Ltd. & Anr. vs. Export Credit

Guarantee Corporation of India and Others reported

in (2004) 3 Supreme Court Cases 553 . Learned

counsel for the petitioners prays for a direction upon

the KMDA to refund the penal interest already paid by

the petitioners. According to learned counsel, the delay

in registration of the deed being caused at the instance

of the KMDA, the petitioners cannot be penalised for the

same and the KMDA is responsible for payment of the

penal charges.

I have gone through the judgments relied upon by

the parties. It is trite law that exercise of jurisdiction

under Article 226 of the Constitution of India is

discretionary and such discretion should be exercised

on sound judicial principles. Only when questions of

fact are of complex nature which may require evidence

to be taken, may the writ Court decline to try such a

petition. [Smt Gunwant Kaur and others (supra)].

Admittedly, the deed of conveyance has been

registered by the registering Authority upon payment of

stamp duty by the petitioners at the market rate as

claimed by the registering Authority in terms of the

Notification published by the Finance Department,

Revenue, Government of West Bengal on 23rd March,

2012. In terms of the brochure issued by the KMDA in

2005 the petitioners purchased the property in

question. Subsequently by a brochure issued in 2007,

the KMDA incorporated the additional clause in the

deed restraining the petitioners from transferring the

premises in question within a period of five years from

the date of purchase. The additional clause was

challenged by the petitioners before this Court and by

an order passed on 16th August, 2013 in W.P. 14359(W)

of 2013, a co-ordinate Bench of this Court allowed the

prayer of the petitioners and directed the KMDA to

convey the flat in question by deleting the clause

incorporated in the deed in terms of the 2007 Brochure.

Appeal preferred against the said order was dismissed

by an order dated 7th February, 2017 following which a

copy of the sale deed was made over to the petitioners

on 7th October, 2021 and presented for registration. The

only prayer of the petitioners is for refund of the penal

interest, which the petitioners were constrained to pay

to the Authority for registration of the deed.

The judgment in Hyderabad Commercials

(supra) deals with unauthorised transfer of the

disputed amount from the appellant's account and

admission of the Bank's liability of such transfer. In the

said judgment, the Hon'ble Supreme Court has held

that as such an unauthorised transfer was admitted,

there was no justification for the High Court to direct

the appellant to file suit on the ground of disputed

question of fact. The fact situation in the said judgment

can be distinguished from the facts and circumstances

of the present case.

In the judgment in ABL International Ltd. and

others (supra), the Hon'ble Supreme Court has

observed that the plenary right of a writ Court to issue a

prerogative writ will not be normally exercised by the

Court to the exclusion of the other available remedies

unless the action of the State or its instrumentality is

arbitrary, unreasonable so as to violate the

constitutional mandate of Article 14. In the said matter,

most of the facts involved were admitted and the

dispute revolved only around interpretation of the

agreement of insurance between the parties.

In the case in hand, the insertion of a new clause

in the 2007 brochure initiated the litigation between the

parties which was set at rest in the appeal which was

disposed of in 2017. Under such circumstances, the act

of the State Authorities cannot be termed as arbitrary or

unreasonable as required for maintainability of an

application under Article 226 of the Constitution of

India. No violation of the mandate under Article 14 has

been made out.

The claim of the petitioners being solely for

recovery of the money/penal interest paid by them, this

Court, in exercise of its jurisdiction under Article 226 of

the Constitution of India, cannot entertain the said

prayer. The petitioners are at liberty to approach the

appropriate Forum for redressal. {Godawari Sugar Mills

Limited (sura) and Joshi Technologies International INC

(supra)}.

The writ petition being not maintainable in its

present form, is liable to be dismissed.

Accordingly, W.P.A. 1484 of 2022 is dismissed.

There shall be no order as to costs.

Since no affidavit has been invited, allegations

contained in the writ petition shall be deemed not to

have been admitted.

Urgent certified website copy of the order, if

applied for, be given to the parties on compliance of

requisite formalities.

(Suvra Ghosh, J.)