A party cannot claim a refund after accepting a government resolution and benefiting from it, as legal rights may be waived.

JUDGMENT :

G.S. Kulkarni, J.

PREFACE

1. This petition under Article 226 of the Constitution of India raises an issue under the repealed Urban Land (Ceiling and Regulation) Act, 1976 (for short ‘the ULC Act’). The petitioner is a beneficiary of an order dated 29 February 1980 passed under Section 20(1) of the ULC Act whereby the land in question was exempted from Chapter III of the ULC Act, on the condition that the land shall be used only for industrial purposes.

2. The petitioner in the present writ petition has made a money claim, namely, claiming a refund of the premium amount of Rs.5,30,95,030/- paid by the petitioner to the State Government on 11 October 2022 inter alia under Government Resolution dated 1 August 2019. By such Government Resolution, the State Government offered to close all pending cases/issues under Section 20 of the ULC Act, by accepting a one time premium. Another Government Resolution dated 23 June 2021 was issued by the Government to streamline the process of implementation of earlier Government Resolution dated 1 August 2019. The petitioner taking benefit of the stipulation of the said Government Resolutions, on 11 October, 2022 made lump-sum payment of 15% at the prevailing annual market rate of the entire area, being an amount of Rs.10,47,47,849/-, qua its land admeasuring23,316.16 sq. mtrs.

3. On deposit/payment of such premium to the State Government, an order dated 20 October, 2022 was passed in favour of the petitioner whereby the State Government declared the entire land of the petitioner free from any ULC encumbrance. The petitioner thereafter vide Deed of Conveyance dated 6 April, 2023 sold the land to third parties. After much water had flown under the bridge and third party rights stood created and after the sale consideration was received by the petitioner, thereby extinguishing all the rights of the petitioner qua the said land, the present petition is filed seeking a refund of the premium paid by the petitioner, i.e., a simplicitor money claim against the State Government.

4. The petitioner purportedly asserts a cause of action contending that the respondents had charged premium on the entire land, namely, the surplus vacant land and the retainable land, and that the same could not have been charged against the surplus land as recently held by the Division Bench of this Court in Salim Alimohomed Porbanderwalla and Anr. vs. State of Maharashtra & Anr., [2023 SCC OnLine Bom 731]. Thus, a cause of action, being asserted is solely on the basis of the said decision of this Court which was rendered subsequent to the petitioner having taken the benefit of the Government Resolution releasing the land and thereafter the petitioner selling its land. It is on such premise, the present petition has been filed praying for the following reliefs:-

“a) Declare that the Impugned Communication dated 10^th October 2022 raising demand of Rs.10,47,47,849/- as premium towards the whole land of the Petitioner admeasuring 23,316.16 sq.mtrs., to the extent that it includes the Retainable Land admeasuring 11,596 sq. mtrs. while computing the premium, is illegal and without authority of law;

b) Issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction directing the Respondents to refund a sum of Rs.5,30,95,030/- paid by the Petitioner on the Retainable Land, along with interest at rate of 12% p.a. from 11^th October 2022, i.e. the date of payment, till realisation.”

FACTS

5. The relevant facts are:- By an indenture of lease, the petitioner was granted lease of the land bearing Survey No.437-A and 596, situated at Wellesley Road, Tehsil: Pune City, admeasuring 25,762 sq. meters for a period of 97 years commencing from 1 September 1963 described as “Sangamwadi land”.

6. On 29 February 1980, an order under Section 20(1) of the ULC Act came to be passed by the Directorate of Industries, Government of Maharashtra, wherein Sangamwadi was exempted from Chapter III of the ULC Act,