Non Refund of excess Consent charges paid to BDA: Orissa HC directs to allow Refund based on report of Approved Valuer of Income Tax Dept [Read Order]
The market value of the plot in question has to be determined by an Approved Valuer of Income Tax Department
Refund - Orissa HC - Refund based - Income Tax Dept
Refund - Orissa HC - Refund based - Income Tax Dept
The Calcutta High Court in a case relating to non- refund of excess consent charges paid to Bhubaneswar Development Authority(BDA) and directed to allow refund based on the report of the approved valuer of the Income Tax department. The court quashed the impugned order.
Ratnakar Baral, the petitioner has prayed to admit the writ petition and issue notice to the Opp. Parties asking them to show cause as to why the letter dt. 26.09.2022 sent by the Secretary, Bhubaneswar Development Authority in Letter No.34286 as at Annexure-6 shall not be quashed and if they fail to show cause or show insufficient cause then to make the rule absolute and quash the said order.
The essential grievance of the petitioner is as to non-refunding of excess amount, which he had paid by way of consent charges to the BDA as a precondition for transferring the allotted property to another by way of sale.
Senior Advocate-Mr. Nanda appearing for the petitioner submits that under the mistaken notion, his client has paid the consent charges for the transfer by taking the market value of not only the plot but also the structure put on it subsequently when what was payable as consent charges was on the basis of market value of the plot alone in terms of office order dated 27.05.2015. Therefore, the amount what is wrongly paid in excess cannot be retained by the BDA without any authority of law.
Counsel representing the OP-BDA makes submission in justification of the impugned order contending that it is the petitioner, who himself had made valuation and accordingly paid the consent charges and therefore, now he should not be permitted to turn around for seeking the refund. He also adds that allowing the petition amounts to placing premium on mistake of the party.
The subject plot was allotted by the BDA with a rider that for its alienation certain amount has to be paid on the differential of sale proceeds. As to the liability for such payment, the petitioner has no quarrel. However, he justified in submitting that in a Welfare State, citizen’s money in excess of what is payable by him cannot be extracted or retained with impunity. Section 72 of the Indian Contract Act, 1872 provides for refund/recovery of money mistakenly paid in excess of the liability. Therefore, OP-BDA cannot refuse to refund the excess amount consistent with the observations of Apex Court in Mafatlal Industries Ltd. v. Union of India, AIR 1996.
There is no dispute on the fact matrix that the petitioner, while computing the consent charges for transfer, has taken the value of the building constructed on the allotted plot and that eventually resulted into payment of excess amount. Mr. Nanda is right in pressing into service the BDA office order dated 27.05.2015, which has the following text: “The consent fee for the transfer of ownership in respect of the leasehold assets allotted by BDA is being imposed at the rate of 25% of differential amount of the difference between the original cost/value of the assets allotted by the BDA and the present market price of the same asset as per the Para-34(b) of Property (Management & Allotment) Regulations’2015.
The following procedure shall be followed for determining the market price of the assets keeping in view the decision of the 141st Authority Meeting held on 25.09.2021.
(a) In case of allotment of plots only the market price of the asset will be the present market value of the plot only even if a house is constructed over the plot by the allottee.
Counsel for the petitioner, on instructions, agrees that the market value of the plot in question, as on the date of intended transfer, i.e., 20.11.2021 (the date of draft sale deed), has to be determined by an Approved Valuer of Income Tax Department and the expenses/charges therefor are to be borne by the petitioner himself. This exercise has to be accomplished within a period of six weeks. Both the sides shall cooperate in the exercise to be undertaken by such Valuer, as may be chosen by the BDA. To facilitate this, the impugned order is liable to be voided.
Justice Dixit Krishna Shripad disposed of the writ petition by quashing the impugned order. Depending upon the outcome of valuation exercise, the OP-BDA shall refund to the petitioner excess amount, if any, within two weeks reckoned from the date the valuation report is filed by the Approved Valuer. If delay is brooked, interest at the rate of 1% per mensem becomes payable on the amount due to the petitioner and that interest component may be recovered from the erring officials personally.
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