Om Prakash vs State Of Himachal Pradesh And Others

Sandeep Sharma, J

By way of present petition filed under Art. 226 of the Constitution of India, petitioner has sought following main relief(s):

“a. The present petition may kindly be allowed throughout with costs, after summoning the record of the case and granting an opportunity of being

heard to the parties.

b. That an appropriate Writ in the nature of Writ of Mandamus directing respondents No. 1 and 2 to refund an amount of Rs, 10,05,064/- (Rupees Ten

Lakhs Five Thousand sixty four only), along with upto date interest @ 12% per annum accrued thereupon to the petitioner.

c. That an appropriate Writ in the nature of Writ of Mandamus directing respondents No. 3 and 4 to refund a sum of Rs. Rs. 3,30,754/- (Rupees three

Lakhs Thirty Thousand Seven Hundred and Fifty Four only/-), alongwith upto date interest @ 12% per annum accrued thereupon.â€​

During proceedings of the case, it transpired that the respondents are not opposed to the refund of the amount, as prayed for by the petitioner,

rather their only reservation is that since respondent No.5/Society had deposited the aforesaid amount, as such, the it cannot be released in favour of

the petitioner. In the aforesaid background, this Court passed following order on 15.10.2020:

“Having heard learned counsel representing the parties and perused the material available on record, especially reply filed by the respondents, this

Court finds that there is no dispute that amount allegedly deposited by respondent No.5-Society while applying for permission to run stone crusher is

liable to be refunded, but only dispute is to be whether it is refunded to petitioner or respondent No.5-Society. Learned counsel representing the

petitioner states that he shall have no objection in case the amount sought to be refunded by way of instant petition, is refunded to respondent No.5-

Society.

Let, learned Additional Advocate General to have instructions on or before the next date of hearing.

List on 23.11.2020.â€​

Pursuant to order dated 15.10.2020, learned Additional Advocate General, has placed on record communication dated 1.11.2020, issued under the

signatures of Divisional Forest Officer, Shamshi Forest Division, Shamshi, Kullu, perusal whereof reveals that at present no case/recovery is pending

against the petitioner as well as respondent No.5. Perusal of aforesaid communication, which is taken on record, clearly reveals that the respondent

Department has no objection in case a sum of Rs. 10,05,064/- deposited by the respondent/Society on account of aforestation charges and for setting

up crusher, is refunded to respondent No.5 Society. It has been further stated in the communication that registration of respondent No.5/society was

cancelled in the year 2011 by D.M.-cum-Additional Registrar Societies, Kullu vide order dated 4.6.2011, as such, there appears to be no occasion to

refund the aforesaid amount to respondent-Society.

Though careful perusal of documents adduced on record by the petitioner as well as reply filed by respondents clearly suggest that the sum sought

to be refunded was deposited by respondent No.5/Society for setting up stone crusher, but careful perusal of resolution dated 17.2.2007, (Annexure P-

15) placed on record by the petitioner, clearly reveals that though application for setting up stone crusher was made on behalf of respondent No.5

Society but for that purpose, sum of Rs.8,86,064/- was resolved to be paid by the petitioner at the first instance. It stands duly mentioned in the

aforesaid resolution that the amount invested by the petitioner shall be refunded to him alongwith interest, after installation of crusher. Similarly,

Resolution dated 5.2.2011, Annexure P-16, copy whereof was sent to the Divisional Forest Officer, Parbati Forest Division, Shamsi, clearly reveals

that it was resolved unanimously by the members of the Society that a sum of Rs.10,05,564/- deposited at the behest of Society for installation of

crusher may be released in favour of the petitioner, Om Parkash, alongwith interest. It is not in dispute that the Resolutions, Annexures P-15 and P-16

were passed prior to issuance of order dated 4.6.2011 whereby registration of respondent No.5 was cancelled, as such, there appears to be no

impediment in accepting the prayer made in the instant petition for refund of Rs.10,05,564/-, especially when it has been specifically admitted by

respondent No.4 that at present no case/recovery is pending against the petitioner/Society. Respondents have no objection so far refund of aforesaid

amount is concerned, but according to them, aforesaid amount is liable to be refunded to respondent No.5-Society, but, as has been taken note here in

above, respondent No.5/society has ceased to exist after passing of order dated 4.6.2011, as such, amount which was deposited by the petitioner,

deserves to be refunded to him.

Similarly, this court finds that the petitioner had deposited a sum of Rs.4,93,745/- with respondent No.4 for installation of Transformer. Respondents

Nos. 3 and 4, while admitting the factum with regard to deposit of aforesaid amount, have stated that an amount of Rs.3,29,843/- out of aforesaid

amount has been spent for installation of Transformer and qua remaining amount of Rs. 1,13,911/- necessary sanction/approval stands already

accorded by Superintending Engineer (Ops) Circle, Kullu, vide office order dated 11.11.2013 (Annexure RA -4 of the reply filed by respondents Nos.

3 and 4) under Regulation 5 of HPERC (Recovery of Expenditure for Supply of Electricity) Regulations, 2012. Learned Counsel appearing for the

petitioner fairly submits that respondents Nos. 3 and 4 may be directed to release the aforesaid amount, qua which sanction has been accorded on

11.11.2013, and qua remaining amount, he may be given liberty to file appropriate representation to the respondents.

Learned Counsel appearing for the petitioner, on instructions, states that in case, subsequently, aforesaid amount is claimed by other members of

society, he would be liable to refund the same alongwith upto date interest. His statement is taken on record.

In view of above, petition at hand is allowed. Respondents Nos. 1 to 4 are directed to refund the aforesaid amounts to the petitioner within four

weeks. Petitioner shall be at liberty to approach respondents Nos. 3 and 4 for refund of balance amount, if any.

The petition stands disposed of in the aforesaid terms, alongwith all pending applications.