Delhi High Court
Union Of India vs Qayyum Khan & Others on 13 April, 2009
Author: Sanjiv Khanna
Bench: Chief Justice, Sanjiv Khanna
20.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ LPA 375/2008
Date of decision: 13th April, 2009
U.O.I. ..... Appellant
Through Mr. Sanjay Kumar Pathak, Advocate.
versus
QAYYUM KHAN & ORS. ..... Respondents
Through Ms. Maninder Acharya, Advocate for
respondent No. 1 along with respondent No. 1 in
person.
Ms. Sangeeta Chandra & Mr. Deepak Khandaria,
Advocates for DDA.
Mr. Manish Paliwal & Mr. Sumit Bansal, Advocates
for respondent No. 3.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SANJIV KHANNA
1. Whether Reporters of local papers may be Yes.
allowed to see the judgment?
2. To be referred to the Reporter or not ? No.
3. Whether the judgment should be reported
in the Digest ? No.
AJIT PRAKASH SHAH, CJ (ORAL)
Chand Khan, father of the first respondent, was the owner of half
share measuring 211 square yards falling in Khasra No. 591, Bhogal,
Jungpura (hereinafter called ―the suit property‖). He was also owner of
other adjacent properties bearing Khasra Nos. 593 and 594. Chand khan
LPA No. 375/2008 Page 1
had apparently gone missing or at least was not available for sometime in
the wake of post partition riots. Apparently, it was reported that either he
was killed during the riots or had migrated to Pakistan. The properties of
Chand Khan including the suit property were declared evacuee property
under the Administration of Evacuee Property Act, 1950 (hereinafter
referred to as ―1950 Act‖) and they vested in the Custodian. Chand Khan
had in fact never migrated to Pakistan; he was alive and working in New
Delhi. In 1954 he moved an application for restoration/restitution of the
properties. An enquiry report dated 11th October, 1962 confirmed the
veracity of Chand Khan's claims. A further report was prepared on 27 th
December, 1963 by the Assistant Custodian recommending issuance of
final order for restoration. Even when the process for restoration was on,
another wing of the Central Government put the suit property to auction.
As a result of this, the suit property was purchased by one Chhida Ram for
Rs.4,768/- in 1965 and a conveyance was executed in his favour on 30th
July, 1965. Chhida Ram sold the property to Smt. Kala Wati by virtue of a
sale deed dated 11th October, 1965.
2. On 1st August, 1966, the Central Government acting through the
Settlement Commissioner passed an order in terms of Section 16 of the
1950 Act for restoration of properties to Chand Khan. The relevant portion
of that order reads as follows:-
―AND WHEREAS the Central Government is
LPA No. 375/2008 Page 2
satisfied:
(i) That the conditions prescribed in the rules made
in his behalf have been satisfied;
(ii) That the evacuee properties described in the
schedule are the properties of the applicant and
(iii) that it is just and proper that the said evacuee
properties should be restored to applicant;
NOW THEREFORE, in exercise of the
powers conferred by section of the Administration
of Evacuee Property Act, 1950, the Central
Government hereby declares that applicant to be
entitled to the restoration of the evacuee
properties described in the schedule and directs
that action may be taken in regard to the said
properties under Section 20-A of the Displaced
Persons Compensation and Rehabilitation Act,
1954, by the persons authorized in this behalf
subject to the condition that the amount due to
the Custodian in respect of the properties or the
management thereof shall be paid by the
applicant to the Custodian.
SCHEDULE:
Half share of lease rights in khasra No. 591
measuring 422 square yards corresponding to
plot No. 107 and Municipal No. 4934 and full
share of lease rights in Khasra No. 593 and 594
situated in Jangpura, Bhogal, New Delhi
corresponding to plot No. 108 and 109 and
Municipal Nos. 4935-36.
Sd/-
A.C. Vaswani
Settlement Commissioner & Ex-Offi:
Under Secretary to the Govt. of India.‖
3. Later, on 4th October, 1971 in supersession of 1966 order apparently
in view of the declaration of law by the Supreme Court , the Central
LPA No. 375/2008 Page 3
Government acting through the Department of Rehabilitation passed the
following order:-
―AND WHEREAS the Central Government is
satisfied;
(i) That the conditions prescribed in the rules made
in this behalf have been satisfied:
(ii) that the evacuee property described in the
scheduled is the property of the applicant; and
(iii) that it is just and proper that the said evacuee
property should be restored to the applicant;
NOW, THEREFORE, in exercise of the powers
conferred by Section 16 of the Administration of
Evacuee Property Act, 1950, the Central
Government hereby directs that the evacuee
property described in the Schedule shall be
restored to the applicant subject to the following
conditions namely:-
(i) that the amount due to the Custodian in respct of
the property or the management thereof shall be
paid by him to custodian of Evacuee Property;
(ii) that he shall not evict any allottee/tenant of the
said property except in the circumstances in
which lessees can be evicted under the law for
the time being in force;
SCHEDULE:
Half share of lease rights in Khasra No. 591
measuring 422 sq. yards corresponding to plot
No. 107 and Municipal No. 4934 and full share of
lease rights in Khasra Nos. 593 and 594 situated
in Jungpura, Bhogal, New Delhi corresponding to
plots No. 108 and 109 and Municipal Nos. 4935-
36.
S/-(P.L. Gupta)
Deputy Secretary to the
Government of India.‖
4. Although the condition was put for the payment of management
charges to the Custodian, it is admitted position that no such demand has
been made till this date.
LPA No. 375/2008 Page 4
5. Chand Khan approached the Assistant Custodian for restoration of
possession of the properties. The Assistant Custodian passed order dated
2nd February, 1972 issuing notices to occupants to the other properties,
which had been restored to him. It is not clear as to whether he had
issued any notice in respect of the suit property. Be that as it may, the
occupants of those properties claimed that in the absence of any lawful
authority, the direction to evict them was illegal. They approached this
Court by filing W.P.(C) No. 123/1972 challenging the notices issued by the
Assistant Custodian. Chand Khan and the official respondents defended
those proceedings claiming that the restoration orders authorized issuance
of a direction to grant possession. The petition was disposed of finally by
Avadh Behari Rohtagi, J. vide order dated 2nd February, 1972 whereby the
eviction orders were quashed, leaving it open to the respondents to pursue
their remedies as per law for securing vacant possession. Chand Khan
died during the course of the litigation in 1979. The legal heirs of Chand
khan including the first respondent carried the judgment of Rohtagi, J. in
appeal. None of the parties are able to tell us about the fate of the appeal
or whether it was disposed of.
6. The first respondent claims that by virtue of a will, Chand Khan
bequeathed the suit properties in his favour. He had filed a suit for
declaration and injunction against the occupants of the property.
Temporary injunction was declined in those proceedings. In the course of
LPA No. 375/2008 Page 5
the order of the civil court declining the temporary injunction, the stand of
the other heirs has been recorded while denying the will, the other legal
heirs have spoken of entitlement as per a family arrangement. The family
arrangement/settlement deed dated 16th August, 1979 recognises the
rights of the parties to various properties; the first respondent's right to a
half share of the suit property has been acknowledged. At this stage, it
may be noted that by his letter dated 6th August, 1992, addressed to the
first respondent, Assistant Custodian Evacuee Property (Cell) reiterated
that the properties in question including the suit property are restored to
Chand Khan by the Central Government under Section 16 of the
Administration of Evacuee Property Act vide order dated 4 th October, 1971
and he was advised to deal directly with the occupants of the properties.
The first respondent then requested the DDA in 1992 to mutate the suit
property in his favour. The DDA informed him that the property had been
sold to Chhida Ram by a conveyance deed in 1965 and that it had been
further sold to Smt. Kala Wati and request cannot be accepted. He was
advised to seek remedy from the court of law.
7. Being aggrieved, the first respondent filed the present petition being
Writ Petition No. 778/1993 seeking a direction to restore to him vacant
physical possession of the suit property and in the alternate to allot an
alternative land admeasuring 211 square yards or thereabout adjoining to
Bhogal, Jungpura. The first respondent based his claim on the footing that
LPA No. 375/2008 Page 6
the action of the Central Government in recognizing Chand Khan's right to
the properties in 1966 and 1971 and reversing the process of take over on
the assumption of his being an evacuee no longer exist. Hence, the
foundation of the title and possession vesting with the Custodian stood
effaced. The auction to Chhida Ram and his sale of the suit property to
Smt. Kala Wati was, therefore, illegal. It was, therefore, prayed that the
respondents were duty bound to give complete restitution and ensure that
possession of the suit property is made over to the first respondent, who is
the sole heir of Chand Khan in respect of the suit property.
8. Union of India, who is impleaded as the respondent No. 1 in the writ
petition in its reply has not disputed the basic facts leading to the order of
1971 under the 1950 Act. Its defence was that Chand Khan had to comply
with two conditions imposed in the order before he could be restored with
the suit property. It was alleged that the conditions were not complied
with and the party had approached this Court after delay of 12 years. In
addition, it was contended that the intervening rights of Chhida Ram and
Smt. Kala Wati and subsequently her legal heirs, cannot be set at naught
at the behest of a person whose entitlement is under a cloud and at any
rate has approached the Court belatedly. Smt. Kala Wati, the subsequent
purchaser from Chhida Ram died during the pendency of these
proceedings. Her legal heirs were impleaded as parties. They contended
that they are innocent purchasers without notice. They also alleged that
LPA No. 375/2008 Page 7
the first respondent could not claim any legal right, title or interest since
the basis of his claim had not been established through any known
procedure. It is also alleged that the first respondent had filed a suit for
declaration against the stepbrothers and other legal representatives of
Chand Khan who had disputed his sole entitlement. The civil court refused
the interim injunction sought for by the first respondent. It was,
therefore, established that the first respondent cannot claim any equitable
relief under Article 226 of the Constitution.
9. The learned single Judge held that issuance of two orders in 1966
and 1971 expressly recognized the right, title and interest of Chand khan
to properties in question. He went on to observe that ―Chand Khan was
certainly entitled to restoration/restitution in view of what was undeniably
a wrong done to him, namely, taking over of his properties on the premise
of his being an evacuee. That premise was mistaken is also not disputed‖.
Learned single Judge further observed that under Article 226 this Court
has ample powers to issue appropriate directions including the grant of
inequitable relief for restitution. Learned single Judge, however, declined
the prayer for alternative plot or for restoration of his property in view of
the fact that he approached the Court in 1993 and not by 1984 or 1985.
Instead learned single Judge directed the Union of India to return the sum
of Rs.12,500/- received from Chhedi Ram in 1965 with a further direction
to pay interest on that amount with the following rates:-
LPA No. 375/2008 Page 8
a) Compound interest @ 15% per annum from 01.04.1965 to
31.12.1984;
b) Compound interest @ 12% on the above amounts of Rs.12500/-
plus the compound interest as per direction (for the period
01.01.1985 to 31.12.1994);
c) Compound interest on the amounts indicated as per directions (a)
and (b) @ 8% per annum from 01.01.1995 till 31.12.2005.
10. Being aggrieved, the Union of India has preferred this Letters Patent
Appeal. The first respondent, i.e., the original writ petitioner has filed
cross-objections making a grievance that the learned single Judge ought to
have granted an alternative plot or restitution of the suit property.
11. Learned counsel appearing for the appellant-Union of India
contended that even as per the finding of the learned single Judge, the
first respondent ought to have approached this Court in 1984-85 and no
attempt has been made to explain the delay. He submitted that the
principle of laches or undue delay would disentitle the first respondent
from claiming any discretionary relief even assuming that he had a legal
right. Learned counsel referred to the decision of the Supreme Court in
State of Maharashtra Vs. Digambar, reported in AIR 1995 SC 1991,
where the Court held that the discretionary relief in exercise of power
under Article 226 should not be granted to a person without considering
his disentitlement for such relief due to his blameworthy conduct of undue
LPA No. 375/2008 Page 9
delay or laches in claiming the same. He submitted that the conditions
attached to the orders of 1966 and 1971 were not complied with by Chand
Khan. According to him, in the event, the learned single Judge made an
error in computing the amount of compensation inasmuch as the property
was sold to Chhedi Ram in public auction for Rs.4,768/- and not
Rs.12,500/-. He submitted that in view of this mistake, as per the order of
the learned single Judge, the amount of compensation comes to Rs.15
lacs. If the sale consideration of Rs.4,768/- is considered, the amount of
compensation will not exceed Rs.5 lacs.
12. In reply, Ms. Maninder Acharya, Advocate who has been appointed
as Amicus Curiae by this Court, submitted that the learned single Judge
having accepted all the major contentions of the first respondent ought
not to have declined the prayer for grant of alternative plot or for
restoration of the property only on the ground that he approached the
Court in 1993 and not by 1984-85. She submitted that no action could be
taken by Chand Khan because the very issue was pending in this Court
during the period from 1973 to 1980-82. Chand Khan died during the
pendency of the proceedings. The first respondent, who is the sole
legatee under the will of the Chand Khan is an illiterate person, came to
know about the sale in favour of Chhedi Ram only in 1992 that the
property had been illegally sold by the Government of India and
immediately thereafter approached the Court and thus there is no delay in
LPA No. 375/2008 Page 10
filing the writ petition. She pointed out that the first respondent had
earlier filed a civil suit pursuant to order of Avadh Behari Rohatgi, J. to
establish his rights. She submitted that even as late as 1992, the Assistant
Custodian wrote to the first respondent that the suit property stood
restored to Chand khan and he should directly deal with the occupants of
the property. Pursuant to this direction, the first respondent approached
the DDA, who declined to enter the name of the first respondent in respect
of the suit property because of the subsequent sales in favour of Chhide
Ram and Smt. Kala Wati. She also drew our attention to the finding in the
judgment of the learned single Judge that the delay was on account of the
fact that official respondents took more than 12 years to decide and pass
effective orders. She submitted that there is a clear cut finding recorded
by the learned single Judge that the orders dated 1st August, 1966 and 4th
October, 1971 expressly recognized the right, titled and interest of Chand
Khan to the properties including the suit property and yet the relief of
restitution or grant of alternative plot was not accorded to the first
respondent.
13. Before we advert to the contention made at the Bar, we may refer
to certain relevant provisions of the 1950 Act and the Rules framed under
the said Act. Sections 16 and 54 of the Act read as follows:-
"16. Restoration of evacuee property.--[(1)
Subject to such rules as may be made in this
behalf, any evacuee or any person claiming to be
LPA No. 375/2008 Page 11
an heir of an evacuee may apply to the Central
Government or to any person authorised by the
Central Government in this behalf (hereinafter in
this section referred to as the authorised person)
that any evacuee property which has vested in
the Custodian and to which the applicant would
have been entitled if this Act were not in force,
may be restored to him.]
[(1-A) No application made under sub-section (1)
shall be entertained unless--
(a) before making the application, the
applicant has filed all appeals and revision
applications permissible under this Act against the
order declaring the property of the evacuee to be
evacuee property and the Custodian-General has
made a final order in the case; and
(b) the application is made within sixty days of
the final order of the Custodian-General:
Provided that any such application by an evacuee
who migrated to West Pakistan from the State of
Uttar Pradesh during the period between the 1st
day of February, 1950 and the 31st day of May,
1950 and who is permitted to return to India for
permanent resettlement may be entertained if it
is made within sixty day of the return of the
evacuee to India:
Provided further that nothing contained in this
sub-section shall apply to an application under
sub-section (1) which is pending on the
commencement of the Administration of Evacuee
Property (Amendment) Act, 1954 (42 of 1954).
Explanation.--In this sub-section, the expression
‗Custodian-General' shall include a Deputy
Custodian-General and an Assistant Custodian-
General.]
[(2) On receipt of an application under sub-
section (1), the Central Government or the
authorised person, as the case may be, shall
cause public notice thereof to be given in the
prescribed manner, and after causing an inquiry
into the claim to be held in such manner as may
be prescribed, shall--
(a) if satisfied--
LPA No. 375/2008 Page 12
(i) that the conditions prescribed by rules
made in this behalf have been satisfied;
(ii) that the evacuee property is to property of
the applicant; and
(iii) that it is just or proper that the evacuee
property should be restored to him; make an
order restoring the property to the applicant, or
(b) if not so satisfied, reject the application:
Provided that where the application is
rejected on the grounds that the evacuee
property is not the property of the applicant, the
rejection of the application shall not prejudice the
right of the applicant to establish his title to the
property in a civil court, or
(c) if there is any doubt with respect to the
title of the applicant to the property, refer him to
a civil court for the determination of his title:
Provided that no order for the restoration of any
evacuee property shall be made under this sub-
section unless provision has been made in the
prescribed manner for the recovery of any
amount due to the Custodian in respect of the
property or the management thereof.]
(3) Upon the restoration of the property to the
evacuee or to the heir, as the case may be, the
Custodian shall stand absolved of all
responsibilities in respect of the property so
restored, but such restoration shall not prejudice
the rights, if any, in respect of the property which
any other person may be entitled to enforce
against the person to whom the property has
been so restored:
Provided that every lease granted in respect of
the property by or on behalf of the Custodian
shall have effect against the person to whom
restoration is made until such lease is determined
by lapse of time or by operation of law.
[Explanation.--For the purpose of the proviso to
this sub-section, an allotment shall be deemed to
be a lease and shall have effect against the
person to whom restoration is made to the same
extent and in the same manner as if it were a
lease.]
LPA No. 375/2008 Page 13
(4) The Custodian shall, on demand, furnish to
the evacuee or to the heir, as the case may be, a
statement containing an abstract of the account
of the income received and expenditure incurred
in respect of the property.
54. Power of Central Government to take
action with regard to evacuee property.--
The Central Government may, for the purpose of
regulating the administration of any property
which has vested in the Custodian under the
provisions of this Act, pass such order or direct
such action to be taken in relation thereto as, in
its opinion, the circumstances of the case require
and as is not inconsistent with any of the
provisions contained in this Act.‖
14. Rule 37 of the Administration of Evacuee Property (Central Rules)
framed by the Central Government under provisions of the 1950 Act
provides for restitution. The Rule reads as follows:-
―Rule 37. ―Restitution - When any property
taken into possession as an evacuee property is
subsequently declared by the custodian or any
other competent authority to be a non-evacuee
property, the custodian may, on the on the
application of any party entitled to the actual
possession thereof, take such action as will place
the parties in the same position in which they
were date on the date of the possession. For this
purpose, the custodian may order the person in
occupation of the property to vacate the same
and the custodian may use such force as may be
necessary for the purpose.‖
15. The factual matrix is not in dispute. The authorities had slept over
Chand Khan's application, which was moved in 1954 for restoration of his
LPA No. 375/2008 Page 14
property. It took the Custodian more than 12 years to process the
application of Chand Khan and pass any effective order. Though, in the
meantime two reports were made confirming Chand Khan's right to
restoration of the property but nevertheless no action was taken. When
the final decision on the application of Chand Khan was awaited, another
arm of the Rehabilitation Ministry auctioned the suit property oblivious to
the fact that the alleged evacuee was in fact alive and there was a move
to restore his properties. It is also not disputed before us that Chhida Ram
and Smt. Kala Wati to whom the properties were sold were innocent
purchasers without notice. When they purchased the suit property, there
was no defect in the title. The argument that Chand Khan did not comply
with the conditions attached to the orders of 1966 and 1971 is devoid of
any merit. The suit property was already sold for valuable consideration;
the other properties had been allotted to tenants. Under the
circumstances that there was no question for making any demand for the
management charges and thus the condition is ex facei untenable.
Moreover, the so-called management charges were never computed by the
authorities and no demand for such charges was ever made. So, the
argument that the non-compliance hampered the right of restitution must
be rejected.
16. We are in agreement with the finding of the learned single Judge
that the issuance of two orders in 1966 and 1971 expressly recognized the
LPA No. 375/2008 Page 15
right, title and interest of the Chand Khan's properties including the suit
property. Chand Khan's properties were declared to be evcuee properties
on a mistaken premise that he had been killed in riots or migrated to
Pakistan. That mistaken premise is also not disputed. Both Section 16 of
the Act and Rule 37 of the Rules embody the restitutionary principle. In
fact, the Assistant Custodian proceeded to issue orders for restoration of
the properties of Chand Khan on the basis of his power under Section 16.
The issue of delay and laches has to be examined on this factual
background. In fact, it is the authorities, who slept over the application of
the Chand Khan for more than 12 years. Although the first order came to
be passed in 1966. When it was realized that erroneous reference was
made to Section 20-A of the Act, which was declared to be
unconstitutional by the Supreme Court, a fresh order came to be passed
only in 1971. The Assistant Custodian thereafter issued notices to the
occupants of the other properties but then the jurisdiction and authority of
the Assistant Custodian to issue the said notice questioned in this Court by
filing a writ petition. The writ petition filed by the occupants came to be
disposed of only on 29th November, 1982 whereby the notices were
quashed and parties were asked to resort to the remedies as permissible
by law. Pursuant to this order, the first respondent also filed a civil suit for
declaration and injunction but he could not get temporary injunction. In
the meantime, the Assistant Custodian vide his letter dated 6th April, 1997
LPA No. 375/2008 Page 16
reiterated that the properties stood restored to Chand khan under Section
16 of the Act and the first respondent was directed to deal directly with
the occupants of the properties. The first respondent then approached the
DDA for mutating his name in the property register but that request was
also declined on the ground that the property has been already transferred
to subsequent purchasers and he was asked to approach the Court of law.
Under these circumstances, it is not possible to accept the contention of
the appellant that the writ petition was belated. It is no doubt true that if
there is undue delay in filing the writ petition and there is no plausible
explanation for the same, the Court can refuse to entertain it on the
ground of laches but the factual situation is entirely different in the present
case. The question of any delay or laches does not arise in the present
case. It is also pertinent to note that throughout this period, the
authorities never disputed the title of Chand Khan and his son and it is by
a letter dated 1st December, 1992 they asked the first respondent to
approach the court of law.
17. It is well settled that Article 226 of the Constitution is not confined
within the narrow bounds of traditional writ jurisdiction as was understood
in English. The High Court under Article 226 has ample powers to issue
appropriate direction while moulding the relief in ensuring that a party who
suffered injustice is suitably restituted or placed in a position as nearly as
possible. In Kavita Trehan Vs. Balsara Hygiene Products Ltd,
LPA No. 375/2008 Page 17
reported in (1994) 5 SCC 380 the Supreme Court observed that the
jurisdiction to make restitution is inherent in every court and will be
exercised whenever the justice of the case demands. It will be exercised
under inherent powers where the case did not strictly fall within the ambit
of Section 144. The Court explained the law of restitution in the following
terms:-
"16. The Law of Restitution encompasses all
claims founded upon the principle of unjust
enrichment. ‗Restitutionary claims are to be found
in equity as well as at law'. Restitutionary law has
many branches. The law of quasi-contract is ―that
part of restitution which stems from the common
indebitatus counts for money had and received
and for money paid, and from quantum meruit
and quantum valebant claims‖. [See The Law of
Restitution -- Goff & Jones, 4th Edn., page 3.]
Halsbury's Laws of England, 4th Edn., page 434
states :
―Common Law. Any civilised system of law is
bound to provide remedies for cases of what
has been called unjust enrichment or unjust
benefit, that is, to prevent a man from
retaining the money of, or some benefit
derived from, another which it is against
conscience that he should keep. Such
remedies in English law are generically
different from remedies in contract or in tort,
and are now recognised to fall within a third
category of the common law which has been
called quasi-contract or restitution.
For historical reasons, quasi-contract has
traditionally been treated as part of, or
together with, the law of contract. Yet
independently, equity has also developed
principles which are aimed at providing a
remedy for unjustifiable enrichment. It may
be that today these two strands are in the
process of being woven into a single topic in
the law, which may be termed ‗restitution'.‖
LPA No. 375/2008 Page 18
17. Recently the House of Lords had occasion to
examine some of these principles in Woolwich
Equitable Building Society v. IRC.
18. In regard to the law of restoration of loss or
damage caused pursuant to judicial orders, the
Privy Council in Alexander Rodger Charles Carnie
v. Comptoir D'Escompte De Paris stated :
―... one of the first and highest duties of all
Courts is to take care that the act of the
Court does no injury to any of the Suitors,
and when the expression ‗the act of the
Court' is used, it does not mean merely the
act of the Primary Court, or of any
intermediate Court of appeal, but the act of
the Court as a whole, from the lowest Court
which entertains jurisdiction over the matter
up to the highest Court which finally disposes
of the case.‖
19. In Jai Berham v. Kedar Nath Marwari, the
Judicial Committee referring to the above passage
with approval added :
―It is the duty of the Court under Section 144
of the Civil Procedure Code to ‗place the
parties in the position which they would have
occupied, but for such decree or such part
thereof as has been varied or reversed'.
Nor indeed does this duty or jurisdiction arise
merely under the said section. It is inherent in
the general jurisdiction of the Court to act
rightly and fairly according to the
circumstances towards all parties involved.‖
20. In Binayak Swain v. Ramesh Chandra
Panigrahi, this Court stated the principle thus :
(SCR p. 27)
―The principle of the doctrine of restitution is
that on the reversal of a decree, the law
imposes an obligation on the party to the
suit who received the benefit of the
erroneous decree to make restitution to the
other party for what he has lost. This
obligation arises automatically on the
reversal or modification of the decree and
necessarily carries with it the right to
restitution of all that has been done under
the erroneous decree; and the Court in
LPA No. 375/2008 Page 19
making restitution is bound to restore the
parties, so far as they can be restored, to the
same position they were in at the time when
the Court by its erroneous action had
displaced them from.‖
21. Section 144 CPC incorporates only a part of
the general law of restitution. It is not exhaustive.
(See Gangadhar v. Raghubar Dayal and State
Govt. of A.P. v. Manickchand Jeevraj & Co.‖
18. The Court's power to apply equitable principles has been dealt with
in several decisions of the Supreme Court. For instance, in the case of
Gurbax Singh Vs. Financial Commissioner and Another, reported in
1991 Supp (1) SCC 167 the Supreme Court was concerned with the rival
claims between the bona fide purchaser and the sub-lessee of the property
who has been in possession for more than 40 years. The Supreme Court
observed that while the Court is to administer justice according to law
there may be scope for doing justice and equity between the parties.
"23. Under the above circumstances we feel that
while this Court is to administer justice according
to law there may be scope for doing justice and
equity between the parties. In such a situation
we remember what the Institutes of Justinian, De
Justitia Et Jure, in ‗Liber Primus' Tit. I said:
―Justitia est constans et perpetua voluntas jus
suum cuique tribuendi‖. Justice is the constant
and perpetual wish to render everyone his due.
―Jurisprudentia est divinarum atque humanarum
rerum notitia, justi atque injusti scientia.‖
Jurisprudence is the knowledge of the things
divine and human; the science of the just and
unjust. The divine is that which right reason
commends. The human is also in the contents of
the law. As Max Rumelin said, in the Struggle to
Govern Law, ―Justice is rivaled by equity.‖ The
dilemma that equity is to be better than justice
and yet not quite opposed to justice, but rather a
kind of justice has troubled us. Gustav Radbruch
LPA No. 375/2008 Page 20
clarifies the mutual relation between two kinds of
justice, namely, commutative and distributive. We
may call ―just‖ either the application or
observance of law, or that law itself. ―The former
kind of justice, especially the justice of the Judge
true to the law,‖ according to him, ―might better
be called righteousness.‖ Here ―we are concerned
not with justice which is measured by positive
law, but rather with that by which positive law is
measured.‖ Justice in this sense means equality.
Aristotle's doctrine of justice of equality is called
by him commutative justice which requires at
least two persons while distributive justice
requires at least three. Relative equality in
treating different persons while granting relief
according to need, or reward and punishment
according to merit and guilt is the essence of
distributive justice. While in commutative justice
the two persons confront each other as co-
equals, three or more persons are necessary in
distributive justice in which one, who imposes
burdens upon or grants advantages to the others,
is superior to them. ―Therefore, it presupposes an
act of distributive justice which has granted to
those concerned, equality of rights, equal
capacity to act, equal status.‖ According to
Radbruch, ―distributive justice is the prototype of
justice. In it we have found the idea of justice,
toward which the concept of law must be
oriented.‖ Law offers and protects the conditions
necessary for the life of man and his perfection.
In the words of Cardozo, ―What we are seeking is
not merely the justice that one receives when his
rights and status are determined by the law as it
is; what we are seeking is a justice to which law
in its making should conform.‖ The sense of
justice will be stable when it is firmly guided by
the ‗pragma' of objective and subjective
interests.‖
19. In Roshanlal Kuthalia and others Vs. R.B. Mohan Singh
Oberoi, reported in (1975) 4 SCC 628 the question before the Supreme
Court was whether equitable consideration should be applied while
executing foreign decrees. The argument of the respondent was that in
India undefined rules of equity cannot override the legal rights.
LPA No. 375/2008 Page 21
Rejecting this argument, the Court observed that equity is not anti-law but
a moral dimension of law; rather it is the grace and conscience of living
law acting only interstitially. The quintessence of this concept was
explained by the Court in following words:-
―29........All great systems of jurisprudence have a
mitigating principle or set of principles, by the
application of which substantial justice may be
attained in particular cases wherein the
prescribed or customary forms of ordinary law
seem to be inadequate. From the point of view
of general jurisprudence, ―equity‖ is the name
which is given to this feature or aspect of law in
general.‖
20. The Court went on to observe that when law speaks in positive
terms, equity may not be invoked against it; but while applying the law the
Court can and must ameliorate unwitting rigours inflicted by legalisms,
where there is room for play by the use of equity.
21. Our attention was also drawn to a decision of the Supreme Court in
Hansraj H. Jain Vs. State of Maharashtra and Others , reported in
(1993) 3 SCC 634 where the grievance was about the inordinate delay in
completing the acquisition proceedings. In that case, the notification
under Section 4 was issued in 1968 and 1970. Declarations under Section
6 was issued in 1971 and 1972 and the award was rendered only in 1985
and 1986. Although the Court upheld the award on the ground that the
proceedings were not initially mala fides and there was no deliberate
laches and negligence, the Court proceeded to direct the authorities to
LPA No. 375/2008 Page 22
offer alternative plots to the affected landowners on the basis of actual
cost of development by charging the cost of acquisition and the
development charges and not more. Such direction was required to be
made particularly in view of the fact that acquisition proceedings had been
pending for a number of years, as a result of which the amount of
compensation for the acquisition being referable to the period when notice
under Section 4 of the Land Acquisition Act were issued, became
insignificant and it is reasonably apprehended that unless the land by way
of alternative site as per the scheme is offered to the affected landowners
at a subsidized rate as indicated there, it will not be possible for the
landowners to take such allotment by paying usual prices intended to be
changed from them and the offer of alternative site will for all practical
purposes be illusory.
22. In the facts and circumstances of the present case, we are of the
view that the first respondent's claim for allotment of alternative plot
deserves to be accepted. The parties have been litigating for more than
45 years and it would be wholly inappropriate to grant compensation on
the price index of 1965. This is a fit case to direct the Union of India to
allot an alternate land to the first respondent. Consequently, the appeal
filed by Union of India is dismissed and cross-objections filed by the first
respondent are allowed. The appellant-Union of India is directed to allot
to the first respondent an alternative plot admeasuring 211 square yards
LPA No. 375/2008 Page 23
or thereabout in same area or in the adjoining areas within a period of
three months from today. It is made clear that the possession of the land
shall be handed over to the first respondent subject to his producing a
succession certificate establishing his entitlement or in its absence a no
objection certificate/indemnity from each of the legal heir of late Chand
Khan to the satisfaction of the authorities.
CHIEF JUSTICE
SANJIV KHANNA, J.
APRIL 13, 2009 VKR LPA No. 375/2008 Page 24