Delhi High Court
Union Of India & Ors vs Aurangzeb Choudhary & Anr on 19 September, 2014
Author: Rajiv Sahai Endlaw
Bench: Chief Justice, Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 19th September, 2014.
+ LPA 51/2013 & CM No.1101/2013 (for stay)
UNION OF INDIA & ORS ..... Appellants
Through: Mr. Jagjit Singh with Mr. Siddharth
Verma, Advs.
Versus
AURANGZEB CHOUDHARY & ANR ..... Respondents
Through: Mr. Ashish Mohan with Ms. Mehak
Kanwar and Mr. Chetan Wahi, Advs.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.
1. This intra court appeal impugns the order dated 28th May, 2012 of the learned Single Judge in CM No.918/2012 in W.P.(C) No.1925/2011 filed by the respondent No.1 / writ petitioner as well as the order dated 17 th August, 2012 of the learned Single Judge of dismissal of Review Petition No.436/2012 filed by the appellants for review of the order dated 28 th May, 2012.
2. The appeal, besides the application for interim stay, was accompanied with an application for condonation of 88 days delay in filing thereof. LPA 51/2013 Page 1 of 10 Notice of the appeal and the applications was issued and vide ex-parte ad- interim order dated 21st January, 2013, the operation of the impugned order was stayed and remains stayed. The delay in filing the appeal was condoned vide order dated 23rd July, 2013. We have heard the counsels for the parties.
3. The writ petition, being W.P.(C) No.1925/2011 was filed by the respondent No.1 / writ petitioner impugning the failure of the appellants Railways to extend the lease of the respondent No.1 / writ petitioner of 4 Tonnes FSLR space in Train No.2497-I Ex. Hazarat Nizamuddin (HNZM) to Amritsar (ASR). It was the contention of the counsel for the respondent No.1 / writ petitioner that the lease was liable to be extended in terms of the Comprehensive Parcel Leasing Policy framed on 28th March, 2006 vide Freight Marketing Circular No.12/2006 issued by the Railway Board. We may record that the lease in favour of the respondent No.1 / writ petitioner was for a period of three years with effect from 10 th October, 2007 till 9th October, 2010 and extension in terms of the Policy aforesaid was being sought for a period of two years. It was further the case in the writ petition that the appellants Railways instead of extending the lease in accordance with the Policy with enhancement in license fee of 25% only, vide letter LPA 51/2013 Page 2 of 10 dated 19th October, 2010 illegally asked the respondent No.1 / writ petitioner to pay rates enhanced by 66%, if desirous to have the lease extended and to which illegal condition, the respondent No.1 / writ petitioner was forced to accede. However, in the writ petition only the following reliefs were claimed:
"A. Allow the present Writ Petition;
B. Issue a Writ, order or direction in the nature of mandamus
directing the Respondents to unconditionally extend the lease of the Petitioner in respect of Parcel space in Train No.2497-I Ex. HNZM to ASR w.e.f. 10.10.2010 till 09.10.2012 in terms of Clause (E) of the Comprehensive Parcel Leasing Policy and clause 18 of the Contract between the Parties;
C. Pass any further order(s) as may be deemed fit and proper."
4. The writ petition along with several other writ petitions entailing the same issue, was allowed vide common judgment dated 2nd June, 2011 setting aside the decision of the appellants Railways of not granting extension of the lease and the appellants Railways were directed to extend the lease for a period of two years from the date of expiry of the original lease. The counsel for the appellants informs that the appeal to the Division Bench filed by the appellants Railways against the said judgment was dismissed and the said judgment has attained finality. LPA 51/2013 Page 3 of 10
5. The respondent No.1 / writ petitioner, after the writ petition aforesaid had been allowed, filed CM No.918/2012 for a direction to the appellants Railways to refund the excess lease money of Rs.4,19,166/- collected by the appellants Railways from the respondent No.1 / writ petitioner towards enhanced rate of 66% over the rate under the original lease, and in excess of 25% enhancement to which alone the appellant Railways under the Policy aforesaid was entitled to.
6. The learned Single Judge vide impugned order dated 28 th May, 2012 allowed the said application holding; (i) that a reading of the judgment dated 2nd June, 2011 would show that the Court had disapproved of the appellant Railways insisting on renewal of leases at a rate more than 25% of the lease rent of the original lease; (ii) that the appellants Railways in compliance of the judgment dated 2nd June, 2011 had issued a letter dated 27th July, 2011 extending the lease of the respondent No.1 / writ petitioner for a period of two years with effect from 10th October, 2010 in accordance with the Policy and under which the appellant Railways was entitled to only 25% increase; and, (iii) that the direction sought for refund was consequential to the judgment dated 2nd June, 2011.
LPA 51/2013 Page 4 of 10
7. Accordingly, the appellants Railways were directed to refund the excess amount of Rs.4,19,166/- to the respondent No.1 / writ petitioner within a period of six weeks therefrom and it was further ordered that in the event the refund is not made within six weeks, then for the period of delay, interest at 9% per annum shall be paid by the appellants Railways.
8. As aforesaid, Review Petition No.436/2012 filed by the appellants Railways was dismissed vide order dated 17th August, 2012.
9. The counsel for the appellants Railways has drawn our attention to the prayer paragraph, as reproduced hereinabove, in the writ petition and has contended that the respondent No.1 / writ petitioner in the writ petition neither challenged the letter dated 19th October, 2010 of the appellants Railways to the respondent No.1 / writ petitioner extending the lease, subject to enhancement in rates of 66% and to which the respondent No.1 / writ petitioner had agreed, nor claimed any relief of refund of the excess amount so collected by the appellants Railways. It is further argued that the learned Single Judge erred in relying on the letter dated 27 th July, 2011 of the appellants Railways, which is nothing but in accordance with the judgment dated 2nd June, 2011. It is contended that without the respondent No.1 / writ petitioner seeking the relief of setting aside of the agreement LPA 51/2013 Page 5 of 10 which had come into existence between the appellants Railways and the respondent No.1 / writ petitioner for extension of lease on enhancement in rates of 66% and without such relief having been granted by the learned Single Judge in the judgment dated 2nd June, 2011, the learned Single Judge exceeded his jurisdiction in entertaining the application being CM No.918/2012, subsequently filed by the respondent no.1 / writ petitioner and in allowing the same and granting the relief beyond that claimed in the writ petition. It is further argued that the said lease contains an arbitration clause and even if the respondent No.1 / writ petitioner had any claim for refund, the remedy therefor was by way of arbitration and not by making an application in the disposed of writ petition. It is further argued that in a number of similar cases, arbitrations were invoked (the counsel for the appellants is however neither able to give particulars thereof nor able to certainly inform the outcome thereof).
10. We have considered the aforesaid contentions but do not find any merit therein, for the following reasons:
(A) The impugned order of refund, is a natural corollary / consequence of the judgment dated 2nd June, 2011, which has attained finality;
LPA 51/2013 Page 6 of 10 (B) It was for the appellants Railways to, in opposition to the writ petition, plead and contend that the respondent No.1 / writ petitioner having entered into the Agreement dated 19 th October, 2010 with the appellants Railways for renewal of lease and the parties having also acted thereon, was not entitled to maintain the writ petition.
Obviously, no such plea was taken or urged. On the contrary, the appellants Railways allowed the judgment dated 2 nd June, 2011 to attain finality and as per which judgment, the appellants Railways were liable to extend the lease for a period of two years on enhancement in rate of 25% only;
(C) A judgment of the Court cannot be allowed to be only a piece of paper for academic satisfaction; a judgment determines the rights and contentions of the parties and adjudicates real disputes and it will be an abuse of the process of the Court and amount to making a mockery of judicial system to hold that notwithstanding the said judgment, the appellants Railways was entitled to, nevertheless do or take advantage of its illegal act which has been struck down by the Court;
LPA 51/2013 Page 7 of 10 (D) The appellants Railways as a State within the meaning of Article 12 of the Constitution of India, even otherwise cannot be expected to be wanting to illegally enrich itself to the prejudice of its citizens; the Supreme Court in Urban Improvement Trust, Bikaner Vs. Mohan Lal (2010) 1 SCC 512 held that such bodies are expected to restitute / restore the wrongs committed, upon being found so without requiring unwarranted litigation for the same. Division Bench of this Court in Virender Sharma Vs. Director, Enforcement Directorate MANU/DE/0546/2012 also held that to allow the State Government to earn from amount illegally collected would tantamount to unjust enrichment.
(E) The Supreme Court recently in Rajesh Kumar Vs. State of Bihar (2013) 4 SCC 690 has held that the power of the Court to mould the relief according to the demands of the situation is well recognized and is available to a writ court to do complete justice in between the parties. To the same effect is the judgment in Sri Satya Narain Singh Vs. The District Engineer, P. W. D. AIR 1962 SC 1161.
LPA 51/2013 Page 8 of 10
11. There is thus no merit in this appeal, which is dismissed.
12. Though as a consequence of the above, the interim stay of the judgment of the learned Single Judge directing the appellants Railways to pay Rs.4,19,166/- within six weeks, stands vacated and the appellants Railways in accordance with the law laid down in South Eastern Coalfields Vs. State of M.P. (2003) 8 SCC 648, Abhimanyoo Ram Vs. State of U.P. (2008) 17 SCC 73, Ramesh Chandra Sankla Vs. Vikram Cement (2008) 14 SCC 58, Indian Council for Enviro-Legal Action Vs. Union of India (2011) 8 SCC 161, Nava Bharat Ferro Alloys Ltd. Vs. Transmission Corporation of Andhra Pradesh (2011) 1 SCC 216 and State of Rajasthan Vs. J.K. Synthetics Ltd. (2011) 12 SCC 518 are liable to make good to the respondent No.1 / writ petitioner the loss suffered by him owing to the said interim stay i.e. of paying interest at 9% per annum on the said amount of Rs.4,19,166/- beyond six weeks of the judgment of the learned Single Judge, till the date of payment but on the request of the counsel for the appellants and considering the fact that he has placed the matter before this Court in a very fair manner as is expected from a counsel of the State, we direct that subject to the appellants Railways paying the said amount of Rs.4,19,166/- to the respondent No.1 / writ petitioner within six weeks from LPA 51/2013 Page 9 of 10 today, the appellants Railways shall be liable to pay interest thereon, as ordered by the learned Single Judge only for the period beyond six weeks from the judgment of the learned Single Judge and till the grant of interim stay by this Court i.e. till 21st January, 2013.
13. We in the circumstances also refrain from imposing any costs on the appellants.
RAJIV SAHAI ENDLAW, J.
CHIEF JUSTICE SEPTEMBER 19, 2014 'bs' LPA 51/2013 Page 10 of 10