Delhi High Court
Qayyum Khan vs Dda And Ors. on 2 January, 2006
Equivalent citations: 126(2006)DLT418
Author: S. Ravindra Bhat
Bench: S. Ravindra Bhat
JUDGMENT S. Ravindra Bhat, J.
1. The dispute in these proceedings encapsulates one among the several facets of that seemingly unending saga of problems, spawned by of partition of the country. The issues raised exemplify that the woes of one generation are also passed on to the next, challenging the judicial process to throw up lasting solutions. The petitioner claims restoration of a half share in Khasra No. 591, Jungpura, which had been taken over by the Custodian of Evacuee property on the assumption that the owner had lost his life during the violence which occurred at that time. Chand Khand, father of the petitioner, was the owner of inter alia half share measuring 422 sq. yards falling in Khasra No. 591, Bhogal, Jungpura (hereafter called the suit property). He was also owner of other adjacent properties bearing khasra No. 593 and 594.
2. As part of the arrangements made at the dawn of Independence, for management and administration of properties which had fallen vacant, (left behind by those migrated to Pakistan or of those belonging to persons who lost their lives), the Administration of Evacuee Property Act, 1950 (hereafter the 1950 Act) was one in a series of legislative measures enacted by Parliament. Chand Khan 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. Acting in terms of the 1950 Act, the properties of Chand Khan including inter alia the suit property was declared evacuee property; they vested in the custodian.
3. Chand Khan had in fact never migrated to Pakistan; he was alive and working in New Delhi. He approached the authorities for restoration/restitution of the properties. An inquiry report dated 11.10.62 confirmed the veracity of Chand Khan's claims. A further report was prepared on 27.12.63 by the Assistant Custodian recommending issuance of final order, for restoration.
4. Even when the process for restitution 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. 12500/- in 1965 and a conveyance was executed in his favor on 30th July 1965. Chhida Ram sold the property to Smt. Kala Wati by virtue of a sale deed dated 11.10.65.
5. On 01.08.66, the Central Government acting through the Settlement Commissioner passed an order in terms of Section 16 of the 1950 Act. The relevant portion of that order reads as follows: -
AND WHEREAS the Central Government is 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 20A 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 sq. 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 and Ex-Offi:
under Secretary to the Govt. of India.
Later, on 4th October, 1971 in separation of 1966 order apparently in view of the declaration of law by the Supreme Court, the Central 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 respect 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) Dy. Secretary to the Government of India.
As is evident from reading of both the orders, the intention of the Central Government was to restore the properties subject to the conditions spelt out in that regard.
6. Chand Khan apparently sought for restoration of possession of the properties and the Assistant Custodian passed order on 2nd February 1972 issuing notices to occupants to the other properties, which had been restored to him. Those occupants claimed that in the absence of any lawful authority, the direction to evict them was illegal. They approached this Court by filing WP(C) 123/1972.
7. Chand Khan and the respondents defended those proceedings claiming that the restoration orders authorized issuance of a direction to grant possession. This Court, in1982 speaking through Avadh Behari Rohtagi, J. quashed the eviction order dated 2nd February 1972, leaving it open to the respondents to pursue their remedies as per law, for securing vacant possession. Chand Khan died during the course of that litigation in 1979.
8. The legal heirs of Chand Khan including the petitioner in these proceedings carried the judgment of Rohtagi J. in appeal; the fate of the appeal is however not clear as none of the parties have adverted to it in the course of the pleading or submission. That litigation has only a limited bearing on these proceedings.
9. The petitioner claims that by virtue of a will, Chand Khan bequeathed the suit properties in his favor. He claims to be an illiterate person, unaware of his rights. He requested the Delhi Development Authority in 1992, to mutate the suit property in his favor. 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. It is alleged that the petitioner became aware of the conveyance for the first time in 1992. The petitioner founds his claim for restoration of the said property upon Section 16. He alleges that prior to 1969, Section 20A of the Displaced Persons (Compensation and Rehabilitation Act, 1954 had provided for payment of compensation in lieu of evacuee property. The Supreme Court had struck down that provision in the judgment reported as Lachhman Dass v. Municipality of Jalalabad, . It is claimed that there is no provision for determining of compensation of an evacuee whose property was wrongly sold.
10. The petitioner has premised his claim on the footing that the action of the Central Government (in recognizing Chand Khans 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 were therefore illegal. It is alleged that the respondents are duty bound to give complete restitution and ensure that possession of the suit properties is made over to the petitioner who is the sole heir of Chand Khan in respect of those properties.
11. Smt. Kala Wati, the subsequent purchaser from Chhida Ram, died during the pendancy of these proceedings; her legal representatives were therefore imp leaded as parties. Their position is that of innocent purchasers without notice. They also alleged that the petitioner 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 alleged that the petitioner had filed a suit for declaration against his 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 petitioner. It is, therefore, alleged that the petitioner cannot claim equitable relief under Article 226 of the Constitution.
12. The first respondent, in its return has not disputed the basic facts leading to the order of 1971 under the 1950 Act. Its defense is that Chand Khan had to comply with two conditions imposed in the order before he could be restored with the suit property. It is also alleged that the petitioner cannot be granted relief since he has approached this Court after 12 years delay. In addition, the official respondents also state 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.
13. Mr. Pawanjit Singh Bindra appeared on behalf of the petitioner; Shri Sanjay Poddar represented the official respondents and Mr. C.P. Pandey appeared on behalf of the legal heirs of Smt. Kala Wati. During the course of hearing, the endeavor of all the counsel was to assist the Court, to arrive at a just resolution of the complex legal tangle, which had arisen. I would record my appreciation for the assistance of both Mr. Bindra and Mr. Poddar who had striven to suggest solutions, beyond the confines of their instructions.
14. The submissions on behalf of the petitioner briefly are that by virtue of Section 16 and the orders of 1966 and 1971, late Chand Khan became entitled to complete restoration/restitution of the properties, which he had been wrongly deprived of. It was submitted that denial of anything short of restoration or alternatively fair and reasonable compensation on account of the deprivation of the suit property, would be arbitrary.
15. Learned counsel submitted that while it may not be possible to fault the initial order vesting the suit property in favor of the custodian, on grounds of bonafide error, having regard to colossal problems which had occurred during the immediate aftermath of partition, nevertheless soon after Chand Khan emerged and reclaimed his rights, sometime in the year 1954 (as recorded by Rohtagi J. in his judgment), it was the duty of the official respondents to complete the inquiry as expeditiously as possible and ensure that justice was done. That was not how events unfolded; the inquiry dragged on for 7-8 years. A report was made in 1962. Even then, no effective order was passed and the respondents continued to sit over the application. In December 1963, a recommendation for issuing a final order was admittedly made. In spite of this, nothing transpired for another three years. On the face of these recorded events, the property was allowed to be auctioned; Chhida Ram purchased it in 1965 and he in turn sold it to Smt. Kala Wati. One year later, in 1966, the order under Section 16 was made; conditionally. That order had no meaning in view of an improper recital referring to Section 20A of the 1954 Act. It took another five years for the respondents to correct the order; eventually another, corrected order was issued in 1971.
16. Chand Khan, the original owner sought the fruits of the restoration order but that was not to be. The custodian had allotted the occupiers of the other properties the premises sometime in 1948. Chand Khan's attempts to get back those properties were futile and he died during the pendancy of proceedings initiated by such occupiers/ tenants.
17. Learned counsel for the petitioner submitted that the Union of India has not disputed the basic facts. The passing of the two orders in 1966 and 1971 are an express recognition of the late Chand Khan's rightful entitlement to the suit property. Hence, both in law and in equity, the petitioner a sole legal heir in respect of the suit property, is entitled to a restitutionary order either by way of direction to give possession of the property, or by way of a direction to allot an alternative plot. If either of the two reliefs is, for some reason, not feasible, the authorities are bound to grant compensation equivalent to the market value of the property. Learned counsel submitted that as per conservative estimates, the market value of such property could not be less than Rs. 32 lakhs as on date.
18. Mr. Poddar submitted that the petitioner has approached this Court highly belatedly. He stated that in such cases where the original claimant himself did not approach the Court within time, it would be unsafe under Article 226 to grant relief. It was submitted the doctrine of Laches would bar the remedy assuming the petitioner has a right.
19. Learned counsel for the respondents also submitted that in any event Chand Khan had not complied with the conditions indicated in the orders of 1966 and 1971. Therefore, the petitioner cannot claim a restitutionary order. He submitted that while there cannot be any dispute about the events which occurred in respect of taking over of the said property by the custodian, the subsequent application by Chand Khan, inquiries by the authorities, leading up to the restoration orders of 1966 and 1971, the Court cannot ignore the intervening events which led to creation of rights and equities in favor of other parties, who were admittedly without notice about the defect if any, in the title.
20. Learned counsel also submitted that even if the petitioner were considered to have some rights on the basis of available documents, the claim for direction to release compensation equal to market value ought not to be acceded to in the facts and attendant circumstance of the case.
21. It would be necessary to extract certain relevant provisions of the 1950 Act and Rules framed under the Act. Section 16 of the 1950 Act reads 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 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.
(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 prescribed manner, after causing an inquiry into the claim to be held in such manner as may be prescribed shall-
(a) if satisfied-
i) that the conditions prescribed by rules made in this behalf have been satisfied;
ii) that the evacuee property is the 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) of not so satisfied, reject the application provided that where the application is rejected on the ground that the evacuee property is not the property of the applicant, the rejection of the application shall not prejudice the righ 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 responsibility 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.
(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 income received and expenditure incurred in respect of the property.
22. Section 54 of 1950 Act reads as follows:-
Section 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.
23. Rule 37 of the Administration of Evacuee Property (Central Rules) framed by the Central Government under provisions of the 1950 Act provides for restitution. That 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 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 on the date of 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 fore as may be necessary for the purpose.
24. The factual matrix in this case, is as follows:-
(i) Chand Khan is the owner of half share of Khasra No. 591, 593 and 594 in Bhogal, Jungpura in the immediate aftermath of partition, he was missing.
(ii) On an assumption, Chand Khan had either migrated to Pakistan or had died during the riots, orders were issued vesting his properties under the 1950 Act. The custodian also allotted some of those properties (admittedly not the suit property) to tenants;
(iii) In 1954, Chand Khan's application for restoration of his properties was taken on record and investigations were ordered. The proceedings for verification of his claim for restoration were prolonged.
(iv) Two reports were made in 1962 and 1963 confirming the claims of Chand Khan and recommending an order to restore his properties. However no order was issued.
(v) In 1965, the suit property was sold to one Chhida Ram for Rs. 12500/-; he later sold it to Smt. Kala Wati.
(vi) On 1st August 1966, an order was issued under Section 16 of the 1950 Act restoring the properties of Chand Khan. There was however some error in this order which led to further proceedings before the authorities.
(vii) On 4th October 1971, the corrected order under Section 16 was issued.
(viii) Chand Khan's attempt to seek restoration of the other properties in the possession of tenants proved futile since this Court struck down the orders of 1972, passed by the custodian, in 1982.
(ix) Chand Khan died in the year 1979.
(x) The petitioner claims to be the sole legatee of Chand Khan, in respect of the suit property. He had filed a suit for injunction. Temporary injunction was declined in those proceedings.
(xi) In the course of the order of the Civil Court declining the temporary injunction, the stand of the other legal heirs has been recorded. Whilst denying the will, the other legal heirs have spoken of entitlement as per a family arrangement.
(xii) The family arrangement/settlement dated 16.08.79 recognizes the rights of the parties to various properties; the petitioner's right is a half share of the suit property has been acknowledged.
(xiii) The petitioner approached the DDA in 1992, on the basis of his claim, for mutation of the property in his favor. He was informed by letter-dated 01.12.92, that it had been sold to Chhida Ram who subsequently sold it to late Smt. Kala Wati.
25. The above factual analysis establishes that the authorities had slept over Chand Khan's application, moved in 1954 for restoration of his property. It took the official respondents more than 12 years to process and pass any effective order. In the interregnum, two reports were made, nevertheless, no action was taken. In a surrealistic move, when the final decision or formal order of restoration of properties was being processed, another arm of the Rehabilitation Ministry auctioned the suit property, oblivious to the findings that the alleged evacuee was in fact alive and there was a move to restore his properties. Neither the petitioner or the official respondents disputed that the auction purchaser Chhida Ram and Smt. Kala Wati, to whom the title passed were innocent purchasers without notice. Indeed, when they purchased the suit property, there was no defect in the title.
26. The official respondent again, completely oblivious to the intervening sale, passed the order on 01.08.66 restoring the property to Chand Khan. That order gave no clue as to what measures were to be taken by him to secure possession. Intriguingly it imposed conditions including one that he had to deposit amounts to the custodian for having managed properties. This condition is ex-facie untenable. The suit property was sold for valuable consideration; the other properties had been allotted to tenants. Hence, the respondent No. 1, in my opinion, could not have legitimately placed a condition of the kind recorded in the two orders. Although those conditions have not been directly attacked in these proceedings, I am of the opinion that in the totality of the circumstances, their non-compliance did not constitute an impediment to the restoration of title to Chand Khan.
27. The contention of the petitioner in my opinion, that issuance of the two orders in 1966 and 1971 expressly recognized the right title and interest of Chand Khan to the properties including the suit property is sound. 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. Both Section 16 of the 1950 Act, and Rule 37 of the Rules embody the restitutionary principle; the first respondent, indeed proceeded to issue the orders for restoration of the properties of Chand Khan, on the basis of its power under Section 16.
28. The indolence of the respondents in issuing an effective order of restoration led to an intervening auction by which innocent third parties purchased the suit property. Perhaps Chand Khan did not and certainly the petitioner cannot dispute that Smt. Kala Wati, the purchaser from the original bidder, was a buyer without notice. The approach of the Court in considering the appropriate restitutionary order would have to take within its fold this admitted circumstance. Another important factor, namely, Chand Khan's death and subsequent passage of time for about a decade or so before the initiation of the present proceedings, are two other relevant facts which have to be kept in mind, while granting appropriate reliefs.
29. It has been held in several decisions that Article 226 of the Constitution is not confined within the narrow bounds of traditional writ jurisdiction as was understood in England. It comprises a spectrum of reliefs including declaratory orders, directions to suit the peculiar needs of the individual case before the Court; it is particularly suited to address emerging issues. The Supreme Court has often remarked in its judgments that the expression appropriate proceedings is broad in its swathe and authorizes the Court to reach out to the injustice seen by it, and suitably mould the relief.
30. Restitutionary orders are essentially equitable in nature. The Court under Article 226 has ample powers to issue appropriate directions, while moulding the relief in ensuring that a party who suffered injustice is suitably restituted or placed in a position as nearly as possible, (having regard to the circumstances) to the fact-situation as existed before the wrong was committed. In Kavita Trehan v. Balsara Hygiene Products Ltd., , the Supreme Court held as follows:
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 and Jones, 4th Edn., page 3.] Halsburys 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.
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 DEscompte 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 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 and Co.
22. 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. Section 144 opens with the words: Where and insofar as a decree or an order is varied or reversed in any appeal, revision or other proceeding or is set aside or modified in any suit instituted for the purpose, .... The instant case may not strictly fall within the terms of Section 144; but the aggrieved party in such a case can appeal to the larger and general powers of restitution inherent in every court.
31. The need of the court to apply equitable principles has been recognized time and again by the Supreme Court, in varied and diverse situations. Equity steps in to soften the rigors of law. In Gurbax Singh v. Financial Commissioner, 1991 Supp (1) SCC 167 it was held as follows:
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 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. Aristotles 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.4 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.
The matter, was put into perspective, by Krishna Iyer, J, speaking for the Supreme Court, in his inimitable style, in Roshanlal Kuthalia v. Manmohan Singh Oberoi as follows:
to deny equitable jurisdiction for courts to promote justice is too late and too tall a jurisprudential proposition in any system. For, 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 may be stated thus:
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. (American Jurisprudence, 2d; Vol. 27, page 516) Certainly 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. After all, equity is the humanist weapon in the Courts armoury, whereby broad justice may be harmonised with harsh law
32. A circumstance, which the Court has to consider, undoubtedly is that the petitioner initiated proceedings in the year 1993. No doubt, Chand Khan made an effort to enforce his just rights, which led to the order of the custodian in February 1972 in respect of other properties. That embroiled him in another litigation. Even if pendency of that litigation were a circumstance to mitigate the petitioner's delay, explanation is lacking as to why no proceeding was initiated between 1983 and 1993. That the petitioner's claim to be the sole heir has not been established is one further factor, to be considered by this Court.
33. The Doctrine of delay and laches is a rule or principle evolved by the courts more as a matter of prudence and convenience than as an inflexible norm. The right-duties discourse leading to enunciation of clear cut entitlements, and remedies for their enforcement have generally placed time limits for aggrieved claimants to seek redressal of his legal wrongs. However in the realm of equity, as these proceedings would necessarily have to be viewed, the rule of laches has to be seen differently. It is ordinarily a rule of prudence that one who seeks equity must also approach the Court with reasonable promptitude and also with clean hands. If this rule were to be considered and applied, with some latitude, the petitioner ought to have approached the Court at least by 1984-85. No attempt has been made to explain further delay.
34. Coming next to the other circumstance, namely, the dispute regarding the petitioner's entitlement to be the sole legatee of Chand Khan in respect of the suit property, a careful reading of the two documents on record, namely, the order of the Civil Court refusing interim injunction, and the family settlement, reveals that whilst the other legal heirs do not dispute some rights of the petitioner and certainly not in respect of the suit property, they disputed the will. However, those legal heirs are unanimous in their reliance upon the family settlement, which speaks of the petitioner's right to a half share in the suit property.
35. In view of the above totality of circumstances, I am of the opinion that the petitioner's claim for restoration of the property, as stated, cannot be granted. Equally the claim in respect of a direction to pay compensation equivalent to current market value too would neither be appropriate nor equitable. Yet, the court should not in the facts of this case, deny relief, altogether, specially in view of the fact that the orders were issued in 1966 and 1971 in favor of Chand Khan, who battled the system for nearly three decades, and could not get back even his other properties. All these circumstances would have to be taken into consideration, and relief has to be moulded in the peculiar circumstances of this case. The most appropriate course therefore in my opinion would be to direct the respondent Nos. 2 to 4 to return the sum of Rs. 12500/- received from Chhedi Ram in 1965 with a further direction to pay interest on that amount at the following rates:-
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 (a) 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.
36. The above amounts shall be calculated and deposited in the Registry of this court, within a period of three months from today. In the event of default, the amounts shall carry compound interest of 10% per annum till the date of payment from the expiry of the said period of three months. The payments shall be released to the petitioner subject to his producing a succession certificate, establishing his entitlement, or in its absence, a no objection certificate/ indemnity from each of the other heirs of the late Chand Khan, to the satisfaction of the Registrar. Till that time, the amounts deposited in court shall be kept in interest bearing securities, which shall be renewed from time to time. Rule made absolute to the extent indicated above. No costs.