Union Of India vs Qayyum Khan & Others
2009 Latest Caselaw 1301 Del

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:

measuring 422 square yards corresponding to plot No. 107 and Municipal No. 4934 and full

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:

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-

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