Delhi High Court

Union Of India & Ors vs Aurangzeb Choudhary & Anr on 19 September, 2014

*       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.

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

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.

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.

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

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;

(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;

(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.

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