Mohinder Singh and Others vs Union of India

D.V. Sehgal, J.—This judgment will also dispose of Execution First Appeal Nos. 470, 471, 711 of 1986 as common questions of law and facts are involved therein.

All these Appeals are directed against the judgment dated 16th January, 1986 of the learned Additional District Judge, Gurdaspur, whereby he directed the Appellants in each of the appeals to refund the following amount shown against their name to the Union of India;

Appeal No.

Appellant Names

Amount

E. F. A. No. 470 of 1986.

Jagir Singh & others.

6,16,053.01

E. F. A. No. 471 of 1986.

Puran Singh & others.

19,87,776.12

E. F. A. No. 711 of 1986.

RaghuNath Singh & others.

24,97,440.34

E. F. A. No. 712 of 1986.

Mohinder Singh & others.

30,06,148.33

Each set of Appellants in the aforesaid four appeals have also been burdened with special costs of Rs. 10,000/- and costs of the restitution application. They have been further directed to pay interest at the rate of 24 per cent per annum from the date they got the amounts above-mentioned in pursuance of the order of the Court till the date they pay back the amounts in compliance with the orders under appeal.

The facts in brief are taken from Execution First Appeal No. 712 of 1986. In pursuance of notice No. 1475/MLRO/Reader dated 10th June, 1965 published in the Government Gazette dated 25th June, 1965 under the Requisitioning and Acquisition of Immoveable Property Act, 1952 (hereinafter referred to as the Act), the Special Land Acquisition Collector acquired land measuring 386 Kanals 11 Marias belonging to Mohinder Singh and other Appellants situated in the area of village Daulatpur. Land of various other land-owners in the same area was also acquired. In pursuance of the provisions of the Act Shri Manmohan Singh Ahluwalia, the then Senior Subordinate Judge, Gurdaspur, was appointed arbitrator for the purpose of determining the amount of compensation payable for the land acquired and the person to whom the compensation is so payable in relation to the said acquisition and to make his award. He made his award dated 28th May, 1977. He determined the market value of the land as under:

Nehri land

Rs. 2000/- per kanal.

BanjarJadid land

Rs. 1750/- per kanal.

Barani land

Rs. 1000/- per kanal.

BanjarQadim land

Rs. 500.00 per kanal.

GairMumkin land

Rs. 250.00 per kanal.

Besides making award for payment of compensation to the land-owners on the basis of the market value of the land so determined, he also directed payment of solatium to them at the rate of 15 per cent of the amount of compensation as also interest at the rate of 6 per cent per annum on the amount so assessed.

Out of the various land-owners whose land had been so acquired, only one land-owner, namely Hoshnak Singh felt aggrieved from the aforesaid award of the Arbitrator and filed F. A. O. No. 194 of 1977 in this Court. Union of India for which land had been acquired by the Special Land Acquisition Collector, filed appeals against the award respecting compensation payable to all the land-owners as it felt that the compensation awarded by the Arbitrator was excessive. In appeals by the Union of India cross objections No. 41-C-II and 42-C-II of 1982 in F. A. O. Nos. 240 and 241 of 1978 respectively and cross objection No. 31-C. II of 1982 in F.A.O. No. 268 of 1978 were filed by some landowners other than the Appellants herein. All the aforesaid appeals and cross objections were decided by I. S. Tiwana J. vide his judgment dated 6th April, 1983 passed in F. A. O. No. 194 of 1977. While the appeals of the Union of India were dismissed, the appeal of Hoshnak Singh land-owner and cross objections aforementioned by some other land-owners were accepted and the amount of compensation payable for the land acquired was enhanced to Rs. 250/- per marla. A direction was contained in the judgment to the effect that the compensation so enhanced was subject to the claim made by the land-owners in their memorandum of appeals and cross objections and the court fee paid thereon. The Union of India filed Letters Patent Appeals from the judgment of I. S. Tiwana, J. but all those appeals were dismissed by the Division Bench vide judgment dated 16th December, 1933 recorded in Letters Patent Appeal No. 1128 of 1983. Thus the enhancement of compensation ordered by the learned Single Judge was upheld

The Appellants herein, as already mentioned, neither filed any appeal against the award dated 28th May, 1977 made by the Arbitrator nor preferred any cross objections in the appeals filed by the Union of India in this Court wherein they were impleaded as Respondents. However, after the judgment of the learned Single Judge was confirmed by the Division Bench in Letters Patent Appeal the present Appellants filed an execution application styling themselves as decree-holders and impleaded the Union of India as judgment-debtor claiming that they were entitled to recover Rs. 30,06,143.52 on the basis of the enhanced rate of compensation i e. Rs. 250/- per marla allowed by the learned Single Judge of this Court and affirmed by the Division Bench in Letters Patent Appeal. Inadvertantly without verifying the fact whether the Appellants were, in fact, the decree-holders and were at all entitled to the enhanced amount of compensation claimed by them, the learned Additional District Judge issued notice to the Union of India in the execution application In response to the said notice, the Union of India through the Military Estate Officer, Pathankot, deposited the said amount and later on the statement made by one Shri B. L. Chhabra, S. D. O. Military Estate Officer, Pathankot, that he had no objection to the delivery of refund voucher in the amount of Rs. 30,06,148.52, to the Appellants, the payment of this amount was made to them. Later on it came to the notice of the Union of India that the aforesaid amount had been claimed In execution and received by the Appellants by fraud and misrepresentation, in that, they had not preferred any appeal in the High Court nor had filed cross objections in the appeals preferred by the Union of India against the award of the Arbitrator and were thus not the decree-holders. An application was made to the learned Additional District Judge by the Union of India for directing restitution of the amount of Rs. 30,06,148,52 from Mohinder Singh and other Appellants. Through the judgment under appeal, the learned Additional District Judge allowed this application and as already pointed out above, directed the Appellants to refund a sum of Rs. 30,06,148.32 to the Union of India alongwith interest at the rate of 24 per cent per annum from the date they got the amount in pursuance of the orders of his court till the date they pay back the amount in compliance with the judgment under appeal. They were also directed to pay the costs of the application and the counsel fee was assessed at Rs. 1000/-. Over and above this, the Appellants were burdened with special costs amounting to Rs. 10,000/-.

I have heard the learned Counsel for the parties. The first submission of the learned Counsel for the Appellants is that while issuing notice in the execution application filed by the Appellants and again while directing restitution of the amount the learned Addl. District Judge was not a court as defined in the Code of Civil Procedure. He further submits that no restitution could be ordered as the conditions laid down in Section 144 of the Code are not present and that the inherent powers of the Court u/s 151 of the Code could not be invoked for the purpose. He relied on Syed Ajaz Ali Khan and Others Vs. Mohammad Rafiq and Others, wherein it is inter alia held that the provisions of Sections 144 and 151 of the Code apply to Courts only and not to authorities or tribunals. In the absence of an expresss statutory provision, an authority or tribunal cannot order restitution ex debito justitiae. It is observed that the resulting situation may be unfortunate but if there is a lacuna, it would be for the Legislature to provide for the situation. He has also placed reliance on AIR 1941 128 (Privy Council) . He contends that under the Land Acquisition Act, 1894 as amended by Act No. 68 of 1984, Section 28-A lays down that were on a reference or an appeal by some of the land-owners the amount of compensation is enhanced, all the other persons interested in the land covered by the same notification u/s 4, Sub-section (1) by which land has been acquired, can make a claim to the Collector for payment of the compensation at such enhanced rate. His contention is that even if the procedure adopted for recovery of the enhanced amount by the Appellants is not in accordance with law, they are entitled u/s 28-A ibid to the said amount and no restitution can be ordered. In S. N. Banerji''s case (supra) it was observed that where the persons who have been dispossessed are found to be trespassers and the persons in subsequent possession are lawfully in possession by viritue of a valid lease in their favour, it is not necessary for the ends of justice that the trespassers should be restored to possession though they may succeed in a suit for possession

I have given my thoughtful consideration to the above submissions of the learned Counsel for the Appellants but I express my inability to agree with the same. The Appellants without doubt made a misrepresentation. They styled themselves as decree holders and sought execution of the judgment of this Court for the enhanced amount of compensation which had, in fact, not been passed in their favour. No doubt, by inadvertance the learned Additional District Judge issued notice to the Union of India but for the reason which remain unexplained the Union of India also hastened to deposit in court the amount claimed in execution and on statement made by its Officer that there was no objection to the payment of this amount to the Appellants, the court ordered the payment of the same to them The Appellants could not below hot and cold The learned Counsel for them has not been able to show any provision in the Act which empowers any authority to execute the decree of this Court to secure payment of enhanced amount of compensation to the land-owners. The process of such an execution could only be initiated in a court of law. Indubitably, therefore, when the learned Additional District Judge issued notice to the Union of India on the application of the Appellants he did so as a court within the meaning of the Code. The amount was deposited by the Union of India in the court and the same was ordered to be paid to the Appellants by the court. Therefore, the remedy for the wrong done to the Union of India in this regard could only be secured through the court and thus in ray view restitution application was rightly filed.

It is not disputed that the order of restitution passed by the learned Additional District Judge is not within the confine of Section 144 of the Code. He has, in fact, expressly invoked his inherent jurisdiction u/s 151 of the Code while passing this order A mistake of the court cannot be made to cause injury to any one. Injury thus made could be repaired by it.

In Jai Berham and Ors. v. Kedar Nath Marwari A. I. R. 1922 P. C. 260, it has been held that 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 whole from the lowest Court to the Highest Court which finally disposes of the case This principle has been followed by the Supreme Court in M/s Ram Chand and Sons Sugar Mills Private Limited, Barabanki (U. P.) v. Kanhayalal Bhargava A. I. R. 1966 S. C. 1199. It has been held that the inherent power of a Court is in addition to and complementary to the powers expressly conferred under the Code. It is by now well recognised that it is inherent in the general jurisdiction of the Court to act rightly and fairly according of the situation towards all parties involved. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. Jai Berham''s case (supra) is an authority for the proposition that where an application for restitution does not come strictly within the purview of Section 144 of the Code, the Court may entertain the application under the inherent powers conferred upon it by Section 151 of the Code. I, therefore, find no fault with the findings recorded by the learned Additional District Judge that he had inherent power to order restitution.

Now coming the to contention of the learned Counsel for the Appellants that on the principles of Section 28-A of the Act as introduced by Act No. 68 of 1984 the Appellants are entitled to the enhanced amount of compensation in respect of their land acquired notwithstanding the fact that they did not prefer an appeal against the award of the Arbitrator, all that need to be said is that whatever right in this regard is given to a land-owner u/s 28-A ibid is to be availed of by complying with the conditions laid down therein. The amount realised by the Appellants by naked misrepresentation cannot be retained by them on the excuse that if they resorted to remedy provided by law they would be entitled to enhanced amount of compensation. Thus in my view the support sought to be had from S. N. Banerji''s case (supra) is of no assistance to the learned Counsel.

It has been next contended on behalf of the Appellants that the learned Additional District Judge wrongly directed the Appellants to pay interest at the rate of 24 per cent per annum on the amount restitution of which was sought for the Union of India. He pointed out that, in fact, no claim for interest whatsoever has been made by the Union of India in its application for restitution. He further pointed out that imposition of costs and special costs of Rs. 10,000/- is also unwarranted. I am of the view that this contention of the learned Counsel is justified to some extent. It appears that the learned Additional District Judge having found that the process of his court had been abused thought it fit to impose exemplary penalty on the Appellants. He, however, lost sight of the fact that the concerned officers of the Union of India were equally responsible for wrongful payment made to the Appellants in pursuance of the execution application filed by them. It is, in fact, astonishing to note that the amount sought to be recovered by execution was promptly deposited on behalf of the Respondents without demur and, in fact, its officer Shri B. L. Chhabra made a statement before the learned Additional District Judge that the Union of India had no objection if payment of the amount is made to the Appellants. I am, therefore, of the the view that imposition of costs as well as special costs is not justified. At the same time interest at the rate of 24 per cent per annum which the Appellants have been directed to pay is also exhorbitant. On recovery of the amount if the Appellants as wise investors deposited the same in gilt-edged securities they could at the maximum secure interest at the rate of 12 per cent per annum on the amount so deposited. I, therefore, find it appropriate that instead of paying interest at the rate of 24 per cent per annnm as directed by the learned Additional District Judge, they should pay interest at the rate of 12 per cent per annum from the date of receipt of the amount in question under the order of the court till the date of its deposit in compliance with the judgment under appeal.

It bears mantion here that the learned Counsel for the Appellants brought to my notice that the applications on behalf of the Appellants filed by them for payments of 30 per cent solatium u/s 23(2) of the Act, the amount at the rate of 12 per cent per annum from the date of notification till the date of award of the Collector u/s 23(1-A) of the Act and enhanced amount, of interest at the rate of 9 per cent per annum for the first one year from the date of the award and at the rate of 15 per cent per annum for the subsequent period have been referred by a learned Single Judge of this Court to a Division Bench. He further pointed out that one of the land owners, who did not file any appeal or cross objections against the award dated 28th May, 1977 of the Arbitrator in this Court, has filed Civil Writ Petition No. 4726 of 1985 in this Court seeking enhancement of the amount of compensation. He contends that the Appellants would by likewise invoking the jurisdiction of this Court under Article 226 of the Constitution of India seeking enhancement of the amount of compensation on the basis of the principle contained in Section 28-A ibid. If a remedy for enhanced amount of compensation larger amount of solatium, interest etc., is available to the Appellants they may seek the same but by no stretch of reasoning can the recovery of the enhanced amount of compensation by them by filing execution application styling themselves as decree-holders and thus abusing the process of the Court be justified. Under the cover of any remady available to them they cannot be allowed to retain this excess amount recovered by them.

I, therefore, partly allow this appeal. The order of the learned Additional District Judge imposing costs of the restitution application and special costs of Rs. 10,000/- on the Appellants is set aside. The order directing payment of interest at the rate of 24 per cent per annum by the Appellants on the amount which they have been directed to deposit is modified, in that, the Appellants shall pay interest at the rate of 12 per cent per annum from the date the said amount was paid to them under the orders of the court till they pay back the amount to the Union of India. The order under appeal directing recovery of the amount of Rs. 30,06,148.52 from the Appellants is upheld. There shall be no order as to costs so far as this appeal is concerned.

Likewise in respect of E. F. A. Nos 470, 471 and 711 of 1986 the order of the learned Additional District Judge, directing the Appellants to pay back the amounts of Rs. 6,16,053.01, Rs. 19,87,776.12 and Rs. 24,97,440.34 respectively is upheld. They shall pay interest at the rate of 12 per cent instead of 24 oar cent per annum on the said amounts from the date of payment of the same to them under the orders of the court till they pay them back to the Union of India. The orders regarding payment of costs of the restitution application and special costs of Rs. 10,000/- contained in the judgments under appeal are, however, set aside. No. costs.