IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.3336 of 2010 Date of decision : 14.11.2011 Pyare Lal … Petitioner Versus Financial Commissioner, Haryana and others. …Respondents CORAM : HON’BLE MR.JUSTICE SATISH KUMAR MITTAL, HON’BLE MR.JUSTICE PARAMJEET SINGH Present: Mr.Amit Jain, Advocate for the petitioner. Mr. Ajay Kumar Gupta, Addl. A.G., Haryana for respondents No.1 to 4. Mr.Amandeep Hooda, Advocate for respondent no.5. Paramjeet Singh, J. The instant writ petition has been filed under Articles 226/227 of the Constitution of India for quashing of order dated 06.03.2006 (Annexure P/7) passed by the Commissioner, whereby order dated 03.03.1999 (Annexure P/4) passed by the Assistant Collector First Grade, Hansi, under Section 13-A of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as the Act) , as applicable in the State of Haryana, has been set aside and the appeal of the respondent-Gram Panchayat has been allowed declaring respondent – Gram Panchayat of Village Sisiabola, Tehsil Hansi, District Hisar, as owner of land measuring 32 kanals and also for quashing of order dated 29.05.2007 (Annexure P/8) passed by the Financial Commissioner, whereby the revision petition of the petitioner has been dismissed. CWP No. 3336 of 2010 On 24.02.2010, after hearing the learned counsel for the petitioner, this Court passed the following order:- “Counsel for the petitioner submits that jamabandis Annexures P-1 and P-2 clearly record that the petitioner is in possession as a tenant on payment of 1/3rd batai. This fact alone entitles the petitioner to a declaration that he is a tenant of the Gram Panchayat. It is further argued that the findings recorded in proceedings under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 (hereinafter referred to as ‘the Act’), as applicable to the State of Haryana, that the petitioner is an unauthorized occupant, would not bind the authority exercising powers under Section 13-A of the Act, while considering a question of title with respect to or an interest, in panchayat land. It is further argued that the orders passed by the Commissioner and the Financial Commissioner imposing a penalty upon the petitioner are without jurisdiction, as Section 13-A of the Act, does not contain any provision empowering them to assess such a penalty. I have heard counsel for the petitioner, perused the orders passed by the Commissioner and the Financial Commissioner and find no reason to interfere, insofar as the rejection of petitioner’s plea that he is a tenant of the Gram Panchayat. Apart from the entry in the jamabandi, which remains unsubstantiated for want of any lease deed, patta nama, Kabuliatnama, rent receipt or any evidence of payment of rent to the Gram Panchayat, a similar plea raised by the petitioner in proceedings under Section 7 of the Act was rejected and affirmed upto the High Court by holding that the petitioner is an unauthorized occupant. The finding recorded in proceedings under Section 7 of the Act may not strictly operate as res judicata, but is a relevant circumstance while determining the rights of the parties. Admittedly, the 2 CWP No. 3336 of 2010 petitioner has been held to be an unauthorized occupant. As a consequence, the petitioner’s prayer to set aside the orders passed by the Commissioner and the Financial Commissioner, insofar as they relate to the plea of tenancy is rejected. The second argument that the Commissioner and the Financial Commissioner have no right to impose a penalty upon the petitioner in proceedings under Section 13-A of the Act, requires consideration in view of the absence of any such power in Section 13-A, of the Act. Notice of motion for 3.5.2010, limited to the aforementioned assertions. Notice re: stay as well.” In pursuance of the above mentioned order, respondents appeared and filed separate written statements. On 01.11.2011, when matter was taken up, learned counsel for the petitioner prayed for time to seek instructions to deliver the vacant possession of the land to the Gram Panchayat as main relief in writ petition has been declined and notice of motion is limited to penalty under Section 13-A of the Act. On that date following order was passed:- “Learned counsel for the petitioner seeks short adjournment to seek instructions to deliver the vacant possession of the land to the Gram Panchayat as his writ petition qua his ejectemnt has been dismissed. Adjourned to 14.11.2011. It is made clear that in case the petitioner fails to deliver the vacant possession of the land in dispute, the writ petition will be dismissed.” 3 CWP No. 3336 of 2010 On 14.11.2011, when the matter came up for hearing before this Bench, the learned counsel for the petitioner has stated that the petitioner is not ready to hand over vacant possession of the disputed land to the Gram Panchayat. We have heard learned counsel for the parties and perused the petition. The petitioner’s prayer for quashing the orders passed by the Commissioner and the Financial Commissioner has been dismissed qua main relief sought in the writ petition. However, the notice of motion has been issued restricting the right of the petitioner to the issue of imposing of penalty in proceedings under Section 13-A of the Act. The solitary contention of the learned counsel for the petitioner is that Section 13-A of the Act does not empower the authorities for imposing penalty for use and occupation. So, the impugned orders of the Commissioner and the Financial Commissioner are illegal, arbitrary and without jurisdiction. They are not sustainable in the eyes of law. It is true that there is no specific provision under the Act for imposing penalty for use and occupation. Section 13-A (2) of the Act is clear regarding the procedure for deciding the suits. It is mentioned that for such suits procedure shall be the same as provided in the Code of Civil Procedure, 1908 (hereinafter referred to as the C.P.C). In other words, the provisions of the C.P.C. have been made applicable in the suits under Section 13-A of the Act. The case has a chequered history. Briefly stating, on 12.07.1974, Gram Panchayat filed application under Section 7 of 4 CWP No. 3336 of 2010 the Act against the petitioner which was accepted. The appeal against order was dismissed on 14.07.1975. Then, the petitioner filed Civil Suit that, too, was dismissed on 06.04.1978. Gram Panchayat was put in possession vide Rapat Roznamcha dated 11.03.1980, again the petitioner came into possession. Second round of litigation started, the petitioner filed the suit under Section 13-A of the Act from which was allowed by the A.C. Ist Grade vide order dated 03.03.1999 (Annexure P/4). Gram Panchayat preferred appeal against the said order before the Collector. The Collector set aside the order of A.C. Ist Grade and allowed the appeal on 12.12.2000 (Annexure P/5). Against the order of the Collector, the petitioner filed CWP No. 3774 of 2001 whereby order of the Collector was quashed and case was remitted to the Commissioner. The Commissioner set aside the order dated 03.03.1999 and directed to recover the damages from the petitioner vide order dated 06.03.2006 (Annexure P/7). From that order, the present writ petition arise. In view of the peculiar facts of the case, the Commissioner rightly held that the petitioner is liable to pay damages to the Gram Panchayat for unauthorized use and occupation of the land from the date, the petitioner has been declared unauthorized occupant of the land by the Competent Court. The Commissioner had rightly directed that such damages would be assessed for all the crops on the basis of “Jhad Paidawar” crop-wise, value of which shall be paid by the petitioner along with interest @ 9% per annum calculated on bank basis till the date of payment. This is in the nature of damages/mense profits for 5 CWP No. 3336 of 2010 unauthorized use and occupation of land of Gram Panchayat by the petitioner. It is not penalty as is being argued by the learned counsel for the petitioner. The power to restitute by way of damages is inherent in the quasi judicial authorities / Courts. The Hon’ble Supreme Court in the case of Indian Council for Enviro-Legal Action vs. Union of India reported in 2011(8) SCC 161 has applied the principles of : Finality of judgment, Restitution and Compound interest, Unjust Enrichment. Some of important paragraphs from the judgment are as under:- “114. The maxim `interest Republicae ut sit finis litium' says that it is for the public good that there be an end of litigation after a long hierarchy of appeals. At some stage, it is necessary to put a quietus. It is rare that in an adversarial system, despite the judges of the highest court doing their best, one or more parties may remain unsatisfied with the most correct decision. Opening door for a further appeal could be opening a flood gate which will cause more wrongs in the society at large at the cost of rights. 169. Unjust enrichment has been defined as: "A benefit obtained from another, not intended as a gift and not legally justifiable, for which the beneficiary must make restitution or recompense." See Black's Law 6 CWP No. 3336 of 2010 Dictionary, Eighth Edition (Bryan A. Garner) at page 1573. 170. A claim for unjust enrichment arises where there has been an "unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." 171. `Unjust enrichment' has been defined by the court as the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 172. Unjust enrichment is "the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience." A defendant may be liable "even when the defendant retaining the benefit is not a wrongdoer" and "even though he may have received [it] honestly 7 CWP No. 3336 of 2010 in the first instance." (Schock v. Nash, 732 A.2d 217, 232-33 (Delaware. 1999). USA) 173. Unjust enrichment occurs when the defendant wrongfully secures a benefit or passively receives a benefit which would be unconscionable to retain. 177. American Jurisprudence 2d. Volume 66 Am Jur 2d defined Restitution as follows: "The word `restitution' was used in the earlier common law to denote the return or restoration of a specific thing or condition. In modern legal usage, its meaning has frequently been extended to include not only the restoration or giving back of something to its rightful owner, but also compensation, reimbursement, indemnification, or reparation for benefits derived from, or for loss or injury caused to, another. As a general principle, the obligation to do justice rests upon all persons, natural and artificial; if one obtains the money or property of others without authority, the law, independently of express contract, will compel restitution or compensation." 178. While Section 3 (Unjust Enrichment) reads as under: "The phrase "unjust enrichment" is used in law to characterize the result or effect of a failure to make restitution of, or for, property or 8 CWP No. 3336 of 2010 benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor. It is a general principle, underlying various legal doctrines and remedies, that one person should not be permitted unjustly to enrich himself at the expense of another, but should be required to make restitution of or for property or benefits received, retained, or appropriated, where it is just and equitable that such restitution be made, and where such action involves no violation or frustration of law or opposition to public policy, either directly or indirectly." 179. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. They are usually linked together, and restitution is frequently based upon the theory of unjust enrichment. However, although unjust enrichment is often referred to or regarded as a ground for restitution, it is perhaps more accurate to regard it as a prerequisite, for usually there can be no restitution without unjust enrichment. It is defined as the unjust retention of a benefit to the loss of another or the retention of money or property of another against the fundamental principles of justice or equity and good conscience. 9 CWP No. 3336 of 2010 A person is enriched if he has received a benefit, and he is unjustly enriched if retention of the benefit would be unjust. Unjust enrichment of a person occurs when he has and retains money or benefits which in justice and equity belong to another. 223. The other aspect which has been dealt with in great details is to neutralize any unjust enrichment and undeserved gain made by the litigants. While adjudicating, the courts must keep the following principles in view. 1. It is the bounden duty and obligation of the court to neutralize any unjust enrichment and undeserved gain made by any party by invoking the jurisdiction of the court. 2. When a party applies and gets a stay or injunction from the court, it is always at the risk and responsibility of the party applying. An order of stay cannot be presumed to be conferment of additional right upon the litigating party. 3. Unscrupulous litigants be prevented from taking undue advantage by invoking jurisdiction of the Court. 4. A person in wrongful possession should not only be removed from that place as early as possible but be compelled to pay for wrongful use of that premises fine, penalty and costs. Any 10 CWP No. 3336 of 2010 leniency would seriously affect the credibility of the judicial system. 5. No litigant can derive benefit from the mere pendency of a case in a court of law. 6. A party cannot be allowed to take any benefit of his own wrongs. 7. Litigation should not be permitted to turn into a fruitful industry so that the unscrupulous litigants are encouraged to invoke the jurisdiction of the court. 8. The institution of litigation cannot be permitted to confer any advantage on a party by delayed action of courts.” The High Courts and Supreme Court of India have followed above principles in many cases. The point of alleged penalty under consideration, in a suit for title under Section 13-A of the Act, can be dealt with as per provisions of the C.P.C., as these have been made applicable under Section 13-A of the Act. So, the inherent powers of the Courts / quasi judicial authorities and the principles of justice and equity are sufficient to enable an order directing payment of damages and interest thereon as has been directed by the Commissioner in this case. The power to order such damage as part of restitution, cannot be disputed, otherwise, there can never be restitution. Unscrupulous litigants as is in the present case cannot drive benefit of technicalities of law by agitating the matter time and again. 11 CWP No. 3336 of 2010 In view of the law laid down by the Hon’ble Supreme Court and the peculiar facts and circumstances of this case that the property of the Gram Panchayat has been illegally occupied by the petitioner. In spite of number of rounds of litigation, the petitioner is not ready to vacate the possession, although he has lost legal battle in courts. We are not inclined to interfere in the findings recorded by the revenue authorities in writ jurisdiction. No merits. Dismissed. ( PARAMJEET SINGH ) JUDGE November 14, 2011 ( SATISH KUMAR MITTAL) vkd JUDGE 12