IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.305 of 1987 (O&M) Date of decision: 04.11.2009 Chand Krishan Khosla -----Appellant Vs. State of Punjab & others. -----Respondents CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL Present:- Mr. Pradip Bhandari, Advocate for the appellant. Mr. Suvir Sehgal, Addl.A.G., Punjab for respondent No.1. --- ORDER: 1. This appeal has been preferred by the defendant against decree granted by the courts below for recovery of Rs.9170.19 with simple interest @ 8% from 1966 to 1979. 2. Case of the respondent/plaintiff, State of Punjab, was that land of the defendants was waste land. Under campaign to grow more food, the land was reclaimed by the Agricultural Department, by giving contract to a private company and paying the reclamation charges. After reclamation, the land was returned to the defendants and their share for reclamation charges was sought to be recovered from them in accordance RSA No.305 of 1987 with the statutory provisions but on account of technical reasons, recovery could not be made. The defendants derived benefit from the reclamation but declined to make the payment. They were liable to pay the said amount under Section 70 of the Indian Contract Act, 1872. 3. The defendants contested the suit, inter-alia, on the ground that the same was not maintainable on the ground of res judicata. This led to framing of a preliminary issue which was decided in favour of the plaintiff. Thereafter, following issues were framed:- “1. Whether Hari Kishan was the owner of the land described in para of the plaint? OPP. 2. Whether the suit land was declared culturable waste land as alleged in para 3 of the plaint? OPP. 3. Whether possession of the suit land was taken for purpose of reclamation as alleged in para 4 of the plaint? OPP. 4. Whether Collector, Patiala got the suit land reclaimed as alleged in para five of the plaint? OPP. 5. Whether a sum of Rs.13750/- were paid paid reclamation charges by the plaintiff alleged in para 7 of the plaintiff? OPP. 6. Whether Hari Kishan Khosla was served with a notice to take possession of the land as alleged after reclamation? If so, its effect? OPP. 7. Relief?” 2 RSA No.305 of 1987 4. Preliminary issues were decided in favour of the plaintiff by order dated 29.4.1981. Thereafter, other issues were decided in favour of the plaintiff. It was held that the plaintiff had spent the amount in question on reclamation, which was entitled to be recovered from the defendants. This view has been affirmed by the Appellate Court. 5. In the second appeal, learned counsel for the appellant has proposed to raise following substantial questions of law:- “1. Whether the judgment passed by the lower Court are justified in view of the facts that vide judgment Ex.D- 2 the recovery procedure has been held illegal? 2. Whether under Section 70 of the Contract Act claim can be recovered for an illegal Act? 3. Whether in view of the findings of judgment Ex.D-2 present suit for recovery is maintainable under the Indian Contract Act? 4. Whether the judgment delivered by the lower Courts is justified in view of the facts that recovery proceedings under the provision of Pepsu Land Reclamation Act were declared illegal vide judgment dated 30.8.1967 (Ex.D-2)? 5. Whether the Ld. Courts below were justified in interpreting the provision of the law as well as evidence led by the appellant?” 3 RSA No.305 of 1987 6. In order to go into the proposed questions 1, 3 and 4, it is necessary to first refer to order dated 29.04.1981 passed by the trial Court on the preliminary issue of res judicata. It was held that previous suit was for injunction which related to the proceedings under the Land Reclamation Act and thus, the question raised in the present suit of seeking recovery under Section 70 of the Contract Act was not heard and finally decided. The lower Appellate Court also dealt with this issue and held that even if on a technical point, proceedings under the Reclamation Act could not be taken, recovery under Section 70 of the Act was still permissible as held by the Hon’ble Supreme Court in Mulamchand v. State of M.P. AIR 1968 SC 1218 and judgment of this Court dated 7.3.1984 in R.F.A. No.333 of 1972 The State of Punjab v. Mohinder Singh etc. 7. Learned counsel for the appellant challenges the finding on the question of res judicata. 8. Learned counsel for the State submits that the same issue was examined by this Court in an unreported judgment dated 20.5.1983 in Civil Revision No.1911 of 1982 Joginder Singh v. The State of Punjab and plea of res judicata was rejected with the following observations:- “.....In the present suit, the State of Punjab has based its claim for the recovery of the amount spent on reclaiming the land of the petitioner under Section 70 of the Contract Act, whether the petitioner is liable 4 RSA No.305 of 1987 to pay the expenses incurred by the State on reclaiming his land under Sec.70 of the Contract Act, was not in issue in the previous suit. In pursuance of the declaratory decree obtained by the petitioner against the State of Punjab, the proceedings under the Pepsu Act for the recovery of the amount in dispute cannot be initiated. The declaratory decree obtained by the petitioner cannot debar the State of Punjab to claim the amount from the petitioner under Section 70 of the Contract Act. The trial Court therefore, rightly held that the present suit is not barred by the rule of resjudicata.” 9. Reference to the record of the earlier suit shows that the defendants in the present case had sought the injunction against recovery of costs of reclamation which had given rise to following issues:- “1. Whether the reclamation proceedings and apportionment of demand of Rs.9751 made by the Director of Agriculture against the plaintiff are illegal, ultra vires, null and void, unconstitutional, malafide and without authority of law for the reasons mentioned in (a) to (b) of para 5 of the plaint? OPP. 2. Whether the provisions of the Pepsu Reclamation of Land Act, 2009 and Rules made thereunder are illegal, ultra vires and unconstitutional for the reasons given in para 5(b) of the plaint? OPP. 3. Whether the suit for injunction is not maintainable for the reasons mentioned in para 1 of the preliminary objections? OPD. 5 RSA No.305 of 1987 4. Whether the jurisdiction of the civil court is barred under the provisions of the Land Reclamation Act and Land Revenue Act? OPD. 5. Whether the suit is time barred? OPD. 6. Relief.” 10. The earlier suit of the defendants was dismissed by the trial Court but was decreed by the lower Appellate Court vide judgment dated 30.8.1967 Ex.D-2. 11. After referring to the provisions of Pepsu Reclamation of Land Act, 2009, it was held that the notification sought had not been duly published in the official gazette and on that account, it was held that the proceedings were void and recovery under the provisions of the said Act could not be effected. 12. In Mulamchand (supra), the Hon’ble Supreme Curt held that Section 70 of the Act could be invoked by a party to avoid unjust enrichment to a party for whose benefit person seeking to recover the cost of the said benefit had acted. In Mohinder Singh (supra), this Court not only followed the judgment in Mulamchand (supra), in similar circumstances, but also held that decree invalidating the earlier proceedings will not be res judicata. 13. Since the matter is covered by earlier judgments of this Court in Mohinder Singh (supra) and Joginder Singh (supra), which view finds support from the judgment of the 6 RSA No.305 of 1987 Hon’ble Supreme Court in Mulamchand (supra), none of the proposed questions can be held to be substantial question of law. 14. Accordingly, the appeal is dismissed. November 04, 2009 (ADARSH KUMAR GOEL) ashwani JUDGE 7