*The Hon’ble Sri Justice V.V.S.RAO +Writ Petition No.11885 of 2005 %19.12.2008 £ M/s. Shri Ram Transport Finance Company Ltd. …Petitioner Vs. $ The Commissioner Prohibition & Excise, Hyderabad, and others. … Respondents !For the petitioner …Sri B.Vijaysen Reddy ^For the Respondents … GP for Prohibition & Excise <Gist: >Head Notes: ? Cases Referred 1. AIR 1930 MADRAS 988 2. AIR1922 PC269= 69 IC 278=49 IA 351=2 Pat.10 (PC) 3. (1918) 48 IC 7 4. AIR 1993 AP 292 5. AIR 1973 AP 27 6. 1966(2) An.WR 144 7. (1994) 5 SCC 380 8. 2006 (5) ALD 606 = 2006 (5) ALT 264 9. (2003) 8 SCC 648 : AIR 2003 SC 4482 10.1995 Supp (1) SCC 642 11.(2004) 2 SCC 783 : AIR 2004 SC 2915 IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE NINETEENTH DAY OF DECEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE V.V.S.RAO WRIT PETITION No.11885 of 2005 Between: M/s. Shri Ram Transport Finance Company Ltd., A Company regd under the companies Act, 1956, Havings its registered office at Chennai, rep. by its Branch Manager, Mr. G. Chandrashekhar, S/o. G. Seshapani, Aged 33 Years, Pvt Service, Having its Branch Offict at Trunk Road, Nellore. ..... PETITIONER AND 1 The Commissioner Prohibition & Excise, Hyderabad. 2 The Deputy Commissioner Prohibition & Excise, Guntur. 3 The Govt of A.P. through Secretary, Prohibition & Excise, Secretariat, Hyderabad. 4 The Karuru Vysys Bank, rep. by its Branch Manager, Brindavan, Nellore. .....RESPONDENS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Issue a writ of Mandamus or any other appropriate writ or writs or direction/s in not releasing the bank guarantee vide B.G. No.5/99 by the respondents No.1 & 2 authorities pursuant to the application dt.11.04.2005 made by the petitioner is illegal, arbitrary and unconstitutional and be pleased to pass such other order/s as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: MR.B.VIJAYSEN REDDY Counsel for the Respondents 1 to 3: GP FOR PROHIBITION & EXCISE Counsel for the Respondent No.4: NONE APPEARED The Court made the following: THE HON’BLE SRI JUSTICE V.V.S.RAO WRIT PETITION No.11885 of 2005 ORDER: An interesting question of importance arises in the writ petition. Whether the owner who obtained release of confiscable motor vehicle allegedly involved in the commission of an offence under Section 13(2) of Andhra Pradesh Prohibition Act, 1995 (Prohibition Act, for brevity) is obliged to honour the Bank Guarantee (BG), (furnished as per the orders of the Court) after lapse of some time when for obvious reasons value of vehicle seized and confiscated as per law depreciates to a lesser value than BG amount? M/s.Sriram Transport Finance Company Limited having its registered office at Chennai in Tamil Nadu, advanced loan to one Ch.Sarada (hirer, for brevity) for purchase of TATA Goods Vehicle bearing No.AP 26 T 2039 under an agreement, dated 05.06.1996. During subsistency of such agreement, vehicle was seized on 28.07.1996 by the Excise Officials for involvement in a commission of offence under Prohibition Act. The lorry was found carrying 360 full bottles of Indian made liquor. Second respondent initiated proceedings for confiscation of lorry under Section 13(2) of the Prohibition Act. The hirer moved an application before second respondent for release of vehicle, which was rejected on 01.10.1996. The petitioner then moved writ petition before this Court being W.P.No.7163 of 1998. This Court disposed of the matter directing second respondent to release the vehicle to petitioner on furnishing BG for value of lorry on condition that it shall not be alienated and shall be produced as and when required. The value was assessed by Road Transport Authority, Nellore, at Rs.1,75,000/-. The petitioner furnished BG vide BG No.5 of 1999, and vehicle was handed over to petitioner on 24.08.1999. Second respondent issued show cause notice on 08.09.1999 for confiscation of the vehicle. The petitioner submitted explanation. The same was rejected and an order of confiscation was passed on 14.10.1999. The petitioner was also unsuccessful before first respondent in appeal under Section 13(c) of the Prohibition Act, which was dismissed on 06.03.2000. The petitioner through its Manager filed W.P. No.10884 of 2000. By way of interlocutory orders in W.P.M.P.No.17551 of 2000, dated 03.08.2000, the vehicle was directed to be released. The petitioner was again given possession of the vehicle on 22.12.2000 allegedly for the reason that the hirer did not pay the loan instalments as per the hire purchase agreement. Ultimately writ petition was dismissed on 16.04.2003. As vehicle was kept idle, the petitioner allegedly approached second respondent to surrender vehicle. He declined on the ground that the original RC Book was not available with petitioner. Petitioner obtained duplicate registration certification book from Motor Vehicle Authorities. The vehicle was produced before second respondent on 08.04.2005, which was taken into custody. After surrendering confiscable lorry, petitioner submitted application on 11.04.2005 to second respondent for release of BG. The same was not released by Excise officials on the ground that petitioner should pay Rs.1,75,000/- because the vehicle produced by petitioner does not fetch such amount. The Excise officials intended to auction the vehicle and adjust shortfall if any from out of the BG amount. Therefore, petitioner filed instant writ petition seeking a writ of Mandamus directing respondents to release BG No.5 of 1999. Deputy Commissioner of Prohibition and Excise, Guntur filed counter affidavit opposing writ petition. The non-release of BG is justified contending that when petitioner’s vehicle involved in excise offence is confiscated, the same cannot be released. The vehicle has to be auctioned and amount recovered has to be remitted to Government. As the vehicle was released in obedience to the Order of the High Court, on condition of petitioner furnishing BG for Rs.1,75,000/-, they are bound to handover the vehicle at its assessed value of Rs.1,75,000/-. By handing over the vehicle in depreciated value after lapse of six years there would not be compliance with the provisions of Section 13(2) of Prohibition Act. The vehicle returned by petitioner in deteriorated condition could fetch only Rs.75,000/- in public auction and therefore, auction was postponed. When the vehicle released was valued at Rs.1,75,000/-, the confiscation of the same value is justified. Learned Counsel for petitioner and learned Government Pleader for Excise made their submissions. The former contending that when the vehicle released to petitioner was surrendered to Deputy Commissioner, he cannot keep bang guarantee. Learned Government Pleader contends that when vehicle was released to petitioner, its value was assessed at Rs.1,25,000/- and petitioner is therefore bound to return money value of vehicle released and not a condemned vehicle. He invokes restitutionery jurisdiction of this Court placing reliance on relevant case-law to which a reference would be made at appropriate place. Two questions would arise for consideration: (1) What is purport of “confiscation” of goods/vehicles involved in commission of excise/prohibition offence and what is “confiscated”? Is it vehicle itself or money value of vehicle when vehicle is involved in commission of excise/prohibition offence? This forms first aspect of the question. The second question is whether in exercise of restitutionery jurisdiction of this Court, Department of Excise can be permitted to encash BG for Rs.1,25,000/- or recover shortfall after auctioning the vehicle? Restitutionery jurisdiction is inherent in every Court, be it a Court exercising jurisdiction in private law or public law. Section 144 of Code of Civil Procedure, 1908 (CPC), is not inconsistent with power exercised under Article 226 of Constitution of India and High Court of Andhra Pradesh Writ Proceeding Rules, 1977. But Section 144 is not exhaustive though it manifests the maxim ‘actus curiae neminem gravabit’. Simply put Section 144 of CPC enables the Court to order restitution when the appeal/revision Court varies or reverses the original Court’s decision. It applies only to one such situation and not to situations where a party derives benefit under an order of the Court in exercise of its incidental or supplemental powers to grant stay/ suspension/injunction and ultimately is unsuccessful after regular trial/hearing. There is abundant authority that there can be number of situations where the Court can exercise its inherent power under Section 151 of CPC to prevent miscarriage of justice by reason of its orders. Such power is to be exercised by civil Court in discharge of its duty, which is explained by the well known maxim ‘actus curiae neminem gravabit’. The power is exercised by civil Court to order restitution to ensure that no person – whether such person is party to the suit/application or not; gets undue advantage by its orders, and that no party is grossly prejudiced by its proceedings/orders. In Arunachalam v Pratapasimha Rajah[1], a Division Bench of Madras High Court considered this aspect of the matter and held as under. As to the technical argument that the order is erroneous because it purports to have been passed under S.144 and that that section will not apply because no decree has been varied or reversed, we are not satisfied that the principle of S.144 is confined exclusively to matters in execution. The Privy Council has in Jai Barham v Kedarnath Marwari[2] laid down that the power of restitution is inherent in the Court and should be exercised when necessary in order to do justice. This Court has so exercised that principle in a suit at a stage between preliminary decree and the final decree in a case, Cunnaiah Mudaly v Rangaswami Mudaly [3] . In Cheni Chenchaiah v Shaik Ali Saheb[4], the facts are as follows. The petitioner therein filed suit on the file of the Court of the District Munsif for permanent injunction. He also filed an interlocutory application for temporary injunction, which was dismissed. The plaintiff filed interlocutory application along with miscellaneous appeal and the appellate Court granted an order of injunction. Meanwhile defendants forcibly threw out belongings of the plaintiff and evicted him from suit premises. Defendants then filed Civil Revision Petition before this Court. The same was disposed of by this Court ordering status quo with a direction to the Sub Court to dispose of the C.M.A., itself. Lower Court allowed appeal. Therefore, the plaintiff filed an application under Section 144 read with 151 of CPC for restitution, which was dismissed by Lower Court. Aggrieved by which plaintiff filed C.R.P. A contention was raised before this Court that as plaintiff was not dispossessed by virtue of any order of Court, restitution cannot be claimed under Section 144 of CPC and that plaintiff should have recast a suit and not application under Section 144 of CPC. This Court rejected these contentions and ordered restitution to plaintiff as he was unauthorisedly evicted by defendants during pendency of the proceedings. It was observed as under. … … on a consideration of the decisions referred to above, it can be seen that in the absence of specific provision in the Code which deals with particular situation or unless there is any prohibition either express or implied, the Court is entitled to exercise its inherent powers under S.151 of Code of Civil Procedure. In this case, as I sated above, S.144 of CPC is not applicable to the facts of the case because possession was not taken by any order of the Court. There is no other provision, which applies to the facts of the case i.e., where the possession has been taken forcibly by a party during the pendency of the proceedings i.e. when the application is dismissed by the trial Court and before filing the appeal. In these circumstances, I agree with the contention of the learned Counsel for the petitioner that in such circumstances, the Court would be justified to do justice and put back the parties in the same position in which they were, but for the order of the trial Court by invoking the inherent jurisdiction. Therefore, I agree with the contention that the Court in exercise of its jurisdiction under Section 151 can grant restitution, even though Section 144 CPC may not strictly apply. That view of mine, as I have stated above, is supported by the two Division Bench decisions stated supra i n State Government v M.Jeevraj & Co.,[5] and P.Lingeswararao v Venkata subbarao[6]. (emphasis supplied) I n Kavita Trehan v Balsara Hygiene Products[7], Supreme Court considered restitutionery jurisdiction of the Courts. The appellant firm was clearing and forwarding agents of respondent. The principal terminated the agreement due to non-payment of large sums of commission amount. The appellant filed suit for declaration of the appellants’ lien to an extent of about Rs.16,00,000/- and obtained ex parte injunction directing the respondent not to interfere in the disposal of available stock. The appellant then sold away of stocks under the authority of Court’s interim order and recovered a sum of Rs.23,00,000/- when the goods were worth about Rs.32,00,000/-. The suit was later transferred to Delhi High Court by order of the Supreme Court. The learned single Judge of Delhi High Court dismissed the suit as hit by Section 69(2) of Indian Partnership Act, 1932. The learned single Judge also considered the question of restitution of goods to the respondent or their money value. On that question, the learned single Judge directed plaintiff to furnish security by way of an F.D.R., from a Nationalised Bank in the name of the Registrar of the Court. This was confirmed by Division Bench. Before the Supreme Court, it was urged that Section 144 of CPC did not apply as no transfer of possession of any property pursuant to any order of the Court had taken place. It was also contended that Section 151 of CPC cannot be invoked, as it cannot in itself be seen as a source of jurisdiction. The Supreme Court while observing that Section 144 of CPC incorporates only a part of the general law of restitution and not exhaustive, laid down as under. The jurisdiction to make restitution is inherent in every court and will be exercised whenever the justice of the case demands. … … … In the case before us the injunction granted by the learned Senior Sub-Judge, Chandigarh, was not merely negative in terms interdicting interference from the respondent with the custody of the goods by the appellants; it went much further and expressly enabled the appellants to sell the goods, Pursuant to this order, the appellants disturbed the status quo as on the date of the suit and sold away respondent's goods and converted them into money. The High Court while declining the prayer for payment of the sale proceeds to the respondent, however, sought to relegate the parties to the extent practicable, to the same position as obtained on the date of the suit. This the High Court did by directing furnishment of security to the extent of the value of the goods sold away under the cover of the interlocutory order. That an appeal filed against the said interlocutory order was withdrawn, does not, in our opinion make any difference. Upon dismissal of the suit, the interlocutory order stood set aside and that whatever was done to upset the status quo, was required to be undone to the extent possible. (emphasis supplied) In S.Prabhavathi v Rohini Kilaru[8], this Court laid down as below. A plain reading of Section 144 of CPC would show that the provision as it stood prior to CPC Amendment Act 66 of 1956, did not apply to the proceedings at interlocutory stage. When a decree is varied or reversed in appeal or revision, the Court, which passed the decree, can order restitution whenever an application is made by the party, who is entitled to any benefit by way of a restitution. By reason of the amendment, Section 144 of CPC was made applicable to a decree as well as an order. Section 2(2) of CPC defines “Decree” means the formal expression of an adjudication, which conclusively determines the right of the parties with regard to the matters in controversy in the suit. As per Section 2(14) of CPC, “Order” means the formal expression of any decision of the civil Court, which is not a decree. Therefore, an order necessarily refers to the formal expression of a decision by the court in incidental, supplemental and other interlocutory proceedings. Therefore, in the opinion of this Court, Section 144 of CPC is also applicable at interlocutory stage and restitution need not wait till the matters in the suit are conclusively determined by the Court. In South Eastern Coalfields Ltd v State of M.P.[9], appellant and other company held mining lease for coal under Mines and Minerals (Regulation and Development) Act, 1957 (MMRD Act). Section 9(3) thereof, empowers Central Government to enhance or reduce rate of royalty. In exercise thereof, Union of India enhanced royalty from Rs.60.50 per ton to Rs.120/- per ton. When State Government initiated steps for recovering enhanced royalty, coal companies also enhanced rate of coal supplied to consumers. A batch of writ petitions was filed by consumers in High Court of Madhya Pradesh. Coal companies did not challenge enhancement but were impleaded as respondents in petitions filed by consumers. In all the writ petitions, High Court passed interlocutory orders directing respondents not to charge royalty on coal from the petitioners at enhanced rates but charge only old rate until further orders. As ordered by High Court, consumers had furnished BGs for payment of differential amount of royalty in the event of their liability being upheld by High Court. Subsequently High Court quashed notification enhancing rate of royalty though vires of Section 9(3) was upheld. Appeals filed by State of Madhya Pradesh as well as coal companies were allowed by Supreme Court vide State of Madhya Pradesh v Mahalakshmi Fabric Mills Limited[10]. The coal companies then issued notices demanding payment of differential amount of royalty enhanced and BGs were realized. At that stage, Director of Mines and Geology issued notices to coal companies demanding interest at 24% per annum for the period for which royalty payment was delayed. In turn coal companies raised demand on their consumers. Again a batch of writ petitions was filed. These were partly allowed directing interest at 12% per annum shall be paid within one month observing that interest at 24% per annum is paid if there was default. Aggrieved by the same, State of Madhya Pradesh as well as consumers preferred appeals before Supreme Court. A question was raised as to whether consumers/purchasers are liable to pay interest to coal companies. It was contended that non-payment of enhanced amount of royalty was protected by interim judicial orders and therefore they are not liable to pay interest so long as money was withheld under protective umbrella of Court order. Supreme Court rejected submission and observed as under. In our opinion, the principle of restitution takes care of this submission. The word 'restitution' in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the Court or in direct consequence of a decree or order (See Zafar Khan and Ors. v. Board of Revenue, U. P. and Ors. AIR 1985 SC 39). In law, the term 'restitution' is used in three senses: (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; (iii) compensation or reparation for the loss caused to another. (See Black's Law Dictionary, Seventh Edition, P. 1315). … … The interim order passed by the Court merges into a final decision. The validity of an interim order, passed in favour of a party, stands reversed in the event of final decision going against the party successful at the interim stage. Unless otherwise ordered by the Court, the successful party at the end would be justified with all expediency in demanding compensation and being placed in the same situation in which it would have been if the interim order would not have been passed against it. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost; and it is the duty of the court to do so unless it feels that in the facts and on the circumstances of the case, the restitution would far from meeting the ends of justice, would rather defeat the same. Undoing the effect of an interim order by resorting to principles of restitution is an obligation of the party, who has gained by the interim order of the Court, so as to wipe out the effect of the interim order passed which, in view of the reasoning adopted by the Court at the stage of final decision, the Court earlier would not or ought not to have passed. There is nothing wrong in an effort being made to restore the parties to the same position in which they would have been if the interim order would not have existed. In Karnataka Rare Earth v Senior Geologist, Dept. of Mines & Geology[11], Supreme Court followed South Eastern Coal Fields (supra) and reiterated scope of restitutionery jurisdiction as follows. When on account of an act of the party, persuading the Court to pass an order which at the end is held as not sustainable, has resulted in one party gaining advantage which it would not have otherwise earned, or the other party has suffered an impoverishment which it would not have suffered but for the order of the Court and the act of such party, then the successful party finally held entitled to a relief; assessable in terms of money at the end of the litigation, is entitled to be compensated in the same manner in which the parties would have been if the interim order of the Court would not have been passed. The successful party can demand (a) the delivery of benefit earned by the opposite party under the interim order of the Court, or (b) to make restitution for what it has lost. (emphasis supplied) Restitutionery law has many branches. When restitutionery claims are to be found in equity as well as in law in many situations in many areas, an attempt to trace power of restitution only to Section 144 of CPC is to ignore inherent power of the Court to do complete justice between parties. This power can be exercised even in interlocutory matters. When the party to the proceedings in the guise of an ex parte order gets an undue advantage to which he was not entitled to when the case was not decided, it is the duty of the Court to place parties in the position which they would have occupied but for the order of the Court. Therefore it shall become the duty of the Court to exercise restitutionery jurisdiction to (i) restore status quo ante or the date of initiation of proceedings in the Court; (ii) prevent any party to the suit to have undue advantage of Court proceedings even causes are dismissed; (iii) undo whatever is done by interlocutory intervention of Court in favour or against party. This is in addition to explicit power contained in Section 144 CPC to restore position when the decision of original Court is reversed by appellate/revisional Court. Though power of restitution is inherent in civil Court as held by Supreme Court, restitution in obedience to the decision of appellate/revisional Court is altogether different from restitution ordered by original Court when cause is dismissed against a person, who at interlocutory stage obtains some advantage. The term “confiscation” is not defined in A.P.Excise Act, 1968/Prohibition Act. The verb “confiscate” is derived from Latin “con” with, and “fiscus”, the basket or hamper, in which the Empoeror’s treasure was formerly kept. The meaning of the word “confiscate” is to transfer property from private to public use, or to forfeit property to