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TMI Blog2018 (4) TMI 1820X X X X Extracts X X X X X X X X Extracts X X X X ..... axmi Devi Tile Works v. District Collector, Thrissur (2009 (2) KLT 587 and Sibi Francis v. State of Kerala (2013 (2) KLT SN 82). 2. We notice that the learned Single Judge also proceeded to deal with the writ petition as if the only issue involved is as regards the re-conveyance of a bought-in-land and going by the settled principles of law, as enunciated in the above said judgments, went on to conclude in paragraph 7 as under: "Taking into consideration the aforesaid factual situation, there cannot be any situation where permission should be granted to re-convey the land merely for the reason that the amount has been subsequently remitted by the petitioner under the Amnesty Scheme. Hence I do not find any merit in the writ petition." 3. In this appeal filed impugning the judgment of the learned Single Judge, a completely different question of law has been impelled based on the particular factual situation in this case. When we heard the matter, it became more or less apparent that the singular factual circumstances in this case would warrant consideration of issues relating to restitution of property rather than re-conveyance of the bought-in-land by the Government. 4. This w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. This bid was confirmed in favour of the Government by the Revenue Divisional Officer, Palakkad by order 26.11.2007, a copy of which has been produced as Exhibit P2 in the writ petition. 9. While matters stood so, nearly a year after Exhibit P2 confirmation was made, the learned Tribunal allowed the appeals, namely T.A. Nos. 501/2006 and 502/2006, pending before it by order dated 06.11.2008, a copy of which has been appended to the writ petition as Exhibit P1. The appellant says that as per this order of the learned Tribunal, the assessment orders had been set aside and remitted to the Assessing Officer for appropriate modification and consequential orders. He continues to assert that the assessment orders for the years 1995-96 and 1996-97 were accordingly modified by the Assessing Officer to a much lower amount and that he was allowed to pay the amounts covered by the modified assessment orders under the then available Amnesty Scheme, thus consequently causing the revenue recovery requisition against him to be withdrawn. 10. After the revenue recovery requisition was thus withdrawn, the appellant approached the District Collector, Palakkad with a representation dated 09.02.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already noticed above, which were also duly taken note of by the learned Single Judge. 15. However, the factual situation in this case travels on a completely different trajectory. What is relevant here is not whether the appellant is entitled to re-conveyance of the bought-in-land but whether the sale of his property in favour of the Government and treating it as a bought-in-land, as done through Exhibit P2 order, itself is valid or otherwise. 16. As has been contended by the learned Senior Counsel, even though at the time when the auction was conducted, the requisition against the appellant for an amount of Rs. 64,74,883/- was valid because of a concluded assessment, by Exhibit P1 order of the learned Tribunal this assessment itself was virtually obliterated. The learned Tribunal, in Exhibit P1, has found the assessment to be contrary to law and has set aside several heads included in it is as being untenable and gave liberty to the Assessing Officer to conduct a further enquiry and pass a modified assessment. In effect, once Exhibit P1 order had been issued by the learned Tribunal, the very basis of the revenue recovery requisition and action stood effaced and the foundat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that, on account of the findings in Exhibit P1 order of the learned Tribunal, the order of assessment, based on which the sale was conducted, had been revised and that the demand therein stood attenuated to a much lower figure. The further assertion of the appellant that a modified assessment was made by the Assessing Authority pursuant to Exhibit P1 order and that the appellant was allowed to pay all such amounts under an Amnesty Scheme is explicitly conceded. It is also accepted that the revenue recovery requisition was thereafter withdrawn. The only contra contention taken by them in the counter affidavit is that notwithstanding this, once the sale had been confirmed and approved in favour of the Government and the property treated as a bought-in-land, the law would not permit reconveyance of the same, even if the amounts in arrears, had been paid by the appellant subsequently. 21. We are certain, as we have already indicated more than once before, that the real issue is not with respect to the bought-in-land but whether the State is competent to hold on the land as bought-in-land when the very foundation of the sale had been taken away on account of Exhibit P1 order of the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ale. The sale itself being subject to confirmation by the Tax Recovery Officer, would fall to the ground for want of confirmation." 23. The above view of the Hon'ble Supreme Court, in our view, applies in all four to the factual circumstances in this case. This is because as is indubitable from the sequence of events involved herein the sale was conducted pursuant to an assessment order and when that assessment order stood set aside through Exhibit P1 order of the learned Tribunal, the basis of the sale itself stood extirpated and therefore, that the sale became untenable in law. Obviously, when the basis of the action itself was eroded, we are certain that the State could not have held on to the property contending that there is no legal provision for re-conveyance of bought-in-land. This is why we are certain in our mind that what is required by the State is not really re-conveyance of the bought-in-land but restitution or return of the land to its original owner, the appellant herein, once the assessment order was set aside. 24. The obligation of the courts to order restitution in such cases have been spoken to by the Hon'ble Supreme Court in several judgments before. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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. 27. Section 144 CPC is not the fountain source of restitution, it is rather a statutory recognition of a preexisting rule of justice, equity and fair play. That is why ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re complete justice between the parties. 27. The power of restitution of this Court is edificed on the acme principles of justice, equity and fair play and wherever it becomes necessary, this Court would not refrain from passing orders to ensure that litigants, who are illegally and unfairly divested of their properties, are restituted appropriately so that the allegation of unjust enrichment is not perpetrated. We are guided in our view in this area by the judgment of the Hon'ble Supreme Court in Indian Council for Enviro-Legal action v. Union of India and Others (2011) 8 SCC 161), wherein, the Hon'ble Court has emphatically declared that unjust enrichment occurs when one retains money or benefits which, in justice and equity, belongs to another. Their Lordships thereafter considered whether restitution is a necessary concomitant to set right such enrichment and answered it to the affirmative. The view of the Hon'ble Court, contained in paragraphs 159 to 161, in our view, needs careful reading and therefore, the same is extracted as under: "159. Unjust enrichment is basic to the subject of restitution, and is indeed approached as a fundamental principle thereof. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State to hold on to the property as bought-in-land and since they are refusing to return it, it would be enjoined on us, while acting under writ jurisdiction, to ensure restitution in favour of the appellant so as to obtain to him complete justice and equity. 29. This is more so because, when we pointedly asked the learned Government Pleader whether the value of the land was taken into account while the appellant was offered an opportunity to pay off the tax amounts assessed subsequent to the sale through the Amnesty Scheme, the learned Government answered in the negative and confirmed that the value of the land was not taken into account and that the appellant had paid all the liability under the Amnesty Scheme without the value of the property being set off against it. In such view of the matter, we allow this appeal vacating the judgment of the learned Single Judge and direct the first respondent to issue orders immediately and take action to return the property covered by Exhibit P2 order of the Revenue Divisional Officer to the appellant, after cancelling the sale and the orders of confirmation. This shall be done by the competent authority of the Government of Kerala a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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