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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 ..... uthorities in rejecting the request made by the appellant for return of his property, on the ground that the Act does not provide for such a course is completely unfair and improper. There was no justification for 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. 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. The first respondent is directed 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some care. 5. We will, therefore, first state the most necessary facts. 6. The appellant/writ petitioner claims to have been the owner of certain extents of land comprised of in Sy. Nos. 695/1, 561/2, 560/9 and 550/17 in Block 49 of Pattancherry Village. According to him, he was a rice and paddy dealer and concedes that he had suffered an assessment order issued by the Commercial Tax Officer under the General Sales Tax Act for the years 1995-96 and 1996-97 for an amount of ₹ 64,74,883/-. Since, as per him, the assessment was without basis, he filed statutory appeals against it, which were numbered as S.T.A. Nos. 1975/2005 and 1976/2005 before the Deputy Commissioner, Commercial Taxes, Ernakulam. The records reveal that these appeals were dismissed, aggrieved by which the appellant submitted further appeals, numbered as T.A. Nos. 501/2006 and 502/2006 before the Kerala Agricultural Income Tax and Sales Tax Appellate Tribunal, Additional Bench, Palakkad ('the Tribunal' for brevity). 7. It transpires that while the appeals were pending before the learned Tribunal, the Commercial Tax Officer, Chittur made a requisition under the provisions of the Act for recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xhibit P4 in the writ petition, wherein his request was to 'return' the land bid by the Government and treated as bought-in-land as per Exhibit P2 order. This representation was, however, rejected through Exhibit P5 order stating that as per the provisions of the Act and the judgments of this Court, it is not possible for the owner of a land to claim return or re-conveyance of the bought-in-land merely because he had been allowed to pay off the dues covered by the requisition subsequently under the Amnesty Scheme. 11. This prompted the appellant to issue a legal notice to the District Collector, with a copy marked to the State of Kerala represented by the Chief Secretary - the first respondent herein and on the allegation that no action was taken thereon by the first respondent, he filed the writ petition seeking the issuance of a writ of certiorari to quash Exhibit P5 order of the District Collector and also for a writ of mandamus directing respondents 1 and 2 to re-convey his property bid on behalf of the Government and treated as bought-in-land through Exhibit P2 order. 12. After noticing the factual situation as afore, the learned Single Judge, as we have already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Government and confirmed by Exhibit P2 had been ablated. The specific contention of the learned Senior Counsel is that once the substratum of the action which led to sale had been so eroded, the sale itself would become illegal and untenable and therefore, should be construed to be void. According to him, the view of the learned Single Judge in the circumstances afore narrated would, therefore, obtain no sustenance in law and he reiterates that the relevant issue in these proceedings is not whether the appellant is entitled to re-conveyance of the land but whether the sale itself is bad and hence the appellant entitled to restitution. 17. The learned Government Pleader appearing for the respondents tried to support the judgment of the learned Single Judge by relying on the indubitable principles of law, which we also affirm, that no re-conveyance of bought-in-land is possible even if the owner pays off all the dues subsequently. She adds that the position of the appellant in these proceedings is much more weak since this is not a case where he had subsequently paid all the arrears in full but that he had availed the benefit of an Amnesty Scheme to settle the liability. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the view that the maxim sublato fundamento cadit opus would apply in a case like this, since once the foundation itself is removed, the edifice of the action has to fall. 22. Our view as above is guided implicitly by the judgment of the Hon'ble Supreme Court in Mohan Wali v. Commissioner, Income-Tax, Varanasi and others (AIR 2001 SC 3906). In that judgment, the Hon'ble Supreme Court was considering an issue as to whether the Tax Recovery Officer, under the Income Tax Act, could have confirmed the sale of property conducted on the basis of an assessment order, after such assessment had been reduced or set aside in appeal. The Hon'ble Court in paragraph 9 of the said judgment concluded, without any cause for doubt, that it cannot be so and the observations and conclusions of their Lordships are as under: The term 'reduced' in sub-sec. (3) of S. 225 would include a case where the demand consequent upon an appeal or any proceedings under the Income-tax Act has been reduced to (nil) also. The Tax Recovery Officer is obliged to give effect to such reduction in demand and accordingly amend or cancel the certificate. The scheme of Part III of Second Schedule i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... astern Coalfields Ltd. v. State of M.P. and Others (2003) 8 SCC 648) the Hon'ble Court has in paragraphs 26 and 27 held as follows: 26. 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 v. Board of Revenue, U.P.). 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; and (iii) compensation or reparation for the loss caused to another (see Black's Law Dictionary, 7th Edn. p. 1315). The Law of Contracts by John D. Calamari Joseph M. Perillo has been quoted by Black to say that restitution is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done: Often, the result under either meaning of the term would be the same. Unjust impoveri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that even away from Section 144 the court has inherent jurisdiction to order restitution so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari Their Lordships of the Privy Council said: (AIR p. 271) It is the duty of the court under Section 144 of the Civil Procedure Code to 'place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed'. Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the court to act rightly and fairly according to the circumstances towards all parties involved. Cairns, L.C. said in Rodger v. Comptoir D' Escompte de Paris (ER p. 125) [O]ne 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 a whole, from the lowest court which entertains jurisdiction over the matter up to the highest court which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey 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. 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. 160. While the term restitution was considered by the Supreme Court in South Eastern Coalfields and other cases excerpted later, the term unjust enrichment came to be considered in Sahakari Khand Udyog Mandal Ltd. v. CCE Customs. This Court said (Sahakari Khand cases, SCC p. 748, para 31) 31. ... 'unjust enrichment' means retention of a benefit by a person that is unjust or inequitable. 'Unj ..... X X X X Extracts X X X X X X X X Extracts X X X X
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