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 2
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?”
RSA No.305 of 1987 3
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?”
RSA No.305 of 1987 4
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
RSA No.305 of 1987 5to 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.
RSA No.305 of 1987 6
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
RSA No.305 of 1987 7
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