REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
I.A. NOS. 88960 OF 2020 & 47525 OF 2021
IN
CIVIL APPEAL NO. 10856 OF 2016
Bhupinder Singh
…Appellant(s)
Versus
Unitech Limited
…Respondent(s)/
Applicant (s)
ORDER
M.R. SHAH, J.
1. Present I.A. No. 88960 of 2020 has been preferred by the present management of Unitech Limited seeking following prayers/directions: -
(i) Direct M/s. Devas Global LLP to deposit the entire
sale consideration of Rs. 206.50 crores for 26.475 acres of land sought to be purchased by it in a time bound manner;
(ii) Direct M/s. Devas Global LLP to either purchase the
entire land, as committed, at the same rate or in the alternative provide suitable access to the balance land by taking only proportionate frontage of the land so that any other subsequent purchaser is also able to get adequate access to the land without any interference and Unitech is able to maximise its revenues from realization of assets;
(iii) Direct that M/s. Devas Global LLP shall not create
any third party rights on the entire land and if any rights have been created surreptitiously, then the same shall be kept in abeyance and no further
action be taken in furtherance of the same;
(iv) Direct M/s. Markwell Properties Pvt. Ltd. to pay an
amount of Rs 29,24,87,837/-, which was given as advance for the purchase of 36 acres of land out of which only 26 acres 19 guntas land was transferred, alongwith interest from March 2007 till its payment;
(v) Direct Col. Mohinder Singh Khaira and Naresh to
immediately return a sum of Rs. 83.40 crores and deposit the said amount in the Registry of this Hon'ble Court, which they have received in respect of sale of 12 acres 21 guntas (1st sale transaction) and 10 acres 3.5 guntas (2nd sale transaction) to Devas alongwith interest;
(vi) Direct Col. Mohinder Singh Khaira and Naresh to
provide all the requisite documents, including the
details of financial transactions in respect of 26 acres 19 guntas of land as mentioned above;
(vii) Direct legal action be taken against Col. Mohinder
Singh Khaira for forgery, cheating, fraud and criminal conspiracy for submission of Board Resolutions of the Company after its dissolution regarding his own authorization; and
(viii) Pass any such further order/s that this Hon’ble
Court deems fit in the facts and circumstances of the present case.”
2. The dispute with respect to the sale consideration in respect of 26 acres and 19 guntas of land (hereinafter referred to as “land in question”) owned by Unitech Limited in favour of M/s. Devas Global Services LLP located at Kadiganahalli Village, Bangalore, came to be confirmed in favour of M/s. Devas Global Services LLP pursuant to the earlier orders passed by this Court.
3. As per the case on behalf of Unitech Limited, Unitech Limited was the absolute owner of the land in question and therefore entitled to the entire sale consideration of Rs. 172.08 crores. It is the case on behalf of the Unitech Limited that despite the above and the fact that Unitech Limited was entitled to the entire sale consideration of Rs. 172.08 crores, the amount received to the account of Unitech, in Supreme Court Registry, out of the sale transaction is only Rs. 87.35 crores and the balance amount is ordered to be appropriated/paid to the respondents – Shri Naresh Kempanna (Rs. 56.11 crores) and Col. Mohinder Khaira (Rs. 41.96 crores), which, according to the Unitech, they were not entitled to. It is the case on behalf of the Unitech that true facts were not brought to the notice of Justice Dhingra committee and even before this Court and the aforesaid amount of Rs. 56.11 crores and Rs. 41.96 crores were ordered to be appropriated in favour of Shri Naresh Kempanna and Col. Mohinder Khaira respectively.
3.1 It is the case on behalf of Unitech Limited that as such none of the rights of the aforesaid two persons, who received any amount out of the total sale consideration of Rs. 172.08 crores were adjudicated upon by this Court and/or even by Justice Dhingra Committee. It is submitted that the aforesaid amount has been paid to Shri Naresh Kempanna and Col. Mohinder Khaira, pursuant to one MOU dated 02.01.2018. Therefore, it is the case on behalf of Unitech Limited that Unitech Limited being the absolute owner of the land in question and neither Col. Mohinder Khaira nor Shri Naresh Kempanna were having any title and/or ownership rights in the land in question. They were not entitled to any amount out of the total sale consideration/sale transaction with respect to the land in question. It is the case on behalf of the Unitech Limited that a fraud has been committed on behalf of the respective parties namely M/s. Devas Global Services LLP; Col. Mohinder Khaira and Shri Naresh Kempanna and the erstwhile Directors/Management of the Unitech Limited. It is the case on behalf of Unitech Limited that the actual sale consideration being paid to Unitech Limited is just about 50% of the total amount of sale consideration, which is to the detriment of the home buyers, fixed deposit holders, employees and other important stakeholders of the company. It is the case on behalf of the Unitech Limited that on what basis the amount is ordered to be appropriated in favour of Shri Naresh Kempanna and Col. Mohinder Khaira is neither known nor there are any reasons, which could justify the divergence of funds to Shri Naresh Kempanna and Col. Mohinder Khaira.
3.2 It is the case on behalf of Unitech Limited that if the true and correct facts would have been pointed out to this Hon’ble Court and/or the dispute with respect to the appropriation of the sale consideration would have been adjudicated upon by this Hon’ble Court and/or even by Justice Dhingra Committee, this Hon’ble Court might not have passed any order to pay any amount to the aforesaid two persons namely Shri Naresh Kempanna and Col. Mohinder Khaira out of the total sale consideration of Rs. 172.08 crores. Therefore, it is prayed to allow the prayers and issue the directions as prayed in the present application even by invoking the principle of restitution.
4. Shri N. Venkataraman, learned ASG appearing on behalf of the Management of the Unitech Limited has pointed out the number of facts and various transactions with respect to the land in question right from 2005 onwards to demonstrate and satisfy this Hon’ble Court that Unitech Limited was the absolute owner of the land in question and that neither Shri Naresh Kempanna nor Col. Mohinder Khaira were having any title and/or ownership rights in the land in question and therefore, were not entitled to any amount out of the sale consideration/sale transaction of the land in question.
5. Present application has been vehemently opposed by learned counsel appearing on behalf of the respective respondents - Shri Naresh Kempanna and Col. Mohinder Khaira. Number of submissions have been made on merits on behalf of the contesting respondents – in whose favour amount is already disbursed/paid pursuant to the earlier order(s) passed by this Court. Pursuant to the earlier order(s) passed by this Court, it appears that solely on the basis of the report submitted by Justice Dhingra Committee on the basis of one MOU dated 02.01.2018 and without adjudicating the rights of the respective parties, more particularly, the claims of Shri Naresh Kempanna and Col. Mohinder Khaira to receive the amount, amount of Rs. 98.07 crores has been paid to Shri Naresh Kempanna and Col. Mohinder Khaira (Rs. 56.11 crores paid to Shri Naresh Kempanna and Rs. 41.96 crores paid to Col. Mohinder Khaira). However, it is required to be noted that even the Justice Dhingra Committee submitted the report to pay the said amount to the aforesaid two persons without any adjudication of the claims of the Unitech, M/s Devas and aforesaid two persons, namely, Shri Naresh Kempanna and Col. Mohinder Khaira and just on the basis of MOU dated 02.01.2018, Justice Dhingra Committee submitted the report on the basis of which, this Court passed the order directing to pay amount of Rs. 56.11 crores to Shri Naresh Kempanna and Rs. 41.96 crores to Col. Mohinder Khaira out of sale proceeds of the land sold to M/s Devas Global LLP. Even there was no adjudication by this Court on the entitlement of the amount paid to Shri Naresh Kempanna and Col. Mohinder Khaira. There are serious disputes on the entitlement of the aforesaid amount already paid to Shri Naresh Kempanna and Col. Mohinder Khaira. Thus, there was an obvious error and/or mistake on the part of this Court in directing to pay Rs. 56.11 crores to Shri Naresh Kempanna and Rs. 41.96 crores to Col. Mohinder Khaira, which as such was without any adjudication of the claims of the aforesaid two persons. In that view of the matter, we are of the opinion that the mistake/error committed by this Court is to be corrected on the basis of the principle of restitution.
5.1 On the principle of restitution, the decision of Constitution Bench of this Court in the case of Indore Development Authority Vs. Manoharlal and Others (2020) 8 SCC 129 is required to be referred to. In paragraphs 335 to 339, it is observed and held as under: -
“335. The principle of restitution is founded on the ideal of doing complete justice at the end of litigation, and parties have to be placed in the same position but for the litigation and interim order, if any, passed in the matter. In South Eastern Coalfields Ltd. v. State of M.P. [South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648] , it was held that no party could take advantage of litigation. It has to disgorge the advantage gained due to delay in case lis is lost. 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 a final order going against the party successful at the interim stage. Section 144 of the Code of Civil Procedure is not the fountain source of restitution. It is rather a statutory recognition of the rule of justice, equity and fair play. The court has inherent jurisdiction to order restitution so as to do complete justice. This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it. In exercise of such power, the courts have applied the principle of restitution to myriad situations not falling within the terms of Section 144 CPC. What attracts applicability of restitution is not the act of the court being wrongful or mistake or an error committed by the court; the test is whether, on account of an act of the party persuading the court to pass an order held at the end as not sustainable, resulting in one party gaining an advantage which it would not have otherwise earned, or the other party having suffered an impoverishment, restitution has to be made. Litigation cannot be permitted to be a productive industry. Litigation cannot be reduced to gaming where there is an element of chance in every case. If the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order. This Court observed in South Eastern
Coalfields [South Eastern Coalfields Ltd. v. State of M.P., (2003) 8 SCC 648] thus : (SCC pp. 662-64, paras 26-28)
“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. [Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505] ). 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 the injury done:
‘Often, the result under either meaning
of the term would be the same. … Unjust
impoverishment, as well as unjust
enrichment, is a ground for restitution. If
the defendant is guilty of a non-tortious
misrepresentation, the measure of
recovery is not rigid but, as in other cases
of restitution, such factors as relative
fault, the agreed-upon risks, and the
fairness of alternative risk allocations not
agreed upon and not attributable to the
fault of either party need to be weighed.’
The principle of restitution has been statutorily recognised in Section 144 of the Code of Civil Procedure, 1908. Section 144 CPC speaks not only of a decree being varied, reversed, set aside or modified but also includes an order on a par
with a decree. The scope of the provision is wide enough so as to include therein almost all the kinds of variation, reversal, setting aside or modification of a decree or order. 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 a final decision going against the party successful at the interim stage. …
27. … This is also on the principle that a wrong order should not be perpetuated by keeping it alive and respecting it (A. Arunagiri Nadar v. S.P. Rathinasami [A. Arunagiri Nadar v. S.P. Rathinasami, 1970 SCC OnLine Mad 63] ). In the exercise of such inherent power, the courts have applied the principles of restitution to myriad situations not strictly falling within the terms of Section 144.
28. That no one shall suffer by an act of the court is not a rule confined to an erroneous act of the court; the “act of the court” embraces within its sweep all such acts as to which the court may form an opinion in any legal proceedings that the court would not have so acted had it been correctly apprised of the facts and the law. … the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that 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 by award of interest at a suitable reasonable rate for the period for which the interim order of the court withholding the release of money had remained in operation.”
(emphasis supplied)
336. In State of Gujarat v. Essar Oil Ltd. [State of Gujarat v. Essar Oil Ltd., (2012) 3 SCC 522], it was observed that the principle of restitution is a remedy against unjust enrichment or unjust benefit. The Court observed : (SCC p. 542, paras 61-62)
“61. The concept of restitution is virtually a common law principle, and it is a remedy against unjust enrichment or unjust benefit. The core of the concept lies in the conscience of the court, which prevents a party from retaining money or some benefit derived from another, which it has received by way of an erroneous decree of the court. Such remedy in English Law is generally different from a remedy in contract or in tort and falls within the third category of common law remedy, which is called quasi-contract or restitution.
62. If we analyse the concept of restitution, one thing emerges clearly that the obligation to restitute lies on the person or the authority that has received unjust enrichment or unjust benefit (see Halsbury's Laws of England, 4th Edn., Vol. 9, p. 434).”
337. In A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam [A. Shanmugam v. Ariya Kshatriya Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (2012) 6 SCC 430], it was stated that restitutionary jurisdiction is inherent in every court, to neutralise the advantage of litigation. A person on the right side of the law should not be deprived, on account of the effects of litigation; the wrongful gain of frivolous litigation has to be eliminated if the faith of people in the judiciary has to be sustained. The Court observed : (SCC pp. 451-55, para 37) “37. This Court, in another important case in Indian Council for Enviro-Legal Action v. Union of India [Indian Council for Enviro-Legal Action v. Union of India, (2011) 8 SCC 161] (of which one of us, Dr Bhandari, J. was the author of the judgment) had an occasion to deal with the concept of restitution. The relevant paragraphs of that judgment dealing with relevant judgments are reproduced hereunder : (SCC pp. 238-41 & 243, paras 171-76 & 183-84) ‘170. * * *
171. In Ram Krishna Verma v. State of
U.P. [Ram Krishna Verma v. State of U.P.,
(1992) 2 SCC 620] this Court observed as
under : (SCC p. 630, para 16)
“16. The 50 operators, including
the appellants/private operators,
have been running their stage
carriages by blatant abuse of the
process of the court by delaying the
hearing as directed in Jeewan Nath
Wahal
case [Jeewan
Nath
Wahal v. State of U.P., (2011) 12
SCC 769] and the High Court earlier
thereto. As a fact, on the expiry of
the initial period of the grant after
29-9-1959, they lost the right to
obtain renewal or to ply their
vehicles, as this Court declared the
scheme to be operative. However,
by sheer abuse of the process of
law, they are continuing to ply their
vehicles pending the hearing of the
objections. This Court in Grindlays
Bank Ltd. v. CIT [Grindlays Bank
Ltd. v. CIT, (1980) 2 SCC 191 :
1980 SCC (Tax) 230] held that the
High Court, while exercising its
power under Article 226, the interest
of justice requires that any
undeserved or unfair advantage
gained by a party invoking the
jurisdiction of the court must be
neutralised. It was further held that
the institution of the litigation by it
should not be permitted to confer an
unfair advantage on the party
responsible for it. In the light of that
law and in view of the power under
Article 142(1) of the Constitution
this Court, while exercising its
jurisdiction would do complete
justice and neutralise the unfair
advantage gained by the 50
operators including the appellants in
dragging the litigation to run the
stage carriages on the approved
route or area or portion thereof and
forfeited their right to hearing of the
objections filed by them to the draft
scheme dated 26-2-1959.”
172.
This
Court
in Kavita
Trehan v. Balsara Hygiene Products
Ltd. [Kavita Trehan v. Balsara Hygiene
Products Ltd., (1994) 5 SCC 380]
observed as under : (SCC p. 391, para
22)
“22. The jurisdiction to make
restitution is inherent in every court
and will be exercised whenever the
justice of the case demands. It will
be exercised under inherent
powers, where the case did not
strictly fall within the ambit of
Section 144. Section 144 opens
with the words:
‘144. Application
for
restitution.—(1) Where and
insofar as a decree or an order is
varied or reversed in any appeal,
revision or other proceeding or is
set aside or modified in any suit
instituted for the purpose,….’
The instant case may not strictly fall
within the terms of Section 144, but the
aggrieved party in such a case can
appeal to the larger and general powers
of restitution inherent in every court.”
173. This Court in Marshall Sons & Co.
(India)
Ltd. v. Sahi
Oretrans
(P)
Ltd. [Marshall Sons & Co. (India)
Ltd. v. Sahi Oretrans (P) Ltd., (1999) 2
SCC 325] observed as under : (SCC pp.
326-27, para 4)
“4. From the narration of the
facts, though it appears to us,
prima facie, that a decree in
favour of the appellant is not
being executed for some reason
or the other, we do not think it
proper at this stage to direct the
respondent to deliver the
possession to the appellant since
the suit filed by the respondent is
still pending. It is true that
proceedings are dragged on for
a long time on one count or the
other and, on occasion, become
highly technical accompanied by
unending prolixity at every stage,
providing a legal trap to the
unwary. Because of the delay,
unscrupulous parties to the
proceedings
take
undue
advantage, and the person who
is in wrongful possession draws
delight in delay in disposal of the
cases
by
taking
undue
advantage
of
procedural
complications. It is also a known
fact that after obtaining a decree
for possession of the immovable
property, its execution takes a
long time. In such a situation, for
protecting the interest of the
judgment-creditor, it is necessary
to pass appropriate orders so
that reasonable mesne profit
which may be equivalent to the
market rent is paid by a person
who is holding over the property.
In appropriate cases, the court
may appoint a Receiver and
direct the person who is holding
over the property to act as an
agent of the [Receiver with a
direction to deposit the royalty
amount fixed by the] Receiver or
pass such other order which may
meet the interest of justice. This
may prevent further injury to the
plaintiff in whose favour the
decree is passed and to protect
the property, including further
alienation.”
174. In Padmawati v. Harijan Sewak
Sangh [Padmawati v. Harijan
Sewak
Sangh, 2008 SCC OnLine Del 1202 :
(2008) 154 DLT 411] decided by the Delhi
High Court on 6-11-2008, the Court held
as under : (SCC Online Del para 6)
“6. The case at hand shows
that frivolous defences and
frivolous litigation is a calculated
venture involving no risks
situation. You have only to
engage professionals to prolong
the litigation so as to deprive the
rights of a person and enjoy the
fruits of illegalities. I consider that
in such cases where the court
finds that using the courts as a
tool, a litigant has perpetuated
illegalities or has perpetuated an
illegal possession, the court must
impose costs on such litigants
which should be equal to the
benefits derived by the litigant
and harm and deprivation
suffered by the rightful person so
as to check the frivolous litigation
and prevent the people from
reaping a rich harvest of illegal
acts through the courts. One of
the aims of every judicial system
has to be to discourage unjust
enrichment using courts as a
tool. The costs imposed by the
courts must in all cases should
be the real costs equal to
deprivation suffered by the
rightful person.”
We approve the findings of the High
Court of Delhi in the case mentioned
above.
175. The High Court also stated :
(Padmawati case [Padmawati v. Harijan
Sewak Sangh, 2008 SCC OnLine Del
1202 : (2008) 154 DLT 411] , SCC OnLine
Del para 9)
“9. Before parting with this
case, we consider it necessary to
observe that one of the [main]
reasons for overflowing of court
dockets is the frivolous litigation
in which the courts are engaged
by the litigants and which is
dragged on for as long as
possible. Even if these litigants
ultimately lose the lis, they
become the real victors and have
the last laugh. This class of
people who perpetuate illegal
acts by obtaining stays and
injunctions from the courts must
be made to pay the sufferer not
only the entire illegal gains made
by them as costs to the person
deprived of his right but also
must be burdened with
exemplary costs. The faith of
people in judiciary can only be
sustained if the persons on the
right side of the law do not feel
that even if they keep fighting for
justice in the court and ultimately
win, they would turn out to be a
fool since winning a case after
20 or 30 years would make the
wrongdoer as real gainer, who
had reaped the benefits for all
those years. Thus, it becomes
the duty of the courts to see that
such
wrongdoers
are
discouraged at every step, and
even if they succeed in
prolonging the litigation due to
their money power, ultimately,
they must suffer the costs of all
these years' long litigation.
Despite the settled legal
positions,
the
obvious
wrongdoers, use one after
another tier of judicial review
mechanism as a gamble,
knowing fully well that dice is
always loaded in their favour
since even if they lose, the time
gained is the real gain. This
situation must be redeemed by
the courts.”
176. Against this judgment of the Delhi
High Court, Special Leave to Appeal
(Civil) No. 29197 of 2008 was preferred to
this Court. The Court passed the following
order [Padmawati v. Harijan Sewak
Sangh, (2012) 6 SCC 460 : (2012) 3 SCC
(Civ) 765] : (SCC p. 460, para 1)
“1. We have heard the learned
counsel appearing for the
parties. We find no ground to
interfere with the well-considered
judgment passed by the High
Court. The special leave petition
is, accordingly, dismissed.”
* * *
183. In Marshall Sons & Co. (India)
Ltd. v. Sahi Oretrans (P) Ltd. [Marshall
Sons & Co. (India) Ltd. v. Sahi Oretrans
(P) Ltd., (1999) 2 SCC 325] this Court in
para 4 of the judgment observed as under
: (SCC pp. 326-27)
“4. … It is true that
proceedings are dragged on for
a long time on one count or the
other and, on occasion, become
highly technical accompanied by
unending prolixity at every stage,
providing a legal trap to the
unwary. Because of the delay,
unscrupulous parties to the
proceedings
take
undue
advantage, and a person who is
in wrongful possession draws
delight in delay in disposal of the
cases
by
taking
undue
advantage
of
procedural
complications. It is also a known
fact that after obtaining a decree
for possession of immovable
property, its execution takes a
long time. In such a situation, for
protecting the interest of the
judgment-creditor, it is necessary
to pass appropriate orders so
that reasonable mesne profit
which may be equivalent to the
market rent is paid by a person
who is holding over the property.
In appropriate cases, the court
may appoint a Receiver and
direct the person who is holding
over the property to act as an
agent of the Receiver with a
direction to deposit the royalty
amount fixed by the Receiver or
pass such other order which may
meet the interest of justice. This
may prevent further injury to the
plaintiff in whose favour the
decree is passed and to protect
the property, including further
alienation.”
184. In Ouseph Mathai v. M. Abdul
Khadir [Ouseph
Mathai v. M.
Abdul
Khadir, (2002) 1 SCC 319] this Court
reiterated the legal position that : (SCC p.
328, para 13)
“13. … [the] stay granted by
the court does not confer a right
upon a party and it is granted
always subject to the final result
of the matter in the court and at
the risks and costs of the party
obtaining the stay. After the
dismissal, of the lis, the party
concerned is relegated to the
position which existed prior to
the filing of the petition in the
court which had granted the stay.
Grant
of
stay
does not
automatically
amount
to
extension of a statutory
protection.” ’ ”
There are other decisions as well,
which iterate and apply the same
principle. [Indian Council for Enviro-Legal
Action v. Union of India, (2011) 8 SCC
161; Grindlays Bank Ltd. v. CIT, (1980) 2
SCC 191 : 1980 SCC (Tax) 230; Ram
Krishna Verma v. State of U.P., (1992) 2
SCC 620. Also Marshall Sons & Co.
(India) Ltd. v. Sahi Oretrans (P) Ltd.,
(1999) 2 SCC 325.]
338. A wrongdoer or in the present context, a litigant who takes his chances, cannot be permitted to gain by delaying tactics. It is the duty of the judicial system to discourage undue enrichment or drawing of undue advantage, by using the court as a tool. In Kalabharati Advertising v. Hemant Vimalnath Narichania [Kalabharati Advertising v. Hemant Vimalnath Narichania, (2010) 9 SCC 437 : (2010) 3 SCC (Civ) 808] , it was observed that courts should be careful in neutralizing the effect of consequential orders passed pursuant to interim orders. Such directions are necessary to check the rising trend among the litigants to secure reliefs as an interim measure and avoid adjudication of the case on merits. Thus, the restitutionary principle recognizes and gives shape to the idea that advantages secured by a litigant, on account of orders of court, at his behest, should not be perpetuated; this would encourage the prolific or serial litigant, to approach courts time and again and defeat rights of others — including undermining of public purposes underlying acquisition proceedings. A different approach would mean that, for instance, where two landowners (sought to be displaced from their lands by the same notification) are awarded compensation, of whom one allows the issue to attain finality — and moves on, the other obdurately seeks to stall the public purpose underlying the acquisition, by filing one or series of litigation, during the pendency of which interim orders might inure and bind the parties, the latter would profit and be rewarded, with the deemed lapse condition under Section 24(2). Such a consequence, in the opinion of this Court, was never intended by Parliament; furthermore, the restitutionary principle requires that the advantage gained by the litigant should be suitably offset, in favour of the other party.
339. In Krishnaswamy S. Pd. v. Union of India [Krishnaswamy S. Pd. v. Union of India, (2006) 3 SCC 286], it was observed that an unintentional mistake of the Court, which may prejudice the cause of any party, must and alone could be rectified. Thus, in our opinion, the period for which the interim order has operated under Section 24 has to be excluded for counting the period of 5 years under Section 24(2) for the various reasons mentioned above.”
5.2 As per the settled position of law, the act of the Court shall prejudice no one and in such a fact situation, the Court is under an obligation to undo the wrong done to a party by the act of the Court. The maxim actus curiae neminem gravabit shall be applicable. As per the settled law, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralized, as the institution of litigation cannot be permitted to confer any advantage on a suitor by the act of the Court.
6. Applying the principle of restitution and the law-laid down by this Court in the case of Indore Development Authority (supra) on the principle of restitution to the facts of the case on hand, we are of the opinion that this is a fit case to apply the principle of actus curiae neminem gravabit and the principle of restitution and to direct Shri Naresh Kempanna and Col. Mohinder Khaira to return the amount and deposit the same with this Court with 9% interest from the date on which the payment is received by them. However, with the liberty in their favour to move appropriate application(s) or appropriate proceedings before this Court for adjudication of their rights to receive any amount from the sale proceeds of the land sold to M/s Devas Global LLP.
7. In view of the above and for the reasons stated above, Shri Naresh Kempanna and Col. Mohinder Khaira are hereby directed to return and deposit the amount paid to them (i.e., Rs. 56.11 crores paid to Shri Naresh Kempanna and Rs. 41.96 crores paid to Col. Mohinder Khaira), paid pursuant to the earlier order(s) passed by this Court, with 9% interest from the date on which the amount is received, to be deposited with the Registry of this Court within four weeks from today. However, it will be open for either of them to move appropriate application(s) or appropriate proceedings for adjudication of their rights to receive any amount from the sale proceeds of the land sold to M/s Devas Global LLP and as and when such application(s) is/are made, the same be considered in accordance with law and on its own merits.
Present application is disposed of in terms of the above.
I.A. No. 47525 of 2021 filed for impleadment is also disposed of.
………………………………….CJI. [Dr. D.Y. Chandrachud]
………………………………….J. [M.R. Shah] NEW DELHI; MARCH 23, 2023.