The Commissioner, The Bangalore Development Authority vs Sri H. Govindaraju, The Chief Secretary, The Tahsildar and Bank Officer''s Co-operative Housing Society Limited

Ashok B. Hinchigeri, J.—Both these appeals are directed against the judgment and decree, dated 10.02.2011 passed by the Court of the XIII Additional City Civil Judge, Mayo Hall Unit, Bangalore in O.S. No. 16507/2005. R.F.A. No. 1060/2011 is filed by the fourth defendant and R.F.A. No. 739/2012 is filed by the third defendant. To avoid confusion, the parties are referred to as per their rankings in the suit proceedings.

The facts of the case in brief are that the plaintiff claims to be in occupation of 16 guntas of land at Sy. No. 14/13 of Tavarekere Village, Begur Hobli. It is his case that his father Hanumaiah has been in occupation of the said extent of the land in his capacity as saguvali agreement holder and sale agreement holder. As the owners of the said land had agreed to sell the said land to the plaintiff''s father, the plaintiffs father did not file Form No. 7 for the grant of the occupancy rights. The plaintiff has constructed a residential building on an extent measuring 40 x 110 ft He has taken water, electricity and telephone connection to the suit schedule property. On a portion of the suit schedule property he has been running a security service in the name and style of M/s. Vigilant Security Service. He also claims to have perfected his title by way of adverse possession.

The defendant Nos. 1 and 2 did not file the written statement. The defendant Nos. 3 and 4 filed the written statement separately. The gist of their defence is that the lands were acquired for the formation of the B.T.M. Layout (Byrasandra -Tavarekere - Madivala Scheme). In that regard, the preliminary and final notifications issued on 19.09.1977 and 07.02.1978, respectively. The possession of the suit schedule property was taken over on 20.09.1978 and 20.11.1978 by drawing the mahazars. In that regard, the notification u/s 16(2) of the Land Acquisition Act, 1894 (''LA Act'' for short) was also published in the Gazette on 04.02.1982. On the possession of the acquired lands, including the suit schedule property being made over to the third defendant BDA, it allotted the lands measuring 2 acres 31 guntas out of the acquired lands to the fourth defendant on 19.11.1982. The third defendant handed over the possession of the lands to the fourth defendant on 22.01.1983. The defendant Nos. 3 and 4 contended that the suit is not maintainable and that there is no cause of action for the very filing of the suit.

Based on the rival pleadings, the Trial court formulated the following issues:

1) Whether the plaintiff prove his lawful possession and enjoyment of the suit schedule property, as on the date of the suit?

2) Whether the plaintiff proves alleged interference by the defendants?

3) Whether the plaintiff is entitled for the relief sought for?

4) What decree or Order?

The plaintiff got himself examined as P.W. 1. He also got one Sri Thammanna examined as P.W. 2, marking 36 documents in the Exhibit ''P'' series. The defendant Nos. 1 to 3 did not enter the witness box. The defendant No. 4 examined its Secretary, Kishore Kumar as D.W. 1 marking the documents at Exs. D1 to D20.

The Trial Court answered the contentious issues in favour of the plaintiff and decreed the suit. Based on the memo filed by the plaintiff, it dismissed the suit as against the defendant No. 4.

Sri P.S. Rajagopal, the learned Senior Counsel appearing for Sri K. Puttegowda for the appellant in R.F.A. No. 1060/2011 submits that the plaint ought to have been rejected, as the suit is barred by law. He submits that no suit for any relief is maintainable by the Trial Court in respect of the land, which is compulsorily acquired. In support of his submissions, he relies on the latest decision of the Apex Court in the case of The Commissioner, Bangalore Development Authority and Another Vs. Brijesh Reddy and Another, . He read out para 18 of the said decision, which is extracted hereinbelow:

It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case u/s 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification u/s 4, declaration u/s 6 and "subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power.

He also brought to my notice, this Court''s judgment dated 08.08.2013 passed in R.F.A. No. 1399/2009, wherein the dismissal of the suit against the acquisition proceedings by the Trial Court came to be upheld by this Court.

Sri Rajagopal submits that the State Government had issued the de-notification, dated 07.01.1998 in respect of 1 acre 19 guntas, which included the suit schedule property at the behest of their erstwhile owner, namely, Sri Kempanna. The fourth defendant challenged the de notification by filing W.P. No. 1200/1998, which was dismissed by the learned Single Judge by his order, dated 04.10.1999. The fourth defendant filed W.A. No. 409/2000 before the Division Bench. The Division Bench, by its judgment, dated 12.06.2003 allowed the appeal. It held that the impugned de-notification is not maintainable for two reasons. (a) once the possession of the acquired land is taken, it cannot be withdrawn from acquisition invoking the power conferred by Section 48(1) of the L.A. Act. The Government has not applied its mind to the abundant records showing that the possession of the acquired land is taken. (b) The beneficiary of acquisition (fourth defendant) was not heard before issuing the de-notification. This was challenged by the said Kempanna by filing SLP (Civil) No. 18939/2003. It is dismissed on 09.08.2004.

Sri B.H. Sathish, the learned counsel appearing for the appellant in R.F.A. No. 739/2012 has adopted the submissions of Sri Rajagopal.

Sri Padmanabha V. Mahale, the learned Senior Counsel appearing for Sri V. Anand for the plaintiff (respondent No. 1 herein) has raised the threshold objection to the very maintainability of R.F.A. No. 1060/2011, as the fourth defendant has not suffered any decree. He submits that the suit as against the fourth defendant is dismissed. He further undertakes not to make any claim on the property, which is allotted and sold to the fourth defendant by the third defendant. He would contend that given this undertaking, nothing survives for any consideration of the fourth defendant''s grievance.

He further submits that the arguments urged on behalf of the fourth defendant regarding the non-maintainability of the suit are sans merit. He submits that the case law only shows that the acquisition proceedings cannot be challenged by way of suit before the civil court but it cannot be said that the bare suit for injunction without raising any challenge to the acquisition notifications or proceedings cannot be entertained at all by the civil court. He submits that this Court dismissed R.F.A. No. 1399/2009, because in O.S. No. 2681/1986 from which the said appeal has arisen, the challenge was raised to the acquisition proceedings. He read out para 16 of the said judgment.

In view of the settled position of law by the Apex Court, the Trial Court is justified in holding that the suit to declare the acquisition proceedings as null and void and the Land Acquisition has become ineffective and inoperative regarding the plaintiff''s ownership and possessory right over the suit property and the consequential resolution dated 17.11.1982 is void and ab initio is not maintainable.

Sri Mahale submits that the Trial Court''s judgment that the possession of the land cannot be taken without following the due process of law cannot be found fault with. He submits that the fourth defendant has admitted that the plaintiff is in possession of the suit schedule property. He submits that even in the wake of the status quo order granted by the Trial Court, the third defendant BDA demolished the buildings, put up by the plaintiff and dispossessed the plaintiff. This drove the plaintiff to file I.A. No. 5 for the issuance of the status-quo ante, which was allowed by the Trial Court by its order, dated 24.11.2007. He further submits that the said order was challenged by the fourth defendant by filing W.P. No. 19377/2007 but without any rate of success. The said petition was dismissed on 16.06.2009.

The learned Senior Counsel also read out the Head-Note portion of the Apex Court''s judgment in the case of Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, , which is extracted hereinbelow:

Specific Relief Act (47 of 1963), S. 38 -Injunction-Restraining defendant from interfering with peaceful possession of plaintiff-Failure by either party to prove title-Plaintiff in ''settled possession''-It entitles him to protect his possession-Grant of injunction proper.

The learned Senior Counsel submits that the sale deed executed in favour of the fourth defendant shows that the civic amenity area is excluded. As the civic amenity area is not sold to the fourth defendant, it can have no legally recognizable interest in the civic amenity area.

In the course of rejoinder, Sri Rajagopal submits that the leave is granted to the fourth defendant to file the appeal because the fourth defendant''s interests are being affected by the Trial Court''s judgment and decree. He submits that in the first place, the fourth defendant was not even made a party to the suit proceedings. The fourth defendant made an impleading application, which came to be allowed on 21.6.2007. When the trial was concluded, arguments were advanced, written arguments were filed, the plaintiff filed the memo and not even the application to the effect that the suit as against the defendant No. 4 be dismissed and the Trial Court mechanically accepts the memo and dismisses the suit as against the defendant No. 4.

He also read out the crucial part of the judgment: "defendants 1 to 3 or anybody claiming through them are hereby restrained from by way of permanent injunction from interfering with the plaintiffs possession or dispossessing the plaintiff from the suit schedule property, without due process of law".

Sri Rajagopal submits that as the judgment and decree are without jurisdiction, they are void ab initio. He would therefore pray for the dismissal of the suit. He submits that the entire extent of 2 acres 31 guntas of the land standing at Sy. No. 14/13 is sold to the fourth defendant. The civic amenity area or the park do not constitute part and parcel of the land at Sy. No. 14/13. He submits that even assuming that a portion of the park is formed on the land at Sy. No. 14/13, it makes no difference for the purpose of this case. He submits that u/s 32(5) of the Bangalore Development Authority Act, 1976, the fourth defendant is obliged to transfer the ownership of the roads, drains and water supply connections, open space to the third defendant B.D.A. permanently without claiming any compensation therefor. The B.D.A. may only entrust its maintenance to the fourth defendant.

Ms. P.B. Radha, the leaned High Court Government Pleader appearing for the Chief Secretary and the Tahsildar (defendant Nos. 1 and 2) submits that the Government has acquired the land and handed over their possession to the Engineering Section of the B.D.A. She further submits that the B.D.A. in turn has allotted it to the fourth defendant. She submits that the award is passed and the compensation amount is paid to Garemunivenkatappa. She further submits that the enhanced compensation amount is deposited with the Reference Court.

The submissions of the learned counsel have received my thoughtful consideration.

The Court needs to consider the preliminary objection raised by the plaintiffs side to the very maintainability of this appeal. The preliminary objection raised is that as the judgment and decree do no affect the interests of the defendant No. 4 adversely in any way; the defendant No. 4 cannot be an aggrieved party. Because the Trial Court has dismissed the suit as against the defendant No. 4.

To answer this question, the decree under appeal has to be perused. It reads as follows:

Defendants 1 to 3 or anybody claiming through them are hereby restrained from by way of permanent injunction from interfering with the plaintiffs possession or dispossessing the plaintiff from the suit schedule property, without due process of law.

(emphasis self supplied)

As it is not in dispute that the defendant No. 4 claims under the third defendant BDA, it cannot be said that the judgment does not affect the fourth defendant''s rights adversely. As an aggrieved party, the defendant No. 4 is justified in exercising its liberty to challenge the judgment and decree by filing R.F.A. 1060/2011.

It is also worthwhile to notice that the plaintiff had not made the defendant No. 4 as a party to the suit in the first instance itself. As a matter of fact, it is the defendant No. 4, who filed the impleading application. The perusal of the affidavit filed in support of the impleading application reveals how the lands, including the suit schedule property, have come to the defendant No. 4. It is also worthwhile to notice that the plaintiff himself has indicated his no objection to the allowing of the said I.A. The order sheet, dated 21.6.2007 maintained in O.S. No. 16507/2005 reads as follows:

Plaintiff''s counsel submits that Order 1 Rule 10 application may be allowed.......

Having taken the right stand that the fourth defendant''s presence is necessary for the adjudication of the issues falling for consideration in the suit proceedings, the plaintiff is not justified in turning around and filing a memo at the fag end of the suit proceedings to the effect that the suit as against the defendant No. 4 be dismissed. Without considering the crucial aspect of the matter as to whether the suit can be decreed only against the defendant Nos. 1, 2 and 3 by shutting out the defendant No. 4, the Trial Court is not justified in accepting the memo. For yet another reason too, the Trial Court''s acting on the said memo is not justifiable. At the time of filing the memo, the plaintiff did not amend the prayer. The prayer in the plaint even at the time of filing the memo by the plaintiff and its acceptance by the Trial Court stand as follows:

For permanent injunction restraining their henchmen, officers, contractors, etc. from not to interfere with the plaintiffs possession and enjoyment of the schedule property.

(emphasis self-supplied)

Section 16(2) of the L.A. Act states that when the fact of taking the possession of the acquired land is notified by the Deputy Commissioner in the official gazette, such notifications shall be evidence of such fact. The gazette notifications, dated 04.02.1982 are conclusive proof of the taking over of the acquired land by the Government.

The substantial question that falls for my consideration is whether the suit for injunction simplicitor in respect of the acquired land is entertain able by the Trial Court. The submission urged by the learned Senior Counsel Sri Mahale on behalf of the plaintiff that if the acquisition proceedings as such are not challenged in the suit, there is no impediment in entertaining the suit, does not commend itself to me. O.S. No. 2681/1986 from which R.F.A. No. 1399/2009 has arisen was filed seeking the relief of declaration that the acquisition proceedings are null and void. That such a prayer is not there in the suit in question and that therefore the Trial Court is justified in returning the findings on merits is wholly unacceptable.

The Apex Court''s judgment in the case of Brijesh Reddy (supra) has not left anything to chance. It has this to say in paragraph No. 19:

..........suit of any nature including the bare injunction is not maintainable..........

Even assuming that a part of park area is on the land at Sy. No. 14/13, the position would be the same. What rights the defendant No. 4 has in the park area is a different aspect of the matter. When a portion of the acquired land is for the benefit of the defendant No. 4 and a portion of it is for a civil amenity, namely, the formation of park, then also no suit can be filed in respect thereof. Thus, as the judgment is without jurisdiction, it is liable to be set aside and accordingly it is set aside. Consequently, the findings delivered by the Trial Court are also of no consequence.

I notice with concern that the plaint averments themselves are that the plaintiff is in possession of 16 guntas of land whereas the suit schedule shows the extent of the property as 20 guntas. The Trial Court has granted the decree in respect of the entire extent of 20 guntas shown in the suit schedule property.

In the result, R.F.A. No. 1060/2011 and R.F.A. No. 739/2012 are allowed. That does not mean that no relief can be given to the plaintiff. If it is otherwise open to the plaintiff, he may seek the compensation on account of the compulsory acquisition of the lands in question. If the plaintiff is in a position to account for the delay and laches in approaching this Court, he may also file the writ petition seeking the relief that the acquisition proceedings have lapsed. With these observations, the two appeals are allowed. The judgment and decree, dated 10.02.2011 passed by the Court of the XIII Additional City Civil Judge, Mayo Hall Unit, Bangalore in O.S. No. 16507/2005 are set aside. No order as to costs.