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Judgment
A.N. Venugopala Gowda, J.—Plaintiff is the appellant and the respondents were the defendants. Suit filed on 09.07.1986 to pass a decree of declaration that the land acquisition proceedings dated 19.09.1977 is without sanction, contrary to S. 18(3) of the Bangalore Development Authority Act, 1976 (for short ''the BDA Act'') and for consequential reliefs having been dismissed on 02.12.2008, this appeal was filed on 22.12.2009, to set aside the Judgment and Decree passed by the Trial Court and to decree the suit as prayed for. Plaintiff/appellant purchased the suit property under a registered sale deed dated 30.01.1975 (Ex. P1) i.e., site bearing No. 44 situated in Sy. No. 14/6 of Tavarekere Village, Begur Hobli, Bangalore South Taluk, measuring East-West 40 feet, North-South 37 feet, more fully described in the schedule to the plaint. The said property having been acquired by issue of a preliminary notification (Ex. P4) and final declaration (Ex. P5) and a resolution having been passed on 17.11.1982, filed the suit, to pass a decree of declaration that the land acquisition proceedings dated 19.09.1977 is without sanction, contrary to S. 18(3) of the BDA Act and that the acquisition proceedings are null and void and the land acquisition proceedings is ineffective and inoperative and for a declaration that the resolution dated 17.11.1982 is void ab-initio and for grant of mandatory injunction directing the 1st defendant from demolishing the constructions put up on the suit property and for grant of permanent injunction restraining the defendants from interfering with the plaintiff''s peaceful possession and enjoyment of the suit property. Respondent No. 1/defendant No. 1 filed written statement and denied all the averments made in the plaint and contended that the impugned acquisition proceedings are valid and sought dismissal of the suit. Respondent No. 2/defendant No. 2 filed written statement and contended that the suit for declaration challenging the acquisition proceedings is not maintainable and the same is barred by law and the suit in its form is not maintainable. It further contended that, prior to the institution of the suit, notice contemplated under S. 64 of the BDA Act was not served. It denied all the material averments made in the plaint and sought dismissal of the suit.
The learned Trial Judge, initially raised nine issues and on 29.05.1990 raised seven additional issues and again on 26.10.1994 raised two additional issues. Plaintiff got himself examined as PW. 1 and marked Exs. P1 to P21. The Secretary of the 1st defendant-Society got himself examined as DW. 1 and marked Exs. D1 to D6. Considering the rival contentions and record of the suit, learned Trial Judge answered issue Nos. 1 to 6, additional issue Nos. 1 to 4, 8 and 9 in the negative and issue Nos. 7, 8 and additional issue Nos. 5 and 6 in the affirmative. As a result, the suit was dismissed.
Sri B.M. Arun, learned advocate for the appellant, contended that the Trial Court has committed an error and illegality in holding that the suit for declaration and injunction is not maintainable. He submitted that the Trial Court has failed to appreciate the oral and documentary evidence brought on record in the correct perspective and the findings recorded in the impugned Judgment being perverse, the decree dismissing the suit is liable to be set aside.
Sri V.B. Shivakumar, learned advocate, appearing for the respondents on the other hand by taking me through the record of the suit and placing reliance on the decision in the case of The Commissioner, Bangalore Development Authority and Another Vs. Brijesh Reddy and Another, , contended that the view taken by the Trial Court with regard to non-maintainability of the suit is justified. Learned counsel submitted that the impugned judgment does not suffer from any infirmity and that the material brought on record having been appreciated correctly and the findings recorded being neither perverse nor illegal, warrant any interference. He contended that the Civil Court has no jurisdiction to record any finding on the validity or otherwise of acquisition process relating to the suit property, undertaken and completed by the statutory authorities and hence, the impugned decree is justified.
The appellant purchased the suit property from one K.S. Shivaraman under Ex. P1. The suit property along with other properties of K.S. Shivaraman has been acquired, which becomes evident from Exs. P4 and P5. It is the State Government which acquired the property for the benefit of Bangalore Development Authority and allotted the suit property in favour of the defendant No. 1/respondent No. 1. The State Government has not been impleaded as a party and in its absence, declaration that the acquisition proceedings are bad, null and void cannot be considered. The name of the appellant''s vendor, appellant and his brother, appears at Sl.Nos. 215, 216 and 217 respectively in Ex. D4. After completion of process of acquisition, the BDA having been delivered with the possession of the property by the State Government, BDA after forming layout has made an allotment in favour of defendant No. 1, as per the impugned resolution dated 17.11.1982. The fact that in respect of the suit property there was an acquisition proceedings and that there is an allotment made by the BDA in favour of the 1st respondent, is not in dispute. In the circumstances, the Trial Court has found that the suit is not maintainable.
Keeping in view the rival contentions and record of the case, the point for consideration is, whether the Trial Court is justified in dismissing the suit as not maintainable?''
A Civil Court cannot go into the validity of the, land acquisition proceedings is the well settled position of law by catena of decisions by the Apex Court.
In the case of State of Bihar Vs. Dhirendra Kumar and others, , a Notification under S. 4(1) of the Act was published on 13.02.1957, proposing to acquire the disputed land for construction of houses by the Housing Board and by publishing a declaration under S. 6 on 27.03.1957, the disputed land was acquired, the possession of which was taken and handed over to the Housing Board. Upon encroachment and unauthorised constructions having been made, steps was taken by the Housing Board to have the encroachers ejected from the acquired land. As a sequel thereof, a suit having been filed, I.A. for temporary injunction having been allowed, which was modified in the appeal to one of status-quo and the beneficiary of the acquisition having preferred an appeal by special leave, Apex Court has held as follows:
The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued u/s 9 of the Act and delivered to the beneficiary. The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in Section 4 and Section 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration u/s 6, the public-purpose gets crystallised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11-A now prescribes limitation to make the award within 2 years from the last date of publication envisaged u/s 6 of the Act. In an appropriate case, where the Government needs possession of the land urgently, it would exercise the power u/s 17(4) of the Act and dispense with the enquiry u/s 5-A. Thereon, the State is entitled to issue notice to the parties u/s 9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award u/s 12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case u/s 9 of 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 and declaration u/s 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to the Housing Board. So, the order of injunction was without jurisdiction.
(Italicized by me for emphasis)
In the case of State of Punjab and Others Vs. Sadhu Ram, the facts were that by issue of Notifications under Ss. 4(1) & 6(1) of the Act, the land was acquired for public purpose. Thereafter, an Award was passed and compensation was paid to the erstwhile owners. Thereafter, the respondent who became a tenant and subsequently purchased the land from the erstwhile owners, under registered sale deeds, filed civil suits for declaration that he is air equitable owner of the land and for consequential reliefs. The Court having noticed the procedure prescribed in disposal of the lands acquired by the Government for public purpose, held that the procedure has not been followed for surrendering of the land to the erstwhile owners and the respondent having purchased the land and improved the same, was an equitable owner of the land. When the matter was questioned in the Apex Court, noticing that the Judge had not referred to the relevant provisions of the Act and law and the undisputed fact that consequent upon the passing of the Award under S. 11 and taking possession of the land by operation of S. 16 of the Act, the right, title and interest of the erstwhile owners having stood extinguished and the Government having become the absolute owner of the property free from all encumbrances, while allowing the appeal and setting aside the impugned Decree, it was held as follows:
3....Under these circumstances, the Government having become the absolute owner of the property free from all encumbrances, unless the title is conferred on any person in accordance with a procedure known to law, no one can claim any title much less equitable title by remaining in possession....
In the case of Commissioner, Bangalore Development Authority Vs. K.S. Narayan, the respondent filed a suit to pass a decree for permanent injunction against appellant-BDA, from interfering with the possession and enjoyment of the suit property and from demolishing any structure situated therein. Suit was contested by the defendant-BDA, on the ground that the plaintiff was not the owner of the property in dispute and the person who executed the sale deed in his favour had no right, title or interest over the property in dispute and he could not have conveyed any title to the plaintiff and the suit property having been acquired after issuing preliminary and final Notifications in accordance with the BDA Act 1976 and the possession had also been taken over and thereafter it was handed over to the Engineering Section on 22.06.1988 after completion of all formalities, the Award for the acquired land having been made and compensation having been deposited in the Civil Court under Ss. 30 & 31(2) of the Act, the BDA being in possession of the suit property on the date of filing of the suit, the suit is not maintainable and liable to be dismissed. The Trial Court decreed the suit and upon an appeal being preferred by the BDA, the decree was set aside and the case was remanded to the Trial Court for fresh decision with liberty to the plaintiffs to apply for the amendment of the plaint. The plaintiffs amended the plaint, wherein it was stated that they were dispossessed on 22.06.1988 without taking proceedings for acquisition of land and their dispossession was wholly illegal. The prayer was also amended and decree for recovery with possession was sought. An amended written statement was filed and suit was contested. The Trial Court by placing reliance on a decision in the case of Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, held that the validity or otherwise of the acquisition proceedings cannot be questioned before the Civil Court and dismissed the suits. The plaintiffs preferred an appeal and this Court held that the plaintiffs who are the lawful owners of the plaint schedule property were not at all notified and as the basic requirement of a valid acquisition of property was not satisfied, the acquisition was not binding upon the owners of the property and therefore, the Civil Court was competent to entertain the suit. It was held that the acquisition proceedings were invalid and the appeals were allowed and the suits were decreed. When the said judgment and decree were questioned before the Apex Court, after referring to the provisions of Ss. 17 & 19 of the BDA Act, which are somewhat similar to the provisions of Ss. 4 & 6 of the L.A. Act, the other point which was considered was whether a civil suit is maintainable to challenge the acquisition proceedings. While allowing the appeals and setting aside the impugned decree, it was held as follows:
In our opinion the view taken by the High Court is wholly erroneous. It is not the case of the plaintiffs that the plaint scheduled property is not covered by the notification issued u/s 17 of the Act. As a matter of fact, there is no dispute that the land regarding which the suits have been filed is covered by the notification. The main ground on which the suits have been filed is that the notice as required by subsection (5) of Section 17 of the Act was not served upon the plaintiffs. The plaintiffs are claiming title to the property and are seeking the relief of possession on the ground that the notification has been rendered invalid on account of non-service of notice upon them under sub-section (5) of Section 17 of the Act. The plaintiffs are clearly assailing the validity of the acquisition proceedings. It is not their case that the plaint scheduled property is outside the purview of the land regarding which the notification u/s 17 had been issued. The ground for assailing the notification, namely, that notice under sub-section (5) of Section 17 of the Act was not served upon the plaintiffs and its effect could only be examined in a writ petition filed under Article 226 of the Constitution before the High Court and not by the civil court. The judgments and decrees passed by the High Court are, therefore, clearly illegal and have to be set aside.
In the case of State of Punjab vs. Amarjit Singh, AIR 2012 SCW 1177, the respondent Amarjit Singh filed a suit for declaration and possession by asserting that by virtue of sale deed/Ex. P1 executed by Sunder Singh, he had become the owner of the land and pleaded that the acquisition was made without following the procedure prescribed under the Act and the awards were passed by an Officer who was not authorized to do so. Suit was filed to pass a decree of declaration and possession against the appellant/State of Punjab. Written statement was filed and it was contended that by a Notification dated 30.9.1955 issued under S. 4 of the Land Acquisition Act, 1894, the Government of Punjab proposed acquisition of the suit property for construction of Teachers'' Training Institute and a declaration under S. 6 was issued on 30.11.1955 and thereafter the LAO passed two awards on 6.10.1956 and 22.8.1960 and that the State Government took possession of the acquired land from its owner Sunder Singh in October, 1956 and constructed the building and in view of the proceedings taken under the L.A. Act and the awarded passed, the jurisdiction of the Civil Court is barred. The Trial Court though found the Notifications dated 30.9.1955 and 30.11.1955 were legal and did not suffer from any infirmity, held that the second award passed on 22.8.1960 was not valid. The defendant''s plea that the Civil Court does not have the jurisdiction to entertain the suit was rejected by observing that when the awards have been passed in violation of statutory provisions, the acquisition proceedings will be illegal and void and the Civil Court is competent to grant a declaration to that effect. The defendant having failed in the first appeal, second appeal and a review petition, questioned the said decree before the Apex Court. While allowing the appeal, having noticed the proposition of law laid down in the decisions reported at State of Bihar Vs. Dhirendra Kumar and others, , Laxmi Chand and others Vs. Gram Panchayat, Kararia and others, and Commissioner, Bangalore Development Authority Vs. K.S. Narayan, Apex Court has held as follows:
In view of the proposition of law laid down in the aforesaid Judgments, we hold that the Trial Court did not have the jurisdiction to entertain the suit and the lower appellate Court and the High Court committed serious error by confirming the decree passed in favour of the respondent.
In the case of The Commissioner, Bangalore Development Authority and Another Vs. Brijesh Reddy and Another, the facts were that the respondent who purchased the suit property filed a suit for permanent injunction which was contested by the BDA on the ground that the suit property was acquired, an award was passed and possession was taken over by the LAO and handed over to the Engineering Section and that a layout was formed and sites were allotted to intending purchasers and hence the suit is not maintainable. The Trial Court dismissed the suit. Appeal filed by the plaintiffs was allowed and the matter was remitted to the Trial Court. Said Judgment when questioned before the Apex Court, the point considered was: whether a civil Court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the Trial Court without examining the question with regard to the maintainability of the suit?
After making a reference to the earlier decisions, while allowing the appeal and setting aside the impugned Judgment, Apex Court has held as follows:
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 of 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.
No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the defendant Nos. 1 and 2, i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been dearly noted by the trial Court and ultimately rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 of CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial Court for fresh disposal.
(Italicized by me for emphasis)
In the case of Manohar Joshi & Others vs. State of Maharashtra and Others, (2012) 3 SCC 619, with regard to the jurisdiction of the Civil Court to entertain a suit to challenge the acquisition after the award was rendered, Apex Court has held as follows:
That apart, there is also the question as to whether the civil court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the LA Act provides for the entire mechanism as to how acquisition is to be effected, and the remedies to the aggrieved parties.
In State of Bihar Vs. Dhirendra Kumar and others, , this Court in terms held that since the Act is a complete code, by necessary implication the power of the civil court to take cognizance of a case u/s 9 CPC stands excluded, and the civil court had no jurisdiction to go into the question of the validity or legality of the notification u/s 4 and declaration u/s 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable in the present case.
(Italicized by me for emphasis)
From the declaration of law made by the Supreme Court in the decisions, noticed supra, it is clear that, a civil suit, in respect of matters relating to acquisition proceedings, is not maintainable and by implication, cognizance under S. 9 of CPC is barred.
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.
Indisputably, prior to institution of the suit, plaintiff did not serve the notice on the BDA in the manner as contemplated under S. 64 of the Act. Without serving the prior statutory notice in the manner as contemplated under S. 64 of the Act, the suit could not have been instituted against the BDA. The State Government which acquired the property and delivered it to the BDA having not been impleaded, the suit is bad for non-joinder of necessary party. The suit being not maintainable, the Trial Court is justified in dismissing the suit. I do not find any justification, in view of the settled position of law, noticed supra, to interfere with the impugned decree.
In the result, the appeal being devoid of merit is dismissed with no order as to costs.