Vijayalakshmi vs Bangalore Development Authority and Others

Anand Byrareddy, J.—Heard the learned counsel for the appellant Shri S. Shaker Shetty.

This appeal coming on for admission, it was mentioned by Shri Shetty that two other appeals of a similar nature have been admitted by this Court. Since, at first blush it was felt that the appeal was not maintainable as it arises out of a judgment challenging the alleged interference by the Bangalore Development Authority (hereinafter referred to as ''the BDA'', for brevity) in respect of the suit schedule property, the suit had been filed. Therefore, the other two appeals which were admitted, are also listed at the instance of this Court, for re-consideration, since it is the settled law as laid down by the Supreme Court in the case of The Commissioner, Bangalore Development Authority and Another Vs. Brijesh Reddy and Another, (2013) 6 AD 65 : (2013) 3 JT 150 : (2013) 171 PLR 136 : (2013) 2 RCR(Civil) 444 : (2013) 2 SCALE 306 : (2013) 3 SCC 66 : (2013) AIRSCW 2378 , wherein it is laid down that where there is compulsory acquisition of land, a Civil Court has no jurisdiction to go into the question of validity or illegality of the said proceedings and all subsequent proceedings thereto, except the High Court in its jurisdiction under Article 226 of the Constitution of India and that the Civil Court is de-void of jurisdiction to give a declaration or even grant a bare injunction on the invalidity of the procedure contemplated under the Act. The only right available to the aggrieved person is to approach the High Court as already stated, or the Supreme Court under Article 136 of the Constitution of India with the self-imposed restrictions on the exercise of such extraordinary power.

In the light of the above judgment of the Supreme Court, this Bench had expressed that the suit itself was not maintainable and ought to be dismissed, on which, Shri Shetty has furnished several decisions to contend that this is a case where the acquisition was under the Bangalore Development Authority Act, 1976 (hereinafter referred to as ''the BDA Act'', for brevity) and pursuant to a scheme framed by the BDA under Section 27 of the said Act, which provides that, where within a period of five years from the date of the publication in the official Gazette of the declaration under Sub-section (1) of Section 19, the Authority fails to execute the scheme substantially, the scheme shall lapse and the provisions of Section 36 shall become inoperative. Therefore, in the present case on hand, there being no dispute that the scheme had lapsed, as possession had not been taken of the land in question even after more than five years, in such a case, the question of the BDA seeking to exercise its right over the land, which may even have been notified for acquisition and when there is a claim but no actual possession has been taken, it cannot be said that the land would have vested in the State and consequently with the BDA, and therefore, the suit for injunction was maintainable. It is always to be examined on a case by case basis as to the actual fact of the State or other authority having taken possession of the land and when there is no such physical possession taken, which could be established by the plaintiff before the Trial Court, the Civil Court cannot be said to have any jurisdiction. On the other hand, it is only the Civil Court which is competent to address the question of fact and hence, the Civil Court was not justified in coming to a conclusion that the land had been acquired. It is emphasized that even if there are acquisition proceedings and the acquisition proceedings have lapsed by operation of law, the question of seeking a declaration to that effect, becomes unnecessary and on the question of fact when possession still continues with the plaintiff, it was unjust on the part of the Trial Court to have negated the case of the appellant and therefore, seeks to urge the following cases in his favour.

Relying on the decision of the Supreme Court in the case of '' Offshore Holdings Pvt. Ltd. Vs. Bangalore Development Authority and Others, (2011) 1 JT 384 : (2011) 1 SCALE 533 : (2011) 3 SCC 139 : (2011) 1 SCR 453 : (2011) 1 UJ 509 , the learned counsel would draw attention to the relevant portion where the interpretation of the scope of Sections 27 and 36 of the BDA Act is discussed at paragraphs 38 and 39, as follows:

"38. On a conjunctive reading of the provisions of Sections 27 and 36 of the State Act, it is clear that where a scheme lapses, the acquisition may not. This, of course, will depend upon the facts and circumstances of a given case. Where, upon completion of the acquisition proceedings, the land has vested in the State Government in terms of Section 16 of the Land Acquisition Act, the acquisition would not lapse or terminate as a result of lapsing of the scheme under Section 27 of the BDA Act. An argument to the contrary cannot be accepted for the reason that on vesting, the land stands transferred and vested in the State/Authority free from all encumbrances and such status of the property is incapable of being altered by fiction of law either by the State Act or by the Central Act. Both these Acts do not contain any provision in terms of which property, once and absolutely, vested in the State can be reverted to the owner on any condition. There is no reversal of the title and possession of the State. However, this may not be true in cases where acquisition proceedings are still pending and land has not been vested in the Government in terms of Section 16 of the Land Acquisition Act.

What is meant by the language of Section 27 of the BDA Act, i.e. "provisions of Section 36 shall become inoperative", is that if the acquisition proceedings are pending and where the scheme has lapsed, further proceedings in terms of Section 36(3) of the BDA Act, i.e. with reference to proceedings under the Land Acquisition Act shall become inoperative. Once the land which, upon its acquisition, has vested in the State and thereafter vested in the Authority in terms of Section 36(3); such vesting is incapable of being disturbed except in the case where the Government issues a notification for revesting the land in itself, or a Corporation, or a local Authority in cases where the land is not required by the Authority under the provisions of Section 37(3) of the BDA Act."

The learned counsel would submit that the exposition of the law as stated by the Supreme Court would clearly indicate that if the scheme is not implemented within a period of five years, as laid under Section 27 of the BDA Act, Section 36 of the BDA Act becomes inoperative. In that, the provisions of the Land Acquisition Act, 1894 (hereinafter referred to as ''the LA Act'', for brevity) would not be available for the BDA to enforce the acquisition proceedings and hence, the scheme would have lapsed. Consequently, no further action could be taken by the BDA in securing possession for it claims to have done so in the case on hand and in respect of which the plaintiff have proved by producing the relevant documents that possession continues with the plaintiff in that regard.

Further, he has placed reliance on the judgment in the case of Balwant Narayan Bhagde Vs. M.D. Bhagwat and Others, AIR 1975 SC 1767 : (1976) 1 SCC 700 : (1975) SCR 250 Supp , wherein the mode of taking possession of waste and arable land is discussed and the manner in which it could be demonstrated that the Government had taken possession of such land and it is expressly stated by the Supreme Court in the said case that though it cannot be laid down as it is not an absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking possession of land in every case. It was held that when the Government proceeds to take possession of the land acquired by it under the LA Act, it must take actual possession of the land, since all interests in the land are sought to be acquired by it. There can be no question of taking ''symbolical'' possession in the sense understood by judicial decisions under the Code of Civil Procedure, 1908 (hereinafter referred to as ''the CPC'', for brevity). Nor would possession merely on paper be enough. What the Act contemplates as a necessary condition of vesting of the land in the Government is the taking of actual possession of the land. How such possession may be taken would depend on the nature of the land. Such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. But the presence of the owner or the occupant of the land is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable or possible, to give such notice before possession is taken by the authorities.

It is in this vein that the Supreme Court has spelt out the manner in which the possession could be taken and as to what are the basic requirements to demonstrate that the possession had been taken and land had vested in the State. In the present case on hand, he would point out that the plaintiff was running an industry and it was provided with all amenities such as electricity, water and sewerage lines. Therefore, it could not be said that the BDA had taken possession of the land in question when the said industry was driving even as on the date of suit. This glaring aspect has been ignored by the Court below in not applying the law which is laid down by the Constitution Bench judgment in Offshore Holdings case (supra).

Reliance is also placed on two other judgments in Bharat Kumar Vs. State of Haryana and Another, (2014) 3 SCALE 393 : (2014) 6 SCC 586 and Bimla Devi Vs. State of Haryana, (2014) 7 SCALE 215 : (2014) 6 SCC 583 . Those decisions are with reference to the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, under which Section 24 provides that in respect of land acquisition proceedings initiated, the lapsing of the acquisition proceedings in terms of Section 24(2) of the 2013 Act, are dealt with and when physical possession of the land has not been taken by the Court, the acquisition proceedings stand lapsed, as expressly laid down under Section 24(2) of the New Act, which would be applicable if the LA Act is no longer in force and seeks to draw sustenance from the said decisions as well. However, all of the above decisions are arising in proceedings apparently instituted in the writ jurisdiction of the High Court and thereafter carried, by way of special leave petitions or appeals before the Supreme Court.

The question therefore is, when, admittedly there were acquisition proceedings and if the scheme under which the acquisition proceedings had been initiated, has lapsed, as contended by Shri Shetty, whether the Civil Court could go into the question and on that basis, grant an injunction restraining the BDA from interfering with the land in question, is the moot question that arises for consideration. Such a contention could very well be taken in the writ jurisdiction of this Court. However, the Civil Court would not be competent to address as to whether any further proceedings pursuant to the acquisition proceedings initiated by the BDA, even after it has lapsed, would not be capable of being addressed by the Civil Court and therefore, consequently cannot proceed further as laid down by the Supreme Court in Brijesh Reddy''s case. In that, it is made clear by the Supreme Court, after discussing the law, that the Land Acquisition Act is a complete Code in itself and is meant to serve a public purpose. By necessary implication, the power of Civil Court to take cognizance of the case under Section 9 of the CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution of India and that the Civil Court is devoid of jurisdiction to give declaration or even a bare injunction being granted on the invalidity of the procedure contemplated under the Act.

In the present case on hand, it is however that the notification issued under Section 17 of the BDA Act corresponds to Section 4 and the declaration under Section 9 corresponds to a declaration under Section 6 of the LA Act and therefore, the question whether the scheme had lapsed and therefore, Section 36 of the BDA Act had come into play and rendering it unavailable for the BDA to act under the provisions of the LA Act, is a question which cannot be addressed by the Civil Court and this being the basis on which injunction is sought, was not being capable of being granted by the Civil Court.

The contention would be a primary contention that the plaintiff could take in the writ jurisdiction of this Court and possibly the contention would be upheld on the face of it, if it could be demonstrated that the scheme had lapsed in terms of Section 27 of the BDA Act and the rigmarole of filing the suit, seeking a restraint on the BDA from interfering with the land, otherwise than under due process of law, is a futile exercise. In any event, the BDA cannot interfere otherwise than under due process of law. Therefore, the present appeal is not maintainable and would have to be rejected. Notwithstanding the cases cited by Shri Shetty, that would be relevant in addressing the grievance in the writ jurisdiction of this Court and would not be relevant for the Civil Court to decide whether that may be an injunction or otherwise. However, the appellant shall not be dispossessed if found in possession, otherwise than under due process of law. The respondent is at liberty to take such action for recovery of possession in the manner known to law. It is open for the appellant to question the action of the BDA, if the law so permits.

With that observation, the appeal stands rejected.