2023 INSC 935
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8411 OF 2014
URBAN IMPROVEMENT TRUST,
BIKANER … APPELLANT
Versus
GORDHAN DASS (D)
THROUGH LRs. & OTHERS … RESPONDENTS
J U D G M E N T
MANOJ MISRA, J.
1. I had the benefit of reading the scholarly
judgment of my learned Brother, Hrishikesh Roy, J.,
dismissing this appeal filed against the judgment and
1
order of the High Court dated 12.01.2010 passed in
S.B. Civil Regular Second Appeal No. 114 of 2004.
However, since I’m of the opinion that plaintiff’s suit
was not maintainable in respect of the land which was
acquired by a notification, the defendant’s appeal is
entitled to be allowed. Therefore, I’m recording my
opinion separately.
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2023.10.19
16:44:06 IST
Reason:
1. High Court of Judicature for Rajasthan at Jodhpur
Civil Appeal No.8411 of 2014 Page 1 of 50
Appeal
2. This is a defendant’s appeal against the order of
the High Court dismissing his second appeal preferred
against the judgment and decree of reversal passed by
2
the first appellate Court The first appellate Court had
3
not only set aside the decree of the Trial Court to the
4
extent it denied complete relief as sought in the suit,
but decreed the suit of the first respondent in its
entirety.
3. To have a clear understanding of the issues that
arise for consideration in this appeal, it would be
apposite to advert to the pleadings in the suit out of
which the appeal arises.
Suit
5
4. Gordhan Dass instituted the suit on 23.4.1997
6
against Urban Improvement Trust, Bikaner , Narayan
Das (Respondent no.2), Kanhaiya Lal (Respondent
no.3) and Ganesh Ram (Respondent no. 4) seeking
permanent prohibitory injunction to restrain the Trust
7
from entering or acquiring the land in dispute without
adopting due process of law.
Plaint Case
2
District Judge, Bikaner
3
Additional Civil Judge (Sr. Division/Additional Chief Judicial Magistrate No.1, Bikaner
4
Original Suit No.29 of 1997
5
Predecessor-in-interest of respondent nos.1/1 to 1/3
6
The Trust (Appellant)
7
Khasra Nos. 211/81 and 239/83-New No. 294/83, measuring 3 bighas, adjoining Bikaner Sagar Road
Civil Appeal No.8411 of 2014 Page 2 of 50
5. The plaint case was that, -- (a) the land in
dispute admeasuring 3 bighas was jointly purchased
8
by the plaintiff and defendant nos.2 to 4 vide two
separate sale-deeds dated 02.03.1970 and
16.03.1970; (b) out of the total area of the disputed
land, 1 bigha, comprising a portion of plot no.294/83,
was converted to non-agricultural use for setting up a
Petrol Pump and, for that purpose, the District
9
Collector issued NOC on 23.07.1971; (c) the Trust
had not acquired the land by any lawful manner, yet,
it started showing itself as owner in possession of the
disputed land, as a result, when, on 23.4.1997, the
Trust threatened to acquire the land, the suit had to
be instituted. Additionally, it was pleaded that neither
10 11
the provisions of the 1894 Act nor of the 1959 Act
were followed to acquire the land as neither
opportunity of hearing nor compensation was provided
to either the plaintiff or defendant nos. 2 to 4.
Appellant’s case in the Written Statement
12
6. The appellant in its written statement
rebutted the plaint case and pleaded that, -- the land
pertaining to Khasra no.239/83 stood in the name of
8
Respondent Nos.2 to 4
9
No Objection Certificate
10
The Land Acquisition Act, 1894
11
The Rajasthan Urban Improvement Trust Act, 1959
12
Defendant No.1 in the suit
Civil Appeal No.8411 of 2014 Page 3 of 50
Bhanwari Devi, which had already been acquired
whereas, the land bearing Khasra no.211/81 is out of
Jainarain Vikas Colony Scheme; the land in dispute
has been duly acquired and compensation paid to the
13
Khatedars ; the suit of the plaintiff is not
maintainable; the land in dispute being agricultural,
the Civil Court has no jurisdiction; and the plaintiff
has not come to the court with clean hands as the
disputed land had already been acquired and
compensation paid to the recorded Khatedars.
Amended Pleadings
7. During the suit proceeding, comprehensive
amendments in the plaint were sought and allowed,
resulting in filing of an amended plaint on 11.11.2002.
Therein it was stated that though, pursuant to the
order of the High Court dated 26.02.1998 in S.B. Civil
Writ Petition No.2243/95 (Bhanwarlal vs. State of
Rajasthan), the Trust had taken possession of the land
in dispute on 10.06.1998 but the writ court’s order
related to some other land. Therefore, relief for a
mandatory injunction to restore the possession of the
plaintiff was sought.
8. In the amended written statement filed by the
appellant, it was stated that after plaintiff had
13
Person whose name is recorded as tenure holder in the record of rights
Civil Appeal No.8411 of 2014 Page 4 of 50
instituted the suit, report from Tehsildar was
obtained. Then it was discovered that the plaintiff
along with others had purchased the land in dispute
vide sale deeds dated 02.03.1970 and 16.03.1970 and
had also given an application for conversion of 1 bigha
of that land for non-agricultural use, which was
allowed, and, on payment of conversion fee, NOC was
issued for setting up a Petrol Pump. It was, however,
clarified that the appellant had, in all, acquired 24
bighas and 12 biswas of land comprising Khasra
No.294/83 after following due procedure and
compensation thereof was paid to the recorded
owners. It was also stated that the plaintiff had never
raised any objection to the acquisition. In respect of 1
bigha of that land, for which NOC was issued to set up
a petrol pump, it was stated that the State vide order
dated 7.8.2002 had taken a decision to return it to its
owner. In paragraph 18 of the amended written
statement, it was specifically stated that 2 bighas of
the disputed land were acquired and its compensation
was paid to the recorded tenure-holders.
Trial Court Findings
9. The trial court found that there is no dispute
between the parties that 1 bigha, out of 3 bighas of the
land in dispute, was converted to non-agricultural
Civil Appeal No.8411 of 2014 Page 5 of 50
land and that it was not acquired by the State.
Therefore, the plaintiff is entitled to get possession of
that one bigha. Regarding the remaining 2 bighas of
land, in paragraph 15 of the judgment it was held that,
though plaintiff had purchased it through separate
sale-deeds of the year 1970, in the Jamabandi (i.e.,
record of rights), the name of the plaintiff was not
entered rather it continued to reflect previous
Khatedar’s name. Moreover, notice under Section
52(2) of the 1959 Act was issued to the recorded
Khatedars , award was passed in the year 1985 and
compensation was also paid to them. Trial Court also
observed that plaintiff raised no objection, despite
knowledge, even though the Trust had commenced
development work over the land to make it habitable.
A passing observation was also made that plaintiff’s
intention appeared to be to enjoy the land and later
stake a claim over it. The trial court thus concluded
that plaintiff did not approach the Court with clean
hands. Consequently, the suit was decreed only to the
extent of that 1 bigha of the disputed land regarding
which, the appellant had given up its claim.
Civil Appeal No.8411 of 2014 Page 6 of 50
Appeal Before the First Appellate Court
10. Aggrieved by dismissal of the suit in part, the
14
plaintiff preferred an appeal . No appeal was preferred
by the Trust. Consequently, the decree of the trial
court to the extent of 1 bigha of the disputed land
became final as against the Trust.
11. Before the first appellate court, on behalf of the
plaintiff, it was argued that acquisition proceedings of
the land had commenced in the year 1972 whereas the
two sale-deeds in favour of the plaintiff were registered
in the year 1970. The sale-deeds were in the
knowledge of the officers of the State as conversion of
1 bigha land to non-agricultural land was sought, and
the Collector had issued NOC in favour of the plaintiff.
Therefore, even if plaintiff’s name was not recorded as
Khatedar, it could be presumed that the State and its
officers were aware about ownership rights of the
plaintiff and other co-purchasers (i.e., defendant nos.2
to 4). Yet, no notice of the proposed acquisition was
given to the plaintiff. Hence, the acquisition is void. It
was also argued that the plaintiff and defendant nos.2
to 4 have been in continuous possession, which was
disturbed during pendency of the suit on 10.06.1998.
14
Appeal Decree No.30 of 2004
Civil Appeal No.8411 of 2014 Page 7 of 50
First Appellate Court Findings
12. The first appellate court in paragraph 14 of its
judgment noted the admitted case of the parties that
the land was purchased by the plaintiff vide sale-deeds
dated 02.03.1970 and 16.03.1970 whereas
notification, commencing proceedings for acquisition,
was issued on 09.06.1972. Yet, the plaintiff was not
served notice of proposed acquisition. In paragraph 18
of the judgment, the first appellate court observed that
admittedly prior to the acquisition, NOC was issued to
the plaintiff for conversion of agricultural land to non-
agricultural land, therefore it is to be assumed that the
State was aware of the ownership right of the plaintiff.
Yet, notice of acquisition was not served on the
plaintiff. In these circumstances, non-mutation of
plaintiff’s name in the revenue records would not
defeat plaintiff’s claim that acquisition notification was
bad for non-service of notice on him. With these
observations, and finding upon that possession of the
land was taken on 10.6.1998, the first appellate court
decreed plaintiff’s suit in its entirety.
Second Appeal Before the High Court
13. Aggrieved by decision of the first appellate
court, the appellant preferred second appeal before the
Civil Appeal No.8411 of 2014 Page 8 of 50
High Court contending, inter alia, (a) mere suit for
injunction is not maintainable unless a relief for
declaration of title is sought; (b) the civil court has no
jurisdiction to decide the suit when the land in dispute
is subject matter of acquisition and, under Section 52
of the 1959 Act, on publication of the notification in
the gazette, the land stood vested in the State free from
all encumbrances; and (c) the plaintiff had failed to
implead the State as a defendant even though it was a
necessary party.
14. In rebuttal, on behalf of the plaintiff, it was
argued that since the notification for acquisition was
not preceded by service of notice on the owner of the
land, as contemplated by sub-section (2) of section 52
of the 1959 Act, the acquisition was void and,
therefore, the Civil Court held jurisdiction to grant the
relief sought.
High Court’s decision
15. The High Court opined that purchase of land
by the plaintiff in the year 1970, prior to the
acquisition was not disputed; the acquisition
notification was issued without serving notice on the
plaintiff, therefore, the acquisition was void and suit
as instituted was maintainable. Moreover, the plaintiff
was in possession up to the date of institution of the
Civil Appeal No.8411 of 2014 Page 9 of 50
suit. It thus upheld the decree of the first appellate
court and dismissed the second appeal.
16. Aggrieved by dismissal of its second appeal,
the Trust is in appeal before us.
17. We have heard Sri Aruneshwar Gupta, learned
senior counsel, assisted by Sri Rajeev Singh,
Advocate-on-Record for the defendant-appellant; and
Sri Manoj Swaroop, learned senior counsel, for the
respondents.
Submissions on Behalf of the Appellant
18. Learned counsel for the appellant contended
that Chapter VII of the 1959 Act deals with acquisition
and disposal of land by the Trust. Section 52 of the
1959 Act provides for compulsory acquisition of land.
Sub-section (1) of Section 52 empowers the State
Government to acquire land by publishing in the
Official Gazette a notice specifying the special purpose
for which the land is required and stating therein that
the State Government has decided to acquire the land
in pursuance thereof. Sub-section (4) of section 52
provides that when a notice under sub-section (1) is
published in the official Gazette, the land shall, on and
from the date of such publication, vest absolutely in
the State Government free from all encumbrances.
Sub-section (5) of Section 52 provides that where any
Civil Appeal No.8411 of 2014 Page 10 of 50
land is vested in the State Government under sub-
section (4), the State Government may, by notice in
writing, order any person who may be in possession of
the land to surrender or deliver possession thereof to
the State Government or any person duly authorized
by it in this behalf within 30 days of the service of the
notice. Sub-section (7) of Section 52 provides that
where the land has been acquired for the Trust, the
State Government shall, after it has taken possession
of the land and on payment by the Trust of the amount
of compensation determined under Section 53, and of
the other charges incurred by the State Government
in connection with the acquisition, transfer the land to
the Trust for the purpose for which the land has been
acquired.
19. Learned counsel submitted that the
mechanism for determination of compensation, the
mode of its payment, and resolution of disputes in
respect thereof are provided for by Sections 53, 54, 55,
56, 57, 58 and 59 of the 1959 Act. Thus, the 1959 Act
is a complete Code insofar as acquisition of the land,
payment of compensation for its acquisition and
settlement of disputes regarding the compensation
payable therefor are concerned. As a result, by
necessary implication, the Civil Court’s jurisdiction is
barred from entertaining any claim in respect of that
Civil Appeal No.8411 of 2014 Page 11 of 50
land. Moreover, once the land vests in the State free
from all encumbrances, in absence of seeking a
declaration qua the validity of the acquisition
notification, mere suit for injunction would not be
maintainable. According to him, the trial court was
justified in dismissing the suit to the extent the land
was covered by the notification whereas the first
appellate court and the High Court committed
manifest error of law in holding the suit maintainable.
In addition to the above, it was submitted that
admittedly 2 bighas out of 3 bighas of the land in
dispute was agricultural land, therefore, by virtue of
Section 207 of the Rajasthan Tenancy Act, 1955 (in
short, “the 1955 Act”), the suit was barred before a
Civil Court and could only be filed in a Revenue Court.
20. Regarding non-service of notice upon the
owners of the land prior to the notification under
Section 52(1) of the 1959 Act, the learned counsel for
the appellant submitted that as the original
Khatedars , who stood recorded in the record of rights,
were served with notice of the proposed acquisition,
there was substantial compliance of the provisions of
sub-section (2) of Section 52 of the 1959 Act. Hence,
the notification under sub-section (1) of Section 52
cannot be treated as void.
Civil Appeal No.8411 of 2014 Page 12 of 50
21. In support of his submissions, the learned
counsel for the appellant placed reliance on the
following decisions:
(i) Ahuja Industries Ltd. v. State of Karnataka
15
& Others ;
(ii) Bhola Shanker v. The District Land
16
Acquisition Officer, Aligarh and Ors ;
(iii) Commissioner, Bangalore Development
Authority and another v. Brijesh Reddy and
17
another ;
18
(iv) Kiran Singh v. Chaman Paswan ; and
(v) Munshi Ram v. Municipal Committee,
19
Chheharta .
Submissions on behalf of the Respondents
22. Per contra, learned counsel for the
respondents submitted that under sub-section (2) of
Section 52 of the 1959 Act, the State Government is
under an obligation to call upon the owner of the land
and any other person who, in the opinion of the State
Government, may be interested therein to show cause,
within such time as may be specified in the notice, why
the land should not be acquired. The requirement of
issuing such notice, before publishing the notification
15
(2003) 5 SCC 365
16
(1973) 2 SCC 59
17
(2013) 3 SCC 66
18
AIR 1954 SC 340
19
(1979) 3 SCC 83
Civil Appeal No.8411 of 2014 Page 13 of 50
under sub-section (1) of Section 52, is mandatory. In
absence thereof, the notification under sub-section (1)
of Section 52 is void. Hence, there could be no deemed
vesting under sub-section (4) of Section 52. Thus, the
suit was maintainable, notwithstanding no relief was
sought to annul the notification. In support of his
submissions, the learned counsel for the respondents
placed reliance on a Constitution Bench decision of
this Court in Dhulabhai vs. State of Madhya
20
Pradesh and a three-judge Bench decision in Firm
21
Seth Radha Kishan vs. Municipal Committee .
Questions that arise for Our Consideration
23. On consideration of the rival submissions, in
my view, the following questions arise for
determination:
(i) Whether for failure to serve notice under
sub-section (2) of Section 52 of the 1959
Act on the plaintiff, the notification
acquiring the land under sub-section (1)
of Section 52 of the 1959 Act could be
treated as void by the Civil Court?
(ii) Whether in respect of the land covered
by the acquisition notification, the suit of
20
(1968) 3 SCR 662
21
(1964) 2 SCR 273
Civil Appeal No.8411 of 2014 Page 14 of 50
the plaintiff for injunction simpliciter,
without seeking a declaratory relief and,
that too, without impleading the State as
defendant, maintainable?
(iii) Whether the civil suit of the plaintiff was
also barred by section 207 (2) of the 1955
Act?
Discussion and Analysis
24. Though the aforesaid issues are interrelated
but, for clarity, I propose to deal with them separately.
Issue No.(i) — Whether the notification under
Section 52(1) of the 1959 Act could have been
treated as void by the Civil Court?
25. Before proceeding further on issue no.(i), it is
apposite to observe that when an act is void, it is a
nullity and can be disregarded and impeached in any
proceeding before any court or tribunal whenever it is
relied upon. In other words, it is subject to a “collateral
attack”. But, in Nawabkhan Abbaskhan vs. State of
22
Gujarat , followed in Bharati Reddy vs. State of
23
Karnataka , this Court held that if illegal acts of
authorities are defied on self-determined voidness,
startling consequences will follow. In the light of
22
(1974) 2 SCC 121
23
(2018) 6 SCC 162
Civil Appeal No.8411 of 2014 Page 15 of 50
settled legal position, the question which falls for
consideration is, whether for want of service of notice
of proposed acquisition under sub-section (2) of
Section 52 of the 1959 Act, the acquisition
notification, under section 52 (1) of the 1959 Act,
could be treated as void and, therefore, vulnerable to
a collateral attack.
26. To appropriately address the aforesaid issue, it
would be useful to first examine the provisions of the
1959 Act which deals with compulsory acquisition of
land. Chapter VII of the 1959 Act deals with
acquisition and disposal of land. Section 52 deals with
compulsory acquisition of land. For convenience, the
same is reproduced below:
“ 52. Compulsory acquisition of land - (1) Where
on a representation from the Trust it appears to
the State Government that any land is required
for the purpose of improvement or for any other
purpose under this Act, the State Government
may acquire such land by publishing in the
official Gazette a notice specifying the particular
purpose for which such land is required and
stating that the State Government has decided
to acquire the land in pursuance of this section.
(2) Before publishing a notice under sub-section
(1), the State Government shall by another notice
call upon the owner of the land and any other
person who in the opinion of the State
Government may be interested therein to show
cause, within such time as may be specified in
the notice, why the land should not be acquired.
Civil Appeal No.8411 of 2014 Page 16 of 50
(3) After considering the cause, if any, shown by
the owner of the land and by any other person
interested therein and after giving such owner
and person an opportunity of being heard, the
State Government may pass such orders as it
deems fit.
(4) When a notice under sub-section (1) is
published in the official Gazette, the land shall,
on and from the date of such publication, vest
absolutely in the State Government free from all
encumbrances.
(5) Where any land is vested in the State
Government under sub-section (4), the State
Government may, by notice in writing, order any
person who may be in possession of the land to
surrender or deliver possession thereof to the
State Government or any person duly authorized
by it in this behalf within thirty days of the
service of the notice.
(6) If any person refuses or fails to comply with
an order made under sub-section (5), the State
Government may take possession of the land and
may for that purpose use such force as may be
necessary.
(7) Where the land has been acquired for the
Trust, the State Government shall, after it has
taken possession of the land and on payment by
the Trust of the amount of compensation
determined under Section 53, on the amount of
interest thereon, and of the other charges
incurred by the State Government in connection
with the acquisition, transfer the land to the
Trust for the purpose for which the land has
been acquired.”
27. Section 53 of the 1959 Act is regarding
payment of compensation for compulsory acquisition
of land. Sub-section (3) of Section 53 provides that
Civil Appeal No.8411 of 2014 Page 17 of 50
where the amount of compensation can be determined
by agreement between the State Government and the
person to be compensated, it shall be determined in
accordance with such agreement. Sub section (4) of
Section 53 provides that where no such agreement is
reached, the State Government shall refer the case to
the Collector for determination of the person to whom
the amount of compensation is to be paid and the
amount of compensation to be paid for such
acquisition.
28. Section 54 of the 1959 Act provides that any
party aggrieved by the decision of the Collector
determining the amount of compensation may, within
sixty days from the date of such decision, appeal to the
court of the District Judge having jurisdiction.
29. Section 55 of the 1959 Act provides for
reference of disputes regarding apportionment of
compensation to the Court of the District Judge. It
reads:
“55. Disputes as to apportionment of
compensation. - If any dispute arises as to the
apportionment of compensation among persons
claiming to be entitled thereto the State
Government shall refer such dispute for the
decision of the Court of the District Judge having
jurisdiction.”
Civil Appeal No.8411 of 2014 Page 18 of 50
30. Section 56 confers on a person, aggrieved by
the decision of the District Judge under Section 55 of
the Act, a right to file an appeal to the High Court
31. Section 57 provides for the mode of payment of
compensation, or deposit of the same in Court.
32. Section 58 empowers the Court to invest the
amount of compensation deposited in court.
33. Section 59 provides that if any question or
dispute arises as to the sufficiency of the
compensation paid or proposed to be paid under any
provision of the Act, otherwise than under the
foregoing provisions of that Chapter, the matter shall
be determined by the District Judge having
jurisdiction upon a reference made to him either by
the Trust or by the claimant within a specified period.
34. Section 60 provides for the disposal of the land
by the Trust.
35. A conspectus of the provisions of Chapter VII
of the 1959 Act makes it clear that once the acquisition
notification is published in the Official Gazette under
sub-section (1) of Section 52 of the 1959 Act, by virtue
of sub section (4) of Section 52, the land shall, on and
from the date of such publication, vest absolutely in
the State Government free from all encumbrances
and, thereafter, the owner or person interested in the
land is entitled to receive compensation. Further, as
Civil Appeal No.8411 of 2014 Page 19 of 50
to whom the compensation is payable and the
quantum payable are all issues for which a
mechanism is in place under the provisions of the
1959 Act.
36. Now, the question that falls for consideration
is whether the notification under sub-section (1) of
Section 52 of the 1959 Act could be treated as void for
non-service of notice, under sub-section (2) of Section
52, on the plaintiff and other co-owners of the land
who had purchased the same from the erstwhile
owners, or their predecessors, entered in the record of
rights.
37. According to the learned counsel for the
respondents, where the mandatory provisions of sub-
section (2) of Section 52 of 1959 Act are not followed,
the notification issued thereunder would be a nullity
and, therefore, the Civil Court’s jurisdiction to grant
appropriate relief shall not be ousted. Taking the
proposition further, it was submitted that ouster of a
Civil Court’s jurisdiction cannot be a matter of course
even where finality to the orders of the Special
Tribunals is provided for, particularly, where the
provisions of the concerned Act have not been
complied with or the statutory Tribunal has not acted
in conformity with the fundamental principles of
judicial procedure.
Civil Appeal No.8411 of 2014 Page 20 of 50
38. In support of the above submission, the
learned counsel for the respondent relied on the
decisions of this Court in Dhulabhai (supra) and
Firm Seth Radha Kishan (supra).
39. In Dhulabhai (supra) the appellant before this
Court had instituted a suit to recover sales tax alleged
to have been realized illegally by the State of Madhya
Pradesh. The State contested the suit by claiming that
it was barred by Section 17 of the Madhya Bharat
Sales Tax Act. The court of the District Judge decreed
the suit. On appeal by the State, the High Court
reversed the decision holding that the suit was barred
even though it was conceded by the Revenue that the
tax could not have been imposed in view of the bar of
Article 301 of the Constitution of India. In that context,
the question that arose for this Court to decide was
whether the suit was barred expressly by Section 17
of that Act or by any implication arising from the Act.
The contention on behalf of the appellant therein was
that if it was a question of the correctness of the
imposition within the valid framework of the statute,
rules or notification, Section 17 might have operated
but not when the imposition was under a void law.
After considering several decisions, the Constitution
Bench summarized the legal position as under:
Civil Appeal No.8411 of 2014 Page 21 of 50
“35. … The result of this inquiry into the diverse
views expressed in this Court may be stated as
follows:
(1) Where the statute gives a finality to the
orders of the special Tribunals the civil courts’
jurisdiction must be held to be excluded if there
is adequate remedy to do what the civil courts
would normally do in a suit. Such provision,
however, does not exclude those cases where the
provisions of the particular Act have not been
complied with or the statutory Tribunal has not
acted in conformity with the fundamental
principles of judicial procedure.
(2) Where there is an express bar of the
jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy
or the sufficiency of the remedies provided may
be relevant but is not decisive to sustain the
jurisdiction of the civil court.
Where there is no express exclusion the
examination of the remedies and the scheme of
the particular Act to find out the intendment
becomes necessary and the result of the inquiry
may be decisive. In the latter case it is necessary
to see if the statute creates a special right or a
liability and provides for the determination of the
right or liability and further lays down that all
questions about the said right and liability shall
be determined by the Tribunals so constituted,
and whether remedies normally associated with
actions in civil courts are prescribed by the said
statute or not.
(3) Challenge to the provisions of the
particular Act as ultra vires cannot be brought
before Tribunals constituted under that Act.
Even the High Court cannot go into that question
on a revision or reference from the decision of the
Tribunals.
(4) When a provision is already declared
unconstitutional or the constitutionality of any
Civil Appeal No.8411 of 2014 Page 22 of 50
provision is to be challenged, a suit is open. A
writ of certiorari may include a direction for
refund if the claim is clearly within the time
prescribed by the Limitation Act but it is not a
compulsory remedy to replace a suit.
(5) Where the particular Act contains no
machinery for refund of tax collected in excess of
constitutional limits or illegally collected, a suit
lies.
(6) Questions of the correctness of the
assessment apart from its constitutionality are
for the decision of the authorities and a civil suit
does not lie if the orders of the authorities are
declared to be final or there is an express
prohibition in the particular Act. In either case
the scheme of the particular Act must be
examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the
civil court is not readily to be inferred unless the
conditions above set down apply.”
(Emphasis Supplied)
40. In Firm Seth Radha Kishan (supra) , the
question that fell for determination was whether a suit
would lie in a civil court claiming refund of the
terminal tax collected by a municipality under the
provisions of the Punjab Municipal Act, 1911. The trial
court decreed the suit on finding that
imposition/collection of tax was illegal. On appeal, the
High Court of Punjab held that even though the
imposition of tax might not be authorized but the civil
court had no jurisdiction to entertain the suit as the
Act provided for a remedy by way of appeal against the
Civil Appeal No.8411 of 2014 Page 23 of 50
wrong orders of the authorities thereunder. In that
context, this Court, after considering a plethora of
decisions, held:
“7. Under Section 9 of the Code of Civil
Procedure the court shall have jurisdiction to try
all suits of civil nature excepting suits of which
cognizance is either expressly or impliedly
barred. A statute, therefore, expressly or by
necessary implication, can bar the jurisdiction of
civil courts in respect of a particular matter. The
mere conferment of special jurisdiction on a
tribunal in respect of the said matter does not in
itself exclude the jurisdiction of civil courts. The
statute may specifically provide for ousting the
jurisdiction of civil courts; even if there was no
such specific exclusion, if it creates a liability not
existing before and gives a special and particular
remedy for the aggrieved party, the remedy
provided by it must be followed. The same
principle would apply if the statute had provided
for the particular forum in which the remedy
could be had. Even in such cases, the civil
court's jurisdiction is not completely ousted. A
suit in a civil court will always lie to question the
order of a tribunal created by a statute, even if
its order is, expressly or by necessary
implication, made final, if the said tribunal
abuses its power or does not act under the Act
but in violation of its provisions.”
(Emphasis supplied)
41. The decisions of this Court in Dhulabhai
(supra) and Firm Seth Radha Kishan (supra)
reiterate the settled legal position that if the act
impugned is not under the statute but in violation of
its provisions, the jurisdiction of a civil court is not
completely ousted even though the statute may have
Civil Appeal No.8411 of 2014 Page 24 of 50
created the liability and provided for a specific remedy
to the person aggrieved.
42. In the light of aforesaid legal principle, the
argument on behalf of the plaintiff-respondent is that,
as notice contemplated under sub-section (2) of
Section 52 of the 1959 Act was not given to the owner
of the land prior to the acquisition notification, the
notification would be void and, therefore, the Civil
Court would have jurisdiction to grant appropriate
relief by treating the same as void notwithstanding
that there is no specific challenge to it.
43. In my view, the aforesaid submission is not
acceptable for the following reasons:
(a) there is no challenge to the jurisdictional
power of the acquiring body to issue
notification under Section 52(1) of the 1959
Act, therefore the notification is under the
1959 Act and not beyond the scope of the 1959
Act;
(b) it is not the case of the plaintiff that
pursuant to the sale-deeds qua the land in
dispute, prior to the date of acquisition
notification, plaintiff’s name was entered in the
record of rights, yet no notice under Section
52(2) was served on him prior to the
acquisition;
Civil Appeal No.8411 of 2014 Page 25 of 50
(c) it is also not the case of the plaintiff that
landowners/ Khatedars already recorded in
the record of rights qua the land in dispute,
were not served with notice as contemplated by
sub-section (2) of Section 52 of the 1959 Act;
and
(d) there is a presumption that official acts have
been regularly performed (see: Section 114
Illustration (e) of the Indian Evidence Act,
1872), therefore, once a notification under sub-
section (1) of Section 52 was issued, by virtue
of sub-section (4) of Section 52, in my view, a
legal fiction with regard to the vesting of land
in the State free from all encumbrances from
the date of publication of the notification in the
Official Gazette would come into play and it
cannot be treated as void.
44. Elaborating upon the above reasons, it may be
noted that assuming the plaintiff and defendant nos.
2 to 4 had purchased a portion of the disputed land,
but if they do not get their names mutated in the
record of rights, how would the State come to know of
their ownership. Therefore, if the land is acquired after
serving notice on the recorded owners, as is the case
of the appellant, the State’s action in issuing
notification under Section 52 (1), in my view, cannot
Civil Appeal No.8411 of 2014 Page 26 of 50
be treated as void. More so, because the State had the
power to acquire the land.
45. It may also be noted that from the submissions
made before us, it appears that proceedings for
acquisition were initiated under Section 52(2) of the
1959 Act in the year 1972 and, thereafter, in the year
1974, notification under sub-section (1) of Section 52
was published. The plaintiff and defendant nos.2 to 4
neither claim that they were recorded in the record of
rights prior to that, nor do they claim that none of the
recorded owners was served with notice. Importantly,
the plaintiff does not dispute publication of
notification under sub-section (1) of Section 52 of the
1959 Act. In fact, plaintiff’s claim is that he along with
defendant nos. 2 to 4 were owners of the land,
pursuant to sale-deeds of the year 1970, yet they were
not served notice, under sub-section (2) of Section 52,
prior to the notification under sub-section (1) of
Section 52 and, therefore, the notification, under sub-
section (1) of Section 52, is illegal and void.
46. In Ahuja Industries (supra) , a somewhat
similar claim under another land acquisition law was
rejected. In that case, the appellant who filed the
appeal before this Court had purchased a piece of land
on 10.02.1993. However, the said land was not
mutated in his name in the record of rights which
Civil Appeal No.8411 of 2014 Page 27 of 50
continued to show the name of the person who had
sold the land to the vendor of the appellant.
Subsequently, the said land and surrounding lands
were acquired vide notification dated 30.10.1997. The
appellant questioned the acquisition, by claiming,
inter alia , that no notice under Section 28(2) and 28(6)
of the Karnataka Industrial Areas Development Act,
1966 was served on him and that such violation of
principle of natural justice vitiated the acquisition
proceedings. It was also argued that Sections 127, 128
and 129 of the Karnataka Land Revenue Act, 1964
cast an obligation on the Registering Officer to make a
report to the revenue authority to enter his name in
the record of rights and its failure to do so resulting in
non-service of the notice on the appellant, depriving
him of the opportunity to file his objections, should
not act to his detriment or disadvantage.
47. Dealing with the above submissions, in Ahuja
Industries (supra) , upon finding that notices were
issued to/served on the owners/occupants, or their
representatives, as shown in the record of rights, and
the appellant had not got his name mutated in the
record of rights, this Court, after taking notice of
earlier decisions, held:
“12. This Court in Winky Dilawari v. Amritsar
Improvement Trust [(1996) 11 SCC 644] has
taken the view that failure to serve personal
Civil Appeal No.8411 of 2014 Page 28 of 50
notices on the persons whose names have not
been mutated in the official record-of-rights in
pursuance of any sale in their favour does not
vitiate the proceedings for acquisition. Similar
view was taken in W.B. Housing
Board v. Brijendra Prasad Gupta [(1997) 6 SCC
207] wherein this Court observed: (SCC p. 214,
para 8):
“It is no part of the duty of the Collector to make
a roving inquiry into ownership of the persons.
We are of the opinion that the requirements of
the law were met when notices were served upon
the recorded owners as per the record- of-rights.
Again we do not think in a case like the present
one, it is for the Collector to make enquiries from
the registration office to find out if the land had
since been sold by the recorded owners.
In Winky Dilawari v. Amritsar Improvement
Trust [(1996) 11 SCC 644], this Court observed
that the public authorities were not expected to
go on making enquiries in the Sub-Registrar’s
office as to who would be the owner of the
property. The Collector in the present case was
thus justified in relying on the official record
being the record-of-rights as to who were the
owners of the land sought to be requisitioned
and prudence did not require any further
enquiry to be made. We are therefore of the view
that notices were properly served under Section
3(2) of the Act on the owners of the land.”
13. It could be seen from the above order
that service of notice on a person shown as
owner or occupier in the record-of-rights is
sufficient even though the said person had
already sold the land prior to the said notification
unless it is substantiated otherwise that the
authorities concerned had knowledge of the
rights or interest of any person other than those
found recorded as owner/occupier in the
revenue records. It is further held that the
Collector is not obliged to make a roving enquiry
about the ownership of the land. If the name of
the purchaser is not yet entered in the record-of-
Civil Appeal No.8411 of 2014 Page 29 of 50
rights then non-service on such a person does
not vitiate the acquisition proceedings.
Admittedly, the appellant had not got his name
entered in the revenue records as owner or
occupant of the said land and therefore he could
not complain about non-service of notice on him
nor about the failure to grant a hearing to him.
Contention that as per provision of the Land
Revenue Act there was no obligation on his part
to either inform the Revenue Authorities about
the sale in his favour or to request them to
transfer the katha in his name cannot stand as
it has not been brought on record with reference
to any pleadings with supporting documents
that in fact the appellant had made payment for
making the necessary entries in the record-of-
rights and the register in his name at the time of
registration of the sale deed in his favour. This
apart, failure to make entries on the part of the
Revenue Authorities by itself would not cast any
obligation on the authorities under the Act to
make a roving enquiry and try to locate an owner
who may have subsequently purchased the land
from the previous owner. Failure on the part of
the Revenue Authority to make entry in the
register of mutation in favour of the subsequent
owner would not render the acquisition
proceedings bad in law on account of non-
issuance of notice inviting objections to the
acquisition proceedings or service thereof .”
(Emphasis supplied)
48. Having noticed the decision in Ahuja
Industries (supra) , in my view, the legal position that
emerges is, that if the name of the owner is not entered
in the record of rights pertaining to the land proposed
to be acquired, there is no legal obligation on the state
authorities to make a roving enquiry to find out as to
who its actual owner is for effecting service of notice
Civil Appeal No.8411 of 2014 Page 30 of 50
upon him prior to issuance of the acquisition
notification. In such circumstances, there would be
sufficient compliance of the statutory obligation of
serving notice on the owner if the notice is served on
the owners entered in the record of rights, unless it is
specifically proved that the real owners, other than
owners entered in the record of rights, were known to
the revenue authorities.
49. In the instant case, the plaintiff’s case is not
that his name was mutated in the record of rights,
rather his case is that the district administration was
aware of his title to the land because they had issued
NOC for conversion of that agricultural land to non-
agricultural land. To test the correctness of the
aforesaid claim, I have perused the amended plaint.
The relevant averments to that effect are in paragraph
1 (b) of the amended plaint. A careful reading of the
same would indicate that the plea of the plaintiff was
that he sought conversion of one bigha, out of three
bighas of the disputed land, for non-agricultural use
and, in connection therewith, a favorable report was
given by the Patwari resulting in issuance of an NOC
by the District Magistrate for non-agricultural use of
one bigha land. However, there is no averment in the
plaint that sale-deeds of the entire disputed land were
produced by the plaintiff before the officers of the State
Civil Appeal No.8411 of 2014 Page 31 of 50
/administration at the time of seeking NOC. In these
circumstances, in my view, a constructive notice of the
sale-deeds cannot be imputed on the State. I,
therefore, reject the argument that by issuing NOC for
non-agricultural use of one bigha of the disputed land,
the State acquired knowledge regarding plaintiff’s title
in respect of the entire land comprising 3 bighas.
50. Even assuming that by issuing NOC the State
got knowledge about plaintiff’s title, it could at best be
in respect of that one bigha land which was converted
for non-agricultural use. But that would not be
material for deciding this appeal because the appellant
has already given up its claim qua that portion of land
in the amended written statement. In fact, the trial
court has already passed a decree in favour of the
plaintiff in respect of that portion which has attained
finality. Thus, that one bigha of land is not the subject
matter of the current appeal.
51. In light of the discussion above, in my view,
once there is no dispute that a notification regarding
acquisition of the land was issued and duly published
under sub-section (1) of section 52 of the 1959 Act, a
presumption would arise under illustration (e) of
Section 114 of the Indian Evidence Act, 1872 that the
notification was in conformity with the provisions of
the 1959 Act. This presumption, in my view, has not
Civil Appeal No.8411 of 2014 Page 32 of 50
been dislodged by the plaintiff, as there is no specific
plea in respect of: (a) lack of power/authority of the
person issuing the notification; and (b) the procedure
prescribed being not followed in its entirety. No doubt,
there is a plea that notice as contemplated under sub-
section (2) of Section 52 of the 1959 Act was not served
upon the plaintiff prior to the notification but there is
no plea that no notice at all was issued to and served
on any of the persons recorded as owners in the record
of rights. Therefore, once it is established that the
plaintiff was not recorded as the owner in the record
of rights on the date of issuance of the notification for
acquisition of the land, taking into account the law
laid down in Ahuja Industries (supra) , I’m of the view
that mere non-service of notice, under Section 52 (2)
of the 1959 Act, upon non-recorded owner, such as
the plaintiff, would not render the acquisition
notification under Section 52(1) void. Thus, the Civil
Court could not have treated the notification under
Section 52 (1) of the 1959 Act as void. Issue no.(i) is
decided accordingly.
Issue No.(ii) – Whether in respect of the land
covered by acquisition notification, the suit of the
plaintiff for injunction simpliciter, without
seeking a declaration and, that too, without
impleading the State as defendant, maintainable?
Civil Appeal No.8411 of 2014 Page 33 of 50
52. As I have held that the acquisition notification
could not have been disregarded as void, the question
that would now arise for consideration is whether the
suit of the plaintiff for injunction simpliciter, without
seeking a declaratory relief, would be maintainable in
a Civil Court.
53. At this stage, at the cost of repetition, it may
be observed that initially the suit was instituted for
injunction to restrain the Trust (i.e., the defendant
no.1- appellant) from taking possession of the land
without following due process of law. When, in the
written statement, the appellant took a specific plea
that the land had already been acquired and
compensation was paid, the plaint was amended
stating therein that during pendency of the suit
possession was taken and, therefore, a direction be
issued upon the Trust to restore possession. Despite
knowledge of appellant’s case that land has been
acquired, no declaratory relief, either to declare the
notification invalid or to declare plaintiff as the owner,
was sought, despite the legal position that under sub-
section (4) of Section 52 of the 1959 from the date of
publication of notification under sub-section (1) of
Section 52 of the 1959 Act the land would vest in the
State free from all encumbrances.
Civil Appeal No.8411 of 2014 Page 34 of 50
24
54. In Anathula Sudhakar v. P. Buchi Reddy ,
this Court had the occasion to lay down general
principles as to when a mere suit for permanent
injunction will lie, and when it is necessary to file a
suit for declaration and/or possession with injunction
as a consequential relief. The relevant portion of that
judgment is extracted below:
“13. The general principles as to when a mere
suit for permanent injunction will lie, and when
it is necessary to file a suit for declaration and/or
possession with injunction as a consequential
relief, are well settled. We may refer to them
briefly.
13.1. Where a plaintiff is in lawful or peaceful
possession of a property and such possession is
interfered or threatened by the defendant, a suit
for an injunction simpliciter will lie. A person has
a right to protect his possession against any
person who does not prove a better title by
seeking a prohibitory injunction. But a person in
wrongful possession is not entitled to an
injunction against the rightful owner.
13.2. Where the title of the plaintiff is not
disputed, but he is not in possession, his remedy
is to file a suit for possession and seek in
addition, if necessary, an injunction. A person
out of possession, cannot seek the relief of
injunction simpliciter, without claiming the relief
of possession.
13.3. Where the plaintiff is in possession, but
his title to the property is in dispute, or under a
cloud, or where the defendant asserts title
thereto and there is also a threat of
dispossession from the defendant, the plaintiff
will have to sue for declaration of title and the
24
(2008) 4 SCC 594
Civil Appeal No.8411 of 2014 Page 35 of 50
consequential relief of injunction. Where the title
of the plaintiff is under a cloud or in dispute and
he is not in possession or not able to establish
possession, necessarily the plaintiff will have to
file a suit for declaration, possession and
injunction.
14. We may, however, clarify that a prayer for
declaration will be necessary only if the denial of
title by the defendant or challenge to the
plaintiff's title raises a cloud on the title of the
plaintiff to the property. A cloud is said to raise
over a person's title, when some apparent defect
in his title to a property, or when some prima
facie right of a third party over it, is made out or
shown. An action for declaration, is the remedy
to remove the cloud on the title to the property.
On the other hand, where the plaintiff has clear
title supported by documents, if a trespasser
without any claim to title or an interloper without
any apparent title, merely denies the plaintiff's
title, it does not amount to raising a cloud over
the title of the plaintiff and it will not be
necessary for the plaintiff to sue for declaration
and a suit for injunction may be sufficient.
Where the plaintiff, believing that the defendant
is only a trespasser or a wrongful claimant
without title, files a mere suit for injunction, and
in such a suit, the defendant discloses in his
defence the details of the right or title claimed by
him, which raise a serious dispute or cloud over
the plaintiff's title, then there is a need for the
plaintiff, to amend the plaint and convert the suit
into one for declaration. Alternatively, he may
withdraw the suit for bare injunction, with
permission of the court to file a comprehensive
suit for declaration and injunction. He may file
the suit for declaration with consequential relief,
even after the suit for injunction is dismissed,
where the suit raised only the issue of possession
and not any issue of title.”
(Emphasis supplied)
Civil Appeal No.8411 of 2014 Page 36 of 50
55. In the instant case, the stand of defendant no.1
(i.e., the appellant herein) was categorical that the
land in dispute had already been acquired. Therefore,
in light of the provisions of Section 52(4) of the 1959
Act, a cloud existed over the title of the plaintiff.
Further, during pendency of the suit, plaintiff
admitted that possession was also taken. In these
circumstances, in the light of the law laid down by this
Court in Anathula Sudhakar (supra) , without
seeking a declaratory relief qua the validity of the
acquisition notification, mere suit for injunction, in my
view, was not maintainable.
56. In addition to what has been discussed above,
there are multiple decisions to the effect that the
validity of an acquisition notification, acquiring land
under compulsory land acquisition laws for public
purpose, cannot ordinarily be questioned in a Civil
Court, though its validity may be questioned before a
superior court by invoking its powers under the
Constitution of India. In State of Bihar v. Dhirendra
25
Kumar and others , a notification under Section 4(1)
of the 1894 Act was published on 13.02.1957
acquiring the disputed land along with other lands for
public purpose. The declaration under Section 6 was
25
(1995) 4 SCC 229
Civil Appeal No.8411 of 2014 Page 37 of 50
published on 27.03.1957 and possession of the land
was taken on 22.03.1957. Several encroachments
were made on that land. When steps were taken to
have the encroachers evicted, a suit came to be
instituted. In that suit, an application seeking
temporary injunction under Order 39 Rule 1 of C.P.C.
was filed. The trial court found that there existed a
triable issue and thereby granted injunction
restraining the defendants from dispossessing the
plaintiff till the disposal of the suit. Against the order
of the trial court, the matter went to the High Court.
The High Court modified the temporary injunction and
directed status quo. Thereafter, the matter travelled to
this Court. The question that arose for consideration
by this Court was whether a civil suit would be
maintainable and whether ad-interim injunction could
be issued where proceedings under the 1894 Act were
taken pursuant to a notice issued under Section 9 of
the 1894 Act. Dealing with the said question, it was
held:
“3. … 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 s.4 and s.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
Civil Appeal No.8411 of 2014 Page 38 of 50
notifications and declaration under s.6, the
public purpose gets crystalised 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 11A now prescribes limitation to
make the award within 2 years from the last of
date of publication envisaged under s.6 of the
Act. In an appropriate case, where the Govt.
needs possession of the land urgently, it would
exercise the power under s.17(4) of the Act and
dispense with the enquiry under s.5-A. Thereon,
the State is entitled to issue notice to the parties
under 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 under
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 under 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 under s.4 and declaration under
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 Housing
Board. So, the order of injunction was without
jurisdiction.”
(Emphasis supplied)
57. In Laxmi Chand v. Gram Panchayat,
26
Kararia , validity of the acquisition and of the award
was challenged by instituting a civil suit for a
26
(1996) 7 SCC 218
Civil Appeal No.8411 of 2014 Page 39 of 50
declaration that the land could not be acquired. In that
suit, a preliminary issue was framed regarding
maintainability of the suit. The trial court held that the
suit was not maintainable. The judgment of the trial
court was affirmed. The matter came before this Court.
The contention raised on behalf of the petitioner before
this Court was that once the acquisition proceedings
were dropped by the Land Acquisition Officer, he had
no jurisdiction or power to reopen the same and to
make the award under Section 11 of the 1894 Act. It
was argued that the award is squarely illegal for want
of jurisdiction. After noticing the facts, this Court held:
“2. … It is seen that Section 9 of the Civil
Procedure Code, 1908 gives jurisdiction to the
civil court to try all civil suits, unless barred. The
cognizance of a suit of civil nature may either
expressly or impliedly be barred. The procedure
contemplated under the Act is a special
procedure envisaged to effectuate public
purpose, compulsorily acquiring the land for use
of public purpose. The notification under Section
4 and declaration under Section 6 of the Act are
required to be published in the manner
contemplated thereunder. The inference gives
conclusiveness to the public purpose and the
extent of the land mentioned therein. The award
should be made under Section 11 as envisaged
thereunder. The dissatisfied claimant is provided
with the remedy of reference under Section 18
and a further appeal under Section 54 of the Act.
If the Government intends to withdraw from the
acquisition before taking possession of the land,
procedure contemplated under Section 48
requires to be adhered to. If possession is taken,
it stands vested under Section 16 in the State
with absolute title free from all encumbrances
Civil Appeal No.8411 of 2014 Page 40 of 50
and the Government has no power to withdraw
from acquisition.
3. It would thus be clear that the scheme of the
Act is complete in itself and thereby the
jurisdiction of the civil court to take cognizance
of the cases arising under the Act, by necessary
implication, stood barred. The civil court thereby
is devoid of jurisdiction to give declaration on the
invalidity of the procedure contemplated under
the Act. The only right an aggrieved person has
is to approach the constitutional courts, viz., the
High Court and the Supreme Court under their
plenary power under Articles 226 and 136
respectively with self-imposed restrictions on
their exercise of extraordinary power. Barring
thereof, there is no power to the civil court.”
(Emphasis supplied)
58. Following the above two decisions (i.e., State of
Bihar v Dhirendra Kumar and Laxmi Chand v. Gram
Panchayat), in Commissioner, Bangalore
Development Authority and another v. Brijesh
Reddy and another (supra) , it was held:
“18. 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 under Section 9 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. 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
Civil Appeal No.8411 of 2014 Page 41 of 50
self-imposed restrictions on their exercise of
extraordinary power.”
59. Reverting to the present case, the acquisition
is for a public purpose, namely, development of land
for residential colony and, by virtue of sub-section (4)
of Section 52 of the 1959 Act, the land stood vested in
the State free from all encumbrances with effect from
the date of publication of the notification. Once that is
the position, in the light of discussion above, and
applying the law laid down by this Court in State of
Bihar v . Dhirendra Kumar (supra) ; Laxmi Chand v.
Gram Panchayat (supra) ; and Commissioner,
Bangalore Development Authority and another v.
Brijesh Reddy and another (supra) , I am of the
considered view that in respect of land covered by the
acquisition notification, the suit as framed was not
maintainable.
60. Otherwise also, there was another patent
defect in the plaint as the State was not impleaded as
defendant in the suit. The State was a necessary party
because all the steps taken for acquisition of land
under sub-section (1) of Section 52 of the 1959 Act
were taken by it. And, by virtue of sub-section (4) of
Section 52 of the 1959 Act, the land vested in the
State. Therefore, when a collateral attack to the
validity of the acquisition was launched by the
Civil Appeal No.8411 of 2014 Page 42 of 50
plaintiff, by alleging that necessary steps for a lawful
acquisition were not taken, it was the State which
could have effectively disclosed whether all the
necessary steps required for a valid acquisition of the
land were taken or not. In this view of the matter, in
my opinion, the suit was also bad for non-joinder of
necessary party.
61. In my view, the suit in question is a classic
example of clever drafting where to avoid crucial
issues, such as the bar of limitation and response from
the State, firstly, no declaration in respect of the
acquisition notification was sought and, secondly, the
State, which issued the acquisition notification and in
whom the title of the land vested by a deeming fiction,
was not impleaded as a party. Such clever drafting to
avoid critical issues have been deprecated time and
again by this Court as it amounts to an unfair
practice.
62. In T. Arivandandam v. T.V. Satpal and
27
another cautioning the Courts to be mindful of the
craft of creating an illusion of a cause of action for
instituting the suit, it was observed:
“ 5…………..The learned Munsif must remember
that if on a meaningful -not formal- reading of
plaint it is manifestly vexatious, and meritless,
in the sense of not disclosing a right to sue, he
27
(1977) 4 SCC 467
Civil Appeal No.8411 of 2014 Page 43 of 50
should exercise his power under Order 7, Rule
11 CPC taking care to see that the ground
mentioned therein is fulfilled. And, if clever
drafting has created an illusion of a cause of
action, nip it in the bud at the first
hearing ……….”
(Emphasis supplied)
63. The necessity to implead the State in a suit
where an issue is raised qua vesting of surplus land in
the State, under the ceiling laws, for failure to take
possession before enforcement of the Repeal Act of
Shri
1999, has been highlighted by this Court in
Saurav Jain & Another Vs. M/s A.B.P. Design &
Another (Civil Appeal No.4448 of 2021, arising out
of SLP (C) No.29868 of 2018, decided on
28
05.08.2021) by observing:
“36…….The High Court held that no material
was forthcoming on whether actual and physical
possession was taken by the Competent
Authority from the land owner and it held that in
the absence thereof, the first respondent, as the
purchaser from Zahid Hussain, would continue
to have a valid title. The High Court has entered
these findings despite the fact that by a process
of engineered drafting, the first respondent
sought no reliefs in regard to the proceedings
under the ULCRA (to obviate bar to the
maintainability of the suit) and did not implead
either the State or the Competent authority who
would have been in a position to answer the
challenge.”
(Emphasis supplied)
28
LL 2021 SC 354
Civil Appeal No.8411 of 2014 Page 44 of 50
64. No doubt, in the instant case, the land was
transferred by the State to the Trust after acquisition,
and the Trust was a party in the suit. But it was the
State which had acquired the land for the benefit of
the Trust and by virtue of Section 52 (4) of the 1959
Act the land vested in the State pursuant to the
notification issued by it under Section 52(1).
Therefore, in my view, when the relief of injunction was
dependent on validity of the acquisition notification,
the State was a necessary party as it alone could have
appropriately produced all the records about the steps
taken for acquisition of the land. Institution of the suit
without challenging the acquisition notification and
without impleading the State is a clever ploy to avoid
crucial questions. Such an exercise is akin to
approaching the Court with unclean hands. This
alone, in my view, as also observed by the trial court,
disentitles the plaintiff to obtain discretionary relief of
injunction. Thus, in my considered view, in respect of
the land covered by the acquisition notification, the
Suit as framed was not maintainable, not only for not
seeking a declaratory relief but also for not impleading
the State as a party. The issue no. (ii) is decided
accordingly.
Civil Appeal No.8411 of 2014 Page 45 of 50
Issue no.(iii)-- Whether the civil suit of the plaintiff
was barred by section 207 (2) of the Rajasthan
Tenancy Act?
65. To appropriately address the issue as to
whether the suit in the Civil Court was barred by
Section 207 (2) of the 1955 Act, it would be useful to
examine the scheme of the 1955 Act as also whether
the reliefs claimed in the suit were within the scope of
the reliefs which could be sought for under the 1955
Act.
66. The preamble of the 1955 Act provides that it
is an Act to consolidate and amend the law relating to
tenancies of agricultural lands, and to provide for
certain measures of land reforms and matters
connected therewith.
67. Section 5(24) of the 1955 Act defines “land” as
“land” shall mean land which is let or held for
agricultural purposes or for purposes subservient
thereto or as grove land or for pasturage including land
occupied by houses or enclosures situated on a holding,
or land covered with water which may be used for the
purpose of irrigation or growing Singhara or other
similar produce but excluding abadi land; it shall
include benefits to arise out of land and things attached
to the earth or permanently fastened to anything
attached to the earth.
Civil Appeal No.8411 of 2014 Page 46 of 50
68. In the instant case, there exists no dispute
between the parties that for conversion of one bigha,
out of 3 bighas of the land in dispute, from agricultural
to non-agricultural use, application was given, and
conversion was made after charging conversion fee,
etc. This fact clearly demonstrates that the land in
dispute was agricultural land and was recorded as
such in the Jamabandi (i.e., record of rights). In so far
as that one bigha of land, which was converted to non-
agricultural use, is concerned, no dispute survives as
the appellant gave up its claim to it and the trial court
passed a decree in respect thereof, which has attained
finality. The dispute which survives is confined to that
2 bighas of the disputed land, which remained
agricultural land.
69. Section 207 of the 1955 Act provides:
“ 207. Suits and applications cognizable by
revenue court only—
(1) All suits and application of the nature
specified in the Third Schedule shall be heard
and determined by a revenue court.
(2) No court other than a revenue court shall
take cognizance of any such suit or
application or of any suit or application based
on a cause of action in respect of which any
relief could be obtained by means of any such
suit or application.
Explanation — If the cause of action is one in
respect of which relief might be granted by the
revenue court, it is immaterial that the relief
asked for from the civil court is greater than,
Civil Appeal No.8411 of 2014 Page 47 of 50
or additional to, or is not identical with, that
which the revenue court could have granted.”
70. Section 256 of the 1955 Act reads:
“ S.256. Bar to jurisdiction of civil courts. – (1)
Save as otherwise provided specifically by or
under this Act, no suit or proceeding shall lie
in any civil court with respect to any matter
arising under this Act or the rules made
thereunder, for which a remedy by way of suit,
application, appeal or otherwise is provided
therein.
(2) Save as aforesaid no order by the State
Government or by any revenue court or officer
in exercise of the powers conferred by this Act
or the rules made thereunder shall be liable to
be questioned in any civil court.”
29
71. In Pyarelal v. Shubhendra Pilania this
Court, by relying on earlier decision of this Court in
30
Bank of Baroda v. Moti Bai , held that Section 207
read with Section 256 of the 1955 Act bars the
jurisdiction of the civil courts in respect of suits and
applications of the nature specified in the Third
Schedule of the 1955 Act.
72. The Third Schedule of the 1955 Act, gives a list
of suits, applications and appeals which could be
maintained under the Act. Entry 8A provides that a
suit for injunction could be filed before the Court of
Assistant Collector within a period of three years from
29
(2019) 3 SCC 692
30
(1985) 1 SCC 475
Civil Appeal No.8411 of 2014 Page 48 of 50
the date the cause of action arises. Entry 23-C
provides that a suit for perpetual injunction can be
filed before the Court of Assistant Collector within a
period of three years from the date the cause of action
arises. Entry 5 provides that a suit for declaration of
the plaintiff’s right as a tenant, or as a tenant of
Khudkasht , or as a sub-tenant, or for a share in a joint
tenancy are also to be filed in the Court of Assistant
Collector. Similarly, suit for declaration of tenancy
rights or for recovery of possession or for ejectment of
trespassers can be filed under Sections 89, 187 and
183 respectively, vide entries 6, 23 and 23-A
respectively in the Third Schedule.
73. Once it is established that two bighas out of
three bighas of the land in dispute was agricultural
land and as such fell within the purview of the 1955
Act, in my view, though the revenue court may not
have had the jurisdiction to annul the notification
acquiring the land, which, in any case, was not sought
for by the plaintiff, the suit for injunction was
maintainable before the Revenue Court by virtue of
Entries 8A and 23-C read with Entries 5, 6, 23 and
23A of the Third Schedule of the 1955 Act. Thus, the
Suit before the Civil Court was barred by Section 207
read with Section 256 of the 1955 Act. Issue no.(iii) is
decided accordingly.
Civil Appeal No.8411 of 2014 Page 49 of 50
Conclusion
74. As I have found the suit not maintainable
insofar as it related to the land covered by the
acquisition notification and also barred by Section 207
read with Section 256 of the Rajasthan Tenancy Act,
1955, the defendant’s appeal is entitled to be allowed
and is hereby allowed. The judgment and decree of the
High Court as well as of the First Appellate Court are
set aside and the decree passed by the Trial Court is
restored.
......................................J.
(MANOJ MISRA)
New Delhi;
October 19, 2023
Civil Appeal No.8411 of 2014 Page 50 of 50
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8411 OF 2014
URBAN IMPROVEMENT TRUST BIKANER APPELLANT(S)
VERSUS
GORDHAN DASS (D) THR. LRS. & ORS. RESPONDENT(S)
J U D G M E N T
Hrishikesh Roy, J.
A. Factual Backdrop
1. The challenge here is to the judgment dated 12.1.2010 by the
High Court of Judicature for Rajasthan at Jodhpur in SB Civil
Regular Second Appeal No.114 of 2004 whereby the High Court
upheld the verdict of the first Appellate Court and opined that the
acquisition proceeding is null and void since notice was not given
to the owners who were in possession but was given to original
khatedaars whose names were existing in the revenue record.
2. The respondent Gordhan Dass filed Regular Civil Suit No.
03/04 projecting the case that the plaintiff and the defendant
nos.2 to 4 jointly purchased 3 bighas of land in Bikaner town in
Page 1 of 40
two tranches. Under the registered sale deed dated 2.3.1970, two
and a half bigha land was first purchased and under the second
registered sale deed dated 16.3.1970, another half bigha land was
purchased from one Lal Khan. The plaintiff and the defendant nos.
2 to 4 thereby became joint khatedars of the said three bighas of
purchased land. While the purchasers were in peaceful possession
of the land bearing Khasra no.211/81 and 239/83, the defendant
no.1 i.e. the Urban Improvement Trust, Bikaner started making
claim over this land projecting that they had acquired the said
land. Initially, the suit was filed seeking permanent injunction to
restrain the defendant no.1 from trespassing into the land and
initiating any acquisition process but later when the defendant
no.1 was trying to obtain forceful possession of the land during the
pendency of the suit, the plaintiff amended the suit on 11.11.2002
to secure restoration of possession through mandatory injunction.
It was also pleaded that on the basis of a judgment dated
26.2.1998(WP 2243/95) in Bhanwarlal v State of Rajasthan ,
concerning some other land, the defendant no. 1 had taken
possession of the plaintiff’s land and that the plaintiff was enjoying
possession till 9.6.1998 during the pendency of civil suit. In the
written statement, the Urban Improvement Trust admitted that the
Page 2 of 40
plaintiff together with the defendant nos.2 to 4 purchased total 3
bighas of land through 2 sale deeds dated 2.3.1970 and 16.3.1970,
and those sale deeds are registered in the office of Sub-Registrar,
Bikaner. The defendant no.1 also admitted that the plaintiff
submitted an application before District Magistrate to convert one
bigha land to non-agricultural category on which the District
Magistrate issued NOC since the said land was needed to set up a
petrol pump. Projecting their right over the concerned land, the
defendant no.1 in the written statement claimed that they had
acquired 24 Bigha 12 Biswa land comprising Khasra No.294/82
and requisite compensation was paid to the original khatedar.
Therefore, no compensation is payable to either the plaintiff or the
defendant nos.2 to 4 who had purchased the 3 Bigha land.
3. The Trial Court on the basis of the rival contentions framed
the following issues:
“(i) Whether properties mentioned in paras 1, 1 (a), 1
(b) of the plaint are under the ownership of plaintiff
and defendant no.2 to 4?
(ii) Whether out of the above-stated lands, two bigha
land has been wrongly acquired by the defendant
no.1?
(iii) Whether defendant no.1 has wrongly got
possession over suit land according to para no.9 of the
plaint, plaintiff is entitled to get the same restored?
(iv) Whether compensation has already been paid to
the concerning people having acquired 24 Bigha 12
Biswa suit land comprising Khasra No.294/83
Page 3 of 40
adopting lawful process according to para No.115 of
written statement?
(v) Relief (s) ?”
4. The learned Additional Civil Judge (Sr. Division) Bikaner
partially decreed the suit against the defendant no.1 by holding
that the plaintiff is entitled to get possession of 1 Bigha land meant
for petrol pump in Khasra No.284/83. However, for the balance suit
land, it was held that the defendant no.1 had acquired the said
land and accordingly the suit of the plaintiff for the 2 Bighas land,
was dismissed. While granting relief for the 1 Bigha land, the
learned Trial Judge noted that possession of the same was restored
to the plaintiff after due permission from the State Government
and therefore his ownership remained undisturbed. For the
balance 2 Bighas land, relief was refused and it was held that even
though the said land was purchased in 1970 through registered
sale deeds, the names of the new owners were not mutated in the
revenue records which continued to reflect the name of the
previous owner (seller), to whom compensation was paid. It was
further held that the onus was on the plaintiff to prove ownership,
claim compensation, and get his name recorded in jamabandi.
5. The plaintiff then filed an appeal before the District Judge,
Bikaner and the learned Appellate Court by its judgment dated
Page 4 of 40
16.4.2004 decreed the entire suit land in favour of the plaintiff and
against the defendant no.1 and the defendant was restrained from
interfering with the plaintiff’s peaceful possession, use and
occupation of the suit land. The Appellate Court concluded in
favour of the plaintiff after noting that no opportunity of hearing
was provided to the plaintiff for acquisition of the land and
furthermore, the plaintiff, Gordhan Dass was enjoying undisturbed
possession of the land until 10.6.1988. Notwithstanding the
mutation correction not being carried out in the revenue records by
the purchasers, the Appellate Court noted that the plaintiff had
already applied before the District Magistrate for conversion of 1
Bigha land for establishing petrol pump and NOC for the said
purpose was issued in favour of the plaintiff with the active
cooperation by the defendants and it was thus concluded that
despite knowledge of the plaintiff’s ownership and possession, the
defendant no.1 did not discharge its duty to issue notice to the land
owner/plaintiff and accordingly the land acquisition proceedings
were held to be invalid. Moreover, since during the pendency of the
suit the plaintiff was forcefully evicted from the land on 10.6.1988
under cover of some other judgment of the High Court, the Court
opined that without proper acquisition proceedings with notice to
Page 5 of 40
the owner, the possession of the plaintiff (who was enjoying
uninterrupted possession till 10.6.1988), could not have been
disturbed. It was further noted that neither was any acquisition
notice issued to the plaintiff nor they were paid any acquisition
compensation although they were the actual owners of the land.
On the claim that the compensation was paid, the Court opined
that it was a vague contention in the written statement and it was
not categorically mentioned to whom compensation was paid nor
any evidence on such payment was produced by the defendant No.
1. It was also found that the defendant no.1 had forcibly evicted the
plaintiff from his property during the pendency of the suit without
due legal process i.e. without service of notice, without providing
the opportunity of hearing and without payment of compensation
to the plaintiff, and thus, the proceedings of the defendant no.1
were declared to be invalid. The decree of the Trial Court dated
23.2.2004 was thus set aside allowing the plaintiff’s appeal. The
decree of permanent injunction was accordingly granted favouring
the plaintiff against the defendant no.1 and it was further ordered
that defendant no.1 is to restore the suit land mentioned in para
no.1 (a) & 1 (b) of the plaint and they were restrained from
Page 6 of 40
interfering with the use and occupation of the said land by the
plaintiff.
6. The defendant no.1 i.e. Urban Improvement Trust, Bikaner
assailed the judgment and decree dated 16.4.2004 in Appeal
Decree No.30/04. The High Court in the second appeal noted that
the defendant no.1 in the written statement had admitted that the
plaintiff together with the defendant nos.2 to 4 are the owners of
the suit land. Therefore, it was held that suit for injunction
without seeking relief of title declaration is maintainable as even
the defendant no.1 does not claim any title over land purchased by
the plaintiff and the defendant nos.2 to 4, by way of two registered
sale deeds in the year 1970. Since the plaintiff together with the
defendant nos.2 to 4 had obtained valid title by purchase in the
year 1970 and were in peaceful possession, they were not required
to seek relief of declaration of title, particularly when the title has
not been disputed by the defendant no.1.
7. The High Court adverted to the provisions of The Rajasthan
Urban Improvement Act, 1959 (hereinafter referred to as the “1959
Act” ) and observed that for compulsory acquisition of land under
Section 52 , the procedure to be followed is prescribed in the sub-
Sections under Section 52 such as giving notice and providing
Page 7 of 40
opportunity of hearing to the owner and/or any other interested
person and compensation must also be paid to the owner under
Section 53 . However, since the defendant no.1 failed to comply
with the mandatory provisions under Section 52 and 53 of the
1959 Act
and that acquisition process was initiated much after the
purchase of the land by the plaintiff, the acquisition proceeding in
the absence of notice and compensation was declared to be void
and a nullity. It was specifically noted that the defendant no. 1
admitted the possession and title of the plaintiff in their written
statement and thus it was opined that the plaintiff is entitled to
protect their property. As the defendant no.1 had also raised an
issue questioning the jurisdiction of the Civil Court, it was held
that a suit in a civil Court will always lie to question the order of
the tribunal created by a statute even if its order is expressly or by
necessary implication made final, if the said tribunal abuses its
power or acts in violation of its provisions. Consequently, the
second appeal filed by the defendant no.1 was dismissed upholding
the decree passed in favour of the plaintiff by the first Appellate
Court.
B. Submissions
Page 8 of 40
8. Challenging the above judgment of the High Court, Mr.
Aruneshwar Gupta, Learned Senior Counsel on behalf of the
appellant argued that pursuant to the notification dated 22.8.1974,
public notice and personal notices were duly issued to the original
Khatedars whose names were in the revenue records. The amount
of compensation was also duly paid. Service of notice to the
original khatedars in the record of rights was sufficient notice as
State Government is not liable to make a roving or fishing inquiry
about the ownership of land. Secondly, the purchaser of acquired
land is ‘any other person interested’ and could have raised
objections under Section 52(3) of the 1959 Act. There is no right to
challenge the acquisition of land after expiry of 23 years as the suit
for permanent injunction was filed on 21.4.1997. ( Ahuja Industries
1
Ltd. v State of Karnataka ; Bhola Shanker v The Disst. Land
2
Acquisition Officer ). Thirdly, it was argued that the Land
Acquisition Act, 1894 is a complete code in itself and thus, by
necessary implication Civil Court has no jurisdiction to pass
injunction for a land which is already acquired. Finally, it was
argued that the nature of land acquired under the 1959 Act was
‘agricultural land’ as the same was not converted for ‘non-
1 2003 5 SCC 365
2 (1973) 2 SCC 59
Page 9 of 40
agricultural use’ u/s 90-A of Land Revenue Act,1956 . Owing to
Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter
“Tenancy Act,1955”)read with entry 8A and entry 23C of third
Schedule, matter relating to temporary and permanent injunction
in respect of agricultural land could be heard and determined only
by a revenue Court. No civil suit is maintainable for permanent
injunction w.r.t agricultural land.
9. Projecting the contrary view, Mr. Manoj Swarup, learned
Senior Counsel for the Respondents argued that revenue
authorities i.e. Patwari, Tehsildar and Collector had knowledge of
the rights and interests of the plaintiffs. As per the requirements
under Section 52(2) of the 1959 Act , notice should be given not only
to the owner of the land but also any other person who in the
opinion of State Government would be interested therein. The
Learned Counsel has placed on record letters from Tehsildar,
Bikaner acknowledging the sale deeds, thereby indicating that they
had knowledge of plaintiffs being in possession of the land.
Reliance was also placed on the decision of this Court in Ahuja
3
Industries Limited v State of Karnataka . On the aspect of
maintainability, it was canvassed that the civil suit was not barred
in law to adjudicate on the dispute. To substantiate the same, Mr.
3 (2003)5 SCC 365
Page 10 of 40
Swarup cites the Constitution Bench decision of this Court in
4
Dhulabai and others v State of Madhya Pradesh ( hereinafter referred
5
to as “Dhulabai” ) and Firm Seth Radha Kishan v The Administrator .
C. Issues
10. Having summarised the contentions of the respective parties,
the following questions fall for our consideration:
a) Whether land acquisition proceedings can be declared null
and void for failure to give notice to the owners who had
purchased the land two years earlier through registered
sale deeds, before the initiation of the land acquisition
proceedings, even though the name of original khatedaar
was reflected in the Revenue records?
b) Whether Civil Court has jurisdiction to grant injunction as
Section 207 of the Tenancy Act,1955 bars jurisdiction of
Civil Court in respect of agricultural land?
c) Whether plaintiff’s suit for injunction is maintainable
without seeking Declaration in a Civil Court?
D. Notice requirements in land acquisition proceedings
i) Constitutional right to property and procedural justice
11. This is a case of compulsory acquisition of land where the
land owner has no choice in the matter. The respondent purchased
4 ( 1968) 3 SCR 3 662
5 ( 1964) 2 SCR 2 273
Page 11 of 40
the concerned land for valuable consideration and was in peaceful
possession of the land. At that stage, the appellant attempted to
dispossess the respondent. Acquisition of land for public purpose
is permitted by law, but the acquiring authority is required to
ensure adherence to the statutory regime for compulsory
acquisition. Only by strict adherence to the procedure, a measure
of protection is afforded to the landowners and the interested
persons, and implicit therein is fairness in the procedure. After all,
one is concerned with protection of constitutional rights under
Article 300A of the Constitution.
| 12. In the context, the recent observations of this Court in Sukh<br>Dutt Ratra v. State of H.P6., would bear consideration where the<br>Court traced the recognition of the right to property since the<br>1700s and reiterated the high threshold of legality that ought to be<br>satisfied, to dispossess an individual of their property: | | |
|---|
| “13. While the right to property is no longer a fundamental<br>right [“Constitution (Forty-fourth Amendment) Act, 1978”], it is<br>pertinent to note that at the time of dispossession of the subject<br>land, this right was still included in Part III of the Constitution.<br>The right against deprivation of property unless in accordance<br>with procedure established by law, continues to be<br>a constitutional right under Article 300-A. | |
6 (2022) 7 SCC 508
Page 12 of 40
14. It is the cardinal principle of the rule of law, that nobody
can be deprived of liberty or property without due process, or
authorisation of law. The recognition of this dates back to the
1700s to the decision of the King's Bench
in Entick v. Carrington [Entick v. Carrington, 1765 EWHC (KB)
J98 : 95 ER 807] and by this Court in Wazir Chand v. State of
H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954
SC 415] Further, in several judgments, this Court has
repeatedly held that rather than enjoying a wider bandwidth of
lenience, the State often has a higher responsibility in
demonstrating that it has acted within the confines of legality,
and therefore, not tarnished the basic principle of the rule of
law.
15. When it comes to the subject of private property, this Court
has upheld the high threshold of legality that must be met, to
dispossess an individual of their property, and even more so
when done by the State.”
13. The Land acquisition laws in India have their origins in
British colonial law. Compulsory acquisition of land is based on
the principle of eminent domain which can be understood as the
State’s power to acquire private property without the owner’s
7
consent for a ‘public purpose’ . Thus, when the State acquires
property while exercising its eminent domain powers, the economic
loss suffered by the owner is followed by a corresponding economic
gain to the State. The State deals with the property as if it is the
8
owner of the property . Scholarly writings on the principle of
7 Julius L. Sackman, Russell D Van Brunt , ‘Nichols on Eminent Domain’ vol 1 (3rd edn,
Mathew Bender & co, 1959). § 1.11
8 Namita Wahi, ‘Property’ in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta (eds), The
Oxford Handbook of the Indian Constitution (Oxford University Press 2016)
Page 13 of 40
9
eminent domain have shed light on this subject . In an article
titled, “History of Eminent Domain in Colonial Thought and Legal
10
Practice” published in the Economic and Political Weekly , the
author, while critiquing the principle of eminent domain reflects on
the need to rethink compulsory acquisition from the lens of ethics
and justice. Referring to the opening paragraph in the Tenth Report
of the Law Commission of India: Law of Acquisition and
11
Requisitioning of Land (1958 ) dealing with land acquisition as per
which “critical examination of the various stages of evolution of
this(compulsory land acquisition) power and its ethical basis will
serve no useful purpose as the power has been established in all
civilised countries”, the author questions the precedence given to
customary practices over ethics. There ought to be substantive
limits on the power of eminent domain in order to avoid arbitrary
action. Strict adherence to procedure is an essential safeguard
towards achieving fairness and transparency in the land
acquisition process. Such procedures provide land owners and
interested persons a fair opportunity to say why their land should
9 Tom Allen, The Right to Property in Commonwealth Constitutions (Cambridge University Press
2000) 172; Preeti Sampat, ‘Limits to Absolute Power: Eminent Domain and Right to Land in
India’ (2013) 48 Economic and Political Weekly 40; Usha Ramanathan, ‘A Word of Eminent
Domain’ in Lyla Mehta(ed), Displaced by Development: Confronting Marginalisation and Gender
Injustice. (SAGE 2009)
10
Debjani Bhattacharyya, ‘History of Eminent Domain in Colonial Thought and Legal Practice’
(2015) 50 Economic and Political Weekly 45.
11 Law Commission, ‘ Law of Acquisition and Requisitioning of Land’ (Law Com No. 10, 1977).
Page 14 of 40
not be acquired and also whether the compensation assessed for
their lands is adequate. To deny procedural safeguards to the land
loser would mean that the doors of justice are shut for him. Such
an interpretation, in my view, should be avoided.
International Legal Framework on Compulsory Land Acquisition
ii)
14. Before proceeding to deal with the issue of the legitimacy of
the land acquisition proceeding, it would be appropriate to set out
the international legal framework on compulsory land acquisition.
The right to self-determination is enshrined within the Charter of
the United Nations, the International Covenant on Economic,
Social and Cultural Rights (ICESCR) and the International
Covenant on Civil and Political Rights (ICCPR), amongst other
instruments which is defined as the right of all people to freely
dispose of their natural wealth and resources, and that no person
may be deprived of its own means of subsistence. Article 17 of the
Universal Declaration of Human Rights provides that, “Everyone
has the right to own property alone as well as in association with
others. No one shall be arbitrarily deprived of his property.” Self-
determination also includes obligation for states to refrain from any
forcible actions that deprive people of enjoying such rights. The
Free, Prior and Informed Consent(FPIC)
concept of within
Page 15 of 40
international development law is most clearly stated in the United
Nations Declaration on the Rights of Indigenous Peoples in Articles
10, 11, 19, 28 and 29 which prescribes situations in which FPIC
must be obtained before granting compensation, taking of
indigenous property etc. Development experts have recognized that
FPIC is not only important for Indigenous people but can also be
used as a positive approach to involve local communities in
decision-making about any proposed development. Engaging them
in such processes fosters a greater sense of ownership and
engagement and, moreover, helps safeguard their right to
12
development as a basic human rights principle . These principles
are not to be found under the Land Acquisition Act, 1984 but the
concept of acquiring land through consent and Social Impact
Assessment (SIA) on whether a project serves “public purpose” has
been added in the 2013 avatar of the Land Acquisition Act.
Therefore, The Right To Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013 is found
to be more attuned to the notion of fairness and is progressive to
this extent.
12 Sambhav Shrivastava et al., ‘Subversion of Due Process for Seeking the Consent of
Communities in Land Acquisition and Resultant Land Conflicts’ (Oxfam 2020) <https://policy-
practice.oxfam.org/resources/subversion-of-due-process-for-seeking-the-consent-of-
communities-in-land-acquis-621109/> accessed 19 September 2023 .
Page 16 of 40
15. While there are many instances of authorities failing to
adhere to the acquisition regime, this Court has the benefit of a
study conducted by the Lands Rights Initiative of the Centre for
13
Policy Research . The outcome of the extensive study of around
1269 judgments of the Supreme Court of India between 1950 to
2016 on the legal trajectory of land acquisition cases in India lead
to the following comments:
“The process of land acquisition in India has been the
source of increasing political and legal contestation for
almost two hundred years. This stems from the inherently
coercive nature of the process, which creates a severe
imbalance in power between the state and land losers. Our
review of Supreme Court litigation since the time India
became a constitutional republic in 1950 shows that while
much of this imbalance was created within the very text of
the Land Acquisition Act, a considerable part of it could also
be attributed to executive non-compliance with the rule of law .
The result was a situation of great inequity for the land
losers”
[ emphasis supplied]
16. The Supreme Court in a recent judgment had the occasion to
look at the process of compulsory land acquisition where the
landowners had practically no means to oppose the proposed
14
acquisition. A two judge bench in Vidya Devi v. State of H.P
13 Namita Wahi, Ankit Bhatia et al, ‘Land Acquisition in India: A Review of Supreme Court
Cases 1950-2016’(Centre for Policy Research 2017)
14 ( 2020) 2 SCC 569
Page 17 of 40
speaking through Indu Malhotra J. made the following significant
observation:
“ 12.2. The right to property ceased to be a fundamental right
by the Constitution (Forty-fourth Amendment) Act, 1978 ,
however, it continued to be a human right (Tukaram Kana
Joshi v. Maharashtra Industrial Development
Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial
Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ)
491] ) in a welfare State, and a constitutional right under
Article 300-A of the Constitution. Article 300-A provides that
no person shall be deprived of his property save by authority
of law. The State cannot dispossess a citizen of his property
except in accordance with the procedure established by law.
The obligation to pay compensation, though not expressly
included in Article 300-A, can be inferred in that Article [K.T.
Plantation (P) Ltd. v. State of Karnataka [K.T. Plantation (P)
Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC
(Civ) 414] ].
12.3. To forcibly dispossess a person of his private property,
without following due process of law, would be violative of a
human right, as also the constitutional right under Article
300-A of the Constitution.”
17. The significance of complying with procedural requirements
cannot, therefore, be overstated.
iii) Burden is on the Authority to fulfil procedural requirements under
Section 52 of the 1959 Act
18. Returning to the facts of the present case, let us now consider
the implication of Section 52 of the 1959 Act . The provision having
a bearing in this discussion, is extracted below:
“52. Compulsory Acquisition of Land-
Page 18 of 40
(1) Where on a representation from the Trust it appears to the
State Government that any land is required for the purpose of
improvement or for any other purpose under this Act, the State
Government may acquire such land by publishing in the
official Gazette a notice specifying the particular purpose for
which land is required and stating that the State Government
has decided to acquire the land in pursuance of this Section.
(2) Before publishing a notice under sub-section (1), the State
Government shall by another notice call upon the owner of the
land and any other person who in the opinion of the State
Government may be interested therein to show cause, within
such time as may be specified in the notice, why the land
should not be acquired.
(3) After considering the cause, if any, shown by the owner of
the land and by any other person interested therein and after
giving such owner and person an opportunity of being heard,
the State Government may pass such orders as it deems fit.
(4) When a notice under sub-section (1) is published in the
official gazette, the land shall on and from the date of such
publication, vest absolutely in the State Government free from
all encumberances.
(5) Where any land is vested in the State Government under
sub-section (4), the State Government may by notice in writing
order any person who may be in possession of the land to
surrender or deliver possession thereof to the State
Government or any person duly authorised by it in this behalf
within thirty days of the service of notice.
”
19. The implication of Section 52 of the 1959 Act, is that notice is
required to be served not only to the owner but also to “any other
person interested” thereby covering everyone interested in the
concerned land. To avoid the rigour of this Section, the appellant-
Trust have given their version by saying that the plaintiff, Gordhan
Page 19 of 40
Dass intentionally did not receive compensation so as to make it a
ground thereafter and that the onus would lie on the plaintiff as
found by the trial Court. Gordhan Dass was indisputably the
actual owner and hence, as per the mandate of the law, it was the
15
responsibility of the concerned Authority to adhere to the due
statutory process before depriving the landowner or interested
persons, of their property. The burden is on the defendant No. 1 i.e.
the Urban Improvement Trust to satisfy the high procedural
threshold before acquiring any private property. Moreover, the
defendant no. 1 was also unable to produce any evidence to
indicate whether compensation was ever paid to the original
khatedaars as was vaguely claimed by them. This fact was also
noted by the First Appellate Court in para 20 of the decision that,
despite a vague contention, there is no proof of payment of
compensation even to the original khatedars. On the other hand,
the plaintiffs have produced a letter wherein the original khatedaar
is seeking compensation as on 10.1.1990. Be that as it may,
neither was notice issued to the actual owners nor any
compensation was paid to them by defendant no. 1. As already
noted, Section 52 of the 1959 Act requires the Government to issue
15 D.B. Basnett v Collector, East District, Gangtok, Sikkim (2020) 4 SCC 572; Jagan
Singh & Co. v Ludhiana Improvement Trust 2022 SCCOnLine 1144
Page 20 of 40
notice to the owner of the land and to any other person, who may
be interested therein to seek protection of their land from
acquisition. Only after consideration of the response to the notice,
the concerned land is to vest on the State Government. The land
owner or interested persons are also required to be given the
opportunity of being heard. In the present case, neither any notice
was issued nor any compensation was paid to the land owner.
Moreover, it has been alleged that even after initiation of land
acquisition proceedings in 1972, the plaintiff continued to enjoy
possession till 10.6.1998 during the pendency of the civil suit. The
plaintiff was forcefully dispossessed under the cover of a judgment
concerning some other land. The said judgment has nothing to do
with the land of respondents. This further points towards glaring
procedural irregularities in the entire land acquisition process.
16
20. The observations in M.P. Housing Board v Mohd. Shafi are
relevant in this context where the significance of giving proper
notice was noted as under:
| “8…..The object of issuing a notification under Section 4 of<br>the Act is two- fold. First, it is a public announcement by<br>the Government and a public notice by the Collector to the<br>efef ct that the land, as specifei d therein, is needed or is<br>likely to be needed by the Government for the "public<br>purpose" mentioned therein; and secondly, it authorises<br>the departmental ofcfi ers or ofcfi ers of the local authority, | “8…..The object of issuing a notification under | | | Section 4 | | of |
|---|
| | the Act is two- fold. First, it is a public announcement by | | | | |
| | the Government and a public notice by the Collector to the | | | | |
| | efef ct that the land, as specifei d therein, is needed or is | | | | |
| | likely to be needed by the Government for the "public | | | | |
| | purpose" mentioned therein; and secondly, it authorises | | | | |
| | the departmental ofcfi ers or ofcfi ers of the local authority, | | | | |
16 (1992)2 SCC 168
Page 21 of 40
| as the case may be to do all such acts as are mentioned | | | | | | | | | | | | | | | |
|---|
| in | | Section 4(2) | | | | of the Act. The notifci ation has to be | | | | | | | | | |
| published in the locality and particularly persons likely to | | | | | | | | | | | | | | | |
| be afef cted by the proposal have to be put on notice that | | | | | | | | | | | | | | | |
| such an activity is afoot. The notifci ation is, thus, required | | | | | | | | | | | | | | | |
| to give with sufcfi ient clarity not only the "public purpose" | | | | | | | | | | | | | | | |
| for which the acquisition proceedings are being commenced | | | | | | | | | | | | | | | |
| but also the "locality" where the land is situate with as full | | | | | | | | | | | | | | | |
| a description as possible of the land proposed to be | | | | | | | | | | | | | | | |
| acquired to enable the "interested" persons to know as to | | | | | | | | | | | | | | | |
| which land is being acquired and for what purpose and to | | | | | | | | | | | | | | | |
| take further steps under the Act by fli ing objections etc., | | | | | | | | | | | | | | | |
| since it is open to such persons to canvass the non- | | | | | | | | | | | | | | | |
| suitability of the land for the alleged "public purpose" also. | | | | | | | | | | | | | | | |
| If a notification under | | | | | | | | | Section 4(1) | | | | of the Act is defective and | | |
| does not comply with the requirements of the Act, it not only | | | | | | | | | | | | | | | |
| vitiates the notification, but also renders all subsequent | | | | | | | | | | | | | | | |
| proceedings connected with the acquisition, bad.” | | | | | | | | | | | | | | | |
| | | | | | | | | | | | [ | | | emphasis supplied] | |
21. It logically follows from above that dispossession without
following prescribed statutory process such as giving proper notice,
is not only highly prejudicial but it is also a violation of
constitutional rights and would thereby vitiate the entire process of
land acquisition. Law is well-settled that strict adherence to the
mandatory procedural requirements outlined in the legislation is
sine-qua-non for the compulsory acquisition of land. Legally
conducted acquisition procedures minimize the potential for
arbitrary action by the concerned Authority. The findings to this
effect by the Appellate Court and the High Court would therefore
Page 22 of 40
merit our approval. In other words, land acquisition proceedings for
the entire 3 bighas of land is held to be void-ab-initio.
22. As far as the judgment of this Court in Bhola Shankar v Dist.
17
Land Acquisition Officer relied upon by Mr. Aruneshwar Gupta,
learned Counsel for the Appellant is concerned, it is
distinguishable from the facts of this case. In Bhola
Shankar(supra) , the factual matrix was such that the concerned
plot was purchased subsequent to the publication of notification
under Section 4 of the Land Acquisition Act,1894 . However, in the
present case, the plaintiff together with defendant no. 2 to 4 had
bought the land well before commencement of the land acquisition
proceedings. Therefore issue(i) is answered accordingly.
E. Maintainability
i) Expansive jurisdiction of Civil Courts under Section 9, Civil
Procedure Code
23. Adverting next to the appellant’s argument on maintainability
of a suit, it is no more res-integra that ouster of jurisdiction of civil
Courts cannot be a matter of course. Section 9 of the Code of Civil
Procedure empowers the Courts to try all civil suits, unless barred.
The contour of the jurisdiction of the Civil Court has been
succinctly enunciated by a five-judge Constitution Bench in
17 (1973) 2 SCC 59
Page 23 of 40
Dhulabai(supra) . Chief Justice M Hidayatullah writing for the
Bench laid down the tests on the bar of jurisdiction of the civil
courts. The relevant principles are extracted below:
| “(1) Where the statute gives a finality to the orders of the<br>special Tribunals the civil courts' jurisdiction must be held<br>to be excluded if there is adequate remedy to do what the<br>civil courts would normally do in a suit. Such provision,<br>however, does not exclude those cases where the provisions<br>of the particular Act have not been complied with or the<br>statutory Tribunal has not acted in conformity with the<br>fundamental principles of judicial procedure.<br>(2) Where there is an express bar of the jurisdiction of the<br>court, an examination of the scheme of the particular Act to<br>find the adequacy or the sufcfi iency of the remedies provided<br>may be relevant but is not decisive to sustain the jurisdiction<br>of the civil court.<br>Where there is no express exclusion the examination of<br>the remedies and the scheme of the particular Act to fni d<br>out the intendment becomes necessary and the result of the<br>inquiry may be decisive. In the latter case it is necessary to<br>see if the statute creates a special right or a liability and<br>provides for the determination of the right or liability and<br>further lays down that all questions about the said right<br>and liability shall be determined by the Tribunals so<br>constituted, and whether remedies normally associated with<br>actions in civil courts are prescribed by the said statute or<br>not.<br>(7) An exclusion of the jurisdiction of the civil court is not<br>readily to be inferred unless the conditions above set down<br>apply.”<br>[emphasis supplied] | “(1) Where the statute gives a finality to the orders of the<br>special Tribunals the civil courts' jurisdiction must be held<br>to be excluded if there is adequate remedy to do what the<br>civil courts would normally do in a suit. Such provision,<br>however, does not exclude those cases where the provisions<br>of the particular Act have not been complied with or the<br>statutory Tribunal has not acted in conformity with the<br>fundamental principles of judicial procedure. | | |
|---|
| (2) Where there is an express bar of the jurisdiction of the<br>court, an examination of the scheme of the particular Act to<br>find the adequacy or the sufcfi iency of the remedies provided<br>may be relevant but is not decisive to sustain the jurisdiction<br>of the civil court. | | |
| Where there is no express exclusion the examination of<br>the remedies and the scheme of the particular Act to fni d<br>out the intendment becomes necessary and the result of the<br>inquiry may be decisive. In the latter case it is necessary to<br>see if the statute creates a special right or a liability and<br>provides for the determination of the right or liability and<br>further lays down that all questions about the said right<br>and liability shall be determined by the Tribunals so<br>constituted, and whether remedies normally associated with<br>actions in civil courts are prescribed by the said statute or<br>not. | | |
| | (7) An exclusion of the jurisdiction of the civil court is not<br>readily to be inferred unless the conditions above set down<br>apply.” | |
| | [emphasis supplied] | |
| | | |
Bench of this Court observed that the jurisdiction of the civil
courts to try suits of a civil nature is expansive and the onus to
prove the ouster of the jurisdiction is on the party that asserts it.
The court observed that even in cases where the jurisdiction of the
18 (2010) 8 SCC 726
Page 24 of 40
civil court is barred by a statute, the test is to determine if the
authority or tribunal constituted under the statute has the power
to grant reliefs that the civil courts would normally grant in suits
filed before them. The relevant observations are extracted below:
| “12. The well-settled rule in this regard is that the civil courts<br>have the jurisdiction to try all suits of civil nature except<br>those entertainment whereof is expressly or impliedly barred.<br>The jurisdiction of the civil courts to try suits of civil nature<br>is very expansive. Any statute which excludes such<br>jurisdiction is, therefore, an exception to the general rule that<br>all disputes shall be triable by a civil court. Any such<br>exception cannot be readily inferred by the courts. The court<br>would lean in favour of a construction that would uphold the<br>retention of jurisdiction of the civil courts and shift the onus<br>of proof to the party that asserts that the civil court's<br>jurisdiction is ousted.” | |
|---|
| |
25. In this case, applying the test laid down in Dhulabai (supra), it
has to be determined whether the Act provides an adequate final
remedy of the kind the civil Court would normally grant in a suit,
such that the jurisdiction of the civil court must necessarily be
inferred to have been ousted. For that purpose, the statutory
scheme of the Tenancy Act, 1955 is to be carefully examined.
Additionally, as per the test laid down by Dhulabai (supra) ,
jurisdiction of civil Court would not be ousted in cases where the
fundamental principles of judicial procedure and the provisions of
the particular Act are not complied with.
Page 25 of 40
26. Proceeding with the above understanding of the law as laid
down by this Court in Dhulabai (supra), let us now examine the
scheme of the Tenancy Act, 1955 to determine whether the reliefs
claimed in the suit, were within or outside the scope of the 1955
Tenancy Act, 1955
Act. The Preamble to the provides that it’s an Act
to “consolidate and amend the law relating to tenancies of
agricultural lands, and to provide for certain measures of land
reforms and matters connected therewith” . The statutory scheme of
the Act provides for tenancies of agricultural lands. Section 1
contained in Part I of the Act deals with short title and
commencement. Section 5 deals with definitions. Importantly,
Section 5(35) provides the definition of Revenue Court “as a court
or an officer having jurisdiction to entertain suits or other
proceedings relating to agricultural tenancies, profits and other
matters connected with land or any other right or interest in land,
wherein such court or officer is required to act judicially.” Section
5(43 ) provides for the definition of tenant. Chapter III deals with
classes of tenant while Chapter IV is about Devolution, Transfer,
Exchange, and Division of Tenancies. Chapter V is concerned with
Surrender, Abandonment, and Extinction of Tenancies. A cursory
look at the other chapters would also show that they relate to
Page 26 of 40
agricultural tenancies which has nothing to do with the relief of
permanent injunction claimed in the suit. The title, as noted
earlier, is not disputed. Section 207 and 208 of the Tenancy
Act,1955 which is central to the present issue, reads as under:
| “207. Suits and applications cognizable by revenue | | |
|---|
| court only | — (1) All suits and application of the nature | |
| specifei d in the Third Schedule shall be heard and | | |
| determined by a revenue court. | | |
| (2) No court other than a revenue court shall take | |
|---|
| cognizance of any such suit or application or of any suit | |
| or application based on a cause of action in respect of | |
| which any relief could be obtained by means of any such | |
| suitor application. | |
| Explanation | — If the cause of action is one in respect of | |
|---|
| which relief might be granted by the revenue court, it is | | |
| immaterial that the relief asked for from the civil court is | | |
| greater than, or additional to, or is not identical with, that | | |
| which the revenue court could have granted. | | |
| 208. Application of Civil Procedure Code | | — The |
|---|
| provisions of the Code of Civil Procedure, 1908 (Central | | |
| Act V of 1908), except: | | |
| (a) provisions inconsistent with anything in this Act,<br>so far as the inconsistency extends. | |
| (b) provisions applicable only to special suits or<br>proceedings outside the scope of this Act, and | |
| (c) provisions contained in List I of the Fourth<br>Schedule, shall apply to all suit and proceedings<br>under this Act, subject to the modifications<br>contained in List II of the Fourth Schedule.” | |
| | |
27. Let us now look at the relief claimed in the suit in the context
of the overall scheme of the Tenancy Act,1955 . In the suit, the
plaintiff, inter alia , sought permanent injunction from disturbing
the ownership and possession w.r.t 3 bighas of land purchased
Page 27 of 40
through two registered sale deeds. Such a relief could not possibly
be granted by the forums empowered under the Tenancy Act,1955
which primarily deals with tenancy rights and their protection.
Therefore, the jurisdiction of the civil Court is not ousted by
Section 207 or Section 208 of the Tenancy Act,1955 and the
contrary submission made by the appellant has to be rejected.
Therefore, evaluation of the scheme of the Act would lead us to the
conclusion that jurisdiction of the revenue Court would be barred
under Tenancy Act,1955, in view of the reliefs claimed by plaintiff.
28. Moreover, even where a statute gives finality to the process, it
does not exclude cases where the provisions of the particular
statute have not been complied with or the Tribunal has failed to
decide in conformity with the fundamental principles of judicial
19
procedure . In the present case, in the absence of notice to the
actual owner under Section 52 of the 1959 Act , the acquisition
proceedings are legally vitiated and therefore the affected owner
should be entitled to seek relief from the civil Court. As noticed, the
defendant no. 1 i.e., the Urban Improvement Trust failed to adhere
to the essential requirements under Section 52 of the 1959 Act.
When the fundamental judicial procedure is disregarded, the
| 19 | Dewaji | | v. | | Ganpatlal | , AIR 1969 SC 560; | | | | | | | Sree Kandregula Srinivasa Jagannath Rao | |
|---|
| Pantulu Bahadur Garu | | | | | | | | v. | | State of A.P. | , (1969) 3 SCC 71 | | | |
Page 28 of 40
action rendered is legally void and should be seen as being “outside
the Act”. The observations in Firm Seth Radha Kishan v.
20
Administrator, Municipal Committee would therefore be applicable
in this context:
“7. Under Section 9 of the Code of Civil Procedure the
court shall have jurisdiction to try all suits of civil
nature excepting suits of which cognizance is either
expressly or impliedly barred. A statute, therefore,
expressly or by necessary implication, can bar the
jurisdiction of civil courts in respect of a particular
matter. The mere conferment of special jurisdiction on
a tribunal in respect of the said matter does not in
itself exclude the jurisdiction of civil courts. The
statute may specifically provide for ousting the
jurisdiction of civil courts; even if there was no such
specific exclusion, if it creates a liability not existing
before and gives a special and particular remedy for
the aggrieved party, the remedy provided by it must
be followed. The same principle would apply if the
statute had provided for the particular forum in which
the remedy could be had. Even in such cases, the civil
court's jurisdiction is not completely ousted. A suit in
a civil court will always lie to question the order of a
tribunal created by a statute, even if its order is,
expressly or by necessary implication, made final, if
the said tribunal abuses its power or does not act
under the Act but in violation of its provisions.”
Dhulabai (supra) and
29. Applying the principles laid down in
Firm Seth Radha Krishnan(supra) to the facts of the present case,
there can be no difficulty in holding that a suit of this nature would
be maintainable before the civil Court particularly considering the
nature of relief prayed in the suit.
ii) Plaintiff’s title is not under a cloud
Page 29 of 40
| 30. The next issue is whether a civil suit for permanent injunction<br>can be filed without declaration. On this, it is settled that where<br>the plaintiff's title is not in dispute or under a cloud, a suit for<br>injunction could be decided with reference to the fni ding on<br>possession. The relevant tests were laid down in Anathula<br>Sudhakar v P. Buchi Reddy21: | | |
|---|
| “13.1. Where a plaintiff is in lawful or peaceful<br>possession of a property and such possession is<br>interfered or threatened by the defendant, a suit for an<br>injunction simpliciter will lie. A person has a right to<br>protect his possession against any person who does not<br>prove a better title by seeking a prohibitory injunction.<br>But a person in wrongful possession is not entitled to an<br>injunction against the rightful owner. | |
| 13.2. Where the title of the plaintiff is not disputed,<br>but he is not in possession, his remedy is to fli e a suit for<br>possession and seek in addition, if necessary, an<br>injunction. A person out of possession, cannot seek the<br>relief of injunction simpliciter, without claiming the relief<br>of possession. | |
| 13.3. Where the plaintiff is in possession, but his title<br>to the property is in dispute, or under a cloud, or where<br>the defendant asserts title thereto and there is also a<br>threat of dispossession from the defendant, the plaintiff<br>will have to sue for declaration of title and the<br>consequential relief of injunction. Where the title of the<br>plaintiff is under a cloud or in dispute and he is not in<br>possession or not able to establish possession,<br>necessarily the plaintiff will have to fli e a suit for<br>declaration, possession and injunction.” | |
31. At the cost of repetition, it must be noted that in the written
statement in the suit, the defendant no.1 admitted that the plaintiff
together with the defendant nos.2 to 4 purchased total 3 bighas of
21 2008) 4 SCC 594
Page 30 of 40
land through two sale deeds respectively dated 2.3.1970 and
16.3.1970 and it was also admitted that the plaintiff submitted an
application before District Magistrate to convert one bigha land to
non-agricultural category on which the District Magistrate issued
NOC since the said land was needed to set up a petrol pump. Here,
the title for the plaintiff is not disputed by the defendants and the
same is not under a cloud. Therefore, the question of title is not an
issue in the suit. Moreover, the mandatory requirements under the
provisions of the 1959 Act were itself not followed before issuing
notification, without which the title cannot be said to be disputed.
Such a suit for injunction in the absence of contest to the title
would therefore, be maintainable.
22
32. In State of Bihar v Dhirendra Kumar , Laxmi Chand v Gram
23
Panchayat Kararia , Commissioner, Bangalore Development
24
Authority and another v Brijesh Reddy and another , it was held
that validity of acquisition notification cannot be questioned in a
Civil Court and it can only be challenged in the High Court under
its writ jurisdiction. Would these ratios apply to the present case is
a question that needs to be addressed. It is the case of the
Appellant i.e. the Urban Improvement Trust that the nature of land
22 (1995) 4 SCC 229
23 (1996) 7 SCC 218
24 (2013) 3 SCC 66
Page 31 of 40
acquired under the 1959 Act was ‘agricultural land’ which got
converted for ‘non-agricultural use’ under Section 90-A of the Land
Revenue Act,1956. As per Section 207 of the Tenancy Act,1955 read
with entry 8A and entry 23C of Third Schedule, the matter relating
to agricultural land could be heard and determined only by a
Revenue Court. As the scheme of the Tenancy Act, 1955 was earlier
examined, it is quite apparent that the prayers made in the suit are
beyond the scope of the 1955 Act . Moreover, the relief for quashing
the notification was also not sought in the Suit. That apart, it is
not the case of the appellant that writ court is the legal option for
relief but they want the land owners to be relegated to the Revenue
Court under the 1955 Act . It is already noticed why the Revenue
Court is not the appropriate forum for the reliefs claimed by the
respondents. The facts here are clearly distinguishable and hence,
the ratio laid down in Dhirendra Kumar ( supra) can have no
application here. Moreover, as per the five-judge bench judgment
in Dhulabai (supra), an exception is carved out as per which if there
is a violation of fundamental principles of judicial procedure and
the provisions of a particular Act are not followed, a Civil suit is
maintainable.
Page 32 of 40
Non-impleadment of State cannot be considered fatal for
iii)
maintainability
33. It was also pleaded by the Appellant that the suit was not
maintainable on account of considerable delay and because the
State was not impleaded as a party defendant in the suit
proceeding. Such a contention upon consideration is only to be
rejected. The legal position relating to necessary and proper parties
was summarized in Mumbai International Airport Private Limited v.
25
Regency Convention Centre and Hotels Private Limited as under:
“15. A “necessary party” is a person who ought to have been joined
as a party and in whose absence no effective decree could be
passed at all by the court. If a “necessary party” is not impleaded,
the suit itself is liable to be dismissed. A “proper party” is a party
who, though not a necessary party, is a person whose presence
would enable the court to completely, effectively and adequately
adjudicate upon all matters in dispute in the suit, though he need
not be a person in favour of or against whom the decree is to be
made. If a person is not found to be a proper or necessary party,
the court has no jurisdiction to implead him, against the wishes of
the plaintiff. The fact that a person is likely to secure a
right/interest in a suit property, after the suit is decided against
the plaintiff, will not make such person a necessary party or a
proper party to the suit for specific performance.”
34. It must be borne in mind that the Urban Improvement Trust,
Bikaner is an instrumentality of the State and was a contesting
party in the suit as it was the beneficiary of the acquisition
process. The observation of the seven-judge bench of this Court in
25 (2010) 7 SCC 417
Page 33 of 40
26
Nagpur Improvement Trust v. Vithal Rao , would be relevant in this
context where, it was noted that “ the acquisition is for the trust and
may be at its instance, but nevertheless the acquisition is by the
Government" . In the backdrop of differential compensation under
different land acquisition Acts, it was held that as far as the owner
is concerned, it does not matter whether the land was acquired by
Improvement Trust, Municipal Corporation or the Government. In
the facts of the present case, non-impleadment of the State cannot
be perceived as fatal for the maintainability of the suit as the
contesting defendant i.e. Urban Improvement Trust is an
instrumentality of the State and the beneficiary of the acquisition
process. At this point, we may also usefully refer to the conclusion
of the Rajasthan High Court in Urban Improvement Trust v Shri
27
Padmanand , where after analysing the provisions of the Act 1959 ,
it was noted as under:
"15..............In our view, a close scrutiny of the provisions of
the 1959 Act leave no doubt that the Improvement Trust,
created under the aforesaid Act, works as an agent or
instrumentality of the State Government and as such the
Trust must be considered as a 'State Government
department', for the purposes of Section 18 of the Act of
1953."
26 (1973) 1 SCC 500
27 AIR 1980 Raj 176
Page 34 of 40
35. In light of the above observation, can it possibly be said that
the Urban Improvement Trust for the present purpose, is a
separate entity altogether in relation to the State of Rajasthan,
without whose participation, no authoritative pronouncement
could possibly be made in the suit? The answer for this has to be
in the negative. The ratio in Shri Saurav Jain v M/s ABP Design &
28
Another would also not be applicable here. In that case, a suit was
st
instituted by the 1 respondent in the Court of Civil Judge who
claimed to be a “transferable owner and cultivator” of a certain
piece of land. This Court, in the said case, inter alia, arrived at a
finding that invalid transfer of land was made to the Respondent
and it was null and void for being in violation of Section 5(3 ) of
Urban Ceiling Act,1976. Significantly, neither the State nor any
authority under the Urban Land (Ceiling and Regulation) Act 1976
were impleaded in that suit. The Court specifically noted that the
real object of the suit was to affirm plaintiff’s title on the basis of
an alleged permission for sale in his favour. It was in that context
st
that the Court noted that the 1 respondent resorted to engineered
drafting for declaration of title. However, in the present case, the
title is undisputed and the necessary contesting party i.e. the Trust
28 2021 SCC OnLineSC 552
Page 35 of 40
was arrayed as a party. These are the key distinguishing features
for that case to be of no relevance in the present matter.
36. At this point, let us now refer to the observations of this Court
29
in Urban Improvement Trust v Mohan Lal which are closer to the
facts of the present case. This Court deprecated the tendency of
State and its instrumentalities of filing appeals against all orders
that came against them on false, frivolous, vexatious and technical
grounds. The facts in that case were that the Urban Improvement
Trust, Bikaner without notice, acquisition or consent, took over the
allotted plot of the landowner and thereafter, when relief was
granted to landowners by the National Commission, challenged it on
technical grounds for absence of protest and Complaint, within two
years of the cause of action. Moreover, it was argued by the
Counsel for the Trust that even if it was an illegal encroachment,
Consumer Protection Act,1986
jurisdiction under could not be
invoked. Rejecting the arguments of the Counsel for the Trust, the
Supreme Court made the following pertinent observations:
“5. It is a matter of concern that such frivolous and unjust
litigations by Governments and statutory authorities are on
the increase. Statutory authorities exist to discharge statutory
functions in public interest. They should be responsible
litigants. They cannot raise frivolous and unjust objections,
nor act in a callous and high-handed manner. They can not
behave like some private litigants with profiteering motives.
29 (2010) 1 SCC 512
Page 36 of 40
Nor can they resort to unjust enrichment. They are expected
to show remorse or regret when their officers act negligently or
in an overbearing manner. When glaring wrong acts by their
officers are brought to their notice, for which there is no
explanation or excuse, the least that is expected is
restitution/restoration to the extent possible with appropriate
compensation. Their harsh attitude in regard to genuine
grievances of the public and their indulgence in unwarranted
litigation requires to be corrected.
6. This Court has repeatedly expressed the view that
Governments and statutory authorities should be model or ideal
litigants and should not put forth false, frivolous, vexatious,
technical (but unjust) contentions to obstruct the path of justice. ”
37. What we see here are few landowners whose lands were
subjected to compulsory acquisition for the benefit of the Urban
Improvement Trust, Bikaner. The Trust took possession of their
land without serving any notice on the landowners. It is also not
clear whether any compensation was actually paid to the recorded
khatedars . The respondents then filed suit seeking to injunct the
appellant from dispossessing the landowners from their land. This
was a situation of a genuine grievance attempted to be canvassed
by the landowners before a Court of law. For a litigant who has
st
partially succeeded from the 1 Court and later at the appellate
stage obtained full relief from two courts be told that his suit is not
maintainable? In my opinion, justice would be better served if the
respondents are not forced to commence another round of litigation
before the High Court to secure a redressal for their grievances
Page 37 of 40
pertaining to being deprived of their land without getting any
notice or just compensation.
38. As can be seen, the landowners had arrayed the Urban
Improvement Trust, Bikaner as a defendant in the suit as their
grievance was primarily against the appellant who dispossessed
the respondents and took over their land. The State Authority
which wronged the landowners was a defendant in the suit and
also contested the suit by filing written submission and adducing
evidence. In this backdrop, to non-suit the landowners would lead
to manifest injustice. The issue no. (iii) is therefore answered
against the appellant.
F . Conclusion
39. It must now be noted that the litigation in this case has been
30
continuing for 25 years. Empirical Data shows that land disputes
clog all levels of courts in India, and according to certain studies,
land-related litigations account for the largest set of cases, in terms
of both absolute numbers and judicial pendency. For those who
are going to lose their land through compulsory acquisition, a key
redressal mechanism is to enable them to access courts, at first
30 ‘ Access to Justice Survey 2015-16’ ( Daksh, May 2016) <https://dakshindia.org/wp-
content/uploads/2016/05/Daksh-access-to-justice-survey.pdf > accessed 19 September
2023.
Page 38 of 40
instance. The aggrieved land loser is often unable to access
justice from the judicial system. Therefore, having regard to the
limited relief that can be obtained from a revenue court under
Tenancy Act, 1955, to deny the land losers access to civil court in
my opinion, would aggravate the injustice that would otherwise
enure, in all cases of compulsory land acquisition.
40. The upshot of the above is that the appellant here failed to
establish that they had acquired the land in accordance with the
law or paid due compensation to the affected party. The appellant
took forceful possession of the respondents’ valuable land by
disregarding the legal process and thereby denied the protection of
procedural fairness to the respondents. At this moment, I am
reminded of the words of former Associate Justice of the US
Supreme Court, William O. Douglas who in his concurring opinion
31
in Joint Anti-Fascist Refugee Committee v Mc Grath wrote the
following:
“It is procedure that spells much of the difference
between rule by law and rule by whim or caprice.
Steadfast adherence to strict procedural
safeguards is our main assurance that there will
be equal justice under law.”
31 341 US 123 (1951)
Page 39 of 40
41. Noticing the departure from the due process by the
authorities, relief was granted to the land owners. No infirmity is
thus seen with those verdicts which invalidated the acquisition
process. The impugned judgment of the High Court therefore
merits this Court’s approval.
42. The appellant i.e., the Urban Improvement Trust however
claims to have developed the balance 2 bighas for the purpose of
the Jai Naryan Vyas Yojana and divided it into plots. Therefore,
considering the public interest and balancing the equity, it is
clarified that notwithstanding the findings in this judgment, if the
authorities wish to, they may even now acquire the land by
following the due process of law.
43. The appeal is accordingly dismissed leaving the parties to
bear their own cost.
……….……………………J.
[HRISHIKESH
ROY]
NEW DELHI
OCTOBER 19, 2023
Page 40 of 40
CIVIL APPEAL NO. 8411 OF 2014
URBAN IMPROVEMENT TRUST BIKANER APPELLANT(S)
VERSUS
GORDHAN DASS (D) THR. LRS. & ORS. RESPONDENT(S)
O R D E R
In view of the difference of opinions and the distinguishing judgments (Justice
Hrishikesh Roy dismissing the appeal and Justice Manoj Misra allowing the appeal), the
Registry is directed to place the matter before Hon’ble the Chief Justice of India for
referring the matter to a larger Bench.
……….……………………J.
[HRISHIKESH ROY]
……….……………………J.
[MANOJ MISRA]
NEW DELHI
OCTOBER 19, 2023
