Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.1062910631 OF 2014
The Competent Authority Calcutta,
Under the Land (Ceiling And Regulation)
Act, 1976 And Anr. ….Appellant(s)
Versus
David Mantosh & Ors. ….Respondent(s)
WITH
CIVIL APPEAL Nos.98299830 OF 2016
Apollo Gleneagles Hospitals Ltd. ….Appellant(s)
Versus
David Mantosh & Ors. ….Respondent(s)
AND
CIVIL APPEAL No.9900 OF 2016
Apollo Gleneagles Hospitals Ltd. ….Appellant(s)
Signature Not Verified
Versus
Digitally signed by
ASHOK RAJ SINGH
Date: 2019.02.26
16:27:04 IST
Reason:
David Mantosh & Ors. ….Respondent(s)
1
J U D G M E N T
Abhay Manohar Sapre, J.
1. C.A. Nos.1062910631 of 2014 are filed by the
Competent Authority against the Judgment and
Order dated 27.09.2013 in F.A. No. 202/2008,
Judgment and Order dated 24.07.2014 in the
Review Petition being RVW No. 36/2014 with CAN
No.1450/2014 in F.A. No.202/2008 passed by the
High Court at Calcutta.
2. C.A. Nos.98299830 of 2016 are filed by M/s
Apollo Gleneagles Hospitals Ltd. against the
judgment and order dated 27.09.2013 in F.A.
No.202/2008 with CAN No.1054/2014 and C.A. No.
9900/2016 against the judgment and order dated
24.07.2014 in RVW No.117/2014 in F.A.
No.202/2008 passed by the High Court at Calcutta.
3. In order to appreciate the controversy involved
in these appeals, it is necessary to set out the facts
2
in detail, which led to filing of these appeals. The
facts set out hereinbelow are taken from the list of
dates filed by the parties.
4. Appellant No.1 herein is the Competent
Authority, CalcuttaDefendant No. 3, Appellant No.2
is the State of West BengalDefendant No. 2,
whereas Respondent Nos. 1 to 7 herein are Plaintiff
Nos. 1 to 7, Respondent No. 8 is Defendant No.1
and Respondent No. 9 is Defendant No. 2 in the
Civil Suit out of which these appeals arise.
5. The dispute pertains to land bearing No.73,
holding No.42, Canal Circular Road, Calcutta 700
054 measuring around 2 bighas, 2 katas, 4 chataks
and 25 sq. ft. (which is a part of and adjacent to a
bigger chunk of land measuring around 29 bighas)
(hereinafter referred to as “suit property”).
6. One Abdul Jabbar claimed to have purchased
the suit property on 29.07.1919 in an auction sale.
3
He, in turn, claimed to have sold it to one Maula
Ataul Haq on 29.09.1927 who, in turn, is alleged to
have sold it to one Poonam Chand Sethia on
15.08.1933.
7. Mr. Poonam Chand Sethia, in turn, on
17.08.1933 claimed to have transferred the suit
property to one Moti Chand Nakhat, Amrito Lal
Shah, Thakur Lal Mehta and Champa Lal Daphtary,
being the trustees of a Trust who, in turn, claimed
to have transferred it to one Mr. P.S. Mantosh the
predecessorininterest of the original Plaintiff, who
is now represented by his legal representatives
(Respondent Nos. 1 to 7).
8. It may be mentioned here that after 1933 till
30.11.1962, the suit property went through several
transfers between various parties. It was also the
subject matter of civil and criminal proceedings
between the parties, who claimed to have possessed
4
the suit property. We, however, do not consider it
necessary to set out these details here.
9. Suffice it to say, that eventually the suit
property along with its adjacent land bearing
Nos.73, 60, 72, etc. came into the hands of Mr.
Monilal Goyee and Mr. Bijay Kumar Goyee who, in
turn, claimed to have sold it to M/s Hindustan
Housing on 15.06.1957. M/s Hindustan Housing, in
turn, transferred the suit property along with
adjacent land to M/s Orient Beverage Ltd.
(hereinafter referred to as “M/s OBL”) vide
registered sale deed dated 30.11.1962.
10. On 17.02.1976, the Urban Land (Ceiling and
Regulation) Act, 1976 (hereinafter referred to as “the
Act”) came into force. It was extended to the State of
West Bengal on the same day. The suit property
alongwith the adjacent land was an “urban land”
under Section 2(o) of this Act, and was falling under
5
urban agglomeration as defined by Section 2(n) of
the Act.
11. M/s OBL claiming to be a “person” under
Section 2(i) of the Act, and claiming “to hold” the
suit property under Section 2(l) of the Act in excess
of the ceiling limits specified under Section 4 of the
Act filed a statement on 15.09.1976 under Section
6(1) of the Act before the Competent Authority.
12. It may be mentioned here that in the
statement M/s OBL showed the suit property as a
vacant land, and prayed that they be allowed to
hold the excess vacant land for constructing the
dwelling houses thereon under Section 21 of the
Act.
13. The Competent Authority by order dated
27.09.1988, however, rejected the prayer made by
M/s OBL. The rejection resulted in M/s OBL
agreeing to surrender the possession of the entire
6
excess land held by them beyond the prescribed
ceiling limit. On 04.01.1990, M/s OBL accordingly
surrendered their possession on the land bearing
Nos. 58, 60, 72, 73, 79, & 81 situated at Canal
Circular Road, Calcutta in favour of the State. The
said surrender included the suit property also. The
Deputy Secretary, Land & Land Reforms
Department then directed M/s OBL to file the
statement as required under Sections 8 to 10 of the
Act.
14. On 22.01.1990, M/s OBL informed the
Competent Authority that they are prepared to
surrender the possession of the suit property
subject to awarding them compensation as provided
under the Act. On 08.02.1990, the Competent
Authority served final statement under Section 9 of
the Act on M/s OBL. This led to the issuance of a
notification by the State under Section 10(1) of the
7
Act which was duly published in the Calcutta
Gazette Extraordinary on 15.02.1990 inviting
objections from the general public. The Competent
Authority, however, did not receive any objection
from any person pursuant to the notice published.
This was followed by issuance of the final
notification under Section 10(3) on 11.05.1990
which resulted in vesting of the suit property in the
State of West Bengal free from all encumbrances.
15. The Competent Authority, on 23.05.1990,
served notice to M/s OBL calling upon them to
physically surrender the possession of the suit
property to the State, which was done on
28.05.1990.
16. The State of West Bengal (Appellant No.2
herein) on 04.04.1991 allotted the suit property
(No.73) along with adjacent land measuring around
34,147 sq. meters bearing premises Nos. 58, 59, 60,
8
61, 62, 72, 73, 79, & 81 at Canal Circular Road to
Respondent No. 8 (Defendant No. 1M/s Apollo
Gleneagles Hospitals) on a long term lease of 30
years. The Respondent No. 8 (Defendant No. 1) then
was given possession of the land from the State. The
State executed a lease deed dated 02.12.1994 in
favour of M/s Apollo Gleneagles Hospitals.
Thereafter, M/s Apollo Gleneagles Hospitals set up
a hospital at a huge cost, and is running their
hospital since the last two decades.
17. In the year 1992, Respondent No.1 (Plaintiff
No. 1) woke up from her slumber, and claimed to be
the owner and holder of the suit property and part
of the adjacent land. The Plaintiff felt aggrieved by
the notification issued under Section 10(3) on
11.05.1990 and filed a Writ Petition (WP
No.1382/1992) to challenge the same before the
Calcutta High Court.
9
18. The Single Judge vide Order dated 26.08.1992
allowed the Writ Petition and quashed the
notification dated 11.05.1990.
19. The Respondent No.8 (Apollo Gleneagles
Hospitals Ltd.) felt aggrieved by the order of the
Single Judge dated 26.08.1992 and filed Writ
Appeal No.324/1993 before the Division Bench of
the High Court.
20. The Division Bench vide order 03.04.1997
allowed the appeal and set aside the order of the
Single Judge, and dismissed the Writ Petition. As a
consequence, thereof, the notification dated
11.05.1990 issued by the State was held to be legal
and valid and was accordingly restored.
21. The Respondent No.1 felt aggrieved by the
Judgment of the Division Bench and filed S.L.P.(C)
No.12726 of 1997 in this Court. By Order dated
28.07.1997, this Court dismissed the said petition.
10
This Court, however, observed that if the Petitioner
(Respondent No.1 herein) has any appropriate
remedy under the Act or any other law, it would be
open to her to avail the same in accordance with
law.
22. It is in this background, that Respondent Nos.
1 to 7 filed Civil Suit (TS No. 101/1998) out of
which the present appeals arise. The suit was filed
against the present Appellants, i.e., the Competent
Authority under the Act, the State of West Bengal,
and Respondent Nos. 8 and 9 in the Court of
Additional District Judge, Sealdah.
23. The Civil Suit was filed for declaration and
possession of the suit property. The Plaintiffs
claimed a declaration that the entire proceedings
which culminated in the issuance of the notification
dated 12.02.1990 under Section 10 (1) under the
Act in relation to the suit property be declared null
11
and void and the plaintiffs be declared owners of the
suit property. The reliefs claimed in the suit read as
under:
“(a) A declaration that the Notification
No.53XU.L.(Cal) dated February 12,
1990 is null and void.
a) A declaration the statement filed by the
defendant No.2 under subSection 1 of
Section 6 of Urban Land (Ceiling and
Regulation) Act, 1976 is null and void so
far as it relates to premises No.73, Canal
Circular Road, Calcutta being the suit
premises;
b) A declaration that the draft statement
prepared by the defendant No.3 under
Section 8 of the Urban Land (Ceiling and
Regulation) Act, 1976, on the basis of the
statement filed by the defendant No.2 is
null and void and not binding upon the
plaintiffs so far as it relates to the suit
property;
c) A declaration that letter No.1500UL/AV
11/19 dated April 4, 1991 and/or the
purported allotment of the suit premises
to the defendant No.1 by the defendant
No.3 is inoperative, collusive, fraudulent
and void;
d) A declaration that the plaintiffs are the
owners of the premises No.73, Canal
Circular Road, Calcutta and the plaintiffs
12
is entitled to possession of the suit
property as owner;
e) A decree for recovery of possession
evicting the defendant No.1 from suit
property;
f) A decree for a sum of Rs.1 crore from the
defendant No.1 as mesne profit and/or
damages for illegal use and occupation of
the suit premises;
g) Costs of the suit;
h) Such other or further relief or reliefs that
the plaintiffs may be entitled to in law or
equity.”
24. The AppellantsState of West Bengal, the
Competent Authority, and Respondent Nos. 8 and 9
herein filed their respective Written Statements.
25. The Trial Court on the basis of pleadings
framed the following 11 issues:
“1. Is there any cause of action for the suit?
2. Is the suit maintainable?
3. Is the suit barred by limitation?
4. Is the suit bad for nonjoinder of
necessary parties?
13
5. Has the plaintiff any right title and
interest over the land in suit?
6. Has the suit property vested to the
State?
7. Is the Plaintiff entitled to get a decree
for declaration that Notification No.53X
UL(Cal) dated 12.02.1990 is null and
void, or a declaration that the statement
filed by the Defendant No.2 under
provisions of Urban Land (Ceiling &
Regulation) Act is null and void or
declaration that the statement prepared
by Defendant No.3 is null and void or a
declaration that letter No.1500
UL/AV/II/19 dated 04.04.1981 and the
purported allotment of the suit premises
to the Defendant No.1 is inoperative,
collusive, fraudulent and void?
8. Is the Plaintiff entitled to a decree for
declaration that the Plaintiff is entitled
to a possession of the suit property as a
coowner?
9. Is the plaintiff entitled to get a decree
for recovery of possession of the suit
property by evicting the Defendant No.1
therefrom?
10.Is the Plaintiff entitled to a decree of
Rs.1 crore against the Defendant and
mesne profit?
11.To what other relief, if any, is the
Plaintiff entitled to?”
14
26. The parties then adduced their evidence. The
Trial Court vide judgment and decree dated
24.04.2008 answered all the 11 issues against the
Plaintiffs (Respondent Nos. 1 to 7 herein) and
dismissed the Suit which gave rise to filing of First
Appeal (No.202/2008) before the Calcutta High
Court by the Plaintiffs Respondent Nos. 1 to 7.
27. The Division Bench vide the impugned
Judgment allowed the plaintiffs’ appeal, and set
aside the Judgment and Decree of the Trial Court,
and decreed the suit filed by the Plaintiffs’. The High
Court held that the suit is maintainable; that it is
not barred; that the Civil Court has the jurisdiction
to try the civil suit on merits; that the Plaintiffs are
the owners of the suit property; that the competent
authorities did not follow the mandatory procedure
laid down under the Act; that the proceedings under
15
the Act are not binding on the Plaintiffs; that the
Appellant–Apollo Gleneagles Hospitals was in
unauthorized possession of the suit property and
were directed to deliver vacant possession of the
suit property to the Plaintiffs, or in the alternative,
to pay its value within 3 months to the Plaintiffs.
28. The Competent Authority Defendant No. 3,
the State of West Bengal Defendant No. 4 and
Apollo Gleneagles Hospitals Defendant No.1 being
aggrieved by the Judgment of the High Court filed
the present Special Leave Petitions in this Court,
which have been renumbered as Civil Appeal Nos.
1062910631/2014.
29. The question, which arises for consideration in
these appeals, is whether the Division Bench of the
High Court was justified in allowing the appeal filed
by the Plaintiffs’ (Respondent Nos. 1 to 7) and
decreeing the suit.
16
30. We have heard Mr. Kalyan Bandopadhya,
learned senior counsel appearing for the Appellant
State of West Bengal and Competent Authority, Mr.
C.U Singh learned Senior counsel appearing for
Appellant M/s Apollo Gleneagles Hospitals and
Mr. Dhruv Mehta, learned senior counsel for the
Respondent – Plaintiffs.
31. The counsel for the Competent Authority inter
alia submitted that:
(i) the reliefs prayed for by the Plaintiffs
could not be granted by the Civil Court, as the
Civil Suit was barred under the Act. Having
regard to the scheme of the Act, the Act is a
selfcontained Act which provided adequate
remedies to the land holders to challenge any
action taken, and orders passed by the
competent authorities in revision/appeals, as
17
the case may be, in ceiling proceedings under
the Act itself.
(ii) It was further contended that Respondent
Nos. 1 to 7 having lost their legal battle, which
had attained finality up to this Court in the
first round of litigation, all issues pertaining to
the suit property had already come to an end.
According to the learned counsel, no issue in
relation to the suit property survived for
adjudication by any Court, much less the Civil
Court.
(iii) It was further contended that the legal
effect of issuance of the notification under
Section 10 (1) of the Act on 12.02.1990,
followed by issuance of the consequential final
notification under Section 10(3) on
11.05.1990, was that the suit property stood
vested in the State free from all encumbrances.
18
Therefore, no person has any right to claim a
right, title and interest over the suit property
on and after the suit property stood vested in
the State on 11.05.1990.
(iv) Learned counsel for the Appellants then
contended that the Civil Suit filed by the
Plaintiffs (Respondent Nos. 1 to 7) was barred
by limitation, because the Plaintiffs had slept
over their alleged right of ownership over the
suit property by not availing of remedies under
the Act.
(v) According to learned counsel for the
Appellants, when M/s OBL claimed to have
purchased the suit property in 1962, the
Plaintiffs ought to have filed a Suit for
Declaration of their title, which they failed to
do so. In any case, the Plaintiffs had a remedy
to file their statement under Section 6 of the
19
Act on 15.09.1976, or raised an objection on
the issue of ownership M/s OBL at that
qua
time under Section 10(4) of the Act.
(vi) It was contended that the Respondent
Plaintiffs, at no stage of the pendency of the
ceiling proceedings, raised any objection under
Section 10 (1). Hence, their right, if any, to
claim any right, title and interest in the suit
property got extinguished consequent upon
vesting of the suit property in the State under
Section 10(3) of the Act on and after
11.05.1990.
32. The learned Senior Counsel for Apollo
Gleneagles Hospitals inter alia while elaborating the
submission of learned senior counsel Mr. Kalyan
Bandopadhya submitted that:
(i) The suit property is governed by the Act,
which continues to be in operation in the State
20
of West Bengal. As a consequence, according
to the learned counsel, a Civil Suit would
impliedly be barred and hence the
Respondents had a remedy which is available
under the Act. It was urged that the Act being
a complete Code creates rights, remedies and
fora for adjudication of disputes and hence the
Civil Suit filed by Respondents No.1 to 7 would
not be maintainable.
(ii) That in any event Respondent Nos. 1 to 7
had failed to establish their claim of ownership
and possession over the suit property. The suit
instituted by Respondent Nos. 1 to 7 was also
barred by limitation because the
Plaintiffs/Respondent Nos. 1 to 7 were not in
possession of the suit property since 1962. The
notification under the Urban Land Ceiling and
Regulation Act, 1976 was published on
21
17.02.1976 and as per scheme of the Act, the
owner of the suit property was obligated to file
a return, since the suit property was beyond
the ceiling limit.
(iii) Plaintiffs/Respondent Nos. 1 to 7 claimed
that their predecessorininterest viz. namely
Ms. Daisy Mantosh was the owner of premises
No. 71/1, 60,72 and 73 Canal Circular Road
and since the extent of land held was in excess
of the ceiling limit, yet she did not file any
return in respect of the suit properties.
(iv) On the other hand, M/s Orient Properties
Pvt. Ltd. (renamed as M/s Orient Beverages
Ltd. “OBL”) submitted a return under Section
6 of the Act, and also made an application
under Section 21 for retaining the excess land,
which was refused on 27.09.1986.
22
(v) The Land and Reforms Department on
04.04.1991 decided to allot the suit property to
M/s Janapriya Hospital Corporation Ltd., later
renamed as Apollo Gleneagles Hospitals for
setting up a hospital. This was done by
executing a lease for 30 years, for which a
premium of Rs. 98, 41,300 was paid to the
State. A large hospital with all amenities has
since been set up.
33. Mr. Dhruv Mehta, learned Senior Counsel,
appeared on behalf of Respondent Nos. 1 to
7/Plaintiffs and supported the reasoning and
conclusion of the Division Bench of the High Court
in the impugned Order. It was inter alia contended
that no case for interference was made out with the
impugned Order.
34. The Counsel submitted that there was a non
compliance with the provisions of the Act and the
23
Rules framed thereunder while dealing with the suit
property. A mere notification in the Official Gazette
was not sufficient for vesting to take place under the
Act. The notification, according to learned counsel
was issued without ensuring proper compliance of
the Act read with Rules and therefore the entire
process of vesting of the suit property in the
Appellants was vitiated and bad in law.
35. It was then contended that the Civil Suit was
maintainable and the civil court’s jurisdiction was
not impliedly excluded as the Civil Suit was filed
pursuant to the directions of the Division Bench of
the Calcutta High Court and this Court in SLP (C)
No. 12726 of 2007. This Court had dismissed the
said SLP vide Order dated 28.07.1998 with the
liberty to pursue the remedy available under the Act
or any other law. It was submitted that since the
Respondent Nos. 1 to 7/Plaintiffs were illegally
24
dispossessed from the suit property (as they were
not given a proper and valid notice in terms of the
provisions of the Act and the Rules framed
thereunder), there was a violation of the principles
of natural justice.
36. Thus, according to learned counsel, even
where a statute gives finality to a decision, such a
provision does not exclude cases where the
provisions of the particular statute have not been
complied with, or the tribunal has not acted in
conformity with the statute or fundamental
principles of judicial procedure. Hence, the Civil
Suit filed by Respondent Nos. 1 to 7/Plaintiffs was
maintainable and not barred by law.
37. It was sought to be contended that the rights,
title and interest of the Respondent Nos. 1 to
7/Plaintiffs in the suit property are common law
25
rights and do not emanate from the Act and
therefore, must be adjudicated only by a civil court.
38. The learned counsel further contended that
there was no occasion for the Respondent Nos. 1 to
7/Plaintiffs to file a Return or declaration in respect
of the suit property since the suit property was not
a “vacant land” in terms of the Act. The Act only
contemplates filing of Returns with respect to
“vacant lands”. Hence, the provisions of the Act
were not applicable to the present case.
39. The learned Counsel further argued that the
civil court was therefore the proper forum for
adjudication of the disputes between the parties as
the Appellants/Defendants had colluded amongst
themselves with respect to the suit property and
had committed a fraud on the Respondent Nos. 1 to
7/Plaintiffs. Hence, the dispute could not have been
26
decided by a tribunal by ousting the jurisdiction of
the civil court.
40. Lastly, the Senior Counsel contended that the
Civil Suit filed on 29.06.1998 was well within
limitation since the cause of action of the
Respondent Nos. 1 to 7/Plaintiffs to file the suit
ripened only after this Court vide Order dated
28.07.1997 had disposed of the SLP (C) No.
12726/1997 granting liberty to the Respondent Nos.
1 to 7/Plaintiffs to pursue any appropriate remedy
under the Act or any other law.
41. We have heard the learned Senior Counsels
appearing for the parties and perused the record of
the case including the written submissions. We find
force in the submissions advanced on behalf of the
Appellants Defendants.
42. The three principal issues, which arise for
consideration in these appeals, are:
27
First , whether the High Court was justified in
holding that the Civil Court has the
jurisdiction to try the civil suit in relation to
the suit property which was subjected to
ceiling proceedings under the Act.
Second , whether the Civil Court has
jurisdiction to declare the ceiling proceedings
under the Act as void and not binding on the
Plaintiffs even though the same had attained
finality in the first round of litigation upto this
Court.
Third , whether the High Court was justified in
holding that the Plaintiffs are the owners of the
suit property and entitled to claim possession
of the suit property or its value from the
Appellant M/s Apollo Gleneagles Hospitals.
43. Before we examine the aforementioned three
issues, it is necessary to first examine the scheme of
28
the Act in question and the law governing the issues
raised in the present appeals.
44. The Act in question was enacted to provide for
the imposition of a ceiling on vacant land in urban
agglomerations, for the acquisition of such land in
excess of the ceiling limit, to regulate the
construction of building on such land, and for
matters connected therewith. It was enacted with
the object of preventing the concentration of urban
land in the hands of a few persons, and speculation
and profiteering with a view to bringing about the
equitable distribution of land in urban areas to sub
serve the common good.
45. The Act has 47 Sections. Section 2(a) to (q)
defines the various expressions used in the Act.
Section 3 prohibits the person from holding the land
in excess of the ceiling limits after coming into the
force of the Act. Section 4 specifies the ceiling limit
29
for holding the land by any person. Section 5 deals
with the transfer of vacant land by its holder.
Section 6 provides for filing of Statement by the
persons holding vacant land in excess of ceiling
limits. Section 7 also deals with filing of Statement
in case if the land is situated within the jurisdiction
of two or more competent authorities. Section 8
deals with preparation of draft statement as regards
the vacant land in excess of ceiling limits. Section 9
deals with the preparation of final statement.
Section 10 deals with acquisition of vacant land in
excess of ceiling limits.
46. Section 11 provides for payment of amount for
vacant land acquired. Section 12 provides for
constitution of Tribunal and appeal to the Tribunal.
Section 13 provides for filing second appeal to the
High Court against the order of Tribunal. Section 14
provides for mode of payment. Section 15 provides
30
for ceiling limits on future acquisition by
inheritance, bequest or by sale in execution of
decree etc. Section 16 deals with filing of Statement
when the Act is adopted by the State subsequently.
Section 17 deals with power to enter upon any
vacant land. Section 18 provides for imposition of
penalties for concealment of particulars of vacant
land. Section 19 provides exclusion clause from
applicability of certain provisions of the Act to some
specified landowners. Section 20 deals with power
to exempt any land.
47. Section 21 provides that excess land not to be
treated excess land in certain cases. Section 22
deals with retention of vacant land under certain
circumstances. Sections 23 and 24 deal with
disposal of vacant land acquired under the Act.
Section 25 defines certain expressions. Section 26
enjoins notice to be given before transfer of vacant
31
land. Section 27 provides for prohibition on transfer
of urban property. Section 28 deals with regulation
of registration of documents in certain cases.
Section 29 deals with regulation of construction of
building with dwelling units. Section 30 gives power
of demolition and stoppage of building. It also
provides a right of appeal and bar of filing suits in
civil court in relation to matters falling under
Section 30.
48. Section 31 deals with powers of competent
authority. Section 32 deals with jurisdiction of
competent authorities and the Tribunal in special
cases. Section 33 provides a right of appeal to the
appellate authority whose order shall be final
whereas Section 34 provides for filing revision to
State. Section 35 empowers the State to issue
orders and directions to competent authority.
Section 36 gives power to central government to give
32
directions to the State Government. Section 37
deals with filing of returns and report by the
competent authority. Section 38 deals with offences
and punishment. Section 39 deals with offences by
companies.
49. Section 40 again provides for a bar from filing
of the suit or other legal proceedings against the
Government and officers in respect of anything,
which is done in good faith or intended to be done
by or under the Act. Section 41 deals with
cognizance of offences. Section 42 gives overriding
effect of the Act on other laws. Section 43 specifies
the court fees payable on the applications, appeals
or other proceedings under the Act. Section 44
specifies certain officers to be public servant.
Section 45 empowers the authorities to correct the
clerical errors. Section 46 is a rule making power
33
and lastly Section 47 gives power to remove
difficulties.
50. The entire scheme of the Act set out above
would make two things clear. First, the Act is a self
contained code in itself, which provides complete
machinery while dealing with the rights of the land
owners in relation to their lands, which are in
excess of the ceiling limits prescribed under the Act.
It also provides adequate remedies to correct all
kinds of errors committed by the competent
authority under the Act; and Second, the Act gives
finality to the orders passed by the appellate
authority under Section 33, and also provides a bar
to file the civil suits in relation to cases falling under
Section 30 (5) and Section 40 of the Act.
51. The Constitution Bench of this Court in the
case of Dhula Bai vs. State of MP (AIR 1969 SC 78)
examined the question as to when the jurisdiction of
34
the Civil Court can be held to have been expressly
or impliedly excluded in trying a civil suit in the
context of Section 9 of Code of Civil procedure,
1908.
52. Justice Hidayatullah, the then learned Chief
Justice, speaking for the Bench in his inimitable
style, laid down 7 tests for examining the afore
mentioned question. These tests read as under:
“(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 court 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
35
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 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
36
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 jurisdiction of the Civil
Court is not readily to be inferred unless the
conditions above set down apply.”
53. In the light of the tests laid down in Dhula Bai
(supra) and further keeping in view the scheme of
the Act, we have to examine the issue as to whether
the jurisdiction of the Civil Court is expressly or
impliedly excluded in trying the civil suit in relation
to matters arising out of the Act in question and
second, whether the Civil Court has the jurisdiction
to declare the proceedings held under the Act, as
being void.
54. Having examined the issue, we are clearly of
the opinion that the present case falls under
clause(1) of Dhula Bai ( supra) and satisfies the test
laid down therein. Hence, the jurisdiction of the
37
Civil Court is held to be excluded by implication to
try the civil suit in question. This we say for the
following reasons:
First, the Act in question gives finality to the
orders passed by the appellate authority [refer
to Section 33(3)].
Second , the Act provides adequate remedies in
the nature of appeals, such as first appeal to
the Tribunal and second appeal to the High
Court. [refer to Sections 12 (4), 13 and 33 (1)].
Third, the Act is a complete code in itself and
gives overriding powers on other laws (refer to
Section 42).
Fourth , the Act expressly excludes the
jurisdiction of the Civil Court in relation to the
cases falling under Sections 30 and 40 (refer to
Section 30(5) and Section 40).
38
Fifth , as a result of dismissal of writ petition
and SLP, it is held therein that the proceedings
under the Act in question were done in
conformity with the Act in question.
55. In light of the aforesaid five reasons a fortiori ,
the jurisdiction of the Civil Court in relation to all
the issues arising under the Act is held impliedly
excluded thereby satisfying all the conditions set
out in clause (1) of Dhula Bai (supra ).
56. We are, therefore, of the considered view that
the jurisdiction of the Civil Courts to try the civil
Suits with respect to the lands, which were
subjected to ceiling proceedings under the Act, are
held to be impliedly barred, since the Act excludes
the jurisdiction of the Civil Court.
57. Now coming to the facts of the case, we find
from the relief prayed for in the plaint (see prayers
(a) to (d) quoted supra ) that the plaintiffs have
39
sought a declaration, that the notification dated
12.02.1990 issued under Section 10 of the Act be
declared null and void; Second, a statement filed by
M/s OBL defendant No. 2 under Section 6 of the
Act before the Competent Authority be declared null
and void; Third, the statement filed by defendant
No. 3 under Section 8 of the Act be declared null
and void.
58. In our opinion, the Civil Court had no
jurisdiction to grant the aforementioned reliefs
inasmuch as its jurisdiction to grant such reliefs is
impliedly barred under the Act.
59. In our view, if Respondent Nos. 1 to 7
Plaintiffs claimed themselves to be the lawful
owners and holders of the suit property to the
exclusion of others, there were three remedies
available in law which they could have availed of:
40
(i) First , a remedy accrued in favour of
Respondent Nos. 1 to 7 if not earlier when M/s
OBL claimed to have purchased the suit
property from the alleged vendors on
30.11.1962. It was at that point of time, a
cloud was cast on their alleged title in relation
to the suit property. Since registration of the
sale deed amounts to a public notice, the
Respondents should have filed a Civil Suit
against the vendors of M/s OBL, and M/s
OBL, for a declaration of their ownership and
cancellation of their sale deed in relation to the
suit property. It was not availed of.
(ii) The second remedy arose under Section 6
of the Act, for filing a statement as owners and
holders of the suit property before the
Competent Authority, after the Act came into
41
force in 1976. This was also not availed of by
the plaintiffs.
(iii) The third remedy was in filing objections
under Section 10 (1) of the Act before the
Competent Authority when the Competent
Authority invited objections on 12.02.1990
from public and pursuant to it, the notice was
issued in that behalf. The respondents again
did not avail of this remedy, and failed to file
any objections.
60. The RespondentsPlaintiffs having failed to
avail any of the three remedies at appropriate time,
resorted to fourth remedy of filing a Writ Petition to
challenge the notifications dated 11.05.1990 in the
High Court of Calcutta. This Writ Petition was,
however, dismissed by a Division Bench of the High
Court vide dated 03.04.1997. The order of dismissal
42
was affirmed vide order dated 28.07.1997 passed by
this Court in SLP (C) No.12726 of 1997.
61. In our considered opinion, the dismissal of the
SLP by this Court vide Order 28.07.1997 had a
threefold effect on the rights of the parties to the
Lis in relation to the suit property:
First, the entire action taken by the competent
authority initiated from Section 6 of the Act till
issuance of notifications under Section 10(1)
and (3) of the Act issued on 12.02.1990 and
11.05.1990 in relation to the suit property
were held to be in conformity with the
provisions of the Act. This satisfied the last
condition of clause (1) of ( )
Dhula Bai supra
also .
Second , the suit property stood vested in the
State free from all encumbrances under
Section 10 (3) of the Act.
43
Third , the State Government was held to be in
legal possession of the suit property as the
owner on and after 11.05.1990, to the
exclusion of all, by following the due procedure
of law.
62. In such a situation, the Respondent Nos.1 to 7
could not take recourse to filing of the Civil Suit on
the basis of the observation made by this Court.
63. As observed supra , if there were any remedy
available to the Respondents in relation to the suit
property, then any such remedy was under the Act
but not by filing a civil suit in a Civil Court and
start a fresh round of litigation with respect to the
suit property. Such a suit was, in our view,
impliedly barred in the light of exclusion of
jurisdiction of the Civil Court under the Act.
44
64. Indeed, we find support for our reasoning by
the decisions of this Court rendered in several
decided cases as mentioned below.
65. In State of Bihar vs. Dhirendra Kumar (1995)
4 SCC 229, a question arose as to whether a civil
suit is maintainable, and if so, whether adinterim
injunction could be issued by the Civil Court in
such suit against the State where the proceedings
under the Land Acquisition Act were taken
pursuant to the notice issued under Section 9 of the
Land Acquisition Act, and delivered to its
beneficiary.
66. This Court examined the issue in the context
of the scheme of the Land Acquisition Act in
juxtaposition with Section 9 of the CPC and held
that having regard to the object and scheme of the
Act, the jurisdiction of the Civil Court to deal with
the matters falling under the Act stands impliedly
45
excluded, and is barred. Para 3 of the decision is
apposite and reads as under:
“3. The question is whether a civil suit is
maintainable and whether ad interim
injunction could be issued where proceedings
under the Land Acquisition Act was taken
pursuant to the notice issued under Section
9 of the Act and delivered to the beneficiary.
The provisions of the Act are designed to
acquire the land by the State exercising the
power of eminent domain to serve the public
purpose. The State is enjoined to comply
with statutory requirements contained in
Section 4 and Section 6 of the Act by proper
publication of notification and declaration
within limitation and procedural steps of
publication in papers and the local
publications envisaged under the Act as
amended by Act 68 of 1984. In publication of
the notifications and declaration under
Section 6, the public purpose gets
crystallised and becomes conclusive.
Thereafter, the State is entitled to authorise
the Land Acquisition Officer to proceed with
the acquisition of the land and to make the
award. Section 11A now prescribes
limitation to make the award within 2 years
from the last date of publication envisaged
under Section 6 of the Act. In an appropriate
case, where the Government needs
possession of the land urgently, it would
exercise the power under Section 17(4) of the
Act and dispense with the enquiry under
Section 5A. Thereon, the State is entitled to
46
issue notice to the parties under Section 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
Section 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 Section 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 Section 4 and declaration
under Section 6, except by the High Court in
a proceeding under Article 226 of the
Constitution. So, the civil suit itself was not
maintainable.” (Emphasis supplied)
67. This very issue then came up for consideration
in another decision of this Court in Laxmi Chand
(1996) 7 SCC 218. In
vs. Gram Panchayat Kararia
that case, the question arose as to whether the civil
suit filed to challenge the award passed under the
Land Acquisition Act is maintainable and, if so,
whether the Civil Court has jurisdiction to entertain
47
such suit for deciding the issue raised therein on its
merits.
68. This Court held that the Civil Court has no
jurisdiction to entertain and try such civil suit on its
merits. Its jurisdiction is impliedly barred having
regard to the object and the scheme of the Act.
Paras 2 and 3 of the decision are apposite and read
as under:
“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
48
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 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)
69. This view was reiterated by this Court in two
later decisions (refer Bangalore Development
(2006) 8 SCC 336 and
Authority vs. K.S Narayan
State of Punjab vs. Amarjit Singh (2011) 14 SCC
713).
49
70. On comparing the scheme of the Land
Acquisition Act with the scheme of the present Act
in question, we find that the intention of the
Legislature is more explicit in excluding the
jurisdiction of the Civil Court under the Act in
question.
71. Indeed, it is clear from a reading of Sections
12(4), 13, 30, 33(1), 33(3), 33(5) and 40 of the Act in
question. We also find that some sections of the Act
in question which has bearing on the question of
exclusion of the jurisdiction of the Civil Court are in
pari materia with the Sections in the Land
Acquisition Act whereas some Sections of the Act
which also have bearing on this question are not to
be found in the Land Acquisition Act. Yet, this
Court on examining the scheme of the Land
Acquisition Act and the remedies provided therein
has held that the jurisdiction of the Civil Court is
50
impliedly excluded and barred to try the civil suit.
The scheme of this Act, therefore, clearly indicates
that exclusion of Civil Court jurisdiction is provided
therein impliedly.
72. It is for all these reasons, we have no
hesitation in holding that the Civil Court had no
jurisdiction to try the civil suit in relation to the
land which is subject to ceiling proceedings under
the Act in question; nor did the Civil Court have the
jurisdiction to declare the proceedings held under
the Act, as void or illegal or non est, since it was
impliedly excluded and barred under the Act.
73. Mr. Dhruv Mehta, learned senior counsel for
the Respondents Plaintiffs vehemently argued on
the facts of the case, which are set out in detail
above, that a perusal of the facts would go to show
as to how the plaintiffs derived their title over the
suit property from their predecessorintitle, and the
51
prejudice which was caused to them by the ceiling
proceedings which proceeded against them behind
their back.
74. We reject the contentions and submissions
made on behalf of Respondent Nos. 1 to 7/ Plaintiffs
since we have inter alia held that the Civil Court
had no jurisdiction to entertain a Civil Suit with
respect to proceedings under the Urban Land
Ceiling Act, being a special and selfcontained
enactment.
75. Furthermore, the Respondent Nos. 1 to 7/
Plaintiffs having failed to raise objections to the
ceiling proceedings at any stage, the suit property
stood vested in the State, free from all
encumbrances. The belated challenge to the same is
meritless. Having failed to avail of the remedies
under the Urban Land Ceiling Act and the one
resorted to resulted in rejection of the claim made
52
therein upto this Court, Respondent Nos.1 to 7/
Plaintiffs sought to start a fresh round of litigation
by filing a Civil Suit, which was barred under the
Act. Furthermore, the State after acquiring
ownership over the suit land has allotted the suit
land to the M/s Apollo Gleneagles Hospitals on a 30
years lease. Hence, the situation, in our view, has
now become irreversible.
76. In view of the foregoing discussion, we are of
the view that the Division Bench was not justified in
allowing the Respondents’ appeal, and decreeing the
Civil Suit whereas the Trial Court was right in
dismissing the Civil Suit.
77. As a consequence, the appeals succeed and
are allowed. The impugned judgments are set aside
and the judgment of the Trial Court is restored. As
a result thereof, the suit filed by Respondent Nos. 1
53
to 7 out of which these appeals arise is dismissed
with no order as to costs.
……...................................J.
[ABHAY MANOHAR SAPRE]
...……..................................J.
[INDU MALHOTRA]
New Delhi;
February 26, 2019.
54