Full Judgment Text
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CASE NO.:
Appeal (civil) 8307 of 2002
PETITIONER:
Commissioner,Bangalore Development Authority
RESPONDENT:
K.S. Narayan
DATE OF JUDGMENT: 11/10/2006
BENCH:
G.P. Mathur & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
With
Civil Appeal Nos. 8310/2002, 8308/2002, 8315/2002, 8311/2002,
8312/2002, 8314/2002, 8313/2002, 8309/2002
G.P. Mathur, J.
1. The issue involved in these appeals, by special leave, is
identical and, therefore, they are being disposed of by a common
order. For the sake of convenience facts of Civil Appeal 8307 of
2002, which has been filed challenging the judgment and decree dated
14.6.2001 passed by Karnataka High Court in R.F.A. No. 406 of
2001, shall be stated.
2-3. The respondent K.S. Narayan filed Original Suit No. 5371 of
1989 in the court of City Civil Judge, Bangalore, praying that a decree
for permanent injunction be passed against the defendant Bangalore
Development Authority, their agents and servants restraining them
from interfering with the plaintiff’s possession and enjoyment of the
plaint scheduled property and from demolishing any structure situate
thereon. The case of the plaintiff in brief is as follows. The plaintiff
purchased the property in dispute bearing No. 46, situated in
Banasawadi village, K.R. Pura Hobli, Bangalore South Taluk from S.
Narayana Gowda by means of a registered sale deed dated 17.6.1985.
The erstwhile owners of the property had obtained conversion
certificate from the Tehsildar and the property is situated in a lay out
which is properly approved by obtaining conversion for non-
agricultural use from the competent authority. The plaintiff applied
for mutation entries and the same was granted in his favour. The
property in dispute was not covered by any acquisition proceedings as
neither notice of acquisition had been received nor any award
regarding the said property had been passed. The defendant had no
right, title or interest over the property but it was trying to dispossess
the plaintiff from the same on the ground of alleged acquisition. The
plaintiff issued a notice to the defendant on 11.7.1989 calling upon it
not to interfere with his possession and enjoyment of the property in
dispute but no reply had been received. It was pleaded that the cause
of action to file the suit arose on 11.7.1989, the date of the notice and
also when the defendant tried to dispossess the plaintiff from the
disputed property.
4. The suit was contested by the defendant Bangalore
Development Authority on the ground inter alia that the plaintiff was
not the owner of the property in dispute. S. Narayana Gowda, who is
alleged to have executed the sale deed in favour of the plaintiff on
17.6.1985, had no right, title or interest over the property in dispute
and he could not have conveyed any title to the plaintiff. It was
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further pleaded that the disputed land had been acquired by the
Bangalore Development Authority after issuing preliminary and final
notifications in accordance with Bangalore Development Authority
Act and the possession had also been taken over and thereafter it was
handed over to the Engineering Section on 22.6.1988 after completion
of all formalities. The award for the land acquired had already been
made and the compensation amount had been deposited in civil court
under Sections 30 and 31(2) of the Land Acquisition Act. It was
specifically pleaded that it was the defendant Bangalore Development
Authority which was in possession of the plaint scheduled property on
the date of filing of the suit and, therefore, the suit for injunction filed
by the plaintiff was not maintainable and was liable to be dismissed.
5. The parties adduced oral and documentary evidence in support
of their case before the trial court. The learned XIII Additional City
Civil Judge, Bangalore, decreed all the ten suits by the judgment and
decree dated 30.1.1991. The Bangalore Development Authority, the
appellant herein, preferred ten appeals against the judgment and
decree of the trial court before the Karnataka High Court. The High
Court held that though the plaintiffs had filed the suit claiming to have
title and possession over the property in dispute but in fact their
possession over the plaint scheduled property on the date of the suit
was not established. The plaintiffs had not claimed any relief for
delivery of possession over the property. The High Court accordingly
allowed the appeal, set aside judgment and decree of the trial court
and remanded the suit for fresh decision with liberty to the plaintiffs
to apply for amendment of the plaint for which purpose one month
time was granted. It was further mentioned in the order that if the
plaintiffs did not apply for amendment within one month the trial
court shall dismiss the suit. However, if the plaintiffs applied for
amendment of the plaint, the defendant in each suit shall be given
opportunity of filing further written statement and thereafter the suit
shall be disposed of in accordance with law.
6. After remand of the suit to the trial court the plaintiffs applied
for amendment of the plaint. In the amendment application it was
pleaded that the plaintiffs were owner in possession of the property
but they were dispossessed on 22.6.1988. It was also pleaded that the
defendant had dispossessed the plaintiffs from the plaint scheduled
property without taking proceedings for acquisition of the land and as
such their dispossession was wholly illegal. The relief clause was also
amended and it was prayed that it may be declared that the plaintiffs
are owner of the property and a decree for possession be passed in
their favour directing the defendant to deliver back the possession of
the plaint scheduled property to them. The amendment application
was filed on 31.8.2000. The defendant Bangalore Development
Authority filed an amended written statement and the principal pleas
taken therein were that the suit was barred by limitation and the land
in dispute having been validly acquired and possession having been
taken over, the suit was liable to be dismissed. It was further pleaded
that the defendant was in possession and enjoyment of the property
since 22.6.1988 and the predecessors of the plaintiffs had also taken
part in proceedings for determination of compensation and making of
award before the Special Land Acquisition Officer. After the
pleadings had been amended the suits were tried by learned XVI
Additional City Civil and Sessions Judge, Bangalore. The parties did
not adduce any further evidence and relied upon the evidence which
had been adduced earlier. The trial court, relying upon the decision of
this Court in Laxmi Chand vs. Gram Panchayat, Kararia 1996 (7)
SCC 218, held that validity or otherwise of the acquisition
proceedings cannot be questioned before the civil court and
accordingly dismissed the suits.
7. Feeling aggrieved by the judgment and decree of the trial court
the plaintiffs preferred appeals before the High Court under Section
96 of Civil Procedure Code. The High Court held that the names of
the plaintiffs who were the lawful owners of plaint scheduled property
were not at all notified and as two basic requirements of a valid
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acquisition of property were not satisfied, the acquisition was not
binding upon the owners of the property. It was held that plaintiffs
were not covered by the notification which had been issued regarding
acquisition of the property and, therefore, the civil court was
competent to entertain the suit. After recording a finding that no
notice had been served upon the plaintiffs, it was held that the
acquisition proceedings were invalid. The appeals were accordingly
allowed and the suits were decreed as prayed. Thus a decree for
declaration of title and also for possession was passed in favour of the
plaintiffs.
8. We have heard Mr. Altaf Ahmed, learned senior counsel for the
appellants and Mr. S.N. Bhat learned counsel for the respondents.
9. The acquisition proceedings in question had been taken under
the Bangalore Development Authority Act, 1976 (hereinafter referred
to as the Act). The relevant provisions regarding acquisition are
Sections 17 and 19 of the Act, which are being reproduced below: -
"17. Procedure on completion of scheme. \026 (1) When
a development scheme has been prepared, the authority
shall draw up a notification stating the fact of a scheme
having been made and the limits of the area comprised
therein, and naming a place where particulars of the
scheme, a map of the area comprised therein, a statement
specifying the land which is proposed to be acquired and
of the land in regard to which a betterment tax may be
levied may be seen at all reasonable hours.
(2) A copy of the said notification shall be sent to the
corporation which shall, within Thirty days from the date
of receipt thereof, forward to the authority for
transmission to the Government as hereinafter provided,
any representation which the Corporation may think fit to
make with regard to the scheme.
(3) The authority shall also cause a copy of the said
notification to be published in the Official Gazette and
affixed in some conspicuous part of its own office, the
Deputy Commissioner’s Office, the Office of the
Corporation and in such other places as the authority may
consider necessary.
(4) If no representation is received from the
corporation within the time specified in sub-section (2),
the concurrence of the corporation to the scheme shall be
deemed to have been given.
(5) During the thirty days next following the day on
which such notification is published in the Official
Gazette the authority shall serve a notice on every person
whose name appears in the assessment list of the Local
Authority or in the land revenue register as being
primarily liable to pay the property tax or land revenue
assessment on any building or land which is proposed to
be acquired in executing the scheme or in regard to
which the authority proposes to recover betterment tax
requiring such person to show cause within Thirty days
from the date of the receipt of the notice why such
acquisition of the building or land and the recovery of
betterment tax should not be made.
(6) The notice shall be signed by or by the order of the
Commissioner and shall be served.
(a) by personal delivery of if such person is absent or
cannot be found, on his agent, or if no agent can be
found, then by leaving the same on the land or the
building; or
(b) by leaving the same at the usual or last known
place of abode or business of such person; or
(c) by registered post addresses to the usual or last
known place of above or business of such person.
19. Upon sanction, declaration to be published
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giving particulars of land to be acquired. \026 (1) Upon
sanction of the scheme, the Government shall publish in
the Official Gazette declaration stating the fact of such
sanction and that the land proposed to be acquired by the
authority for the purposes of the scheme is required for a
public purpose.
(2) The declaration shall state the limits within which
the land proposed to be acquired is situate, the purpose
for which it is needed, its approximate area and the place
where a plan of the land may be inspected.
(3) The said declaration shall be conclusive evidence
that the land is needed for a public purpose and the
authority shall, upon the publication of the said
declaration, proceed to execute the scheme.
(4) If at any time it appears to the authority that an
improvement can be made in any part of the scheme the
authority may alter the scheme for the said purpose and
shall subject to the provisions of sub-sections (5) and (6)
forthwith proceed to execute the scheme as altered.
(5) If the estimated cost of executing the scheme as
altered exceeds, by a greater sum than five per cent the
estimated cost of executing the scheme as sanctioned, the
authority shall not, without the previous sanction of the
Government, proceed to execute the scheme as altered.
(6) If the scheme as altered involves the acquisition
otherwise than by agreement, of any land other than that
specified in the scheduled referred to in clause (e) of sub-
section (1) of Section 18, the provisions of Sections 17
and 18 and of sub-section (1) of this section shall apply
to the part of the scheme so altered in the same manner as
if such altered part were the scheme."
10. The provisions of Sections 17 and 19 are somewhat similar to
the provisions of Sections 4 and 6 of the Land Acquisition Act. Sub-
section (5) of Section 17 of the Act mandates that after the publication
of the notification in the Official Gazette the authority shall, during
the period of next thirty days, serve a notice on every person whose
name appears in the assessment list of the Local Authority or in the
land revenue register as being primarily liable to pay the property tax
or land revenue assessment of any building or land which is proposed
to be acquired in executing the scheme or in regard to which the
authority proposes to recover betterment tax. The person on whom
the notice is served is entitled to raise objection regarding the
proposed acquisition within thirty days.
11. It is not in dispute that the notification under Section 17 was
published on 26.5.1984 and the notification under Section 19 was
published on 23.10.1986. The award was made on 26.5.1988 and
thereafter possession was taken over by the Bangalore Development
Authority on 22.6.1988. The High Court has observed that the
plaintiff K.S. Narayan purchased the property from Doddanna in the
year 1964. This is clearly wrong as the specific case of the plaintiff in
paragraph 3 of the plaint is that he purchased the property from S.
Narayana Gowda on 17.6.1985. It is, therefore, obvious that the
plaintiff purchased the property more than one year after the
notification under section 17 of the Act had been published. In fact
the plaintiffs in all the ten suits purchased the plaint scheduled
property some time in the year 1985. The date of purchase of plaint
scheduled property by the plaintiffs in the ten suits is mentioned in the
first judgment of the High Court remanding the matter to the trial
Court. Thus, there was no occasion for serving any notice upon the
plaintiffs as required by sub-section (5) of Section 17 of the Act as
their names could not have appeared in the assessment list of the
Local Authority or in the land revenue register at the relevant time.
Therefore, the whole basis on which the High Court held the
acquisition proceedings to be invalid is erroneous and cannot be
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sustained.
12. The other point which requires consideration is whether a civil
suit is maintainable to challenge the acquisition proceedings. This
question is no longer res integra. In two decisions of this Court it has
been clearly held that the civil court cannot go into the question of
validity or otherwise of the notifications issued under Sections 4(1)
and 6 of the Land Acquisition Act. In State of Bihar vs. Dhirendra
Kumar 1995 (4) SCC 229, it was held 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 publication 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 crystallized and
becomes conclusive. Thereafter, the State is entitled to
authorize 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 Govt. 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 5-A. Thereon,
the State is entitled to 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."
Same view was taken in Laxmi Chand vs. Gram Panchayat, Kararia
1996 (7) SCC 218 and the relevant portion of paras 2 and 3 of the
report is being reproduced below: -
"..............................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
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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 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
restriction on their exercise of extraordinary power.
Barring thereof, there is no power to the Civil Court."
13. It may be pointed out that the trial court dismissed the suit
relying upon the decision of this Court in Laxmi Chand vs. Gram
Panchayat, Kararia (supra). The High Court distinguished the
aforesaid decision by observing as under: -
"The ratio would be applicable when only the person
aggrieved is covered by the notification directly or as
nominee. However, when a person is not covered by the
notification and without reference to him any notification
issued would not be binding and in a such situation it
would not prevent the aggrieved person from
approaching the civil court. It is a salutary principle that
the decree rendered in a civil proceedings binds the
parties to the proceedings and the persons claiming
through them. This principle would equally apply to the
proceedings under the Land Acquisition Act."
14. In our opinion the view taken by the High Court is wholly
erroneous. It is not the case of the plaintiffs that the plaint scheduled
property is not covered by the notification issued under Section 17 of
the Act. As a matter of fact, there is no dispute that the land regarding
which the suits have been filed is covered by the notification. The
main ground on which the suits have been filed is that the notice as
required by sub-section (5) of Section 17 of the Act was not served
upon the plaintiffs. The plaintiffs are claiming title to the property
and are seeking the relief of possession on the ground that the
notification has been rendered invalid on account of non service of
notice upon them under sub-section (5) of Section 17 of the Act. The
plaintiffs are clearly assailing the validity of the acquisition
proceedings. It is not their case that the plaint scheduled property is
outside the purview of the land regarding which the notification under
Section 17 had been issued. The ground for assailing the notification,
namely, that notice under sub-section (5) of Section 17 of the Act was
not served upon the plaintiffs and its effect could only be examined in
a writ petition filed under Article 226 of the Constitution before the
High Court and not by the civil court. The judgments and decrees
passed by the High Court are, therefore, clearly illegal and have to be
set aside.
15. In the result the appeals succeed and are hereby allowed. The
judgments and decrees passed by the High Court, which are subject-
matter of challenge in the present appeals, are set aside and the
decrees passed by the trial court on 29.3.2001 dismissing the suits are
affirmed. No order as to costs.