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Friday, February 15, 2013

whether a civil court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the trial Court without examining the question with regard to the maintainability of the suit? = Section 9 of the Code of Civil Procedure, 1908 provides jurisdiction to try all suits of civil nature excepting those that are expressly or impliedly barred which reads as under: “9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.”- 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 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, declaration under Section 6 and subsequent proceedings except by the High court in a proceeding under 1Page 14 Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.


Page 1
REPORTABLE
     
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.  1051  OF 2013
(Arising out of SLP (C) No. 25851 2005)
The Commissioner, Bangalore
Development Authority & Anr.              .... Appellant (s)
Versus
Brijesh Reddy & Anr.                                            ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) This appeal is directed against the judgment and final
order  dated  27.07.2005  passed  by  the  High  Court  of
Karnataka at Bangalore in R.F.A. No. 947 of 2003 whereby
the  High  Court  allowed  the  first  appeal  filed  by  the
respondents  herein  and  remitted  the  matter  to  the  trial
Court for fresh disposal.
1Page 2
3) Brief facts:
(a) On 28.09.1965, a notification was issued by the State
Government proposing to acquire several lands including the
suit land being Survey No. 23/10 of Ejipura measuring 22
guntas for formation of Koramangala Layout.  The original
khatedars, who were notified were one Papaiah, Thimaiah,
Patel Narayan Reddy, Smt. Rathnamma,  Smt. Perumakka
(Defendant  No.3  in  the  suit),  Munivenkatappa  and
Chickaabbaiah, the husband of 3
rd
 defendant.  After holding
an enquiry, the Land Acquisition Officer passed the award on
07.09.1969.  Thereafter,  10  guntas  of  land  held  by  Smt.
Rathnamma was taken possession on 28.11.1969 and the
remaining  12  guntas  held  by  defendant  No.3  was  taken
possession on 22.07.1978 and then handed over the entire
land to the Engineering Section.  The layout was formed,
sites were allotted to the intending purchasers.
(b) According to the respondents herein, they purchased
12  guntas  of  land  under  a  registered  sale  deed  dated
15.11.1995  from  Perumakka-3
rd
 defendant  in  the  suit.
2Page 3
Originally  the  said  land  belonged  to  Chikkaabbaiah  –
husband of 3
rd
 defendant.  Chikkaabbaiah mortgaged the
said  property  to  Patel  Narayan  Reddy  on  26.02.1985.
Thereafter, the said property was re-conveyed in favour of
Chikkaabbiah.   After  the  death  of  Chikkaabbiah,  his  wife
Perumakka,  (3
rd
 defendant  in  the  suit)  was  the  absolute
owner and in possession of the property.  
(c) When the Bangalore Development Authority (in short
“the BDA”) tried to interfere with the possession of the suit
property, 3
rd
 defendant in the suit filed O.S. No. 10445 of
1985  for  injunction  and  obtained  an  order  of  temporary
injunction on 15.06.1985 which was in force till 22.05.1994.
Ultimately the said suit was dismissed on the ground that
before filing of the suit, statutory notice had not been given
to the BDA.  Thereafter, another suit being O.S. No. 2069 of
1994 was filed by the third defendant on the file of the Civil
Judge, Bangalore and the same was dismissed as withdrawn
on 14.06.1995 with liberty to file a fresh suit.
(d) In the meantime, the respondents herein purchased the
suit land from the third defendant under a registered sale
3Page 4
deed on 15.11.1995.  After the purchase of the land, the
respondents were put in possession.  When the BDA tried to
interfere with the possession of the respondents herein, they
filed a petition being W.P. No. 41497 of 1995 before the High
Court,  ultimately  the  said  petition  was  dismissed  as
withdrawn by the respondents herein with a liberty to file a
fresh suit.
(e) Thereafter, the respondents herein filed a suit being
O.S. No. 4267 of 1996 on the file of the Court of the XVI Addl.
City  Civil  &  Sessions  Judge  at  Bangalore  for  permanent
injunction.   By  order  dated  18.06.2003,  the  trial  Court
dismissed the said suit as not maintainable.
(f) Challenging the said order, the respondents herein filed
first appeal being R.F.A. No.947 of 2003 before the High
Court.  By impugned order dated 27.07.2005, the High Court
allowed the appeal and remitted the matter to the trial Court
with a direction to dispose of the same after permitting the
plaintiffs to adduce evidence on merits.
(g) Aggrieved  by  the  said  order,  the  appellants  have
preferred this appeal by way of special leave.
4Page 5
4) Heard Mr. Altaf Ahmed, learned senior counsel for the
appellants and Mr. G.V. Chandrashekar, learned counsel for
the respondents.
Discussion:
5) The  only  point  for  consideration  in  this  appeal  is
whether a civil court has jurisdiction to entertain a suit when
the schedule lands were acquired under the land acquisition
proceedings  and  whether  the  High  Court  was  justified  in
remanding the matter to the trial Court without examining
the question with regard to the maintainability of the suit? 
6) It is seen from the plaint averments in O.S. No. 4267 of
1996 that the plaintiffs purchased the suit schedule property
from the third defendant under a registered sale deed dated
15.11.1995 and since then they are in exclusive possession
and enjoyment of the same.  Since other details are not
necessary for our purpose, there is no need to traverse the
entire plaint allegations.
7) The  third  defendant,  who  filed  a  separate  written
statement supporting the case of the plaintiffs, had asserted
that she did had the right, interest and title in the schedule
5Page 6
property  and  she  possessed  every  right  to  transfer  and
alienate it in favour of the plaintiffs.  On the other hand, the
BDA and its officers/defendant Nos. 1 and 2, in their written
statements, specifically denied all the allegations made by
the  plaintiff.   According  to  the  BDA,  the  suit  schedule
property which forms part and parcel of Survey No. 23 of
2010 of Ejipura, totally measuring 22 guntas was notified for
acquisition for the formation of Koramangala Layout.  In their
statements, they specifically pleaded that the notification
came to be issued on 28.09.1965.  The original khatedars
who  were  notified  were  one  Papaiah,  Thimaiah,  Patel
Narayan Reddy, Smt. Rathnamma, Smt. Perumakka (D-3),
Muni Venkatappa and Chickaabbaiah, the husband of D-3.
The  Land  Acquisition  Officer,  after  complying  with  the
provisions  of  the  Land  Acquisition  Act  and  after  holding
enquiry passed an award.  It is further stated that 10 guntas
of land held by Smt. Rathnamma was taken possession on
28.11.1969, remaining 12 guntas held by defendant No.3
was taken possession on 22.07.1978 and thereafter, handed
over the entire land to the Engineering Section.  It is also
6Page 7
stated that as a follow-up action, the lay out was formed,
sites were allotted to the intending purchasers.  According to
defendant Nos. 1 and 2, the entire land vested with them
and the so-called purchase now alleged by the plaintiff from
Defendant No. 3 on 15.11.1995 is bad and in any event, not
binding on the defendants.  It is also stated that the persons
who purchased the sites were issued possession certificates,
khata was changed, khata certificates were issued, building
licences were issued and there were constructions in the
said site.  Pursuant to the same, they had paid tax to the
authority concerned.   Accordingly,  it is asserted that the
plaintiff was not in possession on the date of filing of the
suit.   Before the trial Court, in  order  to  substantiate the
defence, the defendant Nos. 1 and 2 have produced copies
of the Gazette Notification with respect to the acquisition of
the said land.  The award passed by the Land Acquisition
Officer has also been produced and taken on record.  The
perusal of the discussion by the trial Court shows that the
plaintiffs  have  not  disputed  the  contents  of  those
documents, even otherwise it cannot be disputed.
7Page 8
8) Section 9 of the Code of Civil Procedure, 1908 provides
jurisdiction to try all suits of civil nature excepting those that
are expressly or impliedly barred which reads as under:  
“9.  Courts  to  try  all  civil  suits  unless  barred.- The
Courts shall (subject to the provisions herein contained)
have jurisdiction to try all suits of a civil nature excepting
suits  of  which  their  cognizance  is  either  expressly  or
impliedly barred.”
From  the  above  provision,  it  is  clear  that  Courts  have
jurisdiction to try all suits of a civil nature excepting suits of
which  their  cognizance  is  either  expressly  or  impliedly
barred.   The  jurisdiction  of  Civil  Court  with  regard  to  a
particular matter can be said to be excluded if there is an
express provision or by implication it can be inferred that the
jurisdiction is taken away.  An objection as to the exclusion
of  Civil  Court’s  jurisdiction  for  availability  of  alternative
forum should be taken  before the  trial Court and at the
earliest  failing  which  the  higher  court  may  refuse  to
entertain the plea in the absence of proof of prejudice.
9) In State of Bihar vs. Dhirendra Kumar and Others,
(1995) 4 SCC 229, the core question was whether a civil suit
is maintainable and ad interim injunction could be issued
8Page 9
where proceedings under the Land Acquisition Act,1894 was
taken pursuant to the notice issued under Section 9 of the
Act and possession delivered to the beneficiary.  On going
through  the  entire  proceedings  initiated  under  the  Land
Acquisition Act, this Court held as under:
“3. … … 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 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…”
After holding so, this Court set aside the finding of the trial
Court that there is a prima facie triable issue.  It also held
that the order of injunction was without jurisdiction.  
10) In  Laxmi  Chand  and  Others vs.  Gram  Panchayat,
Kararia  and  Others, (1996) 7 SCC 218 while considering
Section 9 of the Civil Procedure Code, 1908 vis-à-vis the
Land Acquisition Act, 1894, this Court  held 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
9Page 10
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
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.”
11) In  Commissioner,  Bangalore  Development
Authority vs. K.S. Narayan, (2006) 8 SCC 336, which arose
under the Bangalore Development Authority Act, 1976, was
similar to the case on hand, this Court held that a civil suit is
not maintainable to challenge the acquisition proceedings.
In that case one K.S. Narayan filed Original Suit No. 5371 of
1989 in the Court of the City Civil Judge, Bangalore, praying
that a decree for permanent injunction be passed against
1Page 11
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 is that 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 17.06.1985.  The erstwhile owners of the property had
obtained conversion certificate from the Tahsildar and the
property is situated in a layout 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
1Page 12
the defendant on 11.07.1989 calling upon it not to interfere
with  his  possession  and  enjoyment  of  the  property  in
dispute.   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
17.06.1985, had no right, title or interest over the property
in dispute and he could not have conveyed any title to the
plaintiff. It was further pleaded that the disputed land had
been acquired by the Bangalore Development Authority after
issuing preliminary and final notifications in accordance with
the  Bangalore  Development  Authority  Act  and  the
possession had also been taken over and thereafter it was
handed over to the engineering section on 22.06.1988 after
completion of all formalities. The award for the land acquired
had already been made and the compensation amount had
been deposited in the 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
1Page 13
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.
12) It is relevant to note that in the above decision, the
acquisition proceedings in question had been taken under
the  Bangalore  Development  Authority  Act,  1976  and  the
provisions of Sections 17 and 19 are somewhat similar to the
provisions of Sections 4 and 6 of the Land Acquisition Act,
1894.  After noting out all the details, this Court allowed the
appeals and set aside the decision rendered by the High
Court.
13) 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  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,  declaration  under  Section  6  and  subsequent
proceedings except by the High court in a proceeding under
1Page 14
Article 226 of the Constitution.  It is thus clear that the civil
Court is devoid of jurisdiction to give declaration or even
bare  injunction  being  granted  on  the  invalidity  of  the
procedure  contemplated  under  the  Act.   The  only  right
available for the aggrieved person is to approach the High
Court under Article 226 and this Court under Article 136 with
self imposed restrictions on their exercise of extraordinary
power.  
14) No  doubt,  in  the  case  on  hand,  the  plaintiffs
approached the civil Court with a prayer only for permanent
injunction restraining the defendant Nos. 1 and 2,i.e., BDA,
their agents, servants and any one claiming through them
from interfering with the peaceful possession and enjoyment
of the schedule property.  It is true that there is no challenge
to  the  acquisition  proceedings.   However,  in  view  of the
assertion of the BDA, in their written statements, about the
initiation of acquisition proceedings ending with the passing
of award, handing over possession and subsequent action
etc.,  the  said  suit  is  not  maintainable.  This  was  rightly
concluded by the trial Court.  For proper compensation, the
1Page 15
aggrieved parties are free to avail the statutory provisions
and approach the court concerned.  All these aspects have
been clearly noted by the trial Court and ultimately rightly
dismissed the suit as not maintainable.  On the other hand,
the learned Single Judge of the High Court though adverted
to the principles laid down by this Court with reference to
acquisition  of  land  under  the  Land  Acquisition  Act  and
Section  9  of  CPC  committed  an  error  in  remanding  the
matter to the trial Court on the ground that the plaintiffs
were not given opportunity to adduce evidence to show that
their vendor was in possession which entitles them for grant
of  permanent  injunction  from  evicting  them  from  the
scheduled  property  without  due  process  of  law  by  the
defendants.  In the light of the specific assertion coupled
with materials in the written statement about the acquisition
of land long ago and subsequent events, suit of any nature
including bare injunction is not maintainable, hence, we are
of the view that the High Court is not right in remitting the
matter to the trial Court for fresh disposal.
1Page 16
15) Having  regard  to  the  fact  that  the  acquisition
proceedings had been completed way back in 1960-70, the
plaintiffs who purchased the suit land in 1995 cannot have
any right to  maintain  the suit of this nature particularly,
against defendant Nos. 1 and 2, namely, the BDA.  The High
Court clearly erred in remanding the matter when the suit
was not maintainable on the face of it.  The High Court failed
to take note of the fact that even in the plaint itself, the
respondents herein/plaintiffs have stated that the suit land
was acquired and yet they purchased the suit land in 1995
and  undoubtedly  have  to  face  the  consequence.   The
possession vests with the BDA way back in 1969 and 1978
and  all  the  details  have  been  asserted  in  the  written
statements, hence the remittal order cannot be sustained. 
16) In  the  light  of  the  above  discussion,  the  impugned
judgment dated 27.07.2005 passed by the  High  Court in
R.F.A. No. 947 of 2003 remitting the matter to the trial Court
is set aside and the judgment dated 18.06.2003 of the trial
Court in O.S. No. 4267 of 1996 is restored. 
17) The appeal is allowed with no order as to costs.    
1Page 17
...…………….…………………………J.
          (P. SATHASIVAM)                                
  .….....…………………………………J.
  (JAGDISH SINGH KHEHAR)      
NEW DELHI;
FEBRUARY 08, 2013.
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