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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.
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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.
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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
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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.
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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
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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
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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.
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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
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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
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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
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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
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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
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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
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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
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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.
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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.
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...…………….…………………………J.
(P. SATHASIVAM)
.….....…………………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
FEBRUARY 08, 2013.
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