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Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. ___________ OF 2017
(Arising out of SLP (Civil) No. 33813 of 2011)
H. N. Jagannath & Ors. ...........Appellants
Versus
State of Karnataka & Ors. ........Respondents
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Leave granted.
1. The judgment dated 19.04.2011 passed by the High Court
of Karnataka at Bangalore in writ appeal no. 1575 of 2007
(LA-BDA) is called into question in this appeal. By the impugned
judgment, the Division Bench though did not interfere with the
Judgment passed by the learned Single Judge in writ petition no.
49357 of 2004 dated 15.03.2007, disposed of the Writ Appeal
observing that respondent no. 4 herein (appellant before the
Division Bench) should work out its remedy in the suit in
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accordance with law and if a suit is filed, the said suit shall be
considered without being influenced by the observations made in
the course of the Judgment passed by the learned Single Judge.
Thus, the Division Bench virtually relegated the parties to the
civil court once again by granting permission to respondent no. 4
to approach the civil court.
2. This matter is a classic example as to how a litigant before
the Court takes disadvantage of the process of law and the court
by repeatedly tapping the doors of the courts for almost the same
relief, after losing legal battles on a number of occasions.
3. Records reveal that the Bangalore Development Authority
(hereinafter “BDA”) respondent no. 12 herein, issued notification
dated 16.11.1977 under Section 17(1) of BDA Act (almost similar
to Section 4(1) of the Land Acquisition Act, 1894) proposing to
acquire a vast extent of land in two villages, namely Leggere and
Jaraka Bande Kaval. The purpose of acquisition was to form a
residential layout called “Extension of Mahalakshmi Layout” (also
called Nandini Layout). An extent of 393 acres 25 guntas in
survey no. 1 of Jaraka Bande Kaval village out of the total extent
of 519 acres 37 guntas was also notified. The preliminary
notification included the land belonging to respondent no. 4
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located in survey no. 1 of Jaraka Bande Kaval village measuring
25 acres 20 guntas. The preliminary notification was published
in the official gazette on 22.12.1977. The final declaration dated
30.08.1979 (gazetted on 20.09.1979) was issued under Section
19(1) of the BDA Act (almost similar to Section 6(1) of Land
Acquisition Act). On 04.06.1985, the Additional Land Acquisition
Officer passed an award in respect of the land measuring 127
acres 21 guntas in survey no. 1 of Jaraka Bande Kaval Village
including the land in dispute (the land belonging to respondent
no. 4) measuring 25 acres 20 guntas. It was noted by the
Additional Land Acquisition Officer that respondent no. 4 had
filed a petition before him in response to the notice issued under
Sections 9, 10 & 11 of the Land Acquisition Act. The award dated
04.06.1985 mentioned supra passed by the Additional Land
Officer was approved by the Government of Karnataka on
19.09.1986 and consequently the award amount was deposited
by BDA in the Court.
4. Respondent no. 4 herein had filed a suit for injunction in
respect of the disputed property (which was also acquired as
mentioned supra), before the 10th Additional City Civil Judge,
Bangalore in O.S. No. 10488 of 1985 against BDA on 28.06.1985.
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The Trial Court passed an ex-parte order of injunction in favour
of respondent no. 4 on 20.06.1985. After passing the award, the
possession of the land in question was taken on 23.09.1986; a
panchanama was drawn evidencing taking of possession.
Subsequently the Trial Court by its order dated 01.10.1986
modified its earlier ex-parte interim order of injunction and
permitted BDA to form a road. On 31.10.1986, BDA handed over
possession to its engineering section for the formation of the
road. A notification under Section 16(2) of the Land Acquisition
Act was issued on 20.11.1987 disclosing the factum of taking of
possession of the land including the land in question.
Respondent no. 4 chose to withdraw the suit in O.S. No. 10488 of
1985 on 30.01.1989 without seeking any liberty to file afresh
suit. The Trial Court’s order reads thus:
“Memo filed not pressing the suit.
Suit dismissed. No costs.”
5. However, respondent no. 4 filed another suit for permanent
injunction against BDA for protecting its alleged possession,
before 13th Additional City Civil Court, Bangalore in O.S. No.
3551 of 1989. In the said suit also, the order of temporary
injunction was granted on 10.07.1989 in favour of respondent
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no. 4 herein. However, the Trial Court by its order dated
08.03.1990 modified the order of temporary injunction earlier
granted, on an application filed by BDA and confined the order of
injunction only to existing structures. The civil court while
modifying the order of temporary injunction as mentioned above
has noted in paragraph 6 of its order that BDA has acquired the
property and has taken the possession of the property. It is also
observed that the title vests with BDA.
When the facts stood thus, respondent no. 4 filed writ
petition no. 17040 of 1991 (after a delay of 10 years from the date
of the final declaration) challenging the preliminary and final
acquisition notifications. The learned Single Judge by his order
dated 28.08.1991 dismissed the said writ petition on the ground
of delay and laches. Against such dismissal, the respondent no. 4
filed writ appeal no. 2798 of 1991 before the Division Bench of
the High Court, which also came to be dismissed on 25.11.1991.
Respondent no. 4 did not stop at that stage. It approached
the High Court once again by filing writ petition no. 31007 of
1992 praying for a direction to the State Government to consider
its representation for de-notification and for re-conveyance of the
land. The High Court by its order dated 09.12.1992 disposed of
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the writ petition with the observation that the government will
hear and dispose of the representation of respondent no. 4 herein
in accordance with law. The State Government by its order dated
15.02.1993 rejected the representation of respondent no. 4.
Challenging such order of dismissal by the State Government,
respondent no. 4 filed writ petition no. 33996 of 1993 which also
came to be dismissed on 09.02.1996. Respondent no. 4 in the
meanwhile had approached the High Court of Karnataka by filing
writ petition 25719 of 1994 praying for a direction against BDA
not to form the road in the land in dispute. The said writ petition
came to be dismissed as withdrawn on 02.07.1996.
6. In the meanwhile, the State Government by its order dated
17.11.1994 had permitted respondent no. 4 to run a school
situated on the land in question. However, the government by its
order dated 29.04.1997 modified its earlier order dated
17.11.1994. Thereafter respondent no. 4 filed yet another writ
petition (5th writ petition before the High Court) being writ
petition no. 1071 of 1998 to implement the government order
dated 17.11.1994. On being objected to by BDA, the petition
came to be dismissed on 05.10.1999.
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7. Respondent no. 4 filed yet another suit for injunction, i.e.
O.S. No. 16147 of 1999 (3rd suit). The said suit came to be
dismissed for default. Thereafter, the respondent no. 4 once
again approached the High Court of Karnataka by filing Writ
petition no. 49339 of 2004 (6th Writ Petition) for the following
reliefs.
a) The scheme formed by BDA for residential
layout lapsed under Section 27 of the BDA
Act.
b) Lay-out plan is illegal.
c) There was no vesting of land in BDA.
d) Allotment of sites to various allottees
including the appellants herein petitioners
was illegal.
The learned Single Judge of the High Court dismissed the writ
petition on 15.03.2007 by specifically noting that the possession
was taken by BDA, layout was formed, and sites are carved out
and distributed to the allottees who were put in possession of the
sites. The appellants herein are all allottees of the sites (who are
43 in number). The learned Single Judge also noticed that the
allottees have put up constructions and are residing in their
respective houses constructed on the sites allotted. The learned
Single Judge further noticed that the contentions taken and
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reliefs prayed for by respondent no. 4 though they were available
for respondent no. 4 to be urged earlier, were not urged by it and
therefore, the said prayers are barred by Order 2 Rule 2 of C.P.C.
Respondent no. 4 filed writ appeal no. 1575 of 2007 before
the Division Bench questioning the judgment of dismissal by the
learned Single Judge in writ petition no. 49339 of 2004. The
Division Bench by its impugned judgment as mentioned supra,
though did not interfere in the order passed by the learned Single
Judge, proceeded to grant the liberty to respondent no. 4 to work
out its remedy in civil court once again. The Division Bench has
strangely observed that in case the suit is filed, the same is to be
considered without being influenced by the observations made by
the learned Single Judge. Thus, the Division Bench though did
not interfere in the order passed by the learned Single Judge, has
virtually ignored all the aforementioned facts, including
successive judgments made by the civil court as well as the High
Court of Karnataka in six writ petitions including the one in writ
petition 49339 of 2004, and has virtually kept open all the
questions including the question of title and possession, which
means that the Civil Court is directed to go into the validity of the
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acquisition notification, award proceedings and the factum of
taking of possession by BDA pursuant to acquisition proceedings.
8. The learned Counsel Shri S. N. Bhat appearing on behalf of
the appellants/allottees of sites contends that the Division Bench
has erred in giving liberty to respondent no. 4 to file a civil suit
which would throw open a fresh round of litigation in respect of
the acquisition made as far back as 1977-79; the appellants and
other similar allottees have constructed houses on the plots and
have been residing therein for decades; the matter of acquisition
has attained finality and has come to a definite rest; the Division
Bench is not justified in reviving the dispute which had long been
given a legal quietus after a series of litigations. Lastly he
submits that it was not open for the Division Bench to unsettle
the settled state of affairs involving thousands of persons who are
purchasers of the plots.
9. The learned Counsel for respondent no. 4, per contra,
contended that the Division Bench is justified in granting liberty
to it to approach the civil court afresh inasmuch as the
possession of the property still remains with respondent no. 4;
respondent no. 4 is running an orphanage and a school for poor
children; since the possession of the property is not taken by
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BDA, the disputed property is entitled to be held by respondent
no. 4 as the owner thereof. In other words, the argument in
favour of respondent no. 4 is that the disputed property in
question needs to be de-notified in favour of respondent no. 4 and
possession should continue in its favour and hence the Division
Bench is justified in granting permission to respondent no. 4 to
file a Civil Suit afresh by raising all the contentions as are
available in law.
10. It is not in dispute that the property in question along with
other properties was acquired by the BDA in accordance with law
by issuing notifications under Section 17(1) and 19(1) of the BDA
Act as far back as in the year 1977 and in the year 1979. The
BDA has formed and allotted the sites. Most of the allottees have
constructed houses and are residing peacefully. However,
respondent no. 4 still contends that possession has remained
with it and therefore the acquisition needs to be set aside and
that the land should be de-notified. As detailed supra,
respondent no. 4 has already approached the civil court thrice
and High Court on six occasions. Whenever the suits are
withdrawn, respondent no. 4 has not sought any liberty to
approach the civil court once again. Thus, it was not open for
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respondent no. 4 to approach the civil court repeatedly for the
very reliefs. Consistently, the civil court on three occasions has
negatived the contention of the appellant.
11. Even when respondent no. 4 approached the High Court of
Karnataka by filing the writ petitions and writ appeals, it has
failed. Futile attempts have been made by respondent no. 4 only
to see that the allottees are harassed and to keep the litigation
pending. After the final notification, an award was passed and
compensation was deposited. Possession was taken and the
same was evidenced by the Panchanama prepared as far back as
23.09.1986. Notification under Section 16(2) of the Land
Acquisition Act was issued on 20.01.1987 disclosing the factum
of taking possession of the land in question. Attempt made by
respondent no. 4 for getting the disputed land de-notified has
also failed as far back as 15.01.1993, when the State Government
has rejected the representation of respondent no. 4 seeking
de-notification. The writ petition filed by respondent no. 4
challenging such order of dismissal of the representation was also
dismissed. Despite the same, respondent no. 4 is pursuing the
matter by filing writ petition after writ petition. It is a clear case
of abuse of process of law as well as the Court.
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12. We do not find any reason to interfere in the finding of fact
rendered by the learned Single Judge that possession was taken
by BDA on 23.09.1986. There is nothing to be adjudicated
further in respect of the title or possession of the property. The
title as well as the possession of the property has vested with the
BDA for about more than 30 years prior to this day and sites were
formed and allotted to various persons including the appellant
herein. In the light of such voluminous records and having
regard to the fact that respondent no. 4 has been repeatedly
making futile attempts by approaching the courts of law by
raising frivolous contentions, the Division Bench ought not to
have granted liberty to respondent no. 4 to approach the civil
court once again for the very same relief, for which it has failed
earlier. In view of this, learned counsel for the appellant is
justified in contending that the Division Bench has completely
erred in reviving the dispute which had long been given a legal
quietus after a series of litigations. The Judgment of the Division
Bench, if allowed to stand, will unsettle the settled state of affairs
involving hundreds of allottees of sites who have constructed the
houses and are residing therein. The impugned judgment of the
Division Bench virtually sets at naught a number of judgments
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rendered by the civil court as well as the High Court in the very
matter (and was given without any reason much less a valid
reason).
13. The Division Bench has erroneously conferred jurisdiction
upon the civil court to decide the validity of the acquisition. This
Court has repeatedly held in a number of judgments that, by
implication, the power of a civil court to take cognizance of such
cases under Section 9 of the CPC stands excluded and the civil
court has no jurisdiction to go into the question of validity under
Section 4 and declaration under Section 6 of the Land Acquisition
Act. It is only the High Court which will consider such matter
under Article 226 of the Constitution. So, the civil suit, per se is
not maintainable for adjudicating the validity or otherwise of the
acquisition notifications & proceedings arising therefrom. This
Court in the case of Bangalore Development Authority vs Brijesh
Reddy & Anr. [2013 (3) SCC 66] while considering the acquisition
notifications issued under BDA Act observed thus:
“It is clear that the Land Acquisition Act is a
complete code in itself and is meant to serve
public purpose. By necessary implication,
the power of the civil court to take
cognizance of the case under Section 9 CPC
stands excluded and a civil court has no
jurisdiction to go into the question of the
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validity or legality of the notification under
Section 4, declaration under Section 6 and
subsequent proceedings except by the High
Court in a proceeding under Article 226 of
the Constitution. It is thus clear that the
civil court is devoid of jurisdiction to give
declaration or even bare injunction being
granted on the invalidity of the procedure
contemplated under the Act. The only right
available for the aggrieved person is to
approach the High Court under Article 26
and this Court under Article 136 with
self-imposed restrictions on their exercise of
extraordinary power.”
A similar view is taken by this Court in other cases. The
Judgments of this Court in Laxmi Chand & Ors. vs Gram
Panchayat, Kararia & Ors. [1996 (7) SCC 218], Shri Girish Vyas
vs State of Maharashtra [2012 (3) SCC 619], State of Bihar vs
Dhirendra Kumar & Ors. [1995 (4) SCC 229], Commissioner,
Bangalore Development Authority vs K. S. Narayan [206 (8) SCC
336] & Commissioner, Mutha Associates & Ors. vs State of
Maharashtra [2013 (14) SCC 304] considered the acquisition
proceedings relating to the lands which were acquired either
under the provisions of the BDA Act or under the Land
Acquisition Act. In all these judgments, similar question arose i.e.
as to whether the civil court had jurisdiction to decide the validity
of the acquisition notifications or not.
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14. Having regard to the discussion made supra, in our
considered opinion, it is a clear case of contempt committed by
respondent no.4 by repeatedly approaching the courts of law for
almost the same relief which was negatived by the courts for
three decades. However, we decline to initiate contempt
proceedings and to impose heavy costs, under the peculiar facts
and circumstance of this case.
15. It is to be noted that the Division Bench has given liberty
to respondent no. 4 to work out his remedy in a civil suit without
even setting aside the findings of the learned Single Judge and
the findings rendered in the judgments passed by the Civil Court
and the High Court of Karnataka in a number of matters
(mentioned supra). In our opinion the Division Bench of the High
Court of Karnataka has in a casual manner relegated the parties
to the civil court to work out their remedies in the suit which is to
be instituted afresh by respondent no. 4. Thus, the said
conclusion of the Division Bench of the High Court is not
sustainable in law. Accordingly, the judgment and order dated
19.04.2011 passed by the Division Bench of the High Court of
Karnataka at Bangalore in writ appeal no. 1575 of 2007
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(LA-BDA), and consequently the order dated 15.07.2011 (wherein
certain corrections are made subsequently) of the Division Bench
in Misc. Writ petition no. 7549 of 2011 are set aside. The
Judgment of the Learned Single Judge in the Writ Petition
Number 49357 of 2004 stands restored. Appeal is allowed.
.................................................J.
(ARUN MISHRA)
.................................................J.
(MOHAN M. SHANTANAGOUDAR)
New Delhi
December 06, 2017
