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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.