H.N. Jagannath vs State Of Karnataka on 6 December, 2017

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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


                                          JUDGMENT

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
Signature Not Verified

observing that respondent no. 4 herein (appellant before the
Digitally signed by
SARITA PUROHIT
Date: 2017.12.06
17:24:41 IST
Reason:

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 10 th 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 (3 rd 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

Article source: Supreme Court

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