Karnataka High Court
Nandi Infrastructure Corridor ... vs Sri K T Narayanaswamy on 24 July, 2024
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE K.NATARAJAN
REGULAR FIRST APPEAL NO. 208 OF 2020
BETWEEN:
1. NANDI INFRASTRUCTURE CORRIDOR
ENTERPRISE LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956 AND HAVING ITS
REGISTERED OFFICE AT: MIDFORD HOUSE,
MIDFORD GARDEN,
OFF. MAHATMA GANDHI ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR. SRINATH MANGALORE.
2. NANDI ECONOMIC CORRIDOR ENTERPRISE LIMITED
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956 AND HAVING ITS
REGISTERED OFFICE AT MIDFORD HOUSE,
MIDFORD GARDEN,
OFF. M.G. ROAD,
BANGALORE - 560 001.
REPRESENTED BY ITS AUTHORIZED SIGNATORY
MR. SRINATH MANGALORE.
...APPELLANTS
(BY SRI. DHYAN CHINNAPPA, SENIOR ADVOCATE FOR
SRI. RAKSHITH PAI, AND
SRI. M.V.SUNDARA RAMAN, ADVOCATES)
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AND:
1 . SRI. K. T. NARAYANASWAMY
SON OF LATE SRI. THOUTA REDDY,
AGED ABOUT 57 YEARS,
R/AT NO.28/116,
4TH CROSS, 6TH MAIN,
CAUVERY NAGAR MAIN ROAD,
BSK III STAGE,
BANGALORE - 560 085.
2.
SMT. H. SUGUNA
WIFE OF K.T.NARAYANASWAMY,
AGED ABOUT 55 YEARS,
R/AT NO. 28/116,
4TH CROSS, 6TH MAIN,
CAUVERY NAGAR MAIN ROAD,
BSK III STAGE, BANGALORE - 560 085.
...RESPONDENTS
(BY SRI. T.N.VISWANATHA, ADVOCATE FOR C/R1 & R2)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI RULE 1 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 16.10.2019 PASSED IN
O.S.NO.3235/2012 ON THE FILE OF THE XXXI ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
DISMISSING THE SUIT FOR PERMANENT INJUNCTION.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD
AND RESERVED FOR JUDGMENT ON 20.06.2024 THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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CORAM: HON'BLE MR JUSTICE K.NATARAJAN
RESERVED FOR ORDERS ON: 20.06.2024
PRONOUNCED ON : 24.07.2024
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE K.NATARAJAN) This appeal is filed by the appellant under Section 96 of CPC for setting side the judgment and decree passed by the XXXI Additional City Civil and Sessions judge in OS.No.3235/2012 for having dismissed the suit of the appellant.
2. The appellant was the plaintiff and the respondent was defendant before the Trial Court . The ranks of the parties are retained for the purpose of convenience.
3. Heard the arguments of learned counsel for the appellants and respondents.
4. The case of the plaintiff before the Trial Court is that the schedule property is land measuring 11 acres and 34 Guntas in Sy.No.69 situated in Hoskerehalli Village, 4 Uttarahalli Hobli, Bangalore South Taluk. The plaintiff was put in possession of the schedule property and the possession certificate issued by the Karnataka Industries Areas Development Board (hereinafter referred to as KIADB) and Mahazar also was prepared. The appellant has been entrusted with exclusive site of construction, development, ownership, maintenance and operation of integrated project called Bangalore-Mysore Infrastructure Corridor project under the terms of agreement dated 3.4.1997 with Government of Karnataka. The appellant No.2/plaintiff No.2 derived right to implement the said project under tripartite agreement dated 9.8.2002. Out of the total extent of land, a private land being acquired by the KIADB under the provisions of KIADB Act 1966. Under the tripartite agreement dated 9.8.2002 with plaintiff Nos.1 and 2, Nandi Economy Corridor enterprises (NECE) . The plaintiff No.2 entrusted with implementation of Section 'A' of the project, comprising 41 kms of peripheral road, 9.1 km link road and 12 kms expressway and a township near Bidadi and Allied Infrastructure Facilities and Developments. 5
5. It is further contended that the acquisition of land for the project and frame work agreement dated 3.4.1997 came to be challenged in public interest litigation in W.P.No.29221/1997 before this Hon'ble Court filed against the plaintiff No.1 and the writ petition was dismissed on 21.9.1998. The said judgment order was confirmed by the Hon'ble Supreme Court on 26.3.1999 in SLP No.1423/1999. It is further contended that another batch of petition filed by individual land owners by challenging acquisition proceedings and in Writ Appeal No.72/2004, the High court upheld the acquisition. The said order has been challenged before the Hon'ble Supreme Court in Civil Appeal No.3492-3494-2005 and the same was confirmed by the Hon'ble Supreme Court on 03.05.2005. Hon'ble Supreme Court expressed its concern in implementation of project which is being stalled by one or the other persons with oblique motive and appeals filed by the land owners has been dismissed on 02.02.2011 in Civil Appeal No.1215/2011 (SLP No.26391/2010) by imposing cost. He further 6 submitted that for the execution of project, the plaintiff invested more than Rs.2000 crores.
6. It is further contended that in the present proceedings pertaining to Sy.No.69 of Hosekerehalli village the acquisition was made under Section 28(1) of KIADB Act and notification was issued on 29.1.2003 and final notification was issued on 05.07.2003. In view of section 28(4) of the said Act, the land was vested with the Government and land owners seizes to be owner and also possession. A joint measurement sketch was prepared by the ADLR, KIADB, SLAO to identify the schedule property and thereafter possession was taken by the plaintiff vide possession certificate 23.12.2008 and 24.12.2005. Ever since, the plaintiff is in possession of the property, but the defendants who are unconnected with the property came with henchman on 26.4.2012 started to put up construction and levelling the road. The defendants are attempting to demarcate the property by building compound wall and using the bulldozers and heavy equipment. The Security 7 Officer of the plaintiff attempted to stop but went in vain. The plaintiff with great effort was able to protect their land, but the defendants threatened to continue such illegal action. Hence, plaintiff filed complaint to the Byatarayanapur Police station on 1.5.2012, but the police have not taken any action.
7. The defendants has no manner of right, or interest and possession over property and trying to interfere with the possession and stall the public project, the cause of action arose on 26.4.2012 and 1.5.2012. Hence, filed the suit. The defendant Nos.1 and 2 appeared and filed the written statement by denying the averments made in the plaint as false and contended that the plaintiff was not in possession of 1 acre and 30 guntas of land in Sy.No.69 as described in the mutation certificate M.R.No.24/2005-06 and M.R.No.25/2005-06 that defendants were always in possession of the said property, their actual physical possession of the property and denied the allegation that they have interfered with the schedule property, as false. It 8 is further contended, that the process of acquisition not completed in respect of the land in possession of the defendant. As per section 9 and 10 of the Land Acquisition Act, which applies mutatis mutandis in terms of section 30 of KIADB Act. The acquisition not completed in terms of section 29 and 28 of the KIADB Act. It is further contended that the cause of action is concocted by the plaintiff. The property was not properly valued and proper court fee was paid. The KIADB not taken possession of the property in terms of section 28(6) and 28(7) of KIADB Act.
8. It is contended by the defendant that the BMICP and plaintiff entered into a frame work agreement with State Government for construction of Express Highway for this purpose in HG Somashekar Reddy's case reported in 2001(1) Karnataka Law Journal 224 about 20,193 acres of land was acquired out of which 6956 was Government land. 13237 was private land. In paragraph no.51 of the judgment the same was referred as under 9
Peripheral road 41 kms 2,193 acres Link road 9.8 kms 278 acres Expressway 111 kms 4,528 acres
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Totally 162 kms 6,999 acres
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9. The said road is grade separated and presently fully operational the toll is being collected under FWA,. The plaintiff can collect toll for 30 years and after 30 years the road reverted back to the State. The plaintiff has no right over the land. The plaintiff acquires only 278 acres for link road and all attendant facilities including interchanges and not an inch more. It is further contended that not a single inch of land in Sy.No.69 has been used for Link Road and the same is in possession and enjoyment by the land owners. Even otherwise, the Sy.No.69 is situated at a distance of 1/2 km from the Link Road which is already formed. The plaintiffs are collecting toll for usage of Link Road. These defendant's property is not required for Link 10 Road. In fact though 278 acres has been notified for the purpose of Link Road and extent of 30 acres in excess has been notified in the said excess land these defendant's property is included and the same has not been taken possession. Such being the case, these defendants along with other land owners filed Writ Petition No.27565- 570/2009 before the Hon'ble High Court of Karnataka, Bangalore to drop the acquisition proceedings. The petition was dismissed with an observation that the order will not come in the way of authorities excluding the lands of petitioner from acquisition and in the Writ Appeal No. 650- 654 and 753/2010 which was dismissed and against the dismissal the defendants have filed Special Leave Petition before the Supreme Court in SLP No.3551-3556/2011 and a Special Leave was listed on 18.02.2011 and the Special Leave Petition was withdrawn by seeking leave to approach the Government for de-notifying the lands in question.
10. Pursuant to the withdrawal of the Special Leave Petition, the defendants have filed application before the 11 State and KIADB for notifying the acquisition proceedings. In a KIADB the said application was still pending and not considered the KIADB or the plaintiff are not in possession of the suit schedule property and further contended that without passing an award and without taking possession the plaintiffs will not get any right to claim over the schedule property.
11. It is further contended that the plaintiffs are trying to indulge in real estate business in the guise of constructing Toll Road. Under the Framework Agreement there is nothing more to construct at the Defendants property. It is further contended that their Framework dated 03.04.1997, the Secretary PWD on dated 03.06.1997 has circulated to all the Deputy Commissioners of various districts to ensure Non- Alienation of the lands required for the BMICP. The said list circulated by the Secretary, PWD on 03.06.1997 does not include the Defendants land situated at Hoskerehalli Village, Bangalore South Taluk and further all the averments made 12 in the plaint denied as false, no cause of action arise for filing the suit and hence prayed for dismissing the suit.
12. Based upon the pleadings, the Trial Court framed the following four issues:-
1. Whether the plaintiffs-Enterprises prove that it is in lawful possession of the suit schedule property, as on the date of suit?
2. Whether the plaintiffs prove the alleged interference of defendants in the suit schedule property?
3. Whether the plaintiffs are entitled for the relief of permanent injunction against defendants, as prayed?
4. To what Decree or Order?
13. To prove the case, the plaintiffs has examined his representative as PW-1 and got marked 25 documents and the 1st defendant examined himself as D.W.1 and he has got marked 74 documents.
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14. After hearing the arguments, the Trial Court answered issue No.3 in the Negative and dismissed the suit of the plaintiff vide impugned judgment dated 16.10.2019.
15. Being aggrieved by the dismissal of the suit, the plaintiffs have filed this appeal before this Court.
16. Learned senior counsel appearing for the appellants has contended that the land was acquired by the KIADB for Bangalore-Mysore High way. The notification was issued on 29.01.2003 and final notification was issued on 05.07.2003 and as per Section 28 of the KIADB Act the land was listed with Government and even otherwise the authorities have handed over the possession to the plaintiff for the express high way project and also issued certificate. Therefore, the defendants cannot rise any objections in respect of the schedule property. They have to challenge the notification and acquisition before the High Court.
17. Accordingly, the defendants have challenged the acquisition proceedings which was up held by the High Court 14 and they have challenged the same before the Supreme Court and withdrawn the SLP. Therefore, once the land was vested with the Government under Section 28 (4) of KIADB Act the same cannot be questioned. The respondent- defendant were trying to interfere in the schedule property and the Trial Court has not properly appreciated the evidence on record, especially Ex.P-25, Ex.P-15 Mahazar Ex.P-16-Possession certificate and Ex.P-4 is the final notification were all clearly reveals the acquisition proceeding was completed. Therefore, the respondents have no authority to question the acquisition proceedings and they cannot interfere with the property belongs to the plaintiffs. If at all, they filed application they have to approach the Government for de-notification but the respondent has no authority to interfere with the possession of the schedule property. The documents of the plaintiffs and the RTC were all reveals the plaintiff are in possession of the suit schedule property and hence prayed for allowing the appeal and to decree the suit.
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18. Per-contra, the respondent counsel supported the judgment of the Trial Court contending that the defendants are in possession of the schedule property, they have cultivating the land. The land falls under the excess of land which was acquired by the Government. The plaintiff already put up wall on the side of the road and collecting the Toll. It is 1/2 km away from the road, which is not at all required for the plaintiffs.
19. The defendants have already approached the State Government for de-notifying the land which is pending for consideration and further contended that there is no award passed by the SLAO and no compensation awarded to the land owners and the very award passed by the SLAO has been set aside at the instances of the plaintiff. Therefore, the acquisition proceeding was not completed, the award was not paid to the land owners and therefore question of taking physical possession does not arises. The photographs produced by the defendants and RTC reveals that the respondents was in the possession of the schedule 16 properties and as per Section 133 of the Karnataka Land Revenue Act the names of the respondents appears in the revenue record which presumption available to the owner of the land.
20. The learned counsel for the respondent has further contended that P.W-1 do not know who is said to be working with the plaintiff, there is no evidenciary value and he was not a Secretary. The KIADB officers were not examined by the plaintiff, the suit itself is not maintainable under Section 9 of CPC. The acquisition is not completed, physical possession is not given. Ex.P-15 and 16 not proved the land falls under excess land which is in possession of the respondent. Therefore, is there standing crop as per Ex.D-
36. Therefore, it is contended that the appeal filed by the appellant is devoid of merits and liable to be dismissed.
21. In support of the arguments both counsels relied upon the judgment of the Supreme Court.
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22. During the pendency of the appeal, the appellants have filed I.A. No.1/2024 under Order 41 Rule 27 of CPC seeking permission to produce additional evidence.
23. On behalf of the appellants, one Srinath, Bengaluru, has filed an affidavit accompanying the I.A. contending that he is the representative of the appellants and he is aware of the facts. He has contended that the documents which were required to be produced in the appeal would demonstrate the conduct of the respondent during the acquisition proceedings whereby despite being the subsequent purchaser of the schedule property has raised various representation and attempting to stop acquisition proceedings. These documents have come to the light very recently. The appellants despite due diligent was unable to produce the documents in the trial Court. Hence, these documents are necessary to produce in this appeal. Hence, prayed for allowing the application.
24. The respondents filed statement of objections contending that the application is not maintainable, the 18 affidavit is very vague and without sufficient reasons, the documents cannot be produced and these documents are not at all necessary for adjudication of the real controversy in the appeal. The suit filed by the plaintiffs was for bare injunction alleging that they are in possession, but the respondents have taken a specific contention that the they are in physical possession of the schedule property. The trial Court after appreciating the evidence on record has rightly dismissed the suit. The admission made by P.W.1 in the evidence clearly establishes that the defendants are in possession of the schedule property. The appellants have suppressed the material facts with regard to the establishment of 'Sadana Samithi' in respect of the excess of land acquired by the KIADB. Nothing has been disclosed with regard to the application filed under Order XLI Rule 27 of CPC and those documents are not allowed. Hence, prayed for dismissing the petition.
25. Having heard the arguments of learned counsel for the parties, perused the records.
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The points that arise for consideration are:
(i) Whether the appellants-plaintiffs prove that they are in lawful possession and enjoyment of the schedule property ?
(ii) Whether the appellants- plaintiffs prove that the defendants interfered with their peaceful possession and enjoyment of the schedule property ?
(iii) Whether the appellants-plaintiffs made out sufficient cause for production of documents in the application filed under Order XLI Rule 27 of CPC ?
(iv) Whether the judgment of the trial Court calls for interference ?
26. On perusal of the record, it reveals that the land in sy No.69 situated at Hoskerehalli, was said to be notified by the KIADB for the purpose of constructing Mysore -
Bangalore express Highway as per the notification dated 29.01.2003 and final notification said to be issued on 5.7.2003. The respondent said to be purchased the land in question from the original owners and he is said to be in possession of the land by cultivating the same. According to 20 the defence taken by the respondent-defendant, the property acquired by the KIADB is more excess than the requirement. The peripheral road for 41 km 2193 acres was acquired, link road about 9.8 k.ms., 278 acres was acquired, the express way 111 km. 4528 acres. In all, totally 162 km. 6999 acres were acquired. But the actual land acquired was 278 acres for link road for attending all facilities including interchanges. It is contended by the defendant that the schedule property measuring 1 acre 30 guntas is in possession of the defendant as he has purchased the same from the original owner and which falls under the excess of land than what is required for the road. The defendant has contended that a survey was conducted by the survey department and it was reported that this land falls in the excess of land which was not utilised by the plaintiff. It is also admitted by P.W.1, in the cross examination, that the road was already completed and the side wall of the either side of the road has been put up and the suit schedule property is situated half a km away from the toll road. 21
27. The learned Senior Counsel for the appellant has contended that once the land is acquired under the KIADB Act as per Section 28(4) of the KIAD Act, the possession vests with the State and therefore, the possession certificate issued by the Special LAO on 23.12.2008 and 24.12.2005, the possession was with the plaintiff. Ex.P.16 is the possession certificate and Ex.P.15 is panchanama. Therefore, it is contended that the lands are with the plaintiff and the suit schedule property is part of the acquired land and once the award is passed, the respondent cannot question the same before the civil court except approaching the High Court for quashing the notification.
28. In support of his contentions, the learned senior counsel for the appellant has relied upon the judgment of the Hon'ble Supreme Court reported in 2023 SCC online SC 396 in the case of LAND AND BUILDING DEPARTMENT THROUGH SECRETARY AND ANOTHER Vs. ATTRO DEVI AND OTHERS, where the Hon'ble 22 Supreme Court has held at para 12 of the judgment has held:
12. The issue as to what is meant by "possession of the land by the State after its acquisition" has also been considered by Constitution Bench of Hon'ble Supreme Court in Indore Development Authority's case (supra). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re- entry made by any person is nothing else but trespass on the State land. Relevant 23 paragraphs 244, 245 and 256 are extracted below:
"244. Section 16 of the Act of 1894 provided that possession of land may be taken by the State Government after passing of an award and thereupon land vest free from all encumbrances in the State Government. Similar are the provisions made in the case of urgency in Section 17(1). The word "possession" has been used in the Act of 1894, whereas in Section 24(2) of Act of 2013, the expression "physical possession" is used. It is submitted that drawing of panchnama for taking over the possession is not enough when the actual physical possession remained with the landowner and Section 24(2) requires actual physical possession to be taken, not the possession in any other form. When the State has acquired the land and award has been passed, land vests in the State Government free from all encumbrances. The act of vesting of the land in the State is with possession, any person retaining the possession, thereafter, has to be treated as trespasser and has no right to 24 possess the land which vests in the State free from all encumbrances.
29. In another judgment in the case of SHIVKUMAR AND ANOTHER Vs. UNION OF INDIA reported in (2019)10 SCC 229, Hon'ble Supreme Court has held that at para 8 of the judgment has held:
8. It has been laid down that the purchasers on any ground whatsoever cannot question proceedings for taking possession, A purchaser after Section 4 notification does not acquire any right in the land as the sale is ab initio void d and has no right to claim land under the policy.
30. In another judgment, the Hon'ble Supreme Court held in the case of GOVERNMENT OF NCT OF DELHI Vs. SUNIL JAIN AND OTHERS reported in 2023 SCC ONLINE SC 39, by relying upon the judgment in the case of Shivakumar's case, supra, at para 2 as held:
2. Having gone through the impugned judgment and order passed by the High Court and para 5, it appears that the original writ 25 petitioners being the subsequent purchasers of the land in question they do not derive any right or title to the land at the time of Award and thereafter cannot challenge the acquisition proceedings. Therefore, it was the specific case that the original petitioners had no locus to file the writ petition and seek any relief with respect to the acquisition. From the counter filed before the High Court it appears that it was also the case on behalf of the appellant and so stated in the counter affidavit that the possession of the land in question could not be taken over due to the pending litigation which ended upto this Court upholding the acquisition proceedings.
However, thereafter and despite the above and without even considering the locus of the original writ petitioners to challenge the acquisition/lapsing of the acquisition, solely relying upon the fact that the possession has not been taken over and the compensation is not paid and relying upon the decision of this Court in the case of Pune Municipal Corporation v. Harakchand Misirimal Solanki, (2014) 3 SCC 183, the High Court has allowed the writ petition and has declared that the acquisition with respect to 26 the land in question is deemed to have lapsed under Section 24(2) of the Act.
31. On perusal of the judgments of the Apex Court, especially the LAND AND BUILDING DEPARTMENT, supra, the Hon'ble Supreme Court has held that once an award was passed and possession was taken, the same cannot be questioned and the owners cannot have the right, title over the property and the possession of the land was vested with the State Government. As per Section 28(4) of the KIAD Act, after issue of final notification, the land was vested with the government. There is no separate opinion in the principles laid down by the Hon'ble Supreme Court in the above said case. Whereas, the case of respondent was that the schedule property was purchased from the original owners about 1 acre 30 guntas under the sale deed at Ex.D.1 dated 5.10.2005 subsequent to the preliminary notification. However, as per Exs.P.15 and 16 in the land in Sy. No.69 measuring 11 acre 34 guntas possession was handed over only on 24.12.2005 and on 23.12.2008, much 27 after the sale deed was effected. The documents at D- series produced by the respondent reveals that the defendant is in possession of the schedule property and the RTC reflects the name of the respondent. In spite of acquisition, the name of the respondent was entered in the RTC, subsequently, by the revenue authorities which reveals the presumption, under Section 133(3) of the Karnataka Land Revenue Act, that the defendant is in physical possession of the schedule property. It is the contention of the respondent that a portion of the property was acquired by the State, but it is excess of land which does not required for the plaintiff for formation of road.
32. It is also an admitted fact that the respondent original owners approached the High Court by filing writ petitions which came to be dismissed and in writ appeal, it was confirmed and finally, the land owners approached Apex Court by filing SLP and the SLP was withdrawn with liberty to approach the State Government for denotification. Accordingly, the respondent has filed a representation 28 before the State Government and the state government has constituted a committee for looking after and for recommendation of de-notification which is pending before the government. It is also submitted by the respondent that the empower committee also recommended by the State government to verify the excess of land acquired by the plaintiff company and misused for constructing choultry and other building unauthorisedly by taking advantage of forming the road.
33. The learned counsel for the appellant has produced some additional documents along with application under Order XLI Rule 27 of CPC in respect of the notification issued by the State acquiring the land for the purpose of Mysore Bangalore express way, the possession certificate was issued by revenue authorities, which is already marked as Ex.P. 7 in the trial Court and measurement of the land which were acquired for the purpose, the copy of the complaint file by the plaintiff, the copy of the order of the writ petition challenging the acquisition proceedings by the 29 land owners and the order in the writ appeal confirming the acquisition proceedings, these documents are not in dispute except the possession certificate issued by the revenue authorities in favour of the plaintiff.
34. The appellant is counsel also filed additional documents in respect of I.A.No.1/2024 under Order XLI Rule 27 of CPC, where in the copy of the order in W.P. Nos.35638-639/2012 (LA- KIADB), where the said writ petition was filed before the Division Bench to direct the State Government to pass the award for the lands acquired for the project. Subsequently, an award has been passed on 6.7.2019 by the SLAO - 1 KIADB, in respect of lands acquired. The very appellant challenged the said award passed by the SLAO in W.P. No.26085/2019 Connected with Nos.31407/2019 and 1627/2021 (LA- KIADB), wherein the Single Judge of this Court passed an order dated 18.4.2022, and the award passed by the SLAO, i.e. respondent No.4 in the writ petition has been quashed. The land in Sy. No.69 of Hosakerehallil to the extent of 3 acres was also a subject 30 matter, where the award has been passed by the SLAO has been quashed by the High Court at the instance of the appellant-plaintiff. Therefore, the fact remains that there is no award passed by the State and paid any compensation to the land loosers or land owners. The learned counsel for the appellant has contended that once the land has been acquired and the award has been passed the owners has no power or right to challenge the acquisition proceedings. and already the litigation has attained the finality. But when the award was passed by the SLAO which has been got quashed by the plaintiff at their instance, therefore there is no award passed in respect of the acquisition proceedings and the suit schedule property in question. Therefore, in view of the judgments of the Hon'ble Supreme Court relied by the appellant counsel where the Hon'ble Supreme Court has held that once the award has been passed on the acquisition proceedings, the same shall not be questioned. Here, in this case, no such award has been passed in the acquisition proceedings and the alleged award has been passed which got quashed by the plaintiff company itself, which reveals 31 that the appellant plaintiff tried to enjoy the property which was in excess of land which was not required for construction of road, and already construction has been put up by collecting tolls from the vehicle users. and the respondent already approached the Government for denotification which is pending and merely a symbolic possession is given, cannot be considered that actual physical possession has been delivered to the plaintiff.
35. In this regard, the respondent counsel has relied upon the judgment of the Hon'ble Supreme Court in the case of SHAKUNTALA YADAV & ors Vs. STATE OF HARYANA& ors reported in AIR 2016 SC 1612. The Hon'ble Supreme Court at para 13 of the judgment:
13. There being no Rojnama to show that the physical possession had already been taken, nor any pleadings in that regard, we find it difficult to appreciate the submission made by the learned counsel for the State that the possession had already been taken and handed over to HUDA.
Unless the property is taken possession of, in accordance with law, there arises no question of 32 handing over the property to HUDA. Symbolic possession, as has been held by this Court in Raghbir Singh Sehrawat v. State of Haryana [Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 : (2012) 1 SCC (Civ) 402] , will not serve the purpose.
36. In another judgment, the Co-ordinate Bench of this Court in M.P. GUNDAPPA Vs. STATE OF KARNATAKA reported in ILR 2017 KAR 4161,. In the said case BDA said to be taken possession by drawing mahazar which is found in printed format does not show the names of persons who attested the mahazar, therefore, taking possession was held to be doubt. In another case in MUNISWAMY Vs. STATE OF KARNATAKA reported by the Co-ordinate Bench has held that the acquisition was lapsed, award has not beenpassed and land was not taken in possession and the land of the petitioner (land owner) has been dropped from acquisition proceedings. In another judgment, the Hon'ble Supreme Court in the case of RAGHBEER SINGH SHERAWAT Vs. STATE OF HARYANA has held that actual physical possession has to be taken and paper possession is 33 not sufficient for the land to vested with the state, the revenue record showing the crop was standing which reveals that the possession was unauthorisedly taken and has held that the possession of the acquired land vested with the state as improper.
37. The said judgment is squarely applicable to the case on hand where under Exs.P.15 and 16, the land has been said to be handed over in 2008, but prior to that, the land was cultivated by the respondent standing crops were found in the land therefore, The symbolic possession said to be taken by the appellant cannot be acceptable.
38. Apart from that, when the matter is pertaining to the land acquisition, the civil court is barred by taking suit for considering the rights, there is bar under Section 9 of CPC therefore, filing the civil suits by the plaintiff before the Civil Court seeking injunction itself is not maintainable.
39. That apart, the authorised person for the plaintiff has been examined as P.W.1 and he has admitted in the 34 cross examination that he is working in some other company and not working under the plaintiff company and he does not know about the averments made in the plaint and he is unable to say the boundaries for the schedule property and he further admits that the RTC shows the name of the defendant P.W.1 further admits that in Ex.P.10 to 13 in respect of schedule property, standing crops, trees were found and to most of the questions, P.W.1 has given answer that he is not aware of the facts of the case and the actual possession of the schedule property and he is unable give to satisfactory answer whether the award has been passed or not in respect of the schedule property and he is unable to say the direction of the Hon'ble Supreme Court in the S.D. Somashekar Reddy case in respect of excess of 554 acres and he admits that the State Government constituted a high power committee for the purpose of de- notification as per the direction of the Hon'ble Supreme Court.
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40. He further admits in the cross examination that he does not know that the award amount has been paid or not, he is not aware about the documents and its contents which goes to show that the P.W.1 who was examined on behalf of the plaintiff was not aware of anything about the case. P.W.1 further admits that in Somashekar Reddy case, the plaintiff admitted that the plaintiff required only 278 acres and remaining land were not required and by the side of the road, they put up the side wall. The admission made by the P.W.1 clearly reveals that he did not know anything about the case, but he has given evidence on behalf of the plaintiff which is not useful to the plaintiff.
41. In view of non passing the award for more than 20 years and the suit schedule property falls under the excessive land acquired by the KIADB and reason stated in the above judgment, the appellant is not entitled for relief of injunction against the respondent, as the respondent already approached the State for de-notification and the civil suit itself is not maintainable under Section 9 of CPC., 36
42. Therefore, the documents produced by the appellant along with the interlocutory application is not useful to the appellant/plaintiff case. The Trial Court has rightly considered the documents, appreciated the evidence on record and dismissed the suit of the plaintiff, which call for no interference by this Court.
Accordingly, I propose to pass following-
ORDER The I.A filed by the appellant under Order 41 Rule 27 r/w Section 151 of CPC is hereby Rejected.
Consequently, the appeal filed by the appellant/plaintiff is hereby Dismissed.
No order as to cost.
Sd/-
(K.NATARAJAN) JUDGE AKV/VS/CS CT:SK