Karnataka High Court
The Chairman The State Government ... vs Hanumantasa Tulajansa Pawar on 1 March, 2013
Author: A.N.Venugopala Gowda
Bench: A.N. Venugopala Gowda
1
®
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 1ST DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
REGULAR SECOND APPEAL NO.2363/2006 (S-P)
BETWEEN:
THE CHAIRMAN THE STATE GOVERNMENT EMPLOYEES
SHIKSHANA SANGHA, LAXMI COMPLEX
NEELIGIN ROAD, HUBLI.
BY A.B.KULKARNI,
THE PRINCIPAL,
GRED-1 RURAL POLYTECHNIC,
TARIHAL, HUBLI.
...APPELLANT
(BY SRI V.M.SHEELAVANTH, ADV.)
AND:
HANUMANTASA TULAJANSA PAWAR
BY HIS LRS AS UNDER:
1. SUNDARABAI W/O HANAMANTHASA PAWAR
SINCE DECEASED
R2 TO R4; R6, R7 ARE TREATED
AS PER C/O. DATED 31.01.2012.
2. SHANKAR HANAMANTHASA PAWAR
AGE: MAJOR, OCC. SERVICE,
2
R/O. SAAL ONI, DAJIBANPETH,
HUBLI.
SINCE DECEASED BY HIS LR'S.
2(a) SMT. SUNANDA
W/O. SHANKARSA PAWAR,
AGE: 66 YEARS, OCC. HOUSEWIFE,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
2(b) DEEPAK S/O. SHANKARSA PAWAR,
AGE: 40 YEARS, OCC.: BUSINESS,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
2(c) VIJAY S/O. SHANKARSA PAWAR,
AGE: 38 YEARS, OCC.: BUSINESS,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
2(d) VINOD S/O. SHANKARSA PAWAR,
AGE: 36 YEARS, OCC.: ADVOCATE,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
2(e) SRINIVAS S/O. SHANKARSA PAWAR,
AGE: 34 YEARS, OCC.: BUSINESS,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
2(f) SMT. SUNITA W/O. NAGRAJ KABADE,
AGE: 32 YEARS, OCC: HOUSEWIFE,
R/O. DAJIBANPETH SAL ONI.
HUBLI.
3. PANDURANGASA HANAMANTHASA PAWAR
AGE: MAJOR, OCC; ADVOCATE
R/O SAAL ONI
DAJIBANPETH,
HUBLI
4. PUNDALIKASA HANUMANTHASA PAWAR
AGE: MAJOR, OCC; BUSINESS
3
R/O SAAL ONI
DAJIBANPETH,
HUBLI
5. KASHINATH HANAMANTHASA PAWAR
AGE: MAJOR, OCC; BUSINESS
R/O SAAL ONI
DAJIBANPETH,
HUBLI
5(a) MAHESH S/O. KASHINATHA PAWAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. HABIB BUILDING,
BEHIND SBI RESIDENTIAL QUARTERS,
NEAR HELIPAD,
RAJANAGAR, HUBLI.
5(b) UMESH S/O. KASHINATHA PAWAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. HABIB BUILDING,
BEHIND SBI RESIDENTIAL QUARTERS,
NEAR HELIPAD,
RAJANAGAR, HUBLI.
5(c) DINESH S/O. KASHINATHA PAWAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. HABIB BUILDING,
BEHIND SBI RESIDENTIAL QUARTERS,
NEAR HELIPAD,
RAJANAGAR, HUBLI.
6. RAVINDRA HANAMANTHASA PAWAR
AGE: MAJOR, OCC; BUSINESS
R/O SAAL ONI
DAJIBANPETH,
HUBLI
SINCE DECEASED BY HIS LRS,
6(a) GANGUBAI W/O. RAVINDRASA PAWAR,
AGE: 55 YEARS, OCC. HOUSEWIFE,
R/O. DAJIBANPETH, SAL ONI,
HUBLI.
6(b) RAJANA W/O. RANGANATH JATARGHAR,
4
AGE: 34 YEARS, OCC.: HOUSEWIFE,
R/O. DAJIBANPETH, HUBLI.
6(c) ROOPA W/O. GENESH NIRANJAN,
AGE: 32 YEARS, OCC.: HOUSEWIFE,
R/O. DAJIBANPETH, HUBLI.
6(d) MANJUNATH S/O. RAVINDRASA PAWAR,
AGE: 29 YEARS, OCC. BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
6(e) PARUSURAM S/O. RAVINDRASA PAWAR,
AGE: 27 YEARS, OCC. BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
7. PREMANATH HANAMANTHASA PAWAR
AGE: MAJOR, OCC; BUSINESS
R/O SAAL ONI
DAJIBANPETH,
HUBLI
SINCE DECEASED BY HIS LRS.
7(a) SARSWATI W/O. PREMANATHSA PAWAR,
AGE: 58 YEARS, OCC.HOUSEWIFE,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
7(b) RAGHAVENDRA S/O. PREMANATHSA PAWAR,
AGE: 30 YEARS, OCC.BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
7(c) KAMALESH S/O. PREMANATHSA PAWAR,
AGE: 28 YEARS, OCC.BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
7(d) SATISH S/O. PREMANATHSA PAWAR,
AGE: 26 YEARS, OCC.BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
7(e) SANTOSH S/O. PREMANATHSA PAWAR,
AGE: 24 YEARS, OCC.BUSINESS,
R/O. DAJIBANPETH, SAL ONI, HUBLI.
8. TULJABAI W/;O NARAYANASA MISKIN
AGE: MAJOR, OCC; HOUSEHOLD WORK
5
R/O ARAVINDNAGAR
HUBLI
SINCE DECEASED BY HER LRS.
9. RADHABAI W/O AMBASA KALABURGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O KAMARIPETH, DAJIBANPETH
HUBLI
10. TULJAPPA @ RAJU HANAMANTHASA PAWAR
AGE: MAJOR, OCC: BUSINESS
R/O SAAL ONI
DAJIBANPETH
HUBLI
11. VIJAYALAXMI W/O ASHOK MAGAJIKONDI
AGE: MAJOR, OCC:HOUSEHOLD WORK
R/O KAMARIPETH
HUBLI
CHANNABASAPPA MUDAKAPPA MUTTAGI BY HIS LRS AS
UNDER
12. LAXMAVVA W/O CHANNABASAPPA MUTTAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O TARIHAL
HUBLI
13. BASAPPA CHANNABASAPPA MUTTAGI
AGE: MAJOR
OCC: AGRICULTURE
R/O TARIHAL
HUBLI
14. MUDAKAPPA CHANNABASAPPA MUTTAGI
AGE; MAJOR, OCC: AGRICULTURE
R/O TARIHAL
HUBLI
15. NEELAVVA D/O CHANNABASAPPA MUTTAGI
AGE: MAJOR, OCC: HOUSEHOLD WORK
R/O TARIHAL
6
HUBLI
16. KAMALAVVA D/O CHANNABASAPPA MUTTAGI
AGE; MAJOR, OCC; HOUSEHOLD WORK
R/O TARIHAL
HUBLI
17. SOMAVVA D/O CHANNABASAPPA MUTTAGI
AGE; MAJOR, OCC; HOUSEHOLD WORK
R/O TARIHAL
HUBLI
18. MALLAVVA D/O CHANNABASAPPA MUTTAGI
AGE; MAJOR, OCC; HOUSEHOLD WORK
R/O TARIHAL
HUBLI
19. NIJAGUNI FAKIRAPPA MRIHUCHANNAVAR @ SALI
AGE: MAJOR, OCC: AGRICULTURE
R/O UMACHAGI
HUBLI
20. THE LAND ACQUISITION OFFICER AND
ASSISTANT COMMISSIONER
DHARWAD ...RESPONDENTS
(By Sri P.H.PAWAR, ADV. FOR R1,
SRI S.L.MATTI, ADV. FOR R5(A-C);
SRI BASAVARAJU R. BANNUR, ADV. FOR C/R3, R4,
R8 to R11;
SMT.MEGHA C. KOLEKAR, HCGP FOR R20)
THIS RSA FILED U/S 100 CPC AGAINST THE JUDGMENT
AND DECREE 26.07.2006 PASSED IN R.A. NO.01/2003 ON THE
FILE OF THE PRESIDING OFFICER, FAST TRACK COURT - II,
DHARWAD, SITTING AT HUBLI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 30.11.2002
PASSED IN O.S.NO.38/1984 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR. DN.), HUBLI.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
7
JUDGMENT
Appellant who was defendant No.3 in a suit for specific performance has sought reversal of the decrees passed by the two Courts below directing specific performance of an agreement of sale marked as Ex.P1, between the plaintiff and defendant No.1. For convenience, the parties would be referred to with reference to their ranks in the suit.
2. Factual matrix of the case;
On 09.08.1982, defendant No.1 entered into an agreement of sale with the plaintiff, to sell agricultural land bearing Sy. No.61/1A measuring 16 acres and 5 guntas, situated at Tarihal Village, Hobli and Taluk, for a consideration of `61,101/-. Advance amount of `6,000/- was paid and the balance sale consideration of `55,101/- was to be paid at the time of execution of the sale deed. Defendant No.1 sold the said property on 24.10.1983 (Ex.P13) to defendant No.2 for sale consideration amount 8 of `35,000/-. Plaintiff instituted suit on 10.02.1984, to pass a decree for specific performance alleging that despite his readiness, willingness and offer of performance, defendant No.1 with dishonest intention illegally sold the property covered under the agreement of sale dated 09.08.1982 to defendant No.2. The suit having been instituted against defendant Nos.1 and 2, they contested the suit by filing separate written statements, which led to the raising of issues and additional issues. Both the defendants disputed the execution of suit agreement as well as the readiness and willingness on the part of the plaintiff to perform the contract. Plaintiff having died on 01.11.1986, his legal representatives filed I.A.IV seeking permission to come on record and prosecute the suit and the same was allowed by an order dated 16.01.1987.
3. On 05.08.1987, a Notification under S.4(1) of the Land Acquisition Act (for short 'the Act') was issued and published in the Gazette dated 20.08.1987(Ex.P16), proposing to acquire the suit property for the benefit of the 9 defendant No.3. A final declaration under S.6(1) of the Act was issued on 21.12.1987 and the same was published in the Gazette on 24.12.1987. A Notification under S.9(1) of the Act was issued on 22.02.1988 and the same was published in the Gazette on 31.12.1987 (Ex.P17). Land Acquisition Officer passed a consent Award on 26.02.1988 (Ex.P18). The possession of the acquired property pursuant to a notice issued on 08.03.1988 was taken and was handed over to the 3rd defendant on 09.03.1988 (Ex.D4). A Notification under S.16(2) of the Act was issued on 11.05.1988 and the same was published in the Gazette dated 26.05.1988. The beneficiary of the acquisition i.e., defendant No.3, undertook construction of the building on the suit property during August, 1988 (photographs - Exs.P13 to P23), after it was acquired and delivered to it.
4. Plaintiff filed I.A.10 to implead the beneficiary of the acquisition of the suit property as 3rd defendant. I.A.10 was allowed by an order dated 03.07.1989. I.A.11 10 was filed to implead the LAO as defendant No.4 and the same was allowed by an order dated 17.01.1994. I.A.12 was filed under Order 6 Rule 17 CPC to permit amendment of the plaint, to incorporate the events which had taken place with regard to the acquisition of the property from the time of issuance of Notification under S.4(1) of the Act, till the construction work was commenced by the 3rd defendant. By an order dated 17.01.1994, I.A.12 was rejected and the same remained unchallenged.
5. Defendant No.1 died on 26.05.1988 and an application to bring his legal representatives on record was filed and since the legal representatives appeared, they were directed to file written statement, which they filed on 18.07.2002.
6. The following issues and additional issues were raised for trial and determination;
1. Whether Plaintiff proves that on 9.8.1982 the Defendant No.1 had executed the agreement for the sale of Block No.61/1A of Tarihal in favour of the Plaintiff for consideration of Rs.61,101/-?
2. Does Plaintiff proves that on 9.8.1982 he had paid Rs.4,000/- as earnest money to Defendant No.1? 11
3. Does Plaintiff proves that on 19.11.1982, he has paid further amount of Rs.1,000/- to the Defendant No.1?
4. Does Plaintiff proves that Defendant No.2 was having knowledge of this Plaintiff's agreement for sale of suit land with Defendant No.1?
5A. Does Plaintiff proves that Defendant No.2 knowingly, regarding Plaintiff agreement for sale with Defendant No.1, had purchased the suit land on 24.10.1983?
5B. Does Defendant No.2 proves that he is a bonafide purchaser of the suit land for value without notice of agreement for sale of Defendant No.1 with Plaintiff and the transaction of Plaintiff with Defendant No.1 is not binding on him?
6. Does Plaintiff is still ready and willing to perform his part of the contract?
7. Does Plaintiff is entitled to specific performance of the contract?
8. Does the suit of the Plaintiff without the relief of possession is maintainable?
9. To what reliefs are the parties entitled? Additional Issues:
1. Whether Defendant No.1(c) proves that this Court has no jurisdiction to try the matter?
2. Whether Defendant No.1(a) to (g) are entitled for compensatory costs of Rs.3,000/-?
For the plaintiff, PWs. 1 to 4 deposed, through whom Exs.P1 to P24 were marked. For the defendants, DWs 1 to 7 deposed, through whom Exs.D1 to D23 were marked. The Trial Judge, on his own appreciation of the evidence on record, recorded the findings against the defendants and 12 decreed the suit on 30.12.2002. Legal representatives of the 1st defendant and defendant Nos.2 & 3 were directed to execute the sale deed of the plaint schedule property in favour of the L.Rs. of plaintiff. Defendants 2 and 3 were directed to remove within three weeks, the construction put up on the suit property. Legal representatives of the plaintiff were directed to deposit `55,101/- within one month.
7. Defendant No.3 filed R.A.No.1/2003 in the Court of Prl. District Judge, Dharwad. The appeal was assigned to the Fast Track Court-II, Dharwad (sitting at Hubli). The sole point raised for consideration and decision was:
"Whether the Appellant has established any reasonable or substantial ground to interfere with the Judgment and Decree passed by the Lower Court?"
The Appellate Judge on his own appreciation of the record of the suit, passed Judgment and decree of dismissal on 26.07.2006. 3rd defendant being unsuccessful has filed this second appeal.
13
8. This appeal was admitted to consider the following substantial question of law:
"Whether the Courts below were justified in holding that the acquisition proceedings initiated to acquire the suit lands during the pendency of the suit for specific performance of an agreement of sale is vitiated and in decreeing the suit for specific performance? "
9. Sri V.M. Sheelavanth, learned advocate appearing for the appellant contended that the suit agreement-Ex.P1 having become incapable of specific performance on account of the fact that during the pendency of the suit the State Government initiated the proceedings for compulsory acquisition of suit property, acquired the entire suit property and also delivered the possession of the same to the defendant No.3, there being frustration of the contract entered into between the plaintiff and the defendant No.1, the decree passed by the Trial Court and confirmed by the First Appellate Court are illegal and are liable to be set aside. He submitted that the Trial Court has failed to raise the relevant issues and determine the same and that the First Appellate Court has failed to raise the relevant points for consideration and 14 answer the same. He further submitted that on account of the misdirection adopted by both the Courts below an illegal decree for specific performance of a contract, which has become impossible of performance has been passed. He contended that the Civil Court has no jurisdiction to record any finding on the validity or otherwise of the acquisition process of the suit property undertaken and completed by the statutory authorities and the impugned decrees being illegal are liable to be set aside.
10. Sri P.H. Pawar and Sri S.L. Matti, learned advocates appearing for the respondents on the other hand by placing the reliance on a decision in the case of SRI VENKATARAMANAPPA AND OTHERS V/S STATE OF KARNATAKA AND OTHERS, (2012) 2 KCCR 797, contended that a false affidavit having been filed and the Government having been misled by the defendant Nos.1 and 2 by way of suppression of material information relating to the pendency of the suit and also on account of the fraud and deception practiced by defendant Nos.1 and 2, notification 15 for acquisition of suit property having been issued and the suit property having been not lawfully acquired, the Courts below are justified in directing the specific performance of the agreement of sale - Ex.P1. Learned counsel supported the view taken by the Courts below and sought dismissal of this appeal.
11. The basic fact of the matter, noticed supra, is not in dispute. The plaintiff had attempted to assail the legality of the acquisition proceedings of the suit property pursuant to Exs.P16 to Ex.P18, by filing I.A.12 and the same was negated by the trial Judge on the ground that by the amendment sought, the acquisition proceedings was sought to be challenged and the same would change the nature of the suit. Thus, I.A.12 for amendment of the plaint was rejected on 17.01.1994 and the said order has attained finality.
12. Trial Judge after noticing the evidence with regard to the acquisition proceedings of the suit property, while answering issue No.7 has held as follows: 16
"These facts are during the pendency of the suit and the said facts were done behind the back of the plaintiff. As such, the said acquisition proceeding does not bar the right of the plaintiff to get specific performance."
13. The Appellate Judge while addressing the contention with regard to acquisition of the suit land by the Government has held as follows:-
"27. The learned counsel appearing for the appellant much argued regarding the acquisition of land by the Govt. but, on perusal of the records, it is quite clear that the suit land acquired by the Government during the pendency of this suit. The lispendence will apply. Further, the Government acquired the land relying on the affidavit Ex.P19 filed by the deft.No.2. Defendant No.2 filed a false affidavit stating that there is no litigation in respect of the suit land. The land acquired and given to deft.No.3 Society and the Government fixed the amount of the suit land as Rs.2,38,000.00 though the sale deed executed in favour of deft.2 was only for a sum of Rs.35,000.00. The acquisition of land is not published in any recognized Newspaper. The constructions on the land were done illegally during the pendency of the suit. The L.Rs. of deft.No.1, defendant Nos.2 and 4 (Government) have not preferred the Appeal against the Judgment and Decree passed by the trial Court. Therefore, the entire acquisition of the suit land is with an intention to grab the land illegally by defendant No.3. Hence, under these circumstances, the appellant /deft. No.3 is not entitled to claim the property on the basis of acquisition of land. Hence, looking from any angle, the appeal is not tenable.
28. The defendant No.3 filed this appeal. He has not even filed the Written Statement. He acquired the land in collusion with the Government officials, created documents illegally and constructed the buildings during the pendency of the suit. Considering all these aspects, the appeal is to be dismissed."
(Italicized by me)
14. It is not in dispute that during the pendency of the case in the Trial Court, the suit property was acquired by the State for a public purpose and in favour of 17 defendant No.3. Compensation payable was determined at `2,38,000/-. The attempt made by the L.Rs. of the plaintiff to challenge the acquisition proceedings by filing I.A.12 in the suit has rightly been negated, since the Civil Court cannot go into the validity of the land acquisition proceedings, in view of the well settled position of law in catena of decisions by the Apex Court.
15. In the case of STATE OF BIHAR Vs. DHIRENDRA KUMAR AND OTHERS - 1995 (4) SCC 229, a Notification under S.4(1) of the Act was published on 13.02.1957, proposing to acquire the disputed land for construction of houses by the Housing Board and by publishing a declaration under S.6 on 27.03.1957, the disputed land was acquired, the possession of which was taken and handed over to the Housing Board. Upon encroachment and unauthorised constructions having been made, steps was taken by the Housing Board to have the encroachers ejected from the acquired land. As a sequel thereof, a suit having been filed, I.A. for temporary injunction having been allowed, 18 which was modified in the appeal to one of status-quo and the beneficiary of the acquisition having preferred an appeal by special leave, Apex Court has held as follows:
"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 publications 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 crystallised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11-A 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 Government 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. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to the Housing Board. So, the order of injunction was without jurisdiction."19
(Italicized by me for emphasis)
16. In the case of STATE OF PUNJAB Vs. SADHU RAM, (1997) 9 SCC 544, the facts were that by issue of Notifications under Ss.4(1) & 6(1) of the Act, the land was acquired for public purpose. Thereafter, an Award was passed and compensation was paid to the erstwhile owners. Thereafter, the respondent who became a tenant and subsequently purchased the land from the erstwhile owners under registered sale deeds, filed civil suits for declaration that he is an equitable owner of the land and for consequential reliefs. The Court having noticed the procedure prescribed in disposal of the lands acquired by the Government for public purpose, held that the procedure has not been followed for surrendering of the land to the erstwhile owners and the respondent having purchased the land and improved the same, was an equitable owner of the land. When the matter was questioned in the Apex Court, noticing that the Judge had not referred to the relevant provisions of the Act and law 20 and the undisputed fact that consequent upon the passing of the Award under S.11 and taking possession of the land by operation of S.16 of the Act, the right, title and interest of the erstwhile owners having stood extinguished and the Government having become the absolute owner of the property free from all encumbrances, while allowing the appeal and setting aside the impugned Decree, it was held as follows:
" 3. .....Under these circumstances, the Government having become the absolute owner of the property free from all encumbrances, unless the title is conferred on any person in accordance with a procedure known to law, no one can claim any title much less equitable title by remaining in possession...."
17. In the case of COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY VS. K.S. NARAYAN, (2006) 8 SCC 336, the respondent filed a suit to pass a decree for permanent injunction against appellant - BDA, from interfering with the possession and enjoyment of the suit property and from demolishing any structure situated therein. Suit was contested by the defendant - BDA, on the ground that the plaintiff was not the owner of the property in dispute and the person who executed the sale 21 deed in his favour had no right, title or interest over the property in dispute and he could not have conveyed any title to the plaintiff and the suit property having been acquired after issuing preliminary and final Notifications in accordance with the BDA Act, 1976 and the possession had also been taken over and thereafter it was handed over to the Engineering Section on 22.06.1988 after completion of all formalities, the Award for the acquired land having been made and compensation having been deposited in the Civil Court under Ss.30 & 31(2) of the Act, the BDA being in possession of the suit property on the date of filing of the suit, the suit is not maintainable and liable to be dismissed. The Trial Court decreed the suit and upon an appeal being preferred by the BDA, the decree was set aside and the case was remanded to the Trial Court for fresh decision with liberty to the plaintiffs to apply for the amendment of the plaint. The plaintiffs amended the plaint, wherein it was stated that they were dispossessed on 22.06.1988 without taking proceedings for acquisition of land and their dispossession was wholly illegal. The 22 prayer was also amended and decree for recovery with possession was sought. An amended written statement was filed and suit was contested. The Trial Court by placing reliance on a decision in the case of LAKSHMI CHAND Vs. GRAM PANCHAYAT - (1996) 7 SCC 218, held that the validity or otherwise of the acquisition proceedings cannot be questioned before the Civil Court and dismissed the suits. The plaintiffs preferred an appeal and this Court held that the plaintiffs who are the lawful owners of the plaint schedule property were not at all notified and as the basic requirement of a valid acquisition of property was not satisfied, the acquisition was not binding upon the owners of the property and therefore, the Civil Court was competent to entertain the suit. It was held that the acquisition proceedings were invalid and the appeals were allowed and the suits were decreed. When the said judgment and decree were questioned before the Apex Court, after referring to the provisions of Ss.17 & 19 of the BDA Act, which are somewhat similar to the provisions of Ss. 4 & 6 of the L.A. Act, the other point which was 23 considered was whether a civil suit is maintainable to challenge the acquisition proceedings. While allowing the appeals and setting aside the impugned decree, it was held as follows:
"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."
18. In the case of STATE OF PUNJAB VS. AMARJIT SINGH, 2012 AIR SCW 1177, the respondent Amarjit Singh filed a suit for declaration and possession by asserting that by virtue of sale deed/Ex.P1 executed by Sunder Singh, he had become the owner of the land and pleaded that the 24 acquisition was made without following the procedure prescribed under the Act and the awards were passed by an Officer who was not authorized to do so. Suit was filed to pass a decree of declaration and possession against the appellant/State of Punjab. Written statement was filed and it was contended that by a Notification dated 30.9.1955 issued under S.4 of the Land Acquisition Act, 1894, the Government of Punjab proposed acquisition of the suit property for construction of Teachers' Training Institute and a declaration under S.6 was issued on 30.11.1955 and thereafter the LAO passed two awards on 6.10.1956 and 22.8.1960 and that the State Government took possession of the acquired land from its owner Sunder Singh in October, 1956 and constructed the building and in view of the proceedings taken under the L.A. Act and the awarded passed, the jurisdiction of the Civil Court is barred. The Trial Court though found the Notifications dated 30.9.1955 and 30.11.1955 were legal and did not suffer from any infirmity, held that the second award passed on 22.8.1960 was not valid. The 25 defendant's plea that the Civil Court does not have the jurisdiction to entertain the suit was rejected by observing that when the awards have been passed in violation of statutory provisions, the acquisition proceedings will be illegal and void and the Civil Court is competent to grant a declaration to that effect. The defendant having failed in the first appeal, second appeal and a review petition, questioned the said decree before the Apex Court. While allowing the appeal, having noticed the proposition of law laid down in the decisions reported at (1995) 4 SCC 229, (1996) 7 SCC 218 and (2006) 8 SCC 336 Apex Court has held as follows:
"17. In view of the proposition of law laid down in the aforesaid Judgments, we hold that the Trial Court did not have the jurisdiction to entertain the suit and the lower appellate Court and the High Court committed serious error by confirming the decree passed in favour of the respondent."
19. In the case of COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY AND ANOTHER VS. BRIJESH REDDY AND ANOTHER, (2013) 3 SCC 66, the facts were that the respondent who purchased the suit property filed a suit for permanent injunction which was contested by the BDA on 26 the ground that the suit property was acquired, an award was passed and possession was taken over by the LAO and handed over to the Engineering Section and that a layout was formed and sites were allotted to intending purchasers and hence the suit is not maintainable. The Trial Court dismissed the suit. Appeal filed by the plaintiffs was allowed and the matter was remitted to the Trial Court. Said Judgment when questioned before the Apex Court, the point considered was: 'whether a civil Court has jurisdiction to entertain a suit when the schedule lands were acquired under the land acquisition proceedings and whether the High Court was justified in remanding the matter to the Trial Court without examining the question with regard to the maintainability of the suit?
After making a reference to the earlier decisions, while allowing the appeal and setting aside the impugned Judgment, Apex Court has held as follows:
"18. 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 of CPC stands excluded and a Civil Court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 27 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 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary power.
19. No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the defendant Nos. 1 and 2, i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of the BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc., the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial Court and ultimately rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 of CPC committed an error in remanding the matter to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial Court for fresh disposal."
(Italicized by me for emphasis)
20. In the case of MANOHAR JOSHI & OTHERS Vs. STATE OF MAHARASHTRA AND OTHERS, (2012) 3 SCC 619, with regard to the jurisdiction of the Civil Court to 28 entertain a suit to challenge the acquisition after the award was rendered, Apex Court has held as follows:
"134. That apart, there is also the question as to whether the civil court had the jurisdiction to entertain a suit to challenge the acquisition after the award was rendered. This is because when it comes to acquisition, the LA Act provides for the entire mechanism as to how acquisition is to be effected, and the remedies to the aggrieved parties.
135. In State of Bihar v. Dhirendra Kumar - (1995) 4 SCC 229, this Court in terms held that since the Act is a complete code, by necessary implication the power of the civil court to take cognizance of a case under Section 9 CPC stands excluded, and the civil court had no jurisdiction to go into the question of the validity or legality of the notification under Section 4 and declaration under Section 6, which could be done only by the High Court in a proceeding under Article 226 of the Constitution. In view of this dictum the civil suit itself was not maintainable in the present case."
(Italicized by me for emphasis)
21. From the said decisions it is clear that a civil suit in respect of matters relating to acquisition proceedings is not maintainable and by implication, cognizance under S.9 of Civil Procedure Code is barred. The suit property having been acquired during the pendency of the suit, the findings recorded by both the Courts below with regard to the invalidity of the acquisition of the suit property is without jurisdiction and illegal. 29
22. In the case of GIAN CHAND VS. GOPALA AND OTHERS, (1995) 2 SCC 528, the appellant had entered into an agreement with the respondent on 13.01.1978 to purchase 1/3rd share of the land belonging to the respondent and paid earnest money. The sale deed was to be executed on or before 30.04.1978. Later, the appellant came to know that a Notification under S.4(1) of the Act was published on 03.08.1977. He filed a suit for refund of the money and the Trial Court ordered for refund of the earnest money with interest. In an appeal filed by the defendant/respondent, the decree passed by the Trial Court was reversed and the suit was dismissed. Second appeal having been dismissed in limine, when the plaintiff filed appeal before the Apex Court, it has been held as follows:
"2. ..... Admittedly, since the notification under Section 4(1) of the Land Acquisition Act was already published, the question arises whether the appellant could get a sale deed executed and in its absence whether he is entitled to obtain refund of earnest money paid under the agreement. On publication of notification under Section 4(1) of the Act, though it is not conclusive till declaration under Section 6 was published, the owner of the land is interdicted to deal with the land as a free agent and to create encumbrances thereon or to deal with the land in any manner detrimental for public purpose. Therefore, though notification 30 under Section 4(1) is not conclusive, the owner of the land is prevented from encumbering the land in that such encumbrance does not bind the Government. If ultimately, declaration under Section 6 is published and acquisition is proceeded with, it would be conclusive evidence of public purpose and the Government is entitled to have the land acquired and take possession free from all encumbrances. Any sale transaction or encumbrances created by the owner after the publication of notification under Section 4(1) would therefore be void and does not bind the State. In this perspective, when the necessary conclusion is that the agreement of sale stands frustrated, the question of readiness and willingness on the part of the vendor or vendee does not arise. The appellate court wrongly held that the appellant was not ready and willing to perform his part of the contract. In the face of the notification how could the appellant get a valid title? Any attempt on his part would be futile exercise and avoidable expenditure. Both the courts have concurrently found that time is not the essence of the contract. Under those circumstances, the plaintiff is entitled to lay the suit for refund of earnest money within three years from the date of refusal of the performance of the contract. In this case, declaration under Section 6 was published and so it was conclusive of public purpose and the land was acquired. The contract was, therefore, frustrated. Since one of the terms of the contract is to return the earnest money, in the event of acquisition being made by the State, the vendee-appellant is entitled under Section 33 of the Contract Act, as rightly and legally held by the trial court, to seek refund of the earnest money."
23. In this case, declaration under S.6 was issued and published, award was passed and the possession of the acquired property was taken over and even a declaration under S.16(2) of the Act was also published. So, the suit land was acquired for the public purpose and vested absolutely in the Government free from all 31 encumbrances and the contract vide Ex.P1 was, therefore, frustrated.
24. The contract agreed to between the plaintiff and defendant No.1 vide Ex.P1 became impossible of specific performance having regard to S.56 of the Contract Act, 1872. The said provision provides that an agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promissor could not prevent, unlawful, becomes void then the act becomes impossible or unlawful. In the instant case, compulsory acquisition of suit property, which came into being during the pendency of the suit, which has material bearing with regard to claim made in the suit ought to have been noticed and appropriate issues with regard to the maintainability of suit and frustration of contract raised and answered by the Trial Judge, particularly in view of the order dated 17.01.1994 passed on I.A.No.12. The same having not been done, the 32 Appellate Judge ought to have raised a specific points with regard to the effect of acquisition of suit property and decided the matter. Both the Courts below have failed to apply the correct provisions of law in analyzing the evidence and deciding the case. Both the Courts below have not appreciated the legal effect of the public documents marked as Exs.P16 to P18 and D4. Both the Courts below have not considered the matter in correct perspective. The findings recorded in the impugned Judgments are perverse. Hence, the impugned judgments and decrees being vitiated and illegal are unsustainable.
25. However, the execution of Ex.P1 having been proved, the L.Rs., of the defendant No.1 and defendant No.2 having not challenged the decree passed by the Trial Court, in my opinion, the present case is a fit case where the L.Rs. of plaintiff should be awarded compensation in spite of denial of relief of specific performance i.e., on account of frustration of the contract. S.21 of the Specific Relief Act provides for award for compensation either in 33 addition to or in substitution of such performance. The explanation thereunder makes it clear that the Court is not prevented from exercising jurisdiction to award compensation even in a case where the contract was rendered incapable of specific performance. The plaintiff has paid an advance amount of `6,000/- while entering into a contract as per Ex.P1. After the suit was decreed, the plaintiff is stated to have deposited balance consideration amount of `55,101/- in the Trial Court. Under the circumstances, interest at 12% p.a. on `6,000/- paid in under Ex.P1 would be the reasonable amount of compensation which the legal representatives of defendant No.1 and defendant No. 2 should pay to the L.Rs. of plaintiff, in substitution of the decree for specific performance.
26. In the case of JAGADHISH SINGH V/S NATTU SINGH - AIR 1992 SC 1064, a suit was filed for specific performance of an agreement of sale. The suit was dismissed by the Trial Court and also by the First Appellate 34 Court. In the second appeal, the impugned decrees were reversed and while allowing the appeal, the plaintiff was held entitled to a decree for specific performance, since it was found that the plaintiff was ready and willing to perform the contract. During the pendency of the second appeal, the State had initiated the proceedings for compulsory acquisition of the suit property and on that basis it was contended that the contract became incapable of specific performance in view of the fact that the subject matter of the suit itself ceased to be available. As the land was acquired during the pendency of the second appeal before the High Court, it was contended that the plaintiff is not entitled for any relief. The High Court in the second appeal held that by the acquisition of the land, plaintiff's right did not get extinguished in totality and that Appellate Court can suitably mould the relief which the circumstances of the case may require or permit. As a result, while allowing the second appeal, a direction was given that, if the decree for specific performance of contract in question is found incapable of being executed 35 due to acquisition of subject land, the decree shall stand suitably substituted by a decree for realization of compensation payable in lieu thereof as may be or have been determined under the relevant Act. It was further provided that the plaintiff shall have a right to recover such compensation together with solatium and interest due thereon and if the defendant had already realized the land acquisition amount, the plaintiff shall have a right to recover the same from the defendant. When the decree passed in the second appeal was challenged, the Apex Court has held that, if the subject matter of the suit for specific performance is ceased to exist during the pendency of the suit and the contract became incapable of performance for no fault of the plaintiff, he is only entitled to compensation as provided for under S.21 of the Specific Relief Act.
27. The order passed in the case of SRI VENKATARAMANAPPA (supra) cannot be relied upon, since 36 the same has been set aside in W.A.Nos.1944-1946/2011 decided on 18.06.2012.
28. The substantial question of law raised stands answered accordingly.
For the foregoing reasons, the appeal is allowed. The Judgment and Decree passed by the Trial Court and confirmed in the appeal by the lower Appellate Court, impugned herein are set aside. There shall be a substituted decree as follows:-
1. The suit for specific performance of agreement of sale dated 09.08.1982 (Ex.P1) filed by the plaintiff shall stand dismissed.
2. Legal representatives of defendant No.1 and defendant No.2 shall return the amount of consideration of `6,000/- paid by the plaintiff with interest calculated at 12% per annum from the date of payment, till the date of deposit in the Trial Court.37
3. The amount deposited by the L.Rs. of plaintiff in the Trial Court be refunded to them.
4. Parties are directed to bear their respective costs incurred throughout.
Sd/-
JUDGE sac*