Supreme Court - Daily Orders
Rajasthan Housing Board vs Chandi Bai . on 7 December, 2018
Bench: Arun Mishra, Vineet Saran
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.11912 OF 2018
[@ SPECIAL LEAVE PETITION (CIVIL) NO.15455 OF 2015]
RAJASTHAN HOUSING BOARD & ANR. ..APPELLANT(S)
VERSUS
CHANDI BAI & ORS. ..RESPONDENT(S)
O R D E R
1. Leave granted.
2. For the purpose of acquisition of land notification under Section 4 of
the Rajasthan Land Acquisition Act, 1953 (in short, “the Act”) was issued on
10.07.1981, followed by declaration under Section 6 on 16.04.1982.
Possession of the land was taken over by the Rajasthan Housing Board on
27.01.1984. Notice was issued under Section 9(3) to Doonga s/o. Nolla on
28.03.1984. He claimed compensation and participated in the
compensation proceedings and award was passed in his favour. The
provisions of the Rajasthan Land Acquisition Act and the Land Acquisition
Act of 1894 are pari materia.
3. The award was passed on 28.12.1988, determining compensation of
Rs.1,78,863.03/ in favour of Doonga s/o. Nolla for land measuring 1.15
Bigha in Khasra No.238 and 1 Bhiga, 19 Biswa and 10 Biswansi in Khasra
No.239 situated in Village Senti, District Chittorgarh.
Signature Not Verified
Digitally signed by
JAYANT KUMAR ARORA
Date: 2018.12.11
16:02:09 IST
Reason:
4. The plaintiffs filed a suit for declaration and permanent injunction in
the Court of Munsif, Chittorgarh on 04.02.1989. It was averred in the
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plaint by the plaintiffs that they purchased the land from Doonga s/o Nolla.
Nolla expired before the Notification was issued under Sections 4. Thus,
the proceedings against the dead person were illegal. The Land Acquisition
proceedings be declared to be null and void and the defendants be
restrained by a decree of permanent injunction from dispossessing the
plaintiffs from the disputed land.
5. In the written statement, it was contended by the Rajasthan Housing
Board that acquisition had been completed and possession has been taken
over and award passed. The land has absolutely vested in the State. The
civil suit is not maintainable.
6. The trial court decreed the suit and the successive appeals have been
dismissed, thus, the Rajasthan Housing Board has filed the appeal before
this Court.
7. The only question raised by the learned counsel appearing on behalf of
the Rajasthan Housing Board is as to nonmaintainability of the suit. The
learned counsel has relied upon a decision of this Court in Commissioner,
Bangalore Development Authority v. Brijesh Reddy, reported in (2013) 3 SCC
66, to contend that the civil suit was not maintainable so as to question the
land acquisition.
8. On the other hand, it was contended by the learned counsel on behalf
of the respondents that the land has been acquired as against the dead
person Nolla and there was a sale deed executed by his son. Doonga has
transferred the property to the plaintiffs, as such the participation of
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Doonga in the compensation proceedings would not make any difference.
Thus, the proceedings stood vitiated and the suit has rightly been decreed.
The counsel has relied upon decision in Union of India v. Tarachand Gupta
and Bros., (1971) 1 SCC 486.
9. Upon hearing the learned counsel appearing on both sides, it is
apparent that civil court has no jurisdiction to entertain such a suit. This
Court has laid down in catena of judgments that the civil suit to question
notification issued under section 4 and declaration under section 6 of Land
Acquisition Act, 1894 is not maintainable. The only remedy left to the
aggrieved party is to file a writ petition before the High Court under Article
226 of the Constitution of India or to approach this Court.
10. In State of Bihar v. Dhirendra Kumar, (1995) 4 SCC 229, this Court
has observed that civil suit is not maintainable to question the land
acquisition. The Court observed:
“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 11A now
prescribes limitation to make the award within 2 years from the last
date of publication envisaged under Section 6 of the Act. In an
appropriate case, where the Government needs possession of the
land urgently, it would exercise the power under Section 17(4) of the
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Act and dispense with the enquiry under Section 5A. 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.” (emphasis supplied)
11. In Laxmi Chand v. Gram Panchayat, Kararia (1996) 7 SCC 218, this
Court observed that the civil court has no power to pronounce on invalidity
of procedure adopted under Sections 4 and 6 of the Land Acquisition Act,
1894, thus:
“3. It would thus be clear that the scheme of the Act is complete in
itself and thereby the jurisdiction of the civil court to take
cognizance of the cases arising under the Act, by necessary
implication, stood barred. The civil court thereby is devoid of
jurisdiction to give declaration on the invalidity of the procedure
contemplated under the Act. The only right an aggrieved person has
is to approach the constitutional courts, viz., the High Court and
the Supreme Court under their plenary power under Articles 226
and 136 respectively with selfimposed restrictions on their exercise
of extraordinary power. Barring thereof, there is no power to the civil
court.”
12. In S.P. Subramanya Shetty v. Karnataka State Road Transport
Corporation, (1997) 11 SCC 250, this Court held:
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“4. In view of the settled legal position that the notification had
become final and the proceedings had attained finality, the civil suit
was not maintainable. This Court has repeatedly held that a civil
suit relating to acquisition proceedings is not maintainable and by
implication, cognizance under Section 9 CPC is barred. The Court
cannot issue mandatory injunction against the State to denotify the
acquisition under Section 48. Therefore, the question of granting an
injunction against the authority from proceedings in accordance
with the law does not arise. The High Court, therefore, was right in
refusing to grant injunction. The Court cannot compel the
Government to withdraw the notification under Section 4(1) of the
Act. It is for the Government to consider the same on merits keeping
in mind subservience of public interest. In view of the fact that
notification was upheld by this Court and has become final, the
Government cannot retract from the steps taken.”
13. In Commissioner, Bangalore Development Authority v. K.S. Narayan,
(2006) 8 SCC 336, the suit was filed on the ground that notice under
Section 17(5) of Bangalore Development Authority Act, 1976 was not given.
The Court held that provisions of Act are akin to Land Acquisition Act and
only High Court could examine its legality under Article 226, not the civil
court. The Court observed:
“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 subsection (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
nonservice of notice upon them under subsection (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
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civil court. The judgments and decrees passed by the High Court
are, therefore, clearly illegal and have to be set aside.”
14. In Ganpatibai v. State of M.P., (2006) 7 SCC 508 and Narayan Prasad
Agrawal v. State of M.P., (2003) 11 SCC 456, the Court held that civil suit is
not maintainable to question land acquisition even belated writ petition
cannot be entertained.
15. In State of Punjab v. Amarjit Singh, (2011) 14 SCC 713, the Court
followed earlier decisions in Commissioner, Bangalore Development Authority
v. K.S. Narayan (supra), Laxmi Chand v. Gram Panchayat (supra) and State
of Bihar v. Dhirendra Kumar (supra) to hold that civil suit for declaration
and possession was barred.
16. In Manohar Joshi v. State of Maharashtra, (2012) 3 SCC 619, the
Court observed:
“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 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.” (emphasis supplied)
17. In Commissioner, Bangalore Development Authority v. Brijesh Reddy,
(2013) 3 SCC 66, the Court held that even a civil suit for permanent
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injunction is not maintainable in view of the provisions of the Land
Acquisition Act. The Court observed:
“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 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 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 selfimposed restrictions on
their exercise of extraordinary power.” (emphasis supplied)
18. In Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304, the
Court has observed:
“21. The position is no different in the instant case. The appellant
owners or Mutha Associates, the builders did not file any objections
or move their little finger till the making of the award by the
Collector. Instead of filing of the objections, opposing the proposed
acquisition before the Collector and seeking redress at the
appropriate stage they remained content with making
representations to the Minister which was not a remedy recognised
by the statute. It was only after the Collector had made his award
and after notice for taking over possession was issued by the
appellants that they rushed to the civil court with a suit in which
too they did not assail the validity of the declaration under Section
26(2) of the MRTP Act read with Section 6 of the Land Acquisition
Act. The remedy by way of a suit was clearly misconceived as
indeed this Court declared it to be so in State of Bihar v.
Dhirendra Kumar, (1995) 4 SCC 229. The appellants could and
ought to have challenged the acquisition proceedings without any
loss of time. Having failed to do so, they were not entitled to claim
any relief in the extraordinary jurisdiction exercised by the High
Court under Article 226 of the Constitution.” (emphasis supplied)
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19. In H.N. Jagannath v. State of Karnataka, (2018) 11 SCC 104, the
Court observed:
“17. 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 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 and proceedings arising therefrom. This
Court in BDA v. Brijesh Reddy while considering the acquisition
notifications issued under the BDA Act observed thus: (SCC pp. 71
72, para 18)
“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 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 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 selfimposed restrictions on their exercise of
extraordinary power.”
18. A similar view is taken by this Court in other cases. The
judgments of this Court in Laxmi Chand v. Gram Panchayat,
Kararia, (1996) 7 SCC 218; Girish Vyas v. State of Maharashtra,
(2012) 3 SCC 619; State of Bihar v. Dhirendra Kumar, (1995) 4 SCC
229; BDA v. K.S. Narayan, (2006) 8 SCC 336; and Mutha Associates
v. 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.” (emphasis supplied)
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20. In Union of India v. Tarachand Gupta and Bros., (1971) 1 SCC 486, the
respondent imported certain goods. The Custom Authorities opined that
they were prohibited articles under Entry 294. The High Court held
Collector exceeded jurisdiction which was limited to ascertain as to whether
goods imported were spare parts and accessories under Entry 295. The
Court held that Collector’s act was beyond jurisdiction. He was inserting
restriction in Entry 295 which did not exist. It was an act which beyond
invested jurisdiction. It was a case of violation of Section 3 and Entries 294
and 295 of Imports and Exports (Control) Act, 1947. The case is totally
distinguishable. No such jurisdictional issue is involved in the case.
21. The remedy of the respondents, if any, was to claim a compensation
from Doonga by seeking reference under Section 18 or Section 30 of the
Land Acquisition Act or to file a civil suit against him to recover
compensation on the basis of title. A civil suit to invalidate the land
acquisition is not maintaintable. The trial court has committed grave error
of law while decreeing the suit. At least we expected the High Court to be
careful in following the aforesaid catena of judgments passed by this Court
in which law has been laid down succinctly.
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22. We have no hesitation to set aside the impugned judgment and decree
passed by the trial court, First Appellate Court and the High Court. The
suit stands dismissed. The appeal is allowed. The parties to bear their own
costs as incurred.
…………....................J.
(ARUN MISHRA)
…………....................J.
(VINEET SARAN)
NEW DELHI,
DECEMBER 07, 2018.
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ITEM NO.5 COURT NO.6 SECTION XV
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal (C) No. 15455 of 2015
RAJASTHAN HOUSING BOARD & ANR. Petitioner (s)
VERSUS
CHANDI BAI & ORS. Respondent(s)
Date : 07-12-2018 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ARUN MISHRA
HON'BLE MR. JUSTICE VINEET SARAN
For Appellant(s) Ms. Madhurima Tatia, AOR
For Respondent(s) Mr. Kapil Joshi, Adv.
Ms. Manju Jetley, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed order. Pending interlocutory application(s), if any, is/are disposed of.
(JAYANT KUMAR ARORA) (JAGDISH CHANDER) COURT MASTER BRANCH OFFICER (Signed order is placed on the file)