Bangalore District Court
O.S./3384/2013 on 13 March, 2020
IN THE COURT OF THE XXXIX ADDITIONAL CITY CIVIL
JUDGE [CCH-40], AT : BANGALORE CITY.
Dated on this the 13th day of March, 2020.
-: PRESENT :-
Sri.Khadarsab, B.A., LL.M.,
XXXIX Additional City Civil & Sessions Judge,
Bangalore City.
Original Suit No.3384/2013
Plaintiff :
Sri.Girish Sanu,
S/o. Sri.Chandrakanth Sanu,
34 Years, R/o.No.E-O,
Krishna Glade Apartment,
Palace Guttahalli,
Bengaluru - 560 024.
(By Sri.S.S., Advocate)
/ VERSUS /
Defendants :
1. The Bangalore Development Authority,
T.Chowdaiah Road, Bengaluru-560 020,
Represented by its Commissioner.
2. The Special Land Acquisition Office,
The Bangalore Development Authority,
T.Chowdaiah Road, Bengaluru-560 020.
3. Smt.Puttamma (Dead)
4. Sri.Munikallappa (Dead)
/ 2 / O.S.No.3384/2013
Through L.R : Defendant No.5:
5. Sri.Pradeep S/o. Sri.Munikallappa,
20 years, R/o. Amruthalli Village,
Yelahanka Hobli, Bengaluru
North Taluk, Bengaluru District.
6. Guruprasad Sanu,
S/o. Sri.Chandrakant P Sanu,
32 Years, R/o.No.E-O,
Krishna Glade Apartment,
Palace Guttahalli,
Bengaluru - 560 024.
[D.1 & 2 - by Sri.K.K.S., Advocate.
D.5. - by Sri. A.B., Advocate.
D.6 - by Sri.S.T.G/H.R., Advocate
D.3 and 4 - Dead]
***
ORDER ON ADDITIONAL ISSUE No.4
That, the plaintiff has filed the present suit against the
defendants for the relief of specific performance of contract,
permanent and mandatory injunctions.
2. That, it is the case of the plaintiff that the
defendants No.3 to 5 are the owners of agricultural land
bearing Sy.No.44/2 measuring 20 guntas and 43/2
/ 3 / O.S.No.3384/2013
measuring 11.75 guntas situated at Amurathahalli Village,
Yelahanka Hobli, Bangalore district. The defendant No.6 is
the general power of attorney holder of defendants No.3 to
5. The defendants No.3 to 5 have agreed to sell the suit
schedule properties to the plaintiff for a total sale
consideration of Rs.11,16,250/- for their family necessity.
After agreeing to the plaintiff's conditions, defendants No.3
to 5 have executed an agreement of sale on 29/4/2009 in
favour of plaintiff. As per the said agreement to sell, the
plaintiff has paid consideration amount through cheque and
by cash towards the sale consideration amount. The plaintiff
further contended that as per the agreement to sell it is
expressly understood by and between the parties that under
no circumstances the termination of the agreement is
contemplated. Further defendants No.3 to 5 agreed that the
suit schedule property was acquired by defendants No.1 and
2 for formation of residential layout for the benefit of general
/ 4 / O.S.No.3384/2013
public and the acquisition proceedings were challenged
before the Hon'ble High Court of Karnataka. The said case is
pending before the Hon'ble High Court of Karnataka. The
defendants have undertaken to complete the sale transaction
after the clearance of the said dispute. The plaintiff agreed
to incur the expenses on behalf of defendants No.3 to 5 to
clear the pending dispute in respect of acquisition
proceedings. The time for performance of agreement was 11
months from the date of agreement.
3. The plaintiff further contended that the defendant
No.3 has also executed GPA on 29.4.2009 in favour of
defendant No.6 Sri.Guruprasad Sanu and has also sworn a
joint affidavit on the same day stating that he has agreed to
sell the above said land to the plaintiff for total consideration
of Rs.11,16,250/-. The plaintiff further submitted that, in
view of the pending litigation by mutual consent it was
agreed that the cheque for sum of Rs.6,16,250/- would be
/ 5 / O.S.No.3384/2013
encashed only after the entire matter was settled by the
Hon'ble High Court. But, on the balance sale consideration
and on receipt of the same, have endorsed in the aforesaid
agreement of sale.
4. The plaintiff further contended that the suit
schedule property along with other land was notified for
acquisition by the defendant No.1 and 2 for formation of
Arkavathy Layout. The said acquisition was challenged by
defendants No.3 to 5 along with several other land owners
before the Hon'ble High Court of Karnataka. The Hon'ble
High Court of Karnataka upheld the acquisition proceedings.
Against the said order, the land owners have filed S.L.P.
proceedings before the Hon'ble Supreme Court of India, the
Hon'ble Supreme Court also upheld the decision of Hon'ble
High Court of Karnataka in the year 2010 with certain
modifications. In pursuant to the Hon'ble Supreme Court
order, the Government of Karnataka passed an order bearing
/ 6 / O.S.No.3384/2013
its No.Na.AE/170/Ben Swa/2011 dated 18.3.2011 stating that
the land acquired for formation of Arkavathy Layout in
Bengaluru North (additional) Taluk of Yelahanka Hobli
Villages namely, Jakkuru, Amruthahalli, Sampigehalli,
Rachenhalli, etc., and out of Bangalore East Taluk,
K.R.Puram Hobli Villages viz., Tanisandra, K.Narayanapura,
Challakere and other Villages out of every acre of land 45%
has to be reserved for civic amenities, 55% for residential
sites and to allot 40% of the developed land i.e., 9,583 Sq.Ft.
per acre to those land owners who have not availed of the
compensation amount. According to the Government Order,
defendants No.3 to 5 who have consented for the acquisition
on the above terms is entitled to the developed land. In
pursuant to the said Government order the defendant No.1
issued notice to defendants No.3 to 5 and various other land
owners to produce documents of title in order to avail the
developed site in accordance with the Government Order. In
/ 7 / O.S.No.3384/2013
view of the consent given by defendants No.3 to 5, the
plaintiff is entitled to 40% of the developed land that is to be
allotted to defendants No.3 to 5 which is approximately an
extent of 9.5 guntas of land, since the defendants No.3 to 5
have executed an agreement of sale in favour of plaintiff and
have received substantial amount from the plaintiff.
5. The plaintiff further contended that subsequently
he contacted defendants No.3 to 5 for executing the
registered sale deed in his favour, but the defendant 3 to 5
have postponed the same on one or the other pretext.
Hence, the plaintiff apprehended that the defendants No.3 to
5 may suppress the above facts from defendant No.1 and 2
and claim the lands for themselves. The plaintiff further
contended that the defendants No.3 to 5 have approached
the defendant No.1 for release of 40% of the land in
accordance with the Government Order and are also
negotiating with third parties for alienating the schedule
/ 8 / O.S.No.3384/2013
property. In that event, the plaintiff would be put to
irreparable loss and injury. Hence, he prays for decreeing
the suit.
6. After service of suit summons, the defendants
No.1, 2 and 5 have appeared through their counsels and
have filed their written statements. Though the suit
summons were duly served upon the remaining defendants,
but they have not appeared before the Court. Hence, the
remaining defendants placed ex-parte. During the pendency
of the suit, the defendants No.3 and 4 died. The counsel for
plaintiff filed memo stating that defendant No.5 is only L.R of
defendants No.3 and 4.
7. The defendants No.1 and 2 have denied the
plaintiff's claim over the suit schedule property and have
contended that the plaintiff has filed the present suit only
with an intention to harass the defendants. The suit of the
/ 9 / O.S.No.3384/2013
plaintiff is not maintainable in the eye of law. The plaintiff
has not complied with the mandatory provisions of Section
80 of C.P.C. The plaintiff has filed the present suit by
suppressing the material facts. The defendants No.1 and 2
further contended that the suit schedule land has been
acquired by B.D.A and hence, the alleged agreement entered
between the plaintiff and defendants No.3 to 5 is not in
accordance with law and the suit of the plaintiff is barred by
law. Hence, the suit of the plaintiff is liable to be dismissed.
The defendants No.1 and 2 further contended that once the
land has been acquired by the B.D.A, Civil Court has no
jurisdiction to entertain the suit. Hence, prays for dismissal
of the suit.
8. The defendant No.5 contended that the plaintiff
has filed the present suit only with an intention to knock of
the property. The defendants No.3 to 5 have not at all
executed alleged agreement to sell in favour of plaintiff and
/ 10 / O.S.No.3384/2013
alleged GPA in favour of defendant No.6. The plaintiff has
created the said document and has filed the present suit.
Hence he prayed for dismissal of the suit.
9. On the basis of pleadings and documents of both
the parties, this Court has framed the following issues on
19.3.2018 and Additional Issue on 28.11.2019 :
1) Whether the plaintiff proves that
defendants No.3 to 5 executed sale
agreement dated 29/4/2009 by receiving
advance sale consideration of
Rs.11,16,250/-?
2) Whether plaintiff further proves that he
was ready and willing to perform the
contract?
3) Whether the plaintiff is entitled for the
specific performance of contract as
sought?
4) Whether the plaintiff is entitled for the
reliefs as sought?
5) What order or decree ?
/ 11 / O.S.No.3384/2013
Additional Issue
Whether the defendants No.1 and 2 prove
that the suit of the plaintiff is barred under
law?
10. Since additional Issue involves the question of
law, said issue is treated as preliminary issue.
11. Heard the arguments on additional Issue.
12. My findings on additional issue is in the
affirmative for the following :
REASONS
13. That, the plaintiff has filed the present suit for
the relief of specific performance of contract, permanent
injunction restraining the defendants No.1 and 2 from
releasing full or atleast 40% of the developed land in
Arkavathy Layout in favour of defendant No.3 pursuant to
the Government order dated 18.3.2011 and for mandatory
injunction directing the defendants No.1 and 2 to release
/ 12 / O.S.No.3384/2013
40% of the developed land in favour of plaintiff in
accordance with the Government Order dated 18.3.2011 and
mandatory injunction directing the defendants No.1 and 2 to
notify and intimate plaintiff regarding the allotment of 40%
of the developed land and for the relief of permanent
injunction restraining the defendants No.3 to 5 from
alienating or encumbering suit schedule property or 40% of
the land to be allotted in Arkavathy Layout pursuant to the
Government Order dated 18.3.2011.
14. The defendants No.1, 2 and 5 appeared and have
filed their written statements. The defendants No.1 and 2
took specific contention in their written statement that in
view of acquisition of land, the suit of the plaintiff is not
maintainable and also the defendants No.1 and 2 have
denied the execution of alleged agreement to sell in respect
of suit schedule property in favour of plaintiff.
/ 13 / O.S.No.3384/2013
15. It is the case of the plaintiff that defendants No.3
to 5 are the owners of the agricultural land bearing
Sy.No.43/2 measuring 11.75 and Sy.No.44/2 measuring 20
guntas of Amruthahalli Village, Bangalore North Taluk and
the defendant No.6 is the general power of attorney holder
of defendants No.3 to 5. The defendants No.3 to 5 agreed
to sell the suit schedule properties to the plaintiff for total
consideration of Rs.11,16,250/- for their family legal
necessity and also have executed an agreement of sale on
29.4.2009 in favour of plaintiff. The defendants No.3 to 5
have received considerable amount towards part sale
consideration amount. The defendants No.3 to 5 have
agreed to execute the registered sale deed in favour of
plaintiff within 11 months from the date of agreement of
sale. The defendants No.3 to 5 agreed that the suit schedule
property was acquired by the defendants No.1 and 2 for
formation of residential layout for the benefit of general
/ 14 / O.S.No.3384/2013
public and that a case was pending before the Hon'ble High
Court of Karnataka in respect of acquisition proceedings and
undertook to complete the sale transaction after the
clearance of above dispute. All the said disputes have
cleared off, even then the defendants No.3 to 5 have failed
to execute the registered sale deed in favour of the plaintiff,
on the contrary, the defendants No.3 to 5 are making efforts
to deny the claim of the plaintiff. If the defendants No.3 to 5
have succeeded in their act, the plaintiff would be put to
irreparable loss and injury. Hence, he prays for decreeing
the suit.
16. That, on perusal of entire pleadings and
documents produced by both the parties, the suit schedule
properties have been acquired by B.D.A for formation of
Arkavathy Layout by publishing the same in official gazette.
The defendants No.1 and 2 have produced the official
gazette published in the Karnataka Gazette bearing
/ 15 / O.S.No.3384/2013
No.BDA/commr/ALO/LA9/104/2002-03 Bengaluru dated
3.2.2003. On perusal of the said notification Sy.No.43/2 and
44/2 of Amruthahalli Village, are acquired and names of the
holders is shown as defendant No.3 and others. As per the
contention of the defendants No.1 and 2, declaration of
notification under Section 6(1) of the Land Acquisition Act
was also published and possession was also handed over as
per Section 16 of the Land Acquisition Act. It is the specific
contention of the defendants No.1 and 2 that as per Section
9 of C.P.C., Civil Court jurisdiction is barred by any other law
for the time being in force. Further contended that when
final notification under Sections 4(1), 6(1) issued and Award
under Section 12(2) of Land Acquisition Act has been passed
and possession has been taken over by the defendants No.1
and 2, the aggrieved person may file an application under
Section 18 of Land Acquisition Act for enhancement of
compensation or he may challenge the acquisition
/ 16 / O.S.No.3384/2013
proceedings as per Article 32 or 226, 227 of Indian
Constitution. The Civil Court has no jurisdiction to try the
suit. Hence, the plaintiff's suit for specific performance of
contract, permanent and mandatory injunctions is not
maintainable. The Civil Court has no jurisdiction to entertain
the suit. Hence, prayed for dismissal of the suit.
17. The counsel for the plaintiff argued that the
plaintiff filed the present suit for the relief of specific
performance of contract, permanent and mandatory
injunctions, he sought for issuance of directions to
defendants No.1 and 2 for release of 40% of developed land
in the suit schedule property in favour of plaintiff in
accordance with the Government Order dated 18.3.2011.
Hence, Civil Court has got jurisdiction to entertain the suit.
Therefore, he prays for decreeing the suit.
18. On perusal of the contention raised by
defendants, it can be said that as per Section 9 of C.P.C.,
/ 17 / O.S.No.3384/2013
Civil Court can try all the suits of civil nature unless the
cognizance of such suits either expressly or impliedly barred
by any other law for time being in force. But, under the Land
Acquisition Act special procedure is envisaged to effectuate
public policy. The Government has got power to acquire
property for the public purpose. That, before acquiring the
property, issuance of notifications under Sections 4(1) and
6(1) of Land Acquisition Act are mandatory. In this case, the
defendants No.1 and 2 have already issued the notifications
as envisaged under the Land Acquisition Act. The only
remedy left with the aggrieved person is to approach either
under Articles 226 and 227 of Indian Constitution to the
Hon'ble High Court of Karnataka or under Article 136 to the
Hon'ble Apex Court. Hence, it is clear from the scheme of
the Act that, Land Acquisition Act is a complete code in itself
and thereby the jurisdiction of Civil Court to take cognizance
of the case arising under L.A.Act by necessary implication
/ 18 / O.S.No.3384/2013
stood barred. The Civil Court thereby is devoid of jurisdiction.
Thus, this Court lacks jurisdiction to decide the matter in
issue, which is falling within the domain of the Land
Acquisition Act, wherein remedy and relief both are provided.
19. Besides, on careful perusal of the Notifications of
Karnataka Gazette Notifications dated 3.2.2003 and
23.2.2004 relating to acquisition of lands, it clearly goes to
show that land bearing Sy.Nos.43/2 and 44/2 of Amruthahalli
Village have been acquired. Admittedly, the said notifications
have been published in the year 2003 and 2004. As per
Section 81 of the Indian Evidence Act, "Presumption as to
gazettes, newspapers, private acts of parliament and other
documents." Section 81 of Indian Evidence Act reads thus :
"Presumption as to Gazettes, newspapers,
private Acts of Parliament and other documents
- The Court shall presume the genuineness of
every document purporting to be the London
Gazette, or [any Official Gazette, or the
/ 19 / O.S.No.3384/2013
Government Gazette] of any colony,
dependency of possession of the British Crown,
or to be a newspaper or journal, or to be a
copy of a private Act of Parliament [of the
United Kingdom] printed by the Queen's
Printer, and of every document purporting to
be a document directed by any law to be kept
by any person, if such document is kept
substantially in the form required by law and is
produced form proper custody."
20. Though the plaintiff contended that the
defendants No.3 to 5 have agreed to sell the suit schedule
properties and has executed an agreement of sale on
29/4/2009, but failed to prove that his vendor has got right
to sell the suit schedule properties as on the date of
execution of alleged agreement to sell dated 29/4/2009.
21. In a decision reported in AIR 1987 SC 1713
(Union of India Vs. Nihar Kanta Sen and others) in which the
Hon'ble Apex Court clearly held that :-
/ 20 / O.S.No.3384/2013
"Head Note B - Evidence Act [1 of 1872], Ss.
56 and 57 - Judicial Notice - Publication of
Notification relating to acquisition of
intermediary estate under Section 4 of West
Bengal Estates Acquisition Act in gazette -
Government filing office thereof in High Court -
That Court should have taken judicial notice of
notification."
In this case also the B.D.A acquired Sy.Nos.43/2 and 44/2 of
Amruthahalli Village and notifications under Sections 4(1),
6(1) and 12(2) of Land Acquisition Act have been published
in the official gazette and same have been produced in this
case. Hence, judicial notice of notifications is taken.
22. On the basis of above said notifications the land
bearing Sy.Nod.43/2 and 44/2 of Amruthahalli Village are
acquired by the B.D.A for formation of Arkavathi Layout as
per Section 16 of Land Acquisition Act, after taking
possession, the lands vests with the State Government with
absolute title free from all encumbrance. The plaintiff claims
/ 21 / O.S.No.3384/2013
that the defendants No.3 to 5 have executed an agreement
to sell in his favour on 29/4/2009, but on perusal of the
notifications produced by defendants No.1 and 2, it reveals
that entire Sy.No.43/2 and 44/2 of Amruthahalli Village have
been acquired by B.D.A in the year 2003 itself i.e., much
prior to alleged agreement to sell dated 29.4.2009. Hence,
once the property has been acquired by the B.D.A., the title
and possession vests with the acquisition authority and no
one will get the better title than the acquisition authority i.e.,
Government of Karnataka. Therefore, the alleged agreement
to sell dated 29/4/2009 will not get any title or possession
over the suit schedule properties. Besides, there is a
presumption under Section 16 of the Land Acquisition Act
that once the land is acquired under the Land Acquisition Act,
the possession vests with the Government.
23. The plaintiff himself produced the R.T.C. in
respect of suit schedule property. On perusal of the said
/ 22 / O.S.No.3384/2013
R.T.C. it clearly reveals that, at Column No.11 it is mentioned
that, the lands bearing Sy.Nos.43/2 and 44/2 of Amruthahalli
Village have been acquired by the Government for formation
of Arkavathi Layout. As per Section 133 of Karnataka Land
Revenue Act, any entry made in the revenue records has got
presumptive value. Section 133 of Karnataka Land Revenue
Act reads thus :
"An entry in the revenue records and a certified
entry in the register of mutation or in the patta
book shall be presumed to be true until the
contrary is proved or a new entry is lawfully
substituted therefore."
24. Hence, once the property has been acquired, the
title and possession vests with the acquisition authority and
no one will get the better title than the acquisition authority
i.e., Government of Karnataka. Therefore, the plaintiff will
not get any title or possession over the suit schedule
property on the basis of the alleged agreement to sell
/ 23 / O.S.No.3384/2013
executed by defendants No.3 to 5 in his favour. Besides,
there is a presumption under Section 16 of the Land
Acquisition Act that once the land is acquired the possession
vests with the Government.
25. Besides, the defendants No.1 and 2 contended
that the land in Sy.Nos.43/2 and 44/2 of Amruthahalli have
been acquired in 2003-04 itself. As per decision of our own
Hon'ble High Court reported in ILR 2007 KAR 5121
(M.B.Bettaswamy Vs. The Commissioner, Bangalore
Development Authority and another), wherein it is held that:-
"CODE OF CIVIL PROCEDURE, 1908 - SECTION
96 READWITH ORDER 41 RULE 1 - Regular
First Appeal - suit for possession and injunction
- Challenge to dismissal of suit - Plaintiffs
assertion that he is in settled position of the suit
schedule property - Threat of dispossession by
the respondent B.D.A - Suit land was the
subject matter of acquisition - Formation of
Layout - HELD, When the land is acquired and
/ 24 / O.S.No.3384/2013
the possession is taken, the land vests in the
State. Even if the plaintiff puts up unauthorized
construction, he does not have any legal right to
remain in possession based on the illegal
structure and it cannot be termed as a settled
possession - A person who is unauthorisedly
squatting on the public property, has no right to
remain in possession. However, the trial Court
extending the sympathy, directed the B.D.A to
issue notice and evict the plaintiff in accordance
with law. Such sympathy will harm the public
interest, as there are several persons legally
waiting for lawful allotment - FURTHER HELD,
Admittedly, the plaintiff has not proved his title
nor proved his right to remain in possession -
Dismissal of suit is justified."
26. In another decision of our own Hon'ble Court
reported in 2017 (2) AKR 695 (B.D.A., Bengaluru Vs.
Bhagavandas Patel), it is held that :-
"(B) Civil P.C. (5 OF 1908), S.9, O.39, R.1 -
Land Acquisition Act (1 of 1894), Ss.4, 6 - Civil
/ 25 / O.S.No.3384/2013
Court - Exclusion of jurisdiction - suit for
injunction- suit property forming part of layout
formed out of lands acquired under acquisition
notifications - Acquisition proceedings beyond
jurisdiction of Civil Court - Grant of injunction
against dispossession is also beyond Civil
Court jurisdiction."
Hence, in this case neither the plaintiff nor the defendants
No.3 to 5 are in possession of the property and the plaintiff is
not entitled for the relief.
27. As per the decision of the Hon'ble Apex Court
reported in AIR 1996 S.C. 540 (Smt. Sneha Prabha etc.,
Vs. State of U.P. and another), in which the Hon'ble Apex
Court clearly held that:
s "(A) Land Acquisition Act (1 of 1894), S.4 -
Land acquisition - Land policy issued by State
Govt. - Benefits under given only to person
whose land was acquired- Appellant purchasing
land after publication of notification for
/ 26 / O.S.No.3384/2013
acquisition of land under the Act - Not entitled
to benefits of land policy."
The above said decision is aptly applicable to the case in
hand. Admittedly, in this case also lands bearing
Sy.Nos.43/2 and 44/2 of Amruthahalli Village belongs to
defendant No.3 and others have been acquired by the
defendants No.1 and 2. Hence, the defendant No.3 and
other are entitled to the benefits arising out of acquisition.
The plaintiff allegedly entered into contract with defendant
No.3 and others after publication of notification for
acquisition of land under Land Acquisition Act. Therefore,
plaintiff is not entitled to benefits of land policy.
28. In another decision reported in AIR 1996 SC
3377 (Tamil Nadu Housing Board Vs. A.Viswam [Dead by
LRs]), the Hon'ble Apex Court has held that :
" (B) Land Acquisition Act (1 of 1894), S.16 -
Acquisition of land - Mode of taking
/ 27 / O.S.No.3384/2013
possession - recording of a memorandum of
panchanama by LAO in presence of Witnesses
signed by them - Would constitute taking
possession of Land."
29. In another decision reported in AIR 2003 SC
234 (Northern Indian Class Industries Vs. Jaswanth Singh
and others) the Hon'ble Apex Court has held that:
"(A) Constitution of India, Art. 226 - Delay
and laches - writ petitions challenging
acquisition notification-Filing of, after 17
years of finalization of acquisition proceedings
-Earlier, petitioners accepted compensation
amount as per award and sought
enhancement of compensation without
challenging Ss. 4 and 6 notifications- Petitions
liable to be dismissed on ground of delay and
laches in absence of any explanation for the
delay-Merely because full enhanced
compensation amount not paid to petitioners,
so ground to condone the delay.
/ 28 / O.S.No.3384/2013
(B) Land Acquisition Act (1 of 1894), S.16 -
Taking possession - After passing of award -
Effect - Land vests with Government free
from all encumbrances- Landowner thereafter
cannot ask for restitution of possession even if
land is not used for the purpose of which it
was acquired."
In the above said decisions, the Hon'ble Apex Court clearly
held that, after passing of award, the land vests with the
Government free from all the encumbrances, then the land
owner thereafter cannot ask for restitution of possession
even if the land is not used for the purpose for which it was
acquired. The ratio laid down in the above decisions are
aptly applicable to case in hand.
30. In another decision reported in (2013) 3 SCC
66 (Commissioner, Bangalore Development Authority and
another Vs. Brijesh Reddy and another), the Hon'ble Apex
Court clearly held that :-
/ 29 / O.S.No.3384/2013
"Land Acquisition Act 1894 - Ss.4 and 6 r/w/s.
9 C.P.C. - Maintainability of suit in Civil Court
when schedule lands acquired under land
acquisition proceedings - remand of
proceedings through trial Court without
examining issue of maintainability - propriety
-reiterated, Land Acquisition Act is a complete
code in itself and is meant to serve public
purpose - by necessary implication, power of
Civil Court to take cognizance under Section 9
C.P.C. stands excluded and Civil Court has no
jurisdiction to go into question of validity or
legality of notification under Section 4
declaration under Section 6 and subsequent
proceedings - Civil Court is devoid of
jurisdiction to give declaration or even bare
injunction on invalidity of procedure
contemplated under Land Acquisition Act -
Only right available to aggrieved person is to
approach High Court under Article 226 of
Indian Constitution and Supreme Court under
Article 136 of extraordinary power - On facts
held, civil suit filed by plaintiffs for permanent
/ 30 / O.S.No.3384/2013
injunction restraining defendants 1 and 2 i.e.,
B.D.A from interfering with peaceful
possession and enjoyment of suit schedule
property was not maintainable."
31. In another decision reported in (2018) 11 SCC
104 (H.N.Jaganath and others Vs. State of Karnataka and
others), in which the Hon'ble Apex Court clearly held that :
"Civil Court has no jurisdiction to examine
acquisition proceedings by necessary implication.
Civil Court lost its jurisdiction under Section 9
C.P.C. - It is High Court which gets jurisdiction
under Article 226 or Supreme Court under Article
136 of the Constitution to examine validity of
acquisition proceedings - Civil suit challenging
acquisition proceedings not maintainable."
The above said decisions are aptly applicable to the case on
hand. In this case also, the plaintiff has filed the present
suit for the relief of specific performance of contract,
permanent and mandatory injunctions, whereas the property
/ 31 / O.S.No.3384/2013
has been acquired by the Government prior to the alleged
agreement to sell dated 29/4/2009. Hence, by considering
all the materials available on record it clearly goes to show
that the defendants No.3 to 5 are not in possession of the
suit schedule properties and they have no right to alienate
the suit schedule properties in favour of plaintiff as on the
date of filing of the suit.
32. The counsel for the plaintiff argued that, the
plaintiff is not at all challenging the acquisition proceedings
and hence, the present suit is maintainable. But, on careful
perusal of plaint prayer it reveals that the plaintiff is seeking
for issuance of permanent injunction restraining the
acquisition authority i.e., defendants No.1 and 2 from
releasing the 40% developed land to defendants No.3 to 5
and for mandatory injunction directing defendants No.1 and
2 to release the 40% developed land in favour of plaintiff.
The plaint prayer reads thus :
/ 32 / O.S.No.3384/2013
"aa. Judgment and decree for the specific
performance of the agreement dated 29.4.2009
entered into between the plaintiff and
defendants No.3 to 5 with respect 40% of the
developed land in the suit schedule lands and
direct the defendants No.3 to 5 to execute
registered sale deed in favour of the plaintiff in
respect of 40% of the developed land in the suit
schedule lands as the defendants No.3 to 5 is
entitled for only 40% of the developed land in
the suit schedule lands and direct the defendants
3 to 5 to put the plaintiff in the physical
possession of the 40% of the developed the suit
schedule land which is going to be granted/
allotted by the B.D.A. in favour of defendants
No.3 to 5.
a. Grant of permanent injunction restraining the
defendants No. 1 and 2 from releasing full or
atleast 40% developed land in Arkavathy
Layout in favour of defendants No.3 to 5
pursuant to Govt. order dated 18.3.2011;
/ 33 / O.S.No.3384/2013
b. Grant of mandatory injunction directing the
defendants No. 1 and 2 to release 40% of
developed in favour of plaintiff in accordance
with the Government order dated 18.3.2011;
c. For grant of mandatory injunction directing
the defendants No.1 and 2 to notify and
intimate plaintiff as to above i.e., (a) or (b) as
the case may be.
d. Grant permanent injunction restraining
defendant No.3 from alienating or
encumbering schedule property or 40% of the
land to be allotted in Arkavathy Layout,
pursuant to Government Order dated
18.3.2011."
Hence, on perusal of the plaint prayers it clearly reveal
that the plaintiff is challenging the acquisition notifications
and seeks for issuance of directions to the acquisition
authority for release of 40% developed land in his favour
which is barred under the Land Acquisition Act.
/ 34 / O.S.No.3384/2013
33. Besides, it is well settled law that once the
property is acquired by the Government under the Land
Acquisition Act or even if a preliminary notification is issued
for acquisition of the property, the Civil Court has no
jurisdiction to entertain the suit. In this case also, the
properties have been acquired by B.D.A in the year 2003-04
itself. Hence, this Court has no jurisdiction to entertain the
suit. If at all the plaintiff is aggrieved by any acquisition
proceedings, he has to approach the appropriate forum for
his redressal.
34. Besides, as per Sections 3 and 4 of the Karnataka
Land (Restriction On Transfer) Act, 1991, there is clear bar
for transfer of lands after the acquisition. Sections 3 and 4
of the said Act reads thus :
"Section 3 : Prohibition on transfer of lands
acquired by Government - No person shall
purport to transfer by sale, mortgage,
gift, lease or otherwise any land or part
/ 35 / O.S.No.3384/2013
thereof situated in any urban area which has
been acquired by the Government under the
Land Acquisition Act, 1894 (Central Act 1 of
1894) or any other law providing for
acquisition of land for a public purpose.
Section 4 : Regulation of transfer of lands in
relation to which acquisition proceedings have
been initiated.- No person shall, except with
previous permission in writing of the
competent authority, transfer, or purport
to transfer by sale, mortgage, gift, lease
or otherwise any land or part thereof
situated in any urban area which is
proposed to be acquired in connection with
the Scheme in relation to which the
declaration has been published under Section
19 of the Bangalore Development Authority
Act, 1976 or section 19 of the Karnataka
Urban Development Authorities Act, 1987."
35. Thus, prima facie as per gazette notification
No.UDD 193 MNX 2004 Bangalore dated 23.2.2004, this
/ 36 / O.S.No.3384/2013
Court can conclude that as on the date of filing of the suit,
i.e., 27.4.2013 the possession of lands bearing Sy.Nos.43/2
and 44/2 of Amruthahalli Village were taken and same were
vested with B.D.A. Hence, the present suit filed by the
plaintiff for the relief of permanent and mandatory
injunctions on 27.4.2013, the same is subsequent to
acquisition of land. Therefore, for the above discussion and
above said decisions, the suit for permanent and mandatory
injunction on 27/4/2013 filed by the plaintiff is not
maintainable as it is barred under Land Acquisition Act and
also under Sections 3 and 4 of Karnataka Land (Restriction
On Transfer) Act, 1991.
36. In this case, as discussed supra, the property has
been acquired by B.D.A and as on the date of alleged
agreement of sale dated 29/4/2009 the defendants No.3 to 5
are not at all in possession of the suit schedule property.
Hence, I am of the view that once the property has been
/ 37 / O.S.No.3384/2013
acquired by the Government under Land Acquisition Act
under Section 16 of the Land Acquisition Act possession vests
with the Government, thus the suit for specific performance,
permanent and mandatory injunctions is not maintainable
and Civil Court has no jurisdiction to try the suit. The suit of
the plaintiff is barred under Land Acquisition Act and also
under Sections 3 and 4 of Karnataka Land (Restriction On
Transfer) Act, 1991. Hence, I answer additional issue in
the affirmative.
37. For the foregoing reasons, I proceed to pass the
following Order:-
ORDER
Suit of the plaintiff is hereby dismissed as it is barred under Land Acquisition Act and also under Sections 3 and 4 of Karnataka Land (Restriction On Transfer) Act, 1991.
No order as to costs.
/ 38 / O.S.No.3384/2013 Draw decree accordingly.
(Dictated to the Judgment Writer, typed directly on computer, script corrected, signed and then pronounced by me in the open Court on this the 13th day of March, 2020.) (KHADARSAB), XXXIX Additional City Civil & Sessions Judge, Bangalore City.
*** / 39 / O.S.No.3384/2013 13/03/2020 Orders pronounced in the Open Court (vide separate order) :
ORDER Suit of the plaintiff is hereby dismissed as it is barred under Land Acquisition Act and also under Sections 3 and 4 of Karnataka Land (Restriction On Transfer) Act, 1991.
No order as to costs.
Draw decree accordingly.
(KHADARSAB), XXXIX A.C.C. & S. Judge, Bangalore City.