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Non-Reportable IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. ___________ OF 2017

(Arising out of SLP (Civil) No. 33813 of 2011)

H. N. Jagannath & Ors. ...........Appellants

Versus

State of Karnataka & Ors.        ........Respondents

J U D G M E N T

MOHAN M. SHANTANAGOUDAR, J.

Leave granted.

1. The judgment dated 19.04.2011 passed by the High Court

of  Karnataka  at  Bangalore  in  writ  appeal  no.  1575  of  2007

(LA-BDA) is called into question in this appeal.  By the impugned

judgment, the Division Bench though did not interfere with the

Judgment passed by the learned Single Judge in writ petition no.

49357 of  2004 dated 15.03.2007, disposed of  the  Writ  Appeal

observing  that  respondent  no.  4  herein  (appellant  before  the

Division  Bench)  should  work  out  its  remedy  in  the  suit  in

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accordance with law and if a suit is filed, the said suit shall be

considered without being influenced by the observations made in

the course of the Judgment passed by the learned Single Judge.

Thus,  the Division Bench virtually  relegated the parties to the

civil court once again by granting permission to respondent no. 4

to approach the civil court.   

2. This matter is a classic example as to how a litigant before

the Court takes disadvantage of the process of law and the court

by repeatedly tapping the doors of the courts for almost the same

relief, after losing legal battles on a number of occasions.

3. Records  reveal  that  the  Bangalore  Development Authority

(hereinafter “BDA”) respondent no. 12 herein, issued notification

dated 16.11.1977 under Section 17(1) of BDA Act (almost similar

to Section 4(1) of the Land Acquisition Act, 1894) proposing to

acquire a vast extent of land in two villages, namely Leggere and

Jaraka Bande Kaval.  The purpose of acquisition was to form a

residential layout called “Extension of Mahalakshmi Layout” (also

called  Nandini  Layout).   An extent  of  393 acres 25 guntas  in

survey no. 1 of Jaraka Bande Kaval village out of the total extent

of  519  acres  37  guntas  was  also  notified.   The  preliminary

notification  included  the  land  belonging  to  respondent  no.  4

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located in survey no. 1 of Jaraka Bande Kaval village measuring

25 acres 20 guntas.  The preliminary notification was published

in the official gazette on 22.12.1977.  The final declaration dated

30.08.1979 (gazetted on 20.09.1979) was issued under Section

19(1)  of  the  BDA Act  (almost  similar  to  Section  6(1)  of  Land

Acquisition Act). On 04.06.1985, the Additional Land Acquisition

Officer passed an award in respect of  the land measuring 127

acres 21 guntas in survey no. 1 of Jaraka Bande Kaval Village

including the land in dispute (the land belonging to respondent

no.  4)  measuring  25  acres  20  guntas.   It  was  noted  by  the

Additional  Land Acquisition Officer  that  respondent  no.  4 had

filed a petition before him in response to the notice issued under

Sections 9, 10 & 11 of the Land Acquisition Act. The award dated

04.06.1985  mentioned  supra  passed  by  the  Additional  Land

Officer  was  approved  by  the  Government  of  Karnataka  on

19.09.1986 and consequently the award amount was deposited

by BDA in the Court.   

4. Respondent no. 4 herein had filed a suit for injunction in

respect  of  the  disputed  property  (which  was  also  acquired  as

mentioned  supra),  before  the  10th Additional  City  Civil  Judge,

Bangalore in O.S. No. 10488 of 1985 against BDA on 28.06.1985.

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The Trial Court passed an ex-parte order of injunction in favour

of respondent no. 4 on 20.06.1985.  After passing the award, the

possession of the land in question was taken on 23.09.1986; a

panchanama  was  drawn  evidencing  taking  of  possession.

Subsequently  the  Trial  Court  by  its  order  dated  01.10.1986

modified  its  earlier  ex-parte  interim  order  of  injunction  and

permitted BDA to form a road.  On 31.10.1986, BDA handed over

possession  to  its  engineering  section  for  the  formation  of  the

road.  A notification under Section 16(2) of the Land Acquisition

Act was issued on 20.11.1987 disclosing the factum of taking of

possession  of  the  land  including  the  land  in  question.

Respondent no. 4 chose to withdraw the suit in O.S. No. 10488 of

1985 on 30.01.1989 without  seeking  any  liberty  to  file  afresh

suit.  The Trial Court’s order reads thus:

“Memo filed not pressing the suit.    Suit dismissed. No costs.”

5. However, respondent no. 4 filed another suit for permanent

injunction  against  BDA  for  protecting  its  alleged  possession,

before  13th Additional  City  Civil  Court,  Bangalore  in  O.S.  No.

3551  of  1989.  In  the  said  suit  also,  the  order  of  temporary

injunction was granted on 10.07.1989 in favour of  respondent

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no.  4  herein.   However,  the  Trial  Court  by  its  order  dated

08.03.1990  modified  the  order  of  temporary  injunction  earlier

granted, on an application filed by BDA and confined the order of

injunction  only  to  existing  structures.   The  civil  court  while

modifying the order of temporary injunction as mentioned above

has noted in paragraph 6 of its order that BDA has acquired the

property and has taken the possession of the property.  It is also

observed that the title vests with BDA.

 When the facts stood thus,  respondent no.  4 filed writ

petition no. 17040 of 1991 (after a delay of 10 years from the date

of  the  final  declaration)  challenging  the  preliminary  and  final

acquisition notifications.  The learned Single Judge by his order

dated 28.08.1991 dismissed the said writ petition on the ground

of delay and laches. Against such dismissal, the respondent no. 4

filed writ appeal no. 2798 of 1991 before the Division Bench of

the High Court, which also came to be dismissed on 25.11.1991.  

Respondent no. 4 did not stop at that stage.  It approached

the High Court once again by filing writ  petition no. 31007 of

1992 praying for a direction to the State Government to consider

its representation for de-notification and for re-conveyance of the

land.  The High Court by its order dated 09.12.1992 disposed of

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the writ petition with the observation that the government will

hear and dispose of the representation of respondent no. 4 herein

in accordance with law.  The State Government by its order dated

15.02.1993  rejected  the  representation  of  respondent  no.  4.

Challenging such order of  dismissal  by the State  Government,

respondent no. 4 filed writ petition no. 33996 of 1993 which also

came to be dismissed on 09.02.1996.  Respondent no. 4 in the

meanwhile had approached the High Court of Karnataka by filing

writ petition 25719 of 1994 praying for a direction against BDA

not to form the road in the land in dispute.  The said writ petition

came to be dismissed as withdrawn on 02.07.1996.   

6. In the meanwhile, the State Government by its order dated

17.11.1994  had  permitted  respondent  no.  4  to  run  a  school

situated on the land in question.  However, the government by its

order  dated  29.04.1997  modified  its  earlier  order  dated

17.11.1994.  Thereafter respondent no. 4 filed yet another writ

petition  (5th writ  petition  before  the  High  Court)  being  writ

petition no.  1071 of  1998 to  implement the  government  order

dated 17.11.1994.  On being objected to by BDA, the petition

came to be dismissed on 05.10.1999.  

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7. Respondent no. 4 filed yet another suit for injunction, i.e.

O.S.  No.  16147 of  1999 (3rd suit).   The  said  suit  came to  be

dismissed  for  default.   Thereafter,  the  respondent  no.  4  once

again  approached  the  High  Court  of  Karnataka  by  filing  Writ

petition no.  49339 of  2004 (6th Writ  Petition)  for  the  following

reliefs.  

a) The scheme formed by BDA for residential layout lapsed under Section 27 of the BDA Act.

b) Lay-out plan is illegal.

c) There was no vesting of land in BDA.

d) Allotment  of  sites  to  various  allottees including the appellants herein petitioners was illegal.

     The learned Single Judge of the High Court dismissed the writ

petition on 15.03.2007 by specifically noting that the possession

was taken by BDA, layout was formed, and sites are carved out

and distributed to the allottees who were put in possession of the

sites.  The appellants herein are all allottees of the sites (who are

43 in number).  The learned Single Judge also noticed that the

allottees  have  put  up  constructions  and  are  residing  in  their

respective houses constructed on the sites allotted.  The learned

Single  Judge  further  noticed  that  the  contentions  taken  and

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reliefs prayed for by respondent no. 4 though they were available

for respondent no. 4 to be urged earlier, were not urged by it and

therefore, the said prayers are barred by Order 2 Rule 2 of C.P.C.

     Respondent no. 4 filed writ appeal no. 1575 of 2007 before

the Division Bench questioning the judgment of dismissal by the

learned Single  Judge in writ  petition no.  49339 of  2004.  The

Division Bench by its impugned judgment as mentioned supra,

though did not interfere in the order passed by the learned Single

Judge, proceeded to grant the liberty to respondent no. 4 to work

out its remedy in civil court once again.  The Division Bench has

strangely observed that in case the suit is filed, the same is to be

considered without being influenced by the observations made by

the learned Single Judge.  Thus, the Division Bench though did

not interfere in the order passed by the learned Single Judge, has

virtually  ignored  all  the  aforementioned  facts,  including

successive judgments made by the civil court as well as the High

Court of Karnataka in six writ petitions including the one in writ

petition  49339  of  2004,  and  has  virtually  kept  open  all  the

questions including the question of title and possession, which

means that the Civil Court is directed to go into the validity of the

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acquisition  notification,  award  proceedings  and  the  factum  of

taking of possession by BDA pursuant to acquisition proceedings.

8. The learned Counsel Shri S. N. Bhat appearing on behalf of

the appellants/allottees of sites contends that the Division Bench

has erred in giving liberty to respondent no. 4 to file a civil suit

which would throw open a fresh round of litigation in respect of

the acquisition made as far back as 1977-79; the appellants and

other similar allottees have constructed houses on the plots and

have been residing therein for decades; the matter of acquisition

has attained finality and has come to a definite rest; the Division

Bench is not justified in reviving the dispute which had long been

given  a  legal  quietus  after  a  series  of  litigations.   Lastly  he

submits that it was not open for the Division Bench to unsettle

the settled state of affairs involving thousands of persons who are

purchasers of the plots.   

9.       The learned Counsel for respondent no. 4, per contra,

contended that the Division Bench is justified in granting liberty

to  it  to  approach  the  civil  court  afresh  inasmuch  as  the

possession of the property still  remains with respondent no. 4;

respondent no. 4 is running an orphanage and a school for poor

children;  since  the  possession of  the  property  is  not  taken by

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BDA, the disputed property is entitled to be held by respondent

no.  4 as  the  owner thereof.   In other  words,  the  argument in

favour  of  respondent  no.  4  is  that  the  disputed  property  in

question needs to be de-notified in favour of respondent no. 4 and

possession should continue in its favour and hence the Division

Bench is justified in granting permission to respondent no. 4 to

file  a  Civil  Suit  afresh  by  raising  all  the  contentions  as  are

available in law.

10.     It is not in dispute that the property in question along with

other properties was acquired by the BDA in accordance with law

by issuing notifications under Section 17(1) and 19(1) of the BDA

Act as far back as in the year 1977 and in the year 1979.  The

BDA has formed and allotted the sites.  Most of the allottees have

constructed  houses  and  are  residing  peacefully.   However,

respondent  no.  4  still  contends  that  possession  has  remained

with it and therefore the acquisition needs to be set aside and

that  the  land  should  be  de-notified.   As  detailed  supra,

respondent no. 4 has already approached the civil  court thrice

and  High  Court  on  six  occasions.   Whenever  the  suits  are

withdrawn,  respondent  no.  4  has  not  sought  any  liberty  to

approach the civil court once again.  Thus, it was not open for

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respondent no. 4 to approach the civil  court repeatedly for the

very reliefs.  Consistently, the civil court on three occasions has

negatived the contention of the appellant.  

11.     Even when respondent no. 4 approached the High Court of

Karnataka by  filing the  writ  petitions  and writ  appeals,  it  has

failed.  Futile attempts have been made by respondent no. 4 only

to see that the allottees are harassed and to keep the litigation

pending.  After the final notification, an award was passed and

compensation  was  deposited.   Possession  was  taken  and  the

same was evidenced by the Panchanama prepared as far back as

23.09.1986.   Notification  under  Section  16(2)  of  the  Land

Acquisition Act was issued on 20.01.1987 disclosing the factum

of taking possession of the land in question.  Attempt made by

respondent  no.  4 for  getting  the  disputed land de-notified has

also failed as far back as 15.01.1993, when the State Government

has  rejected  the  representation  of  respondent  no.  4  seeking

de-notification.   The  writ  petition  filed  by  respondent  no.  4

challenging such order of dismissal of the representation was also

dismissed.  Despite the same, respondent no. 4 is pursuing the

matter by filing writ petition after writ petition.  It is a clear case

of abuse of process of law as well as the Court.  

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12.     We do not find any reason to interfere in the finding of fact

rendered by the learned Single Judge that possession was taken

by  BDA  on  23.09.1986.   There  is  nothing  to  be  adjudicated

further in respect of the title or possession of the property.  The

title as well as the possession of the property has vested with the

BDA for about more than 30 years prior to this day and sites were

formed and allotted to various persons including the appellant

herein.   In  the  light  of  such  voluminous  records  and  having

regard  to  the  fact  that  respondent  no.  4  has  been  repeatedly

making  futile  attempts  by  approaching  the  courts  of  law  by

raising  frivolous  contentions,  the  Division  Bench ought  not  to

have  granted liberty  to  respondent no.  4 to  approach the  civil

court once again for the very same relief, for which it has failed

earlier.   In  view  of  this,  learned  counsel  for  the  appellant  is

justified in contending that  the  Division Bench has completely

erred in reviving the dispute which had long been given a legal

quietus after a series of litigations.  The Judgment of the Division

Bench, if allowed to stand, will unsettle the settled state of affairs

involving hundreds of allottees of sites who have constructed the

houses and are residing therein.  The impugned judgment of the

Division Bench virtually sets at naught a number of  judgments

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rendered by the civil court as well as the High Court in the very

matter  (and  was  given  without  any  reason  much  less  a  valid

reason).  

13.  The Division Bench has erroneously conferred jurisdiction

upon the civil court to decide the validity of the acquisition.  This

Court  has  repeatedly  held  in  a  number of  judgments  that,  by

implication, the power of a civil court to take cognizance of such

cases under Section 9 of the CPC stands excluded and the civil

court has no jurisdiction to go into the question of validity under

Section 4 and declaration under Section 6 of the Land Acquisition

Act.  It is only the High Court which will consider such matter

under Article 226 of the Constitution.  So, the civil suit, per se is

not maintainable for adjudicating the validity or otherwise of the

acquisition notifications & proceedings arising therefrom.   This

Court in the case of Bangalore Development Authority vs Brijesh

Reddy & Anr. [2013 (3) SCC 66] while considering the acquisition

notifications issued under BDA Act observed thus:

“It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public  purpose.   By  necessary  implication, the  power  of  the  civil  court  to  take cognizance of the case under Section 9 CPC stands  excluded  and  a  civil  court  has  no jurisdiction  to  go  into  the  question  of  the

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validity  or  legality  of  the  notification under Section 4,  declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article  226 of the  Constitution.   It  is  thus clear  that  the civil  court  is  devoid  of  jurisdiction  to  give declaration  or  even  bare  injunction  being granted  on  the  invalidity  of  the  procedure contemplated under the Act.  The only right available  for  the  aggrieved  person  is  to approach  the  High  Court  under  Article  26 and  this  Court  under  Article  136  with self-imposed restrictions on their exercise of extraordinary power.”

A  similar  view  is  taken  by  this  Court  in  other  cases.   The

Judgments  of  this  Court  in  Laxmi  Chand  &  Ors.  vs  Gram

Panchayat, Kararia & Ors. [1996 (7) SCC 218], Shri Girish Vyas

vs State of  Maharashtra [2012 (3) SCC 619],  State of Bihar vs

Dhirendra  Kumar  &  Ors.  [1995  (4)  SCC  229],  Commissioner,

Bangalore Development Authority vs K. S. Narayan [206 (8) SCC

336]  &  Commissioner,   Mutha  Associates  &  Ors.  vs  State  of

Maharashtra  [2013  (14)  SCC  304]  considered  the  acquisition

proceedings  relating  to  the  lands  which  were  acquired  either

under  the  provisions  of  the  BDA  Act  or  under  the  Land

Acquisition Act. In all these judgments, similar question arose i.e.

as to whether the civil court had jurisdiction to decide the validity

of the acquisition notifications or not.

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14.  Having  regard  to  the  discussion  made  supra,  in  our

considered opinion, it is a clear case of contempt committed by

respondent no.4 by repeatedly approaching the courts of law for

almost  the  same  relief  which  was  negatived  by  the  courts  for

three  decades.  However,  we  decline  to  initiate  contempt

proceedings and to impose heavy costs, under the peculiar facts

and circumstance of this case.

15.    It is to be noted that the Division Bench has given liberty

to respondent no. 4 to work out his remedy in a civil suit without

even setting aside the findings of the learned Single Judge and

the findings rendered in the judgments passed by the Civil Court

and  the  High  Court  of  Karnataka  in  a  number  of  matters

(mentioned supra).  In our opinion the Division Bench of the High

Court of Karnataka has in a casual manner relegated the parties

to the civil court to work out their remedies in the suit which is to

be  instituted  afresh  by  respondent  no.  4.  Thus,  the  said

conclusion  of  the  Division  Bench  of  the  High  Court  is  not

sustainable in law.  Accordingly, the judgment and order dated

19.04.2011 passed by the Division Bench of the High Court of

Karnataka  at  Bangalore  in  writ  appeal  no.  1575  of  2007

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(LA-BDA), and consequently the order dated 15.07.2011 (wherein

certain corrections are made subsequently) of the Division Bench

in  Misc.  Writ  petition  no.  7549  of  2011  are  set  aside.   The

Judgment  of  the  Learned  Single  Judge  in  the  Writ  Petition

Number 49357 of 2004 stands restored.  Appeal is allowed.  

.................................................J. (ARUN MISHRA)

.................................................J. (MOHAN M. SHANTANAGOUDAR)

New Delhi December 06, 2017