TaxTMI 
TaxTMI 
2023 (10) TMI 1606
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....llate Court [District Judge, Bikaner] The first appellate Court had not only set aside the decree of the Trial Court [Additional Civil Judge (Sr. Division/Additional Chief Judicial Magistrate No.1, Bikaner] to the extent it denied complete relief as sought in the suit, [Original Suit No.29 of 1997] but decreed the suit of the first respondent in its entirety. 3. To have a clear understanding of the issues that arise for consideration in this appeal, it would be apposite to advert to the pleadings in the suit out of which the appeal arises. Suit 4. Gordhan Dass [Predecessor-in-interest of respondent nos.1/1 to 1/3] instituted the suit on 23.4.1997 against Urban Improvement Trust, Bikaner [The Trust (Appellant)], Narayan Das (Respondent no.2), Kanhaiya Lal (Respondent no.3) and Ganesh Ram (Respondent no. 4) seeking permanent prohibitory injunction to restrain the Trust from entering or acquiring the land in dispute [Khasra Nos. 211/81 and 239/83-New No. 294/83, measuring 3 bighas, adjoining Bikaner Sagar Road] without adopting due process of law. Plaint Case 5. The plaint case was that, -- (a) the land in dispute admeasuring 3 bighas was jointly purchased by the plaint....
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....r plaintiff had instituted the suit, report from Tehsildar was obtained. Then it was discovered that the plaintiff along with others had purchased the land in dispute vide sale deeds dated 02.03.1970 and 16.03.1970 and had also given an application for conversion of 1 bigha of that land for non-agricultural use, which was allowed, and, on payment of conversion fee, NOC was issued for setting up a Petrol Pump. It was, however, clarified that the appellant had, in all, acquired 24 bighas and 12 biswas of land comprising Khasra No.294/83 after following due procedure and compensation thereof was paid to the recorded owners. It was also stated that the plaintiff had never raised any objection to the acquisition. In respect of 1 bigha of that land, for which NOC was issued to set up a petrol pump, it was stated that the State vide order dated 7.8.2002 had taken a decision to return it to its owner. In paragraph 18 of the amended written statement, it was specifically stated that 2 bighas of the disputed land were acquired and its compensation was paid to the recorded tenure-holders. Trial Court Findings 9. The trial court found that there is no dispute between the parties that 1 b....
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....s possession, which was disturbed during pendency of the suit on 10.06.1998. First Appellate Court Findings 12. The first appellate court in paragraph 14 of its judgment noted the admitted case of the parties that the land was purchased by the plaintiff vide sale-deeds dated 02.03.1970 and 16.03.1970 whereas notification, commencing proceedings for acquisition, was issued on 09.06.1972. Yet, the plaintiff was not served notice of proposed acquisition. In paragraph 18 of the judgment, the first appellate court observed that admittedly prior to the acquisition, NOC was issued to the plaintiff for conversion of agricultural land to non- agricultural land, therefore it is to be assumed that the State was aware of the ownership right of the plaintiff. Yet, notice of acquisition was not served on the plaintiff. In these circumstances, non-mutation of plaintiff's name in the revenue records would not defeat plaintiff's claim that acquisition notification was bad for non-service of notice on him. With these observations, and finding upon that possession of the land was taken on 10.6.1998, the first appellate court decreed plaintiff's suit in its entirety. Second Appeal....
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....shed in the official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances. Sub-section (5) of Section 52 provides that where any land is vested in the State Government under sub- section (4), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorized by it in this behalf within 30 days of the service of the notice. Sub-section (7) of Section 52 provides that where the land has been acquired for the Trust, the State Government shall, after it has taken possession of the land and on payment by the Trust of the amount of compensation determined under Section 53, and of the other charges incurred by the State Government in connection with the acquisition, transfer the land to the Trust for the purpose for which the land has been acquired. 19. Learned counsel submitted that the mechanism for determination of compensation, the mode of its payment, and resolution of disputes in respect thereof are provided for by Sections 53, 54, 55, 56, 57, 58 and 59 of the 1959 Act. ....
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....on the owner of the land and any other person who, in the opinion of the State Government, may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired. The requirement of issuing such notice, before publishing the notification under sub-section (1) of Section 52, is mandatory. In absence thereof, the notification under sub-section (1) of Section 52 is void. Hence, there could be no deemed vesting under sub-section (4) of Section 52. Thus, the suit was maintainable, notwithstanding no relief was sought to annul the notification. In support of his submissions, the learned counsel for the respondents placed reliance on a Constitution Bench decision of this Court in Dhulabhai vs. State of Madhya Pradesh [(1968) 3 SCR 662] and a three-judge Bench decision in Firm Seth Radha Kishan vs. Municipal Committee [(1964) 2 SCR 273]. Questions that arise for Our Consideration 23. On consideration of the rival submissions, in my view, the following questions arise for determination: (i) Whether for failure to serve notice under sub-section (2) of Section 52 of the 1959 Act on the plaintiff, the notification acquiri....
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....ded to acquire the land in pursuance of this section. (2) Before publishing a notice under sub-section (1), the State Government shall by another notice call upon the owner of the land and any other person who in the opinion of the State Government may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired. (3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit. (4) When a notice under sub-section (1) is published in the official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances. (5) Where any land is vested in the State Government under sub-section (4), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorized by it in this behalf within thirty days of the service of the ....
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.... the sufficiency of the compensation paid or proposed to be paid under any provision of the Act, otherwise than under the foregoing provisions of that Chapter, the matter shall be determined by the District Judge having jurisdiction upon a reference made to him either by the Trust or by the claimant within a specified period. 34. Section 60 provides for the disposal of the land by the Trust. 35. A conspectus of the provisions of Chapter VII of the 1959 Act makes it clear that once the acquisition notification is published in the Official Gazette under sub-section (1) of Section 52 of the 1959 Act, by virtue of sub section (4) of Section 52, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances and, thereafter, the owner or person interested in the land is entitled to receive compensation. Further, as to whom the compensation is payable and the quantum payable are all issues for which a mechanism is in place under the provisions of the 1959 Act. 36. Now, the question that falls for consideration is whether the notification under sub-section (1) of Section 52 of the 1959 Act could be treated as void for n....
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....f the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies norm....
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....atter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court's jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions." (Emphasis supplied) 41. The decisions of this Court in Dhulabhai (supra) and Firm Seth Radha Kishan (supra) reiterate the settled legal position that if the act impugned is not under the statute but in violation of its provisions, the jurisdiction of a civil court is not compl....
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....n under Section 52 (1), in my view, cannot be treated as void. More so, because the State had the power to acquire the land. 45. It may also be noted that from the submissions made before us, it appears that proceedings for acquisition were initiated under Section 52(2) of the 1959 Act in the year 1972 and, thereafter, in the year 1974, notification under sub-section (1) of Section 52 was published. The plaintiff and defendant nos.2 to 4 neither claim that they were recorded in the record of rights prior to that, nor do they claim that none of the recorded owners was served with notice. Importantly, the plaintiff does not dispute publication of notification under sub-section (1) of Section 52 of the 1959 Act. In fact, plaintiff's claim is that he along with defendant nos. 2 to 4 were owners of the land, pursuant to sale-deeds of the year 1970, yet they were not served notice, under sub-section (2) of Section 52, prior to the notification under sub-section (1) of Section 52 and, therefore, the notification, under sub- section (1) of Section 52, is illegal and void. 46. In Ahuja Industries (supra), a somewhat similar claim under another land acquisition law was rejected. In....
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....t observed that the public authorities were not expected to go on making enquiries in the Sub-Registrar's office as to who would be the owner of the property. The Collector in the present case was thus justified in relying on the official record being the record-of-rights as to who were the owners of the land sought to be requisitioned and prudence did not require any further enquiry to be made. We are therefore of the view that notices were properly served under Section 3(2) of the Act on the owners of the land." 13. It could be seen from the above order that service of notice on a person shown as owner or occupier in the record-of-rights is sufficient even though the said person had already sold the land prior to the said notification unless it is substantiated otherwise that the authorities concerned had knowledge of the rights or interest of any person other than those found recorded as owner/occupier in the revenue records. It is further held that the Collector is not obliged to make a roving enquiry about the ownership of the land. If the name of the purchaser is not yet entered in the record-of-rights then non-service on such a person does not vitiate the acquis....
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....to non- agricultural land. To test the correctness of the aforesaid claim, I have perused the amended plaint. The relevant averments to that effect are in paragraph 1 (b) of the amended plaint. A careful reading of the same would indicate that the plea of the plaintiff was that he sought conversion of one bigha, out of three bighas of the disputed land, for non-agricultural use and, in connection therewith, a favorable report was given by the Patwari resulting in issuance of an NOC by the District Magistrate for non-agricultural use of one bigha land. However, there is no averment in the plaint that sale-deeds of the entire disputed land were produced by the plaintiff before the officers of the State/administration at the time of seeking NOC. In these circumstances, in my view, a constructive notice of the sale-deeds cannot be imputed on the State. I, therefore, reject the argument that by issuing NOC for non-agricultural use of one bigha of the disputed land, the State acquired knowledge regarding plaintiff's title in respect of the entire land comprising 3 bighas. 50. Even assuming that by issuing NOC the State got knowledge about plaintiff's title, it could at best be....
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....is whether the suit of the plaintiff for injunction simpliciter, without seeking a declaratory relief, would be maintainable in a Civil Court. 53. At this stage, at the cost of repetition, it may be observed that initially the suit was instituted for injunction to restrain the Trust (i.e., the defendant no.1- appellant) from taking possession of the land without following due process of law. When, in the written statement, the appellant took a specific plea that the land had already been acquired and compensation was paid, the plaint was amended stating therein that during pendency of the suit possession was taken and, therefore, a direction be issued upon the Trust to restore possession. Despite knowledge of appellant's case that land has been acquired, no declaratory relief, either to declare the notification invalid or to declare plaintiff as the owner, was sought, despite the legal position that under sub- section (4) of Section 52 of the 1959 from the date of publication of notification under sub-section (1) of Section 52 of the 1959 Act the land would vest in the State free from all encumbrances. 54. In Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594], this Co....
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....supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is a need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title." (Emphasis supplied) 55. In the instant case, the stand of defendant no. 1 (i.e., t....
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....ined in s.4 and s.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 s.6, the public purpose gets crystalised 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 of date of publication envisaged under s.6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power under s.17(4) of the Act and dispense with the enquiry under s.5-A. Thereon, the State is entitled to issue notice to the parties under s.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 s. 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 thin....
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....om the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition. 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 self-imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court." (Emphasis supplied) 58. Following the above two decisions (i.e., State of Bihar v Dhirendra Kumar and Laxmi Chand v. Gram Panchayat), in Commissioner, Bangalore Development Authority and another v. Brijesh....
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.... the matter, in my opinion, the suit was also bad for non-joinder of necessary party. 61. In my view, the suit in question is a classic example of clever drafting where to avoid crucial issues, such as the bar of limitation and response from the State, firstly, no declaration in respect of the acquisition notification was sought and, secondly, the State, which issued the acquisition notification and in whom the title of the land vested by a deeming fiction, was not impleaded as a party. Such clever drafting to avoid critical issues have been deprecated time and again by this Court as it amounts to an unfair practice. 62. In T. Arivandandam v. T.V. Satpal and another [(1977) 4 SCC 467] cautioning the Courts to be mindful of the craft of creating an illusion of a cause of action for instituting the suit, it was observed: "5 The learned Munsif must remember that if on a meaningful -not formal- reading of plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a right to sue, he should exercise his power under Order 7, Rule 11 CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created an illusion of....
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....ading the State as a party. The issue no. (ii) is decided accordingly. Issue no.(iii) -- Whether the civil suit of the plaintiff was barred by section 207 (2) of the Rajasthan Tenancy Act? 65. To appropriately address the issue as to whether the suit in the Civil Court was barred by Section 207 (2) of the 1955 Act, it would be useful to examine the scheme of the 1955 Act as also whether the reliefs claimed in the suit were within the scope of the reliefs which could be sought for under the 1955 Act. 66. The preamble of the 1955 Act provides that it is an Act to consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith. 67. Section 5(24) of the 1955 Act defines "land" as "land" shall mean land which is let or held for agricultural purposes or for purposes subservient thereto or as grove land or for pasturage including land occupied by houses or enclosures situated on a holding, or land covered with water which may be used for the purpose of irrigation or growing Singhara or other similar produce but excluding abadi land; it shall include benefits to arise out of land and ....
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....Baroda v. Moti Bai [(1985) 1 SCC 475], held that Section 207 read with Section 256 of the 1955 Act bars the jurisdiction of the civil courts in respect of suits and applications of the nature specified in the Third Schedule of the 1955 Act. 72. The Third Schedule of the 1955 Act, gives a list of suits, applications and appeals which could be maintained under the Act. Entry 8A provides that a suit for injunction could be filed before the Court of Assistant Collector within a period of three years from the date the cause of action arises. Entry 23-C provides that a suit for perpetual injunction can be filed before the Court of Assistant Collector within a period of three years from the date the cause of action arises. Entry 5 provides that a suit for declaration of the plaintiff's right as a tenant, or as a tenant of Khudkasht, or as a sub-tenant, or for a share in a joint tenancy are also to be filed in the Court of Assistant Collector. Similarly, suit for declaration of tenancy rights or for recovery of possession or for ejectment of trespassers can be filed under Sections 89, 187 and 183 respectively, vide entries 6, 23 and 23-A respectively in the Third Schedule. 73. On....
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.... the said land. Initially, the suit was filed seeking permanent injunction to restrain the defendant no.1 from trespassing into the land and initiating any acquisition process but later when the defendant no. 1 was trying to obtain forceful possession of the land during the pendency of the suit, the plaintiff amended the suit on 11.11.2002 to secure restoration of possession through mandatory injunction. It was also pleaded that on the basis of a judgment dated 26.2.1998(WP 2243/95) in Bhanwarlal v State of Rajasthan, concerning some other land, the defendant no. 1 had taken possession of the plaintiff's land and that the plaintiff was enjoying possession till 9.6.1998 during the pendency of civil suit. In the written statement, the Urban Improvement Trust admitted that the plaintiff together with the defendant nos.2 to 4 purchased total 3 bighas of land through 2 sale deeds dated 2.3.1970 and 16.3.1970, and those sale deeds are registered in the office of Sub-Registrar, Bikaner. The defendant no.1 also admitted that the plaintiff submitted an application before District Magistrate to convert one bigha land to non-agricultural category on which the District Magistrate issued NO....
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....judgment dated 16.4.2004 decreed the entire suit land in favour of the plaintiff and against the defendant no. 1 and the defendant was restrained from interfering with the plaintiff's peaceful possession, use and occupation of the suit land. The Appellate Court concluded in favour of the plaintiff after noting that no opportunity of hearing was provided to the plaintiff for acquisition of the land and furthermore, the plaintiff, Gordhan Dass was enjoying undisturbed possession of the land until 10.6.1988. Notwithstanding the mutation correction not being carried out in the revenue records by the purchasers, the Appellate Court noted that the plaintiff had already applied before the District Magistrate for conversion of 1 Bigha land for establishing petrol pump and NOC for the said purpose was issued in favour of the plaintiff with the active cooperation by the defendants and it was thus concluded that despite knowledge of the plaintiff's ownership and possession, the defendant no. 1 did not discharge its duty to issue notice to the land owner/plaintiff and accordingly the land acquisition proceedings were held to be invalid. Moreover, since during the pendency of the suit t....
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....icularly when the title has not been disputed by the defendant no. 1. 7. The High Court adverted to the provisions of The Rajasthan Urban Improvement Act, 1959 (hereinafter referred to as the "1959 Act") and observed that for compulsory acquisition of land under Section 52, the procedure to be followed is prescribed in the sub- Sections under Section 52 such as giving notice and providing opportunity of hearing to the owner and/or any other interested person and compensation must also be paid to the owner under Section 53. However, since the defendant no.1 failed to comply with the mandatory provisions under Section 52 and 53 of the 1959 Act and that acquisition process was initiated much after the purchase of the land by the plaintiff, the acquisition proceeding in the absence of notice and compensation was declared to be void and a nullity. It was specifically noted that the defendant no. 1 admitted the possession and title of the plaintiff in their written statement and thus it was opined that the plaintiff is entitled to protect their property. As the defendant no.1 had also raised an issue questioning the jurisdiction of the Civil Court, it was held that a suit in a civil C....
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....rements under Section 52(2) of the 1959 Act, notice should be given not only to the owner of the land but also any other person who in the opinion of State Government would be interested therein. The Learned Counsel has placed on record letters from Tehsildar, Bikaner acknowledging the sale deeds, thereby indicating that they had knowledge of plaintiffs being in possession of the land. Reliance was also placed on the decision of this Court in Ahuja Industries Limited v State of Karnataka [(2003)5 SCC 365]. On the aspect of maintainability, it was canvassed that the civil suit was not barred in law to adjudicate on the dispute. To substantiate the same, Mr. Swarup cites the Constitution Bench decision of this Court in Dhulabai and others v State of Madhya Pradesh [(1968) 3 SCR 3 662] (hereinafter referred to as "Dhulabai") and Firm Seth Radha Kishan v The Administrator [(1964) 2 SCR 2 273]. C. Issues 10. Having summarised the contentions of the respective parties, the following questions fall for our consideration: a) Whether land acquisition proceedings can be declared null and void for failure to give notice to the owners who had purchased the land two years earlier....
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....5 EWHC (KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State of H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415] Further, in several judgments, this Court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law. 15. When it comes to the subject of private property, this Court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State." 13. The Land acquisition laws in India have their origins in British colonial law. Compulsory acquisition of land is based on the principle of eminent domain which can be understood as the State's power to acquire private property without the owner's consent for a 'public purpose' [Julius L. Sackman, Russell D Van Brunt, 'Nichols on Eminent Domain' vol 1 (3rd edn, Mathew Bender & co, 1959). § 1.11]. Thus, when the State acquires property while exercising its eminent domain powers, the economic loss suf....
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....l Framework on Compulsory Land Acquisition 14. Before proceeding to deal with the issue of the legitimacy of the land acquisition proceeding, it would be appropriate to set out the international legal framework on compulsory land acquisition. The right to self-determination is enshrined within the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), amongst other instruments which is defined as the right of all people to freely dispose of their natural wealth and resources, and that no person may be deprived of its own means of subsistence. Article 17 of the Universal Declaration of Human Rights provides that, "Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property." Self- determination also includes obligation for states to refrain from any forcible actions that deprive people of enjoying such rights. The concept of Free, Prior and Informed Consent(FPIC) within international development law is most clearly stated in the United Nations Declaration on the Rights of Indigenous P....
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....tion of great inequity for the land losers" [emphasis supplied] 16. The Supreme Court in a recent judgment had the occasion to look at the process of compulsory land acquisition where the landowners had practically no means to oppose the proposed acquisition. A two judge bench in Vidya Devi v. State of H.P [(2020) 2 SCC 569] speaking through Indu Malhotra J. made the following significant observation: "12.2. The right to property ceased to be a fundamental right by the Constitution (Forty-fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] ) in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article [K.T. Plantation (P) Ltd. v.....
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....mplication of Section 52 of the 1959 Act, is that notice is required to be served not only to the owner but also to "any other person interested" thereby covering everyone interested in the concerned land. To avoid the rigour of this Section, the appellant- Trust have given their version by saying that the plaintiff, Gordhan Dass intentionally did not receive compensation so as to make it a ground thereafter and that the onus would lie on the plaintiff as found by the trial Court. Gordhan Dass was indisputably the actual owner and hence, as per the mandate of the law, it was the responsibility of the concerned Authority [D.B. Basnett v Collector, East District, Gangtok, Sikkim (2020) 4 SCC 572; Jagan Singh & Co. v Ludhiana Improvement Trust 2022 SCC OnLine 1144] to adhere to the due statutory process before depriving the landowner or interested persons, of their property. The burden is on the defendant No. 1 i.e. the Urban Improvement Trust to satisfy the high procedural threshold before acquiring any private property. Moreover, the defendant no. 1 was also unable to produce any evidence to indicate whether compensation was ever paid to the original khatedaars as was vaguely claime....
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....for which the acquisition proceedings are being commenced but also the "locality" where the land is situate with as full a description as possible of the land proposed to be acquired to enable the "interested" persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non- suitability of the land for the alleged "public purpose" also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad." [emphasis supplied] 21. It logically follows from above that dispossession without following prescribed statutory process such as giving proper notice, is not only highly prejudicial but it is also a violation of constitutional rights and would thereby vitiate the entire process of land acquisition. Law is well-settled that strict adherence to the mandatory procedural requirements outlined in the legislation is sine-qua-non for the compulsory acquisition of land. Legally conducted acquisi....
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....is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the Tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply." [emphasis supplied] 24. In Ramesh Gobindram v. Sugra Humayun Mirza [(2010) 8 SCC 726], a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted ....
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....s and other matters connected with land or any other right or interest in land, wherein such court or officer is required to act judicially." Section 5(43) provides for the definition of tenant. Chapter III deals with classes of tenant while Chapter IV is about Devolution, Transfer, Exchange, and Division of Tenancies. Chapter V is concerned with Surrender, Abandonment, and Extinction of Tenancies. A cursory look at the other chapters would also show that they relate to agricultural tenancies which has nothing to do with the relief of permanent injunction claimed in the suit. The title, as noted earlier, is not disputed. Section 207 and 208 of the Tenancy Act, 1955 which is central to the present issue, reads as under: "207. Suits and applications cognizable by revenue court only- (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court. (2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suitor application. Explanation- I....
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....e essential requirements under Section 52 of the 1959 Act. When the fundamental judicial procedure is disregarded, the action rendered is legally void and should be seen as being "outside the Act". The observations in Firm Seth Radha Kishan v. Administrator, Municipal Committee [(1964) 2 SCR 273] would therefore be applicable in this context: "7. Under Section 9 of the Code of Civil Procedure the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular f....
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....on and injunction." 31. At the cost of repetition, it must be noted that in the written statement in the suit, the defendant no. 1 admitted that the plaintiff together with the defendant nos.2 to 4 purchased total 3 bighas of land through two sale deeds respectively dated 2.3.1970 and 16.3.1970 and it was also admitted that the plaintiff submitted an application before District Magistrate to convert one bigha land to non-agricultural category on which the District Magistrate issued NOC since the said land was needed to set up a petrol pump. Here, the title for the plaintiff is not disputed by the defendants and the same is not under a cloud. Therefore, the question of title is not an issue in the suit. Moreover, the mandatory requirements under the provisions of the 1959 Act were itself not followed before issuing notification, without which the title cannot be said to be disputed. Such a suit for injunction in the absence of contest to the title would therefore, be maintainable. 32. In State of Bihar v Dhirendra Kumar [(1995) 4 SCC 229], Laxmi Chand v Gram Panchayat Kararia [(1996) 7 SCC 218], Commissioner, Bangalore Development Authority and another v Brijesh Reddy and anot....
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....impleaded, the suit itself is liable to be dismissed. A "proper party" is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance." 34. It must be borne in mind that the Urban Improvement Trust, Bikaner is an instrumentality of the State and was a contesting party in the suit as it was the beneficiary of the acquisition process. The observation of the seven-judge bench of this Court in Nagpur Improvement Trust v. Vithal Rao [(1973) 1 SCC 500], would be relevant in this context where, it was noted that "the acquisition is for the trust and may be at its instance, but nevertheless the acquisition is by t....
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....e title is undisputed and the necessary contesting party i.e. the Trust was arrayed as a party. These are the key distinguishing features for that case to be of no relevance in the present matter. 36. At this point, let us now refer to the observations of this Court in Urban Improvement Trust v Mohan Lal [(2010) 1 SCC 512] which are closer to the facts of the present case. This Court deprecated the tendency of State and its instrumentalities of filing appeals against all orders that came against them on false, frivolous, vexatious and technical grounds. The facts in that case were that the Urban Improvement Trust, Bikaner without notice, acquisition or consent, took over the allotted plot of the landowner and thereafter, when relief was granted to landowners by the National Commission, challenged it on technical grounds for absence of protest and Complaint, within two years of the cause of action. Moreover, it was argued by the Counsel for the Trust that even if it was an illegal encroachment, jurisdiction under Consumer Protection Act, 1986 could not be invoked. Rejecting the arguments of the Counsel for the Trust, the Supreme Court made the following pertinent observations: ....
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....ossessed the respondents and took over their land. The State Authority which wronged the landowners was a defendant in the suit and also contested the suit by filing written submission and adducing evidence. In this backdrop, to non-suit the landowners would lead to manifest injustice. The issue no. (iii) is therefore answered against the appellant. F. Conclusion 39. It must now be noted that the litigation in this case has been continuing for 25 years. Empirical Data ['Access to Justice Survey 2015-16' (Daksh, May 2016) accessed 19 September 2023] shows that land disputes clog all levels of courts in India, and according to certain studies, land-related litigations account for the largest set of cases, in terms of both absolute numbers and judicial pendency. For those who are going to lose their land through compulsory acquisition, a key redressal mechanism is to enable them to access courts, at first instance. The aggrieved land loser is often unable to access justice from the judicial system. Therefore, having regard to the limited relief that can be obtained from a revenue court under Tenancy Act, 1955, to deny the land losers access to civil court in my opinion, would ag....