Indermeet Kaur, J.@mdashThis appeal has impugned the judgment and decree dated 01.04.1989 which had reversed the findings of the trial Judge dated 25.05.1980. Vide judgment and decree dated 25.05.1980, the suit filed by the Plaintiff Ramesh Chand Jain seeking a decree of permanent injunction restraining the Defendants from acting upon the impugned award No. 1658 or taking possession of the suit land in pursuance of the award was decreed. Vide the impugned judgment, the suit of the Plaintiff stood dismissed.
2. The factual matrix of the case is as follows:
(i) The Plaintiffs are the owners of the land measuring 7 bighas 10 biswas in Khasra Nos. 554 and 555, Village Gandhi Piran in Delhi District. They had become owners vide registered sale deed dated 16.07.1959.
(ii) On 13.11.1959, the Government had issued a notification u/s 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the "LAC") in respect of land measuring 34070 acres of land.
(iii) On 08.04.1963, notification u/s 6 of the LAC Act followed.
(iv) The Plaintiff gave notice u/s 80 of the CPC (hereinafter referred to as the "Code") calling upon the Defendants not to acquire the said land in pursuance of the said notifications which were bad. Defendants did not acceded to this request.
(v) Present suit was filed.
(vi) Written statement was filed wherein certain preliminary objections were raised. It was stated that the suit is barred by limitation; the Plaintiffs are not the owners; no cause of action had arisen. On merits, it was contended that the notification u/s 4 and the subsequent notification u/s 6 were valid notifications. The land stood acquired and possession of the same had taken over on 17.03.1964. The suit property not being in possession of the Plaintiffs, prayer for injunction does not arise.
(vii) On the pleadings of the parties, issues were framed on 03.02.1966. They read as under:
1. Whether there is any notification u/s 4 of the Land Acquisition Act in respect of the suit land?
2. Whether the acquisition award in question is illegal on grounds as alleged in the plaint?
3. If issue No. 1 is proved in the affirmative, whether notification u/s 6 mentioned in para 4 of the plaint is valid? (objected to)
4. Whether the suit is time barred?
5. Whether Plaintiffs were in possession of the suit land on the day of institution of the same?
6. Whether the Plaintiffs are the owners of the suit land?
7. Whether the suit is infructuous?
8. Whether notice u/s 80 CPC was served upon Defendants No. 2 and 3. If not to what effect?
(viii) Additional issues were again framed on 23.09.1969. They inter-alia read as under:
1. Whether the collector did not cause public notice of the substance of notification u/s 4? (onus objected to)
2. Whether the declaration u/s 6 was unreasonable and unduly delayed after Sec No. 4 notification? If so its effect?
3. Whether the Collector did not comply with the conditions precedent to the making of impugned declaration? (onus objected to).
(ix) Again on 02.05.1970, following issues were framed for the third time:
1. Whether father of Plaintiffs made an application u/s 18 of the Land Acquisition Act and as such Plaintiffs are estopped from beginning the suit.
2. Relief.
(x) Oral and documentary evidence was led which included 8 witnesses on behalf of the Plaintiff and 5 witnesses on behalf of the Defendants.
(xi) Trial Judge held that the Plaintiff was in possession of the suit property; mutation of the same had been effected in his favour; the notification u/s 4 was bad as there was no evidence led by the Defendants to establish that the same had either been published or notified to the non-applicant. The Plaintiff was entitled to a decree. (xii) The impugned judgment had reversed this finding. It was held that the evidence had established that after the notifications under Sections 4 and 6 of the LAC Act, possession had been taken over by the Government Vide Ex. D-1 on 17.03.1964. In view thereof, it was clear that on the date of institution of the suit, possession of the suit land was not with the Plaintiff. Suit was even otherwise not maintainable as it was barred by time having been filed two years after the possession was taken. It was dismissed.
3. This is a second appeal. After its admission on 23.01.1992, the following three substantial questions of law were formulated. They read as under:
1. Whether non-inclusion of khasra numbers and their respective area purported to be acquired in the notification u/s 4 of the Land Acquisition Act does not vitiate the acquisition of land or the notification?
2. Whether there has been compliance of Section 4(1) or Section 5(a) of the Land Acquisition Act in the facts and circumstances of the case?
3. Whether there is a belated notification u/s 6 of the Act beyond three years after Section 4 notification? If so, is it valid and effectual in law?
4. Thereafter on a subsequent date i.e. 28.01.2011, the following additional substantial question of law was framed. It reads as under:
Whether the suit in the present form was not maintainable? If so, its effect?
5. Record had been perused. On behalf of the Appellant, it has been urged that the finding in the impugned judgment is perverse. It is pointed out that the notification dated 13.11.1959 issued u/s 4 of the LAC Act was bad; admittedly there was no evidence before the Court to hold that a publication of the said notification had been made in the two newspapers as is the mandate of Section 4; there was also no evidence to show that pasting of the said notification had been done on any conspicuous part of the locality to enable the concerned party to file his objections u/s 5(a) of the LAC Act. It is pointed out that the proceedings under the LAC Act have to be strictly construed as a valuable right of a person is lost when his land is sought to be compulsory acquired by the Government; "a substantial compliance" as has been noted in the impugned judgment is not a sufficient compliance; the compliance has to be strict. Attention has been drawn to the notification dated 13.11.1959 u/s 4. It is submitted that the map which was appended as Annexure 1 was not a part of this publication; Annexure-2 which contains the disputed land in Block-G has made a reference to "imaginary lines"; it was incumbent upon the Government to have defined the proposed acquisition of land correctly either by way of Khasra number or its municipal number or by evidencing it in the map. None of these has been done; it could in no manner have been left to the imagination of the concerned person. For this reason, objections Section 5(a) of the Act also could not be filed. The whole exercise being bad; it was liable to be set aside.
6. Arguments have been countered. It is pointed out that the judgment of the Supreme Court in
7. Record has been perused. The substantial question of law formulated on 28.01.2011 shall be answered first. The Supreme Court in the case of Dhirendra Kumar (Supra) while dealing with the objections to the notification under Sections 4 and 6 of the LAC Act had inter-alia held as follows:
Thus, it could be seen that the Act is a complete code in itself and it meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case u/s 9 of CPC stand excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification u/s 4 and declaration u/s 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to the Housing Board. So, the order of injunction was without jurisdiction.
8. In the subsequent judgment of Swaroop (Supra), the High Court relying upon the aforenoted judgment of Dhirendra Kumar had returned a finding as follows:
The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued u/s 9 of the Act and delivered to the beneficiary.... We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case u/s 9 of CPC stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification u/s 4 and declaration u/s 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction.
9. In the present case, Ex. D-1 is the possession memo which had evidenced that the possession of the suit land had been taken over on 17.03.1964. This is the version of DW-1 on oath. It has been reaffirmed by DW-4. No cross examination had been effected either of DW-1 or DW-4 that this possession had not been taken over by the Government on the said date. The second fact finding Court i.e. the first appellate court in the impugned judgment had returned a finding that it had been established that the possession of the suit land on 17.03.1964 had vested with the Government. The suit was filed in March, 1966 on which date the possession was not with the Plaintiff; it had already stood transferred to the Defendants.
10. In view of the ratio of the aforenoted judgments that the powers of the Civil Court by necessary implication to take cognizance of such a suit u/s 9 of the Code is excluded, it is clear that the Civil Court had no jurisdiction to go into the question of validity or legality of the notification issued u/s 4 of the LAC Act. At best proceedings under Article 226 of the Constitution of India could be maintained.
11. It has been urged by the learned Counsel for the Appellant that the law pronounced by the Supreme Court in this regard was in the year 1995 which was much later in time then when the suit had been filed, the suit had been filed by the Plaintiff in the year 1966; the judgment of the trial Judge was rendered on 25.05.1980 and the impugned judgment had followed on 01.04.1989. All these dates are prior in time when this law was declared by the Apex Court in the judgment of Dhirendra Kumar. It is pointed out that it would be inequitable if a person is non-suited on a legal proposition which has been enunciated later in time. This judgment has a prospective effect and could not be applied retrospectively.
12. This argument has to be noted only to be rejected. The law i.e. the provisions of Section 4 of the LAC Act were promulgated by the Legislature in 1894. They were only expounded and dealt with in the judgment of the Dhirendra Kumar in 1995. It is not as if the legislation had come into effect later on. The Supreme Court had only enunciated the proposition that the LAC Act is a complete Code itself and by necessary implication, the jurisdiction of the Civil Court to take cognizance on the question of the validity of the notification u/s 4 was ousted.
13. The substantial question of law formulated on 28.01.2011 is answered against the Appellant and in favour of the Respondent. Suit was not maintainable in the present form.
14. The additional argument urged by the learned Counsel for the Appellant on the substantial questions of law formulated on 23.01.1992 need not be answered in view of this finding given by this Court on the substantial question of law as noted hereinabove. It would, however, be relevant to state that
15. Even otherwise, the Petitioner had also been compensated as is evident from para 4 of the written statement to which there was no denial. It is thus clear that the possession of the Defendants having been established on 17.03.1964, all proceedings filed thereafter challenging the notifications either u/s 4 or u/s 6 of the Act would not be maintainable. Admittedly the suit had been filed in March, 1966 after possession of the land had stood transferred and vested with the Government. In view thereof, no further discussion is required on the substantial questions of law which were formulated on 23.01.1992. The appeal has no merit. Dismissed.
