@JUDGMENTTAG-ORDER
Budihal R.B., J.@mdash1. Heard the arguments of Sri. D.L.N. Rao, learned Senior Counsel appearing for the writ petitioners. This writ petition is
filed challenging order dated 06.11.2015 passed by the XXVII Addl. City Civil Judge, Bangalore, in O.S. No. 9945/1998 on the application filed
under Section 9 read with Section 151 of CPC produced as per Annexure-Q.
2. The respondent-tenants filed the suit before the trial Court for the relief of declaration and injunction in respect of the property bearing Sy. No.
121/3 measuring 1 acre 10 guntas of Kadugondanahalli, Bangalore North Taluk. The suit was originally filed for bare injunction and subsequently
amendment application was filed seeking the relief of declaration also. The Writ Petitioners herein filed an application seeking impleadment. The
said application was allowed by the trial Court and the Writ Petitioners were impleaded as necessary parties to the said suit. Subsequently, they
have filed an application under Section 9 read with Section 151 of CPC and also another application under Order 7 Rule 11(b) & (d) CPC
contending that the Court has no jurisdiction to proceed with the suit and the suit itself is not maintainable. The trial Court after considering the
merits of the said applications and the objections filed to the said applications, ultimately passed the impugned order holding that the evidence is
already commenced in the said suit and the applications can be considered along with the merits of the main suit itself. Being aggrieved by the said
order passed by the trial Court, the Writ Petitioners are before this Court in this proceeding.
3. The learned Senior Counsel appearing for the Writ Petitioners herein made the submission that the property which is claimed itself has been
acquired by the Government by issuing Preliminary Notification dated 29.05.1978. Final Notification was also published on 28.02.1984 and even
the possession of the property has also been taken and therefore, it is the contention of the learned Senior Counsel that this was the contention
raised before the trial Court in an application filed under Section 9 read with Section 151 of CPC requesting the Court to ascertain about the
jurisdiction of the Court to entertain the suit itself, which was not done by the trial Court in this case. Hence, the learned Senior Counsel submitted
that postponement of the applications that they will be considered along with the main suit, this order itself is illegal and is not sustainable in law.
The learned Senior counsel also made the submission that the respondents - tenants, who claims that they are also the tenants in respect of the said
property, their claim has been rejected by the Land Tribunal. Whereas the claim of the Writ Petitioners herein that they are the tenants in respect of
portion of the said property has been upheld throughout and they have been granted with occupancy rights. The learned Senior Counsel further
made the submission that under the guise of amendment of the plaint when the respondents -plaintiffs included portion of writ petitioners property,
then the Writ Petitioners got themselves impleaded in the said suit and they have filed the said application. Hence, the learned Senior Counsel
submitted that when the property has been acquired, this Civil Court has no jurisdiction to entertain the suit under Section 9 of CPC. In this regard,
learned Senior Counsel relied upon the decision of the Hon''ble Supreme Court reported in , 2013 (3) SCC 66 and the learned Senior Counsel
draw the attention of this Court to the relevant paragraphs 18, 19, 20 and 21. Hence, he made the submission to allow the Writ Petition and to set
aside the impugned order passed by the trial Court.
4. Per contra, the learned Counsel appearing for the respondents who claims to be the tenants and the plaintiffs in the suit during the course of his
argument made the submission that rejection of their claim for the occupancy rights not attained finality. They have already approached the Hon''ble
Apex Court and the matter is pending in SLP. The learned Counsel also made the submission that the plaintiffs are in possession and enjoyment of
the suit schedule property and the contention of other side that under the acquisition proceedings, possession is already acquired is not correct. He
made the submission that the suit was filed in the year 1998 but the application was filed in the year 2014 at the belated stage and the evidence in
the said suit is already commenced, issues have been framed by the trial Court. Hence, it is his submission that the order of the trial Court stating
that the application cannot be considered separately at that stage as the evidence is already commenced and those applications can be taken up for
consideration along with merits of the main suit itself, this order is in accordance with law. No illegality has been committed by the trial Court.
Hence, the learned Counsel submitted that the matter does not call for any interference by this court in this Writ Petition and hence, submitted to
dismiss the Writ Petition.
5. The learned Counsel appearing for the respondent No. 2 during the course of his argument made the submission that the suit itself is not
maintainable before the trial Court. He also made the submission that the property has already been acquired by issuing Preliminary Notification
and Final Notification and even the possession is already taken under the notifications published under Section 16 of the Land Acquisition Act.
Hence, it is the contention of the learned Counsel appearing for the respondent No. 2 that the trial Court ought to have considered the applications
to ascertain the jurisdiction and to entertain the suit itself. Hence, he supports the contentions of the Writ Petitioners and submitted to allow the
Writ Petition and to set aside the order passed by the trial Court.
6. I have perused the grounds urged in the impugned order passed by the trial Court, which is challenged in this Writ Petition and also the other
documents produced by the Writ Petitioners i.e., the notifications in respect of acquisition proceedings of the property in question. Looking to the
notifications produced in the case and the survey number in respect of which the suit has been filed by the respondents - plaintiffs claiming the relief
of declaration and injunction, those properties are one and the same i.e., Sy. No. 121/3 measuring 1 acre 10 guntas. Preliminary Notification which
was issued on 29.05.1978 also goes to show about the said survey number so also the Final Notification dated 28.02.1984 and the Notification
taking possession of the suit schedule property which was published as per Section 16 of the Land Acquisition Act was prima facie materials,
which have been produced by the Writ Petitioners herein. So also, the submission made by the learned Senior Counsel as well as the learned
Counsel appearing for the respondent No. 2 goes to show prima facie that the said property has already been taken. In this connection, I have also
perused the decision relied upon by the learned Senior Counsel, which is referred to above and the relevant paragraphs i.e., 18 to 21 reads as
under:-
18. It is clear that the Land Acquisition Act is a complete Code in itself and is meant to serve public purpose. By necessary implication, the power
of civil Court to take cognizance of the case under Section 9 CPC stands excluded and a Civil Court has no jurisdiction to go into the question of
the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a
proceeding under Article 226 of the Constitution. It is thus clear that the civil Court is devoid of jurisdiction to give declaration or even bare
injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to
approach the High Court under Article 226 and this Court under Article 136 with self imposed restrictions on their exercise of extraordinary
power.
19) No doubt, in the case on hand, the plaintiffs approached the civil Court with a prayer only for permanent injunction restraining Defendants 1
and 2 i.e., BDA, their agents, servants and any one claiming through them from interfering with the peaceful possession and enjoyment of the
schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of BDA, in their written
statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action etc.,
the said suit is not maintainable. This was rightly concluded by the trial Court. For proper compensation, the aggrieved parties are free to avail the
statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial Court and ultimately it rightly
dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down
by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 CPC committed an error in remanding the matter
to the trial Court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which
entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants. In the
light of the specific assertion coupled with materials in the written statement about the acquisition of land long ago and subsequent events, suit of
any nature including bare injunction is not maintainable, hence, we are of the view that the High Court is not right in remitting the matter to the trial
Court for fresh disposal.
20) Having regard to the fact that the acquisition proceedings had been completed way back in 1960-70, the plaintiffs who purchased the suit land
in 1995 cannot have any right to maintain the suit of this nature particularly, against Defendants 1 and 2, namely, BDA. The High Court clearly
erred in remanding the matter when the suit was not maintainable on the face of it. The High Court failed to take note of the fact that even in the
plaint itself, the plaintiff-respondents herein have stated that the suit land was acquired and yet they purchased the suit land in 1995 and
undoubtedly have to face the consequence. The possession vests with the BDA way back in 1969 and 1978 and all the details have been asserted
in the written statements, hence the remittal order cannot be sustained.
21) In the light of the above discussion, the impugned judgment dated 27.07.2005 passed by the High Court in Brijesh Reddy v. Bangalore
Development Authority remitting the matter to the trial Court is set aside and the judgment dated 18.6.2003 of the trial Court in O.S. No. 4267 of
1996 is restored. The appeal is allowed with no order as to costs.
7. When there is a material placed before the trial Court requesting the Court to ascertain whether the Court has the jurisdiction to entertain the suit
or not in view of acquisition proceedings, the trial Court assigned the reasons that the evidence has already been commenced and the suit is of the
year 1998, application was filed in the year 2014. On this ground only, the trial Court postponed the hearing and disposal of the applications
holding that they will be considered along with the merits of the main suit itself. But looking to the delay as observed by the trial Court regarding
filing of the applications is concerned, it is made clear by the Writ Petitioners herein that they were not parties to the said suit which was filed
originally nor the plaintiffs in the said suit have filed such application bringing the Writ Petitioners as a necessary parties to the said suit but it is the
Writ Petitioners themselves who have filed the application seeking impleadment and come on record only when they came to know when the plaint
was amended by the plaintiffs wherein the portion of the property of the plaintiffs said to have been included in the said suit. So the Writ Petitioners
come on record only in the year 2014. When they are not party to the original suit, it is rightly submitted by the Writ Petitioners that immediately
they come on record they moved the applications requesting the Court to decide the jurisdiction of the Court. Considering all these aspects of the
matter and the principles enunciated in the decision of the Hon''ble Supreme Court, I am of the opinion that the trial Court ought to have heard the
applications and disposed of the same ascertaining whether the Court has the jurisdiction to entertain the suit itself or not. If the suit itself is not
maintainable before the Civil Court, then, it will be a futile exercise and waste of time of the clients so also the Hon''ble Court in considering the suit
itself and under such circumstances, I am of the clear opinion that the Writ Petitioners have made out a case that the impugned order passed by the
trial Court postponing to consider the applications filed and observing that the applications will be considered along with the merits of the main suit
itself is illegal and not sustainable in law.
8. Hence, the Writ Petition is allowed. The order challenged in the Writ Petition passed by the trial Court is hereby set aside. The trial Court is
directed to take up the interim applications for hearing and to pass appropriate orders in accordance with law.
However, the observations made by this Court so far as merits are concerned are only for the purpose of disposal of this Writ Petition and the trial
Court has to decide the case without being influenced by the observations made by this Court.
