Gujarat High Court
Sarosh Sam Bhakka (Bhacca) vs Surat Municipal Corporation on 1 September, 2025
NEUTRAL CITATION
C/SA/74/2025 ORDER DATED: 01/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 74 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2024
In
R/SECOND APPEAL NO. 74 of 2025
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SAROSH SAM BHAKKA (BHACCA)
Versus
SURAT MUNICIPAL CORPORATION & ORS.
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Appearance:
MR R H BHARDWAJ(13628) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 01/09/2025
ORAL ORDER
1. The present Second Appeal under Section 100 of the Code of Civil Procedure has been filed challenging the judgment and decree passed in Regular Civil Appeal No.113 of 2012, whereby the 9th Additional District Judge, Surat dismissed the appeal by an order dated 05.09.2024 confirming the judgment and decree passed by 2nd Additional Senior Civil Judge, Surat in Regular Civil Suit No.1173 of 1995, dated 30.12.2011.
2. For the sake of brevity the parties are referred to as per their original status as that in the suit.
3. The brief facts arising in the present Second Appeal are that in view of the fact that the defendant has started procedure for acquisition of the suit property and had issued notice for the said properties under the provisions of Section 9 of the Land Acquisition Act on 22.09.1995, the plaintiff filed suit that the Page 1 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined said acquisition by the defendants is in the malafide intention in view of the fact that in the earlier round of litigation i.e. in Civil Suit No.126 of 1976 the trial Court had held that the acquisition proceedings of the suit property are illegal, void and defective and restrained the defendant from taking possession of the suit property except by due process of law and the said order was challenged by the defendants. The said judgment and decree passed in Regular Civil Suit No.126 of 1976 was challenged by the State in Regular Civil Appeal No.195 of 1981 and after reappreciating the evidence the said appeal was dismissed on 23.02.1982 and thereafter the defendants issued a fresh notification on 05.02.1981 and the said notification was under
challenge by way of Civil Suit No.1173 of 1995, in view of the fact that pursuant to the said notification the defendants started procedure for acquisition of the said land and defendant had issued notice for the said purpose under the provision of section 9 of the Land Acquisition Act on 22.09.1995, and therefore, the plaintiff filed the Civil Suit No.1173 of 1995 and in the said suit the plaintiff examined himself vide Exhibit-148. The defendant's officer was examined vide Exhibit-182 and the trial Court framed the issues vide Exhibit-128 at page No.69 as under:-
(i) Whether plaintiff proves the details of the application?Page 2 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025
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(ii) Whether defendant proves the facts of claim application?
(iii) Whether the defendant prove that the plaintiff is not entitled to the relief sought in the claim?
(iv) Whether the plaintiff entitled to the damages or to a declaration and a permanent injunction as per the order?
(v) What order and decree?
4. And after considering the oral evidence and documentary evidence and given findings on all the issues the trial Court dismissed the said suit. Aggrieved by the said judgment and decree, the plaintiff filed First Appeal No.113 of 2012 and after reappreciating the evidence the first appellate Court dismissed the said appeal. Aggrieved by the same, the present Second Appeal has been filed.
5. The learned advocate for the plaintiff has mainly argued that the process for acquisition of the suit property is a malafide act on the part of the defendant with respect to suit property bearing ward No.12 Nondh No.857 admeasuring 334/12/43 and ward No.12 Nondh No.858 admeasuring 149-667259 in Surat, in view of the fact that in the earlier round of litigation, i.e. Regular Civil Suit No.126 of 1976, when notice under section 4 and 9 of the Land Acquisition Act for instituting for above referred properties, the plaintiff had raised contention that earlier Page 3 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined the defendant had decided to acquire the property vide Nondh No.1071 to 1073 and 1080 etc. for the purpose of construction of school in the said area, but thereafter, the said decision was not carried forward and the defendants had decided to acquire the above referred suit property i.e. Nondh No.857 & 858, that belongs to the plaintiff and the said decision is only with malafide intention to acquire the suit property of the plaintiffs. Moreover, in the said suit, the trial Court had already come to a finding that the acquisition proceedings are null and void for the suit property and that the acquisition proceedings for the suit property are malafide and illegal and arbitrary, the trial Court held that the acquisition proceedings of the suit land bearing ward No.12 Nondh No.857 & 858 are illegal void and permanently restrained the defendants from taking possession of the aforestated both the suit land, except by due process of law.
6. Moreover, even the said judgment and decree passed by the trial Court in Civil Suit No.126 of 1976, was challenged by the defendant by filing Regular Civil Appeal No.195 of 1981 and the same was dismissed on 23.02.1982 and it has been argued by the learned advocate for the plaintiff that even before the filing of the Second Appeal, the defendant had issued notification of acquiring the suit property i.e. Nondh No.856 and 859 and if the said notification dated 05.02.1981 is perused, the Page 4 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined said resolution No.1550, clearly states that earlier the above referred property could not be acquired and if the said decision was taken on 31.01.1981, there was no reason for the defendants to file an appeal challenging the said acquisition under Section 4 and 9 of the Land Acquisition Act dated 27.12.1973, and therefore, it can be clearly established that defendant with the malafide intention have, issued notification under the provisions of section 9 of Land Acquisition Act dated 22.09.1995. Moreover, it has been argued that the purpose of acquisition of property being same in both acquisition proceedings and in Civil Appeal No.126 of 1976 when the Court had already decided the same, the defendant could not have issued fresh notification of acquiring the property, under the principle of res judicata under section 11 of Code of Civil Procedure and the defendant could not have issued fresh notice under section 9 of Land Acquisition Act. With respect to the conduct that no notice has been issued to the defendant under the provision of section 80 of Code of Civil Procedure and section 487 of the Bombay Provincial Municipal Corporation Act, the learned advocate for the plaintiff has argued that the said notice has been issued and the trial Court and appellate Court have not taken into consideration the said fact that a notice dated 09.10.1995 was issued, and therefore, it has been argued that present Second Appeal requires to be admitted on the following substantial question of Page 5 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined law:-
1) Whether both the lower Courts have committed error oflawin not holding that once the public purpose for constructing school on the suit properties is held to be unfit in earlier suit on the same subject matter, then the action of the respondens of initiating proceedings to again acquire suit properties for same public purpose of constructing school amountsto colorable exercise of power and therefore civil suit is maintainable?
2) Whether both the lower Courts have ered in deciding the issue ua acquisition of suit properties for public purpose for constructing school though the same is already concluded vide judgment dated 30.03.1981 in Regular Civil Suit No.126 of 1976 and confirmed by judgment dated 23.02.1982 in Regular Civil Appeal No.195 of 1981?
3) Whether both the Courts below have materially erred in not appreciating the fact the cause of action, the purpose of acquisition, properties purported to be acqired and, the parties being same, the acquisition proceedings again undertaken by the respondents were hit by res-judicata?
4) Whetherboth the lower Courts have committed error of law in not holding that as the respondents failed to give mandatory notice under section 9 of the Land Acquisition Act, 1894 to the co-owner of suit properites, the acquisition proceedings were vitiated and therefore civil suit is maintainable?
5) Whether both the lower Courts have committed error of law in not appreciating the entire act of the respondents and holding that the same is malafide and Page 6 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined hence the civil suit challenging said action is maintainable?
6) Whether both the lower Courts have materially erred in not appreciating the fact that the cause of action, the purpose of acuisition, properties purported to be acquired and, the parties being same in both the acquisittion proceedings and both the suits, the principles of res-judicata under section 11 of the Civil Procedure Code are attracted?
7) Whether both the Courts below have materially erred in not properly appreciating and evaluating the evidence on record of the case and have arrived at perverse findings which has adversely affected the rights of the appellant/plaintiff in the suit properties?
7. Having heard learned advocate for the plaintiff and considered the judgment and decree passed by the trial Court and confirmed by the first appellate Court. The fact remains that the following facts will have to be taken for the consideration:-
(i) In earlier round of litigation i.e. Civil Suit No.126 of 1976, it was the case of the plaintiff that in view of the fact that earlier the defendant had decided to acquire the property bearing Nondh No.1071 to 1073 and 1080 for the purpose of construction of a school and thereafter the defendant could not have sought for acquisition of the suit property vide Nondh No.857 and 858 and notice under Section 4 & 9 of the Land Page 7 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined Acquisition Act, dated 27.12.1973, could not have been issued and the fact remains that the trial Court while deciding the Regular Civil Suit No.126 of 1976 has clearly held that when earlier the defendants had tried to acquire Nondh No.1076, therefore, they could not have tried to acquire Nondh No.857 and therefore, the plaintiff had succeeded in the said suit only on the ground that earlier the defendant had tried to acquire Nondh No.1071 to 1073 and 1080.
(ii) Moreover, at the time when Civil Suit No.126 of 1976 was decided the brother of the plaintiff was also holding the suit property and as no notice was served under section 4 and 9 of the Land Acquisition Act to the brother the trial Court held that as no notice was served to the brother of the plaintiff he was the owner of the suit property at that point of time. The defendant could not had acquired the suit property, and therefore, the said judgment and decree passed on 12.06.1976 has been confirmed in Regular Civil Appeal No.195 of 1981.
8. The fact remains that a new notification has been issued whereby the property i.e. Nondh No.856 and 859, which belong to the plaintiff has been acquired under the povision of Land Acquisition Act and notice under Section 9 of the Land Acquition Act has been issued to the plaintiff. The fact also Page 8 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined remains that at the time of filing the Regular Civil Suit No.1173 of 1995, the plaintiff alone was the exclusive onwer of the suit property in view of the fact that by way of will, the suit property had come in the hands of the plaintiff, and therefore, the question of issuing a notice to any other person other than the plaintiff for acquiring the land did not arise.
9. The next question that will have to be considered as under
the provisions of section 487 of the Bombay Provincial Municipal Corporation Act which reads as under:-
"487. Protection of persons acting under this Act against suits. -
(1) No suit shall be instituted against the Corporation or against the Commissioner, or the Transport Manager, or against any municipal officer or servant, in respect of any act done or purported to be done in pursuance or execution or intended execution of this Act or in respect of any alleged neglect or default in the execution of this Act:-
(a)until the expiration of one month next after notice in writing has been, in the case of the Corporation, left at the chief municipal office and, in the case of the Commissioner or of the Transport Manager or of a municipal officer or servant delivered to him or left at his office or place of abode, stating with reasonable particularity the cause of action and the name and place of abode of the intending plaintiff and of his attorney, advocate, pleader or agent, if any for the purpose of such suit, for
(b)unless it commenced within six months next after the accrual of the cause of action.
(2)At the trial of any such suit-Page 9 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025
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(a)the plaintiff shall not be permitted to go into evidence of any cause of action except such as is set forth in the notice delivered or left by him as aforesaid:
(b)the claim, if it be for damages, shall be dismissed if tender of sufficient amends shall have been made before the suit was instituted or if, after the institution of the suit, a sufficient sum of money is paid into Court with costs.
(3)Where the defendant in any such suit is a municipal officer or servant, payment of the sum or of any part of any sum payable by him in, or in consequence of the suit, whether in respect of costs, charges, expenses, compensation for damages or otherwise, may be made, with the previous sanction of the Standing Committee or the Transport Committee from the Municipal Fund or the Transport Fund, as the case may be."
10. Though a contention that has been raised i.e. the notice under section 487 of the Bombay Provincial Municipal Corporation Act was issued to the defendants before filing the suit and the learned advocate for the plaintiff has tried to refer the notice dated 09.10.2025 to suggests that the said notice has been issued under Section 487 of the Bombay Provincial Municipal Corporation Act and section 80 of the Code of Civil Procedure, but if on perusal of the judgment and decree of the trial Court and the appellate Court, the said notice has not been exhibited, when this Court inquired with the learned advocate for the plaintiffs that, by which exhibit the said notice has been produced and referred, he was not able to assist this Court with respect to the fact that the said notice has been proved. Though Page 10 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined the learned advocate for the plaintiff has referred to the written statement and the plaint to suggest that the said notice has been referred in pleading, but the fact remains that neither the said notice is proved by the plaintiff nor there is any evidence coming forward to show that the said notice was ever served on the defendant. In view of the same, notice dated 22.09.1995, which has been issued by the defendants is pursuant to the provision of Land Acquisition Act, and therefore, no suit can be filed against the defendants, in view that notice which has been issued is done in pursuance of the provision of law and until expiration of one month next after the notice in writing has been given to the defendant No.1, the plaintiff could not have filed suit.
11. With respect to the suit that has been filed against the defendant No.2 and 3, the fact remains that there is nothing on record to show that the notice under section 80 of Code of Civil Procedure has been issued to defendant No.2 and 3.
12. Moreover, the acquisition by the defendant by way of issuing a notice dated 22.09.1995, cannot be considered as a constructive res judicata in view of the fact that the acquisition under challenge is the separate procedure after compliance of the provision of Land Acquisition Act. Moreover, even as per Page 11 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined the judgment and decree passed in Civil Suit No.126 of 1976 there is no complete bar on the defendant to acquire the possession of the suit property in view of the fact that the trial Court has also held that the defendant shall be entitled to take possession of the suit property by due process of law, and therefore, the process that has been done by the defendants are as per the provisions of Land Acquisition Act.
13. In view of the same, there are no substantial questions involved in the present Second Appeal.
14. In the case of Jaichand (Dead) through Lrs and Other v. Sahnulal and Another reported in 2024 SCC OnLine SC 3864, the Hon'ble Apex Court has observed as under:-
"28. It is thus clear that under Section 100 CPC, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence."
15. Considering the submissions made and after examining the findings of both the Courts below on the issue raised in the suit and upon examining the judgment and orders of both the Courts below, this Court is of the considered opinion that the learned advocate for the plaintiffs is unable to point out any infirmity, Page 12 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025 NEUTRAL CITATION C/SA/74/2025 ORDER DATED: 01/09/2025 undefined perversity or impropriety in the concurrent findings of the fact recorded by both the Courts below, not only that, the learned advocate for the plaintiffs is unable to show that the findings recorded by the learned Courts are without any evidence or there is any illegality in the findings.
16. Under the circumstances, this Second Appeal is devoid of any substantial questions of law. Both the learned Trial Court and first appellate Court have rightly decided the issue between the parties in the right perspective and as stated above no substantial questions of law arises in the present appeal. The appellant has failed to prove his case before the learned trial Court as well as before the first appellate Court. This Court does not find any substance in the present Second Appeal as the same is devoid of any merit both on facts and law and the same is dismissed at admission stage.
17. In view of the order passed in main matter, Civil Application does not survive and stands disposed of accordingly.
(SANJEEV J.THAKER,J) Manoj Kumar Rai Page 13 of 13 Uploaded by MANOJ KR. RAI(HC01072) on Mon Sep 01 2025 Downloaded on : Mon Sep 01 23:11:27 IST 2025