Karnataka High Court
M/S Lake View Tourism Corporation vs Chandrakala on 26 July, 2024
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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NC: 2024:KHC:29536
CRP No. 252 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
R
BEFORE
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
CIVIL REVISION PETITION NO. 252 OF 2024 (IO)
BETWEEN:
M/S LAKE VIEW TOURISM
CORPORATION,
NO.10/1, LAKSHMINARAYANA
COMPLEX, GROUND FLOOR,
PALACE ROAD,
BANGALORE - 560 052.
REPRESENTED BY ITS
GPA HOLDER MR. ASHWIN PAI,
S./O P SATISH PAI,
HAVING OFFICE AT NO.10/1,
LAKSHMINARAYANA COMPLEX,
GROUND FLOOR,
PALACE ROAD,
BANGALORE - 52.
Digitally
signed by ...PETITIONER
PRAKASH N (BY SRI. CHANDAN K., ADVOCATE)
Location:
HIGH AND:
COURT OF
KARNATAKA 1. CHANDRAKALA
D/O NEERBHAVI KEMPANNA,
AGED ABOUT 57 YEARS,
R/AT NO.645,
2ND MAIN ROAD,
HEBBAL,
BANGALORE - 560 024.
2. S. RAGHUNATH
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NC: 2024:KHC:29536
CRP No. 252 of 2024
S/O LATE H. SHANKAR,
MAJOR, R/AT NO.306,
17TH C MAIN,
3RD BLOCK,
RAJAJI NAGAR,
BANGALORE - 560 010.
3. ABDUL RAFIQ
S/O ABDUL RAHIM SAHEB,
MAJOR, R/AT NO.2356,
IST MAIN HAL III STAGE,
BANGALORE - 560 017.
4. M.S. MAHADEVAIAH
S/O M. SHIVANNA,
MAJOR, R/AT NO.59,
KMC, VASANTH NAGAR MAIN ROAD,
BANGALORE - 560 052.
...RESPONDENTS
(BY SRI. Y HARIPRASAD., ADVOCATE FOR R1;
VIDE ORDER DATED 15.07.2024 SERVICE OF NOTICE TO
R2 TO R4 HELD SUFFICIENT)
THIS CIVIL REVISION PETITION IS FILED UNDER
SEC.115 OF CPC., AGAINST THE ORDER DATED 12.12.2023
PASSED ON IA NO.10/2019 IN OS NO.1246/2013 ON THE FILE
OF XLI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BENGALURU., REJECTING THE IA NO.10/2019 FILED UNDER
ORDER VII RULE 11(a) AND (d) OF CPC., FOR REJECTION OF
PLAINT.
********
THIS PETITION, COMING ON FOR FINAL HEARING, THIS
DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE SURAJ GOVINDARAJ
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NC: 2024:KHC:29536
CRP No. 252 of 2024
ORAL ORDER
1. The Petitioner who is Defendant No.4 in O.S.No.1246/2013 is before this Court seeking for the following reliefs:
a) To set aside the order of the In the Court Of The XLI Addl. City Civil And Session Judge At Bangalore (CCH-42), dated 12.12.2023 wherein the Trial court has dismissed the application filed by the Petitioner/ Defendant No.4 under 7 Rule 11(a) and (d) of the Code of Civil Procedure Code, 1908 produced at Document No.1. (Impugned Document).
b) To allow the application filed by the Petitioner/Defendant No. 4 under 7 Rule 11(a) and
(d) of the Code of Civil Procedure Code, 1908 produced at Document No.4 and reject the suit filed by Respondent No. 1/Plaintiff in the interest of justice and equity.
c) To pass any other order/s as deem fit by this Hon'ble Court in the interest of justice and equity.
2. Respondent No.1 had filed the suit in O.S.No.1246/2013 seeking for declaration that the alleged Agreement of Sale dated 19.04.1990, the Power of Attorney dated 19.04.1990 and the Sale Deed dated 29.04.1997 are invalid, non-est, illegal, and not binding on the Plaintiff. -4-
NC: 2024:KHC:29536 CRP No. 252 of 2024
3. In the said suit, Defendant No.4, having entered appearance, filed his written statement as also an application under Order VII Rule 11 (a) (d) of the Code of Civil Procedure Code, 1908, seeking rejection of the plaint, firstly, on the ground that the Sale Deed, which had been executed on 19.04.1990, constituted a constructed notice to all the family members, the suit having been filed in the year 2013, is barred by limitation.
4. The property had been gifted in favour of the Plaintiff post the acquisition notification, therefore, she would not derive any title. The land having been acquired, a separate suit in regard to the said land, which already stood vested in the KIADB, could not be continued.
5. The said application came to be considered and rejected by the Trial Court vide the impugned order dated 12.12.2023, holding that it was only when the Plaintiff had challenged the preliminary notification and final notification, she was put to notice about the Sale Deed executed in favour of Defendant No.4. There are serious -5- NC: 2024:KHC:29536 CRP No. 252 of 2024 allegations made as regards fraud played by Defendant No.4, and the creation of documents that require trial, the court also came to a conclusion that though the Reference Court would decide on the matter, the same is limited to only compensation, and in the present matter, there being a challenge to the title of Defendant No.4 made by the Plaintiff, the same would have to be adjudicated by a separate civil proceeding, and as such, the application came to be rejected. Challenging the same, the Petitioner is before this Court.
6. Sri. K. Chandan, learned counsel for the Petitioner, would submit that 6.1. once an acquisition is initiated, the Civil Court will not have any jurisdiction as regards any matter, even if there are any disputes of title between claimants and counterclaimants on the property. The same would have to be decided by the Reference Court, and in this regard, he relies upon the decision of the Hon'ble Apex Court in the case of The Commissioner, Bangalore Development Authority and Ors. Vs. Brijesh -6- NC: 2024:KHC:29536 CRP No. 252 of 2024 Reddy and Ors1., more particularly para 14 thereof, which is reproduced hereunder for easy reference:
"No doubt, in the case on hand, the Plaintiffs approached the civil Court with a prayer only for permanent injunction restraining the Defendant Nos. 1 and 2 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 the 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 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 of Code of Civil Procedure 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 1 (2013) 3 SCC 66 | 2013 INSC 86 -7- NC: 2024:KHC:29536 CRP No. 252 of 2024 remitting the matter to the trial Court for fresh disposal."
6.2. The submission is that any proceedings as regards the property subject matter of acquisition would have to be adjudicated by the Reference Court. The Reference Court has all the power and authority to decide all disputes between the parties, including those relating to the title of the property and also the contention of the Plaintiff that Defendant No.4 has presented a fabricated, forged and concocted document. The title could also be asserted before and this aspect decided upon by the Reference Court.
6.3. In this regard, he further placed reliance on the decision of the Hon'ble Apex Court in the case, Dhulabhai and Ors. Vs. State of Madhya Pradesh2, more particularly para 54 thereof, which is reproduced hereunder for easy reference:
"Neither of the two cases of Firm of IlluriSubayya MANU/SC/0211/1963 [1963]501TR93(SC) or Kamla Mills MANU/SC/0291/1965: [1965]571TR643(SC) cal be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows 2 AIR 1969 SC 78 | 1968 INSC 92 -8- NC: 2024:KHC:29536 CRP No. 252 of 2024
1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's 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 normally associated with actions in Civil Courts are prescribed by the said statue or not.
3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.
4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time -9- NC: 2024:KHC:29536 CRP No. 252 of 2024 prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.
5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies.
6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry.
7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply."
6.4. By relying on the judgment in the Dhulabai case, the submission is that there being a statutory bar for the Civil Court to take up any suit in relation to a property that is subject matter of acquisition, the bar would extend to a claim made by the Plaintiff as regards the title of the property. There cannot be separate proceedings before a Civil Court as regards the title, when the property is subject matter of acquisition. 6.5. Lastly, he submits that there being a Sale Deed executed in favour of the Plaintiff way back in the year 1997. The suit having been filed in the year 2013 is
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NC: 2024:KHC:29536 CRP No. 252 of 2024 barred by limitation, and in this regard, he relies upon the judgment of this Court in the case of Metropoli Overseas Limited Vs. H.S. Deekshit and Ors3., more particularly para 16.5 thereof, which is reproduced hereunder for easy reference:
"16.5. In order that registration of an instrument may operate as a notice of its contents, the following three conditions must be satisfied:
16.5.1. The instrument must be compulsorily registrable.
Thus, registration is notice only where the instrument is required to be registered compulsorily, and not where the registration is optional.
16.5.2. The registration of the document must be completed in the manner prescribed by the Indian Registration Act.
16.5.3. The instrument (or its memorandum) and the particulars regarding the transaction to which it related must be correctly entered in the registers or books maintained under the Registration Act." 6.6. By placing reliance on Metropoli's case, the submission is that there is a constructive notice of the Sale Deed, which has been registered in the year 1997, and therefore, the suit that has been filed in the year 2013 is barred by limitation. On these grounds, he submits that the Trial Court ought to have allowed 3 ILR 2022 KAR 2231 | 2021:KHC:35062
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NC: 2024:KHC:29536 CRP No. 252 of 2024 the application filed under Order VII Rule 11 (a) (d) and rejected the plaint. There would be no purpose served in the suit being proceeded before the Trial Court.
7. Sri. Y. Hariprasad, learned counsel for the Respondent, would submit that;
7.1. There is no bar for a Civil Court to proceed with a claim as regards the title of the property. The declaration of a Sale Deed being sought to be non-est, void and not binding on the Plaintiff, it is only the Civil Court which could decide the matter. 7.2. In this regard, he relies upon the decision of the Hon'ble Apex Court in the case of G.H. Grant Vs. State of Bihar4, more particularly para 7 thereof, and contends that is an option provided for the Plaintiff, who claims that a document has been fabricated, to approach the Civil Court or the Reference Court. The Plaintiff had chosen to approach the Civil Court, the 4 AIR 1966 SC 237 | 1965 INSC 87
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NC: 2024:KHC:29536 CRP No. 252 of 2024 said choice cannot be said to be bad in law, requiring the rejection of plaint.
7.3. Insofar as the Sale Deed, which has been registered in the year 1997, he submits that the Plaintiffs were not aware of it. The Sale Deed was executed by a power of attorney holder and not by the Plaintiff or any member of the family. The Sale Deed came to the knowledge of the Plaintiff only in the year 2005 when the Writ Petition challenging the acquisition notification was filed. This Court, in the said Writ Petition, has also observed that the documents would have to be examined, and as such, he submits that the suit filed by the Plaintiff thereafter is within time and cannot be said to be barred by limitation. The submission in this regard is that if these facts are taken into consideration, the aspect of limitation would become a mixed question of fact and law requiring trial, and it cannot be said that ex-facie the suit is barred by limitation.
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NC: 2024:KHC:29536 CRP No. 252 of 2024
8. Heard Sri. Chandan K., learned counsel for the Petitioner, and Sri. Y. Hariprasad., learned counsel for the Respondent, and perused the records.
9. The points that would arise for my consideration are:
1. Whether once an acquisition proceeding is initiated or completed, would there be a bar on a suit for declaration of title or cancellation of a Sale Deed, as regards the property, subject matter of acquisition, requiring the Plaintiff to approach the Reference Court even for a claim as regards title before it?
2. Whether in the present case it can be said that the suit filed is ex-facie barred by limitation requiring the exercise of power under Order VII Rule 11 (a) (d)of C.P.C?
3. What order?
10. I answer the above points as follows:
11. Answer to Point No.1: Whether once an acquisition proceeding is initiated or completed, would there be a bar on a suit for declaration of title or cancellation of a Sale Deed, as regards the property, subject matter of acquisition, requiring the Plaintiff to approach the Reference Court even for a claim as regards title before it?
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NC: 2024:KHC:29536 CRP No. 252 of 2024 11.1. It is not in dispute that the acquisition proceedings have been completed. In fact, the Plaintiff has categorically averred in the plaint as regards the preliminary notification dated 25.11.2002, and the final notification dated 11.05.2004, and the Plaintiff has challenged the said acquisition by filing a Writ petition as such the aspect of acquisition has been admitted. The challenge to the acquisition is still pending and is to be decided by the court seized of the same.
11.2. What is required to be considered by this Court is whether a separate Civil suit is maintainable or not albeit as regards the title to the property there being a dispute between two parties.
11.3. The acquisition in the present matter is under the Karnataka Industrial Area Development Act, 1966, preliminary notification has been issued under Section 28 (1) and final notification has been issued under Section 28
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NC: 2024:KHC:29536 CRP No. 252 of 2024 (4). The land post the issuance of notification under Section 28 (4) stands vested with the State in terms of Section 28 (5).
11.4. The compensation in respect thereto is required to be determined in terms of Section 29 of the Act, and the procedure to be followed in regard thereto is prescribed under Section 30 of the Act, which prescribes that the Land Acquisition Act, 1894, shall mutatis mutandis apply in respect of the inquiry and award by the Deputy Commissioner, the reference to the Court, the apportionment of compensation, and the payment of compensation in respect of lands acquired. 11.5. Section 18 of the Land Acquisition Act, 1894, reads as under:
"18. Reference to Court. - (1) Any person interested who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation,
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NC: 2024:KHC:29536 CRP No. 252 of 2024 the person to whom it is payable, or the apportionment of the compensation among the persons interested. (2) The application shall state the grounds on which objection to the award is taken:
Provided that every such application shall be made- (a) if the person making it was present or represented before the Collector at the time when he made his award, within six weeks from the date of the Collector's award; (b) in other cases, within six weeks of the receipt of the notice from the Collector under section 12, sub-section (2), or within six months from the date of the Collector's award, whichever period shall first expire."
11.6. Section 18 (1) indicates that the Reference Court can decide on an objection regarding the measurement of land, the amount of compensation, the persons to whom it is payable, or the apportionment of the compensation among the persons interested. This would necessarily indicate that the persons to whom it is payable being required to be determined by the Reference Court, requiring the Reference Court to decide on a dispute of title or the right between the
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NC: 2024:KHC:29536 CRP No. 252 of 2024 claimant and the counterclaimants as regards the land that is subject matter of acquisition. 11.7. Thus, I am unable to agree with the contention of Sri. Y. Hariprasad, learned counsel for Respondent No.1 that the Reference Court cannot decide a title dispute and the same would have to be decided in a separate civil proceeding. In fact, the decision relied upon by him in the G.H. Grant's case at para.7 would indicate that the reference made by the Hon'ble Apex Court is as regards the right to approach the Civil Court as regards the recovery of compensation from the person who has received it on the basis of title and not as regards a situation where there is a dispute as regards title/ownership. 11.8. Thus, it is only on the Reference Court proceeding having been concluded and the compensation paid, that the Reference Court becoming functus officio not being seized of the matter, that the same cannot be re-
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NC: 2024:KHC:29536 CRP No. 252 of 2024 opened, and the claimant would have to file a suit establishing his title and seek for recovery of compensation from the person who has received the compensation.
11.9. That decision would not apply in the present case, since the reference has not been made under Section 18 of the Land Acquisition Act, 1894, on account of the present suit filed by the Plaintiff, being still pending, as also the writ petition being pending.
11.10. On inquiry both counsels submit that there is no award which is passed and there are Writ Petitions and Writ Appeals challenging the acquisition, which, are pending. If that be so, until those proceedings are disposed, since there is an order of stay therein, no further proceedings can be taken up.
11.11. If the challenge to the acquisition is dismissed, the Special Land Acquisition Officer will be required to determine the compensation
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NC: 2024:KHC:29536 CRP No. 252 of 2024 required to be paid. The Plaintiff would always be at liberty to place the claim before the Special Land Acquisition officer for consideration, and it is for the Special Land Acquisition Officer to consider a claim and counterclaim as regards the title and exercise powers to refer the matter to the Reference Court as provided under the Land Acquisition Act.
11.12. In the event of the challenge to the acquisition being successful, the acquisition being quashed, neither the SLAO nor the reference court will have any jurisdiction in the matter, the Plaintiff would then have to file a suit against the Defendants seeking for the relief/s as sought for now, hence such liberty is reserved to the Plaintiff.
11.13. In that view of the matter, I am of the considered opinion that the proceeding before the Trial Court in O.S.No.1246/2013 cannot continue. Any right, title and interest that the
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NC: 2024:KHC:29536 CRP No. 252 of 2024 Plaintiff asserts against Defendant No.4 would have to be asserted in a reference proceeding under Section 18 of the Land Acquisition Act, 1894. As such, the suit cannot continue requiring the exercise of power under Order VII Rule 11 (a)(d) of C.P.C, directing the rejection of the plaint.
12. Answer to Point No.2: Whether in the present case it can be said that the suit filed is ex-facie barred by limitation requiring the exercise of power under Order VII Rule 11 (a) (d)of C.P.C?
12.1. Insofar as the aspect of limitation, which has been raised by learned counsel for the Petitioner, I am of the considered opinion that the Sale Deed not having been executed by any of the family members but by a Power of Attorney and the Plaintiff contending that it came to the knowledge of Plaintiff only when the Writ Petition was filed and the names of the original owners being reflected in the preliminary notification and final notification, no steps having been taken by Defendant No.4 to bring its name on record in all the revenue
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NC: 2024:KHC:29536 CRP No. 252 of 2024 records, the same cannot constitute constructive notice in terms of Section 3 of the Transfer of Property Act, as held by this Court in the case of Metropoli's at para 6.5.
13. In that view of the matter, I pass the following:
ORDER i. The Civil Revision Petition is allowed;
ii. The order dated 12.12.2023 passed by the XLI Additional City Civil and Sessions Judge at Bangalore in O.S No.1246/2013 is quashed. Consequently, Application under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure is allowed, the plaint in O.S.No.1246/2013 is rejected, subject to the liberty above reserved in the event of the challenge to the acquisition being successful.
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(SURAJ GOVINDARAJ) JUDGE AM List No.: 1 Sl No.: 43