Kai. Sahakar Maharshi Dagaji Ajba ... vs Shetkari Sahakari Sangh Limited & ...
2010 Latest Caselaw 205 Bom

                                              1                              AO 856/10

    abs
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                               
                            CIVIL APPELLATE JURISDICTION
                         APPEAL FROM ORDER NO. 856 OF 2010




                                                       
          Kai. Sahakar Maharshi Dagaji Ajba Patil Charitable
          Trust & Ors.                                   .. Appellants




                                                      
                   V/s
          Shetkari Sahakari Sangh Limited & Ors.                .. Respondents




                                             
          Mr. M.M. Sathaye for the appelants.
                                 
          Mr. P.N. Joshi for respondent no.1.
                                
                                           CORAM : D.G. KARNIK, J.

                                           DATE     : 26TH NOVEMBER 2010
                 


          P.C. :
              



          1.       Heard.

          2.       Admit.

3. Mr. Joshi waives service for the respondent no.1. Issuance

of notice to respondent nos.2 to 6, who are formal parties, is

dispensed with.

4. By consent, taken up for hearing forthwith.

5. The appeal is directed against an order of injunction dated

17th January 2009 passed by the learned Civil Judge, Senior

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Division, Malegaon.

6. By a registered sale deed dated 8th September 1994, the

appellant no.1 (a public charitable trust) purchased the suit

property from the respondent no.1. Proceedings for acquisition

of the suit property were commenced and the acquiring body

has also deposited in advance the estimated amount of

compensation with the land acquisition officer. It is however not

clear whether the award has yet been passed or not.

ig In the

meanwhile, the respondent no.1 filed a suit, bearing Special

Civil Suit No. 117 of 2007, for a declaration that the sale deed

dated 8th September 1994 was without consideration and

ineffective and the respondent no.1 be declared to be the owner

and entitled to the amount of compensation for acquisition of the

suit property. In the said suit, the respondent no.1 made an

application for an interim injunction restraining the appellants

from receiving the amount of compensation and restraining the

respondent no.2 (special land acquisition officer) from

distributing the amount of compensation to the appellants. By

the impugned order dated 17th January 2009, the trial court

allowed the application and restrained the special land

acquisition officer as well as the State of Maharashtra from

paying the amount of compensation to the appellants and also

3 AO 856/10

restrained the appellants from receiving the same.

7. Learned counsel for the appellants submitted that the

respondent no.1 had not made out a prima facie case for grant

of an injunction which was a condition precedent for grant of

injunction. Consequently, the relief of injunction ought not to

have been granted.

8. The suit has been filed on 23rd October 2007 for a

declaration that the sale deed dated 8th September 1994 was

ineffective, without consideration and void. The suit has been

filed 12 years after the execution of the sale deed and prima

facie it is barred by limitation. In my view, therefore, the

respondent no.1 has not made out a prima facie case for grant of

injunction.

9. There are three more hurdles in the way of the respondent

no.1. Firstly, the appellant no.1 is a public charitable trust. The

suit has been filed without obtaining permission of the Charity

Commissioner. Secondly, the State of Maharashtra is a party

defendant and the suit has been filed even without notice under

section 80 of the Code of Civil Procedure and there is not even

an averment in the plaint of having issued the notice under

4 AO 856/10

section 80 of the C.P.C. before filing of the suit. Thirdly, the

respondent no.1 has claimed that he is entitled to receive a sum

of Rs.35,00,000/- being the amount of compensation. If there is

any dispute regarding ownership of the land and consequently

regarding the person who is entitled to receive the amount of

compensation for acquisition of the suit property, the

appropriate remedy for the respondent no.1 was to make an

application under section 30 of the Land Acquisition Act. In

State of Bihar v. Dhirendra Kumar, AIR 1995 SC 1955, the

Supreme Court has held that the Land Acquisition Act is a

complete code in itself. As such the remedy of the respondent

no.1 for claiming the compensation or a share in the

compensation was under section 30 of the Land Acquisition Act.

Assuming that the suit regarding the declaration or cancellation

of a sale deed as void was maintainable, certainly no suit could

have been filed for an injunction restraining the land acquisition

officer from paying the amount of compensation as for that

purpose the appropriate remedy was section 30 of the Land

Acquisition Act. I am satisfied that the respondent no.1 has not

made out a prima facie case for grant of injunction.

Consequently, the order of injunction is required to be vacated.

10. For these reasons, the appeal is allowed, the impugned

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order is set aside and the injunction granted by the trial court is

vacated.

(D.G. KARNIK, J.)