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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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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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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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.
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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
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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
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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
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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
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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
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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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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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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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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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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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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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(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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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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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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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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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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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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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.
Sd/-
(SURAJ GOVINDARAJ)
JUDGE
AM
