Karnataka High Court
Sriranga Aithal vs The Commissioner on 29 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 341 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.341 OF 2018 (DEC)
BETWEEN:
1. SRIRANGA AITHAL,
S/O LATE S.A. SUNDAR,
AGED ABOUT 53 YEARS,
R/AT SRI BHOOMIKA,
GEORGE MARTIS EXTENSION ROAD,
NEAR KADRI TEMPLE
MANGALORE-575002.
...APPELLANT
(BY SRI. SANATHKUMAR SHETTY K., ADVOCATE)
AND:
1. THE COMMISSIONER,
Digitally signed
by DEVIKA M MANGALORE CITY CORPORATION,
Location: HIGH MANGALORE-575003.
COURT OF ...RESPONDENT
KARNATAKA
(BY SRI. HARISH BHANDARY, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 R/W. RULE 1 OF
ORDER XLII OF CPC, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 01.09.2017 PASSED IN R.A.NO.17/2017, ON
THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, MANGALURU,
D.K. DISMISSING THE APPEAL AND CONFIRMING THE ORDER
DATED 01.12.2016 PASSED IN O.S.NO.1186/2014 ON THE FILE
OF THE II ADDL. CIVIL JUDGE AND JMFC, MANGALURU D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 341 of 2018
JUDGMENT
This appeal is listed for admission. Heard the learned
counsel for the appellant.
2. This second appeal is filed against the concurrent
finding of the First Appellate Court. The Trial Court comes to
the conclusion that the suit itself is not maintainable in view of
bar under Section 9 of CPC, since there is an ouster of Civil
Court jurisdiction to challenge the issuance of notice for
acquiring the land for the purpose of widening of the road. The
same is confirmed by the First Appellate Court in coming to the
conclusion that the very suit itself is not maintainable and the
same has to be challenged before the appropriate forum and not
before the Civil Court. Being aggrieved by the said concurrent
finding, the present second appeal is filed before this Court.
3. The learned counsel for the appellant would
vehemently contend that both the Courts have not applied the
correct principles of law and not appreciated the material on
record and grossly erred in dismissing the suit on the ground of
maintainability and the reasons assigned by both the Courts are
erroneous. The learned counsel contend that the suit is filed for
the relief of declaration that proposal of widening the Kadri
Smashana Road as per the notice dated 11.09.2013 as illegal,
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unlawful and null and void and no order has been passed for
acquisition of the property and only notice has been issued and
the said notice has been challenged in a suit seeking the relief of
declaration. The issuance of notice is also without any
jurisdiction. No provision is contained either under the
Karnataka Municipal Corporation Act or under the Karnataka
Town and Country Planning Act to permit the defendant to issue
such a notice. The notice therefore is without jurisdiction. The
learned counsel contend that the provision of Section 14(b) of
the Karnataka Town and Country Planning Act does not provide
for acquisition or compulsory surrender of land. It only provides
for voluntary surrender of land in lieu of acquiring benefit of
development right and if a person is not willing to surrender, the
authorities cannot form the road or widen the road without
acquisition of the property. The other relief sought is for
restraining the defendant from encroaching or interfering in any
manner with the possession of the plaint schedule property and
the plaintiff rightly approached the Civil Court to restrain the
defendant from interfering with his possession by causing notice
and when the law does not permit to issue such notice, the suit
is maintainable. The learned counsel contend that this Court
has to frame the substantial question of law as to whether the
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Courts below are justified in dismissing the suit as not
maintainable. Hence, it requires interference of this Court.
4. Having heard the learned counsel for the appellant
and also on perusal of the order of the Trial Court and the First
Appellate Court and also the nature of the suit filed before the
Trial Court, the plaintiff has sought for the relief of declaration to
declare that the proposal for widening the road and issuance of
notice is illegal, unlawful and null and void and sought for
permanent prohibitory injunction restraining the defendant from
interfering in any manner. It is not in dispute that the notice
has been issued by the defendant and the same is also for
widening of the road. The main contention of the learned
counsel for the appellant is that there is no provision for
issuance of such notice and here is a case seeking the relief of
declaration in respect of issuance of notice is concerned and
admittedly the respondent is a Commissioner of Mangalore City
Corporation and no doubt there is no any order passed for
acquiring of the land, except issuance of notice. The Trial Court
while dismissing the suit as not maintainable, framed the
preliminary issue and taken note of the contention of the
plaintiff and the defendant and also taken note of the
jurisdiction of the Civil Court under Section 9 of CPC, wherein it
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is clear that heavy burden lies on the person asserting the
ouster and vesting of jurisdiction to some other Court.
5. The Trial Court also taken note of the judgment of
the Apex Court in the case of ITI LTD. v. SIEMENS PUBLIC
COMMUNICATIONS NETWORK LTD., reported in (2002) 5
SCC 510, wherein also it is discussed with regard to Section 9
of CPC. Presumption is in favour of - exclusion of jurisdiction by
a statute can be only by express words and cannot be easily
inferred. The Trial Court also taken note of the judgment of the
Apex Court in the case of DHULABHAI v. STATE OF MADHYA
PRADESH AND ANOTHER reported in AIR 1969 SC 78,
wherein also it is held that suit in question for declaration that
provisions of law relating to assessment were ultra vires and for
refund of tax illegally collected was not barred by Section 17 of
the MB Sales Tax Act. The Trial Court also taken note of the
decisions and comes to the conclusion that the said judgments
are not applicable to the facts of the case on hand. The Trial
Court relied upon the judgment of the Delhi High Court in the
case of UNION OF INDIA AND OTHERS v. SRI ISHWAR,
wherein it is held that a suit cannot be filed against the orders
that are passed by the statutory authority under the different
statutes and this can be challenged only by means of writ
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petitions under Articles 226 and 227 of Constitution of India and
not by way of suit. Having relied upon the same, comes to the
conclusion that the suit is not maintainable.
6. The First Appellate Court on re-appreciation of the
order of the Trial Court and having taken note of the grounds,
which have been urged and the judgments which have been
relied upon by the plaintiff, in paragraph No.24 of its judgment
comes to the conclusion that those judgments are not applicable
to the facts of the case. In the case on hand, it has to be noted
that the relief is sought for declaration as against the notice
issued by the defendant, wherein notice is issued for acquiring
the land for acquisition and the same is for the purpose of
widening the road and I have already pointed out that only
notice is issued and no order has been passed. If any such
notice has been issued, the plaintiff ought to have approached
this Court by exercising the writ jurisdiction and the same has
not been done. The Court has to take note of Section 9 of CPC
which excludes and the same may be explicit or implied and
when the statutory authority has taken the decision and issued
the notice, ought to have approached this Court and the same
has not been done and only filed the civil suit. In view of bar
under Section 9 of CPC, both the Courts rightly comes to the
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conclusion that the suit is not maintainable. The very
contention of the learned counsel for the appellant is that only
under Section 14, if any surrender is made, then only the land
can be acquired. Insofar as Section 14 of the Act is concerned,
there is no dispute and here is not a case of surrender and here
is a case of taking the property for widening of road and only
notice has been issued and the same ought to have been
questioned before this Court and the same has been questioned
before the Civil Court and hence I do not find any error
committed by the Trial Court in coming to the conclusion that
the suit is not maintainable and the order passed by the First
Appellate Court concurring the judgment of the Trial Court and
no substantial question of law is made out to frame the same by
invoking Section 100 of CPC.
7. In view of the discussions made above, I pass the
following:
ORDER
The second appeal is dismissed.
Sd/-
JUDGE
MD
