Dismissed

M/S. Madhu Fantasy Land P. Ltd. and Anr. v. the State of Mah. and Ors.

Bombay HC1 Apr 2013S/3385/1987

Case brief

AI extract

What is this about?

The court determined a preliminary issue regarding the bar of civil court jurisdiction under the Land Acquisition Act, 1894 (LAA). Relying on precedent that the LAA is a complete code, the court held that civil court jurisdiction is impliedly barred against challenges to the LAA's award, notification, or declaration. The suit was dismissed.

What did the court decide?

Suit stands dismissed as the civil court's jurisdiction to try the matter is barred.

M/S. Madhu Fantasy Land P. Ltd. and Anr. Vs the State of… — Land Acquisition | Bombay HC (2013)

S.3385/1987(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION CIVIL APPELLATE JURISDICTION

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SUIT NO. 3385 OF 1987

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Madhu Fantasy Land Pvt. Ltd. & Anr. Vs. The State of Maharashtra & Ors.

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...Plaintiffs

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...Defendants

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Mr. Kishore Jain a/w. Ms. Nisha Parmar, Ms. Divya Jain, Ms. Abha Gupta i/b. Rajeeta Matkar for Plaintiffs Mr. P.G. Lad, AGP for Defendant MHADA

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CORAM : MRS. ROSHAN DALVI, J. DATED : 1^ST APRIL, 2013

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P.C. :

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The preliminary issue relating to the bar of jurisdiction created under the Land Acquisition Act, 1894(LAA) is required to be determined. The issue has been framed as follows:

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Whether this Court has inherent jurisdiction to try this suit or whether it is barred under the provisions of the Land Acquisition Act, 1894.

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The issue has to be determined as a question of law. Mr. Lad on behalf of the defendants drew the Court's attention to the judgment in the case of Balaur Singh & Ors. Vs. State of Punjab and Ors. 1995 AIR SC 1956 which specifically holds that under Section 9 of the CPC the Civil Court's jurisdiction is barred in respect of the challenge to the validity of any notification under

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S.3385/1987(1)

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Section 4 and declaration under Section 6 made under the LAA. It is observed in para 2A of the judgment that upon publication of the notification and declaration under Section 6 of the LAA the public purpose gets crystalised and becomes conclusive after which notice under Section 9 of the LAA has to be issued to the parties and upon undertaking inquiry, award has to be passed and possession of the land sought to be acquired is to be taken. The State is also entitled to authorise the Land Acquisition Officer (LAO) to proceed with acquisition subject to limitation prescribed under Section 11A of the Act and to take possession of the land by exercising the power under Section 17(4) of the LAA in case of emergency.

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It is, therefore, observed in the said para that the LAA is a complete code in itself and is meant to serve public purpose and consequently the Civil Courts' jurisdiction under Section 9 stands excluded. This is the implied exclusion of jurisdiction upon the provisions of the LAA. Therefore, the Civil Court has no jurisdiction to go into the question of the validity or legality of such notification and a civil suit in that behalf is not maintainable.

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This suit challenges the award dated 3^rd August, 1984 made under Section 11 of the LAA pursuant to notification issued under Section 4, the declaration made under Section 6 of the Act and the notice issued under Section 12(2) of the LAA. The suit is for setting aside the said award and the notifications.

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S.3385/1987(1)

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Mr. Jain on behalf of the plaintiffs drew the Court's attention to the Supreme Court Judgment in the case of Sardara Singh (Dead) by Lrs. & Anr. Vs. Sardara Singh (Dead) & Ors. (1990)4 SCC 90 in which it has been held that the Civil Courts' jurisdiction would not be ousted where action is taken without jurisdiction under any Act. In that case the action taken under Section 158(2) (xiv) and (xv) of the Punjab Land Revenue Code, 1887 came to be challenged. The Court raised 3 issues including the issue of jurisdiction under the aforesaid section. The Supreme Court considered that when possession was sought to be protected by the plaintiffs against the wanton authority of the State which was claimed to have acted without jurisdiction, the Civil Court's jurisdiction would not get barred. The aforesaid sub-sections run thus:

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“158(2): A Civil Court shall not exercise jurisdiction over any of the following matters namely:

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(xiv) any claim connected with, or arising out of, the collection by the government, or the enforcement by the government of any process for the recovery of land revenue, or any sum recoverable as an arrear of land revenue;

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(xv) any claim to set aside, on any ground other than fraud, a sale for the recovery of an arrear of land revenue or any sum recoverable as an arrear of land revenue .”

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A fraud in any matter was specifically excepted under clause (xv). This is specifically because fraud will have to be proved by leading evidence which can be done only in a Civil Court.

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S.3385/1987(1)

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Consequently upon such a challenge when the land owner sought to protect his possession which was threatened, he could sue in the Civil Court.

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In this case the plaintiffs' possession was not threatened. Lawful action was sought to be taken by lawful authority. The Plaintiffs, therefore, did not sue for protection of their possession. The suit is, therefore, only for the aforesaid declaration and for setting aside the aforesaid actions under the LAA.

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My attention is drawn to the averments in paragraphs 22 and 25 of the plaint where the plaintiffs have stated that the defendants may take possession of their land consequent upon the procedure having been filed for acquisition of their land under LAA and hence plaintiffs applied and prayed for a temporary injunction pending the suit against taking possession. This does not make it a suit for protection of the plaintiffs' possession. No fraud is alleged. The statutory action is challenged. The challenge is that it is not under LAA, but lies under the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) which is a complete code in itself upon the development plan being notified, sanctioned and finalised. For that declaration the plaintiffs challenge the action under the LAA. For the challenge to that action the Civil Court's jurisdiction must be taken to be impliedly barred under the LAA as held in the judgment in the case of Balaur Singh(supra) .

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S.3385/1987(1)

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It is argued on behalf of the plaintiffs that it has been held in the case of Girnar Traders Vs. State of Maharashtra & Ors. (2011)3 SCC 1 and in the case of Jayesh Dhanesh Goragandhi Vs. Municipal Corporation of Greater Mumbai & Ors. 2012(11) SCALE 645 that the procedure under the MRTP Act would have to be followed and not under the LAA. That would be the only contention which has been agitated by the plaintiffs. That contention relates to the lack of jurisdiction under the LAA and would have to be taken challenging the action under the LAA by the plaintiff in a writ petition as held in the case of Balaur Singh (supra) .

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The Civil Courts' jurisdiction is, therefore, seen to be impliedly barred. Hence the aforesaid issue is answered holding that its jurisdiction is barred.

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Consequently the Suit stands dismissed.

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(ROSHAN DALVI, J.)

M/S. Madhu Fantasy Land P. Ltd. and Anr. v. the State of Mah. and Ors.

Case brief

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M/S. Madhu Fantasy Land P. Ltd. and Anr. v. the State of Mah. and Ors.

Case brief

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