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1994 DIGILAW 473 (ALL)

Rakesh Gupta v. Moradabad Development Authority

1994-07-22

R.R.K.TRIVEDI

body1994
JUDGMENT : R.R.K. Trivedi, J. This appeal is from order dated 13.5.1994, passed by learned Civil Judge, Moradabad in Original Suit No. 748 of 1994 by which the application of the Appellants for grant of temporary injunction has been rejected. 2. Facts, in brief, giving rise to the dispute are that plot No. 499 area 0.101 hectare was purchased by the Appellants from one Ganga Ram, son of Kallu. Mutation in the names of the Appellants was granted on 4.1.1993. However, the land in dispute was already notified u/s 4(1) of the Land Acquisition Act (hereinafter referred to as the Act) along with other plots on 22.3.1990 for purpose of acquisition for Moradabad Development Authority. Objections u/s 9 of the Act were invited and thereafter notification u/s 6(1) of the Act was published in official gazette on 10.6.1991. It was also published in newspapers on 1.7.1991 and 2.7.1991 and thereafter public notice was given on 19.9.1991. The award has been given by the Land Acquisition Officer on 18.9.1993. The Appellants filed suit No. 748 of 1994 in May, 1994 for the relief of permanent injunction against the Defendant not to interfere in possession of the Plaintiffs-Appellants over the land in dispute. Relief has also been claimed in the alternative that if any construction is found on the land in dispute, same may be demolished. Along with this suit an application under Order 39, Rule 1, CPC was also filed supported by an affidavit wherein it was prayed that Defendant may be restrained from taking possession of the land in dispute or from plotting or making any construction over the same during the pendency of the suit. It was claimed by the Plaintiffs that they are still in possession of the land in dispute and as the award has not been given within two years from the date of the notification u/s 6(1) of the Act, the entire proceedings have lapsed and the Defendant has no authority to occupy the land or to raise any construction over the same. 3. The application of the Appellants for temporary injunction was resisted by the Defendant Respondent by filing an objection wherein it was stated that the land in dispute had already vested in the State u/s 17(2) of the Act and in the circumstances the provisions of Section 11A of the Act are not attracted. 3. The application of the Appellants for temporary injunction was resisted by the Defendant Respondent by filing an objection wherein it was stated that the land in dispute had already vested in the State u/s 17(2) of the Act and in the circumstances the provisions of Section 11A of the Act are not attracted. It was also stated that the mutation in favour of the Appellants is wholly void and illegal as the land had already vested in the State Government and the Defendant-Respondent has been put in possession on 15.9.1993. Possession of the Plaintiffs-Appellants was denied. The learned Civil Judge after hearing the parties has rejected the application vide order dated 13.5.1994, aggrieved by which the present appeal has been filed. 4. Learned Counsel for the Appellants has submitted that the date 19.9.1991 has been wrongly shown as the date for public notice u/s 6(1) of the Act. Their case was that notice was given on 20.6.1991 and as the award has not been given within two years, the proceedings have lapsed. It has also been submitted that the provisions of Section 17 of the Act could not be applied to the present case and the learned Civil Judge has illegally rejected the application on the basis of the provisions of Section 17. Learned Counsel for the Appellants has submitted that in the facts and circumstances of the case Plaintiffs were entitled for an interim injunction which has been wrongly refused. Reliance has been placed in case of Durg Transport Co. Private Ltd. Vs. Regional Transport Authority and Others, AIR 1965 MP 142 and case of Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others, (1983) 4 SCC 31 . 5. I have considered the submission of learned Counsel for the Appellants, perused the material on record and the cases relied on by the learned Counsel. A copy of the award has been filed as Annexure 1 to the affidavit, which clearly mentions that the public notice u/s 6(1) of the Act was given on 19.9.1991. As this was the last date, the award could be given within two years from this date which has been admittedly given on 18.9.1993. Defendant-Respondent filed a copy of this notice u/s 6(1) of the Act which was published on 19.9.1991 which is mentioned as Paper No. 7C-1. Parties, however, are at dispute about the date of this notice. As this was the last date, the award could be given within two years from this date which has been admittedly given on 18.9.1993. Defendant-Respondent filed a copy of this notice u/s 6(1) of the Act which was published on 19.9.1991 which is mentioned as Paper No. 7C-1. Parties, however, are at dispute about the date of this notice. The learned Civil Judge on the basis of the material on record has correctly taken the view that the Appellants at present have no prima facie case for grant of temporary injunction. From the record it is also proved that possession has been delivered to Defendant Respondent by the State and it has developed the land acquired and has made roads and constructions. in para 6 of the plaint it has been admitted that the roads and buildings were constructed over the land acquired in the year 1992 in view of this it is clear that possession was taken much before the award was given and the land had vested in the State. The Appellants purchased the land during pendency of the proceedings of the land acquisition. in the circumstances, there could be no Justification to grant any temporary injunction in their favour. The balance of convenience is also not in favour of the Appellants as Defendant Respondent has already started the construction work over the land acquired. The suit has been filed after about 8 months of the award. From the award it is also clear that no objection was filed u/s 9 of the Act by the Appellants or by their transferors. There is also no question of any irreparable injury to the Appellants as for the land acquired compensation will be paid in accordance with law in my opinion, the learned court below has rightly refused to grant injunction. The order does not suffer from any illegality. The cases relied on by the learned Counsel for the Appellants are clearly distinguishable on facts. in the case reported in Gangubai Bablya Chaudhary and Others Vs. Sitaram Bhalchandra Sukhtankar and Others,(supra), both Plaintiff and Defendant were found to be in possession of the disputed land and in the circumstances, the Hon'ble Court observed that injunction should have been granted, as the damage caused might become irreversible by the time the dispute is decided if injunction is not granted. Facts of the present case are different. Sitaram Bhalchandra Sukhtankar and Others,(supra), both Plaintiff and Defendant were found to be in possession of the disputed land and in the circumstances, the Hon'ble Court observed that injunction should have been granted, as the damage caused might become irreversible by the time the dispute is decided if injunction is not granted. Facts of the present case are different. Possession has been taken by the State in land acquisition proceedings and thereafter it has been delivered to Defendant Respondent who has admittedly started construction work. The Plaintiffs Appellants have not been found in possession and the injunction was thus not at all necessary. in the case reported in Durg Transport Co. Private Ltd. Vs. Regional Transport Authority and Others, (supra), also the facts were different. The interim order in question before the Court was granted by the Transport Tribunal. The principle stated in the judgment of the Division Bench cannot be disputed. However, it has to be seen in every case as to which status of the property has to be preserved. in the facts of the present case if status quo is directed, the consequence shall be to nullify the entire action taken under the land acquisition proceedings in which possession has been taken and award has been given. From the material on record it has been found that the Plaintiffs have no prima facie case and in such facts and circumstances even the order of status quo could not be granted. The learned Civil Judge has correctly taken the view that the Plaintiffs are not entitled for any injunction. 6. For the reasons stated above, this appeal has no force and is accordingly dismissed under Order LXI Rule 11, Code of Civil Procedure.