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2005 DIGILAW 591 (MP)

Dev Kunwar Ben Shah v. State of M. P.

2005-05-06

P.K.JAISWAL, S.S.JHA

body2005
JUDGMENT Jha, J.--1. This appeal is filed by the plaintiff against dismissal of her suit by the trial Court. 2. Facts of the case are that plaintiff filed a civil suit for declaration and mandatory injunction. Plaintiff claimed that the defendant State wanted to establish Krishi Upaj Mandi at village Mirjapur for which notification was issued for acquisition of 20.216 hectare of land. In the said notification, Khasra No. 30 having total area of 4.620 hectare was also included. Out of the said land, plaintiff is the owner of 2.530 hectare. Preliminary notification under section 4 of the Land Acquisition Act (hereinafter, referred to as the "Act") was issued on 15.12.1995 and final notification under section 6 of the Act was issued on 10.5.1996. Plaintiff pleaded that under section 11A of the Act, compensation was required to be determined within two years from the date of publication of declaration under section 6 of the Act. Plaintiff claimed that it is mandatory to pass award within two years and on failure to pass award within two years, acquisition proceedings will lapse which will mean that entire proceedings initiated under sections 4 and 6 of the Act had lapsed and fresh acquisition under section 6 of the Act is not permissible. Plaintiff further submitted that after expiry of period of one year after notification under section 4 of the Act, fresh notification under section 6 for declaration cannot be permitted. Plaintiff prayed that said notification be declared as void ab initio and it be declared that there was no acquisition of plaintiff's land. 3. Suit was opposed by the defendant and the defendant submitted that the suit as filed is not maintainable and acquisition proceedings are proper. 4. In this case, no evidence was recorded and on the basis of pleadings of the parties, suit has been dismissed. Trial Court, in para 7 of the judgment, has recorded a finding that acquisition proceedings had not lapsed. Notification under section 6 of the Act was issued on 10.4.1996 and award was passed on 4.4.1998, therefore, the proceedings of land acquisition had not lapsed. 5. In the present case, after publication of the notification under section 4 of the Act, amount of compensation was determined, by the Land Acquisition Officer on 4.4.1998. After determination of the compensation, matter was referred to the Commissioner for approval. 5. In the present case, after publication of the notification under section 4 of the Act, amount of compensation was determined, by the Land Acquisition Officer on 4.4.1998. After determination of the compensation, matter was referred to the Commissioner for approval. Commissioner has mentioned that the lands were acquired under section 4 on 15.12.1995 and notification under section 6 of the Act for declaration was published on 10.5.1998 and for the first time award has been referred for approval on 9.7.1998 to the Commissioner which was returned back with some objections. Award for approval was sent back again on 2.9.1998. Commissioner mentioned that since the award was sent for approval two years after the notification dated 10.5.1996, therefore, it is not proper to approve the award and directed the authorities to publish fresh declaration under section 6 of the Act and refer the matter for further proceedings. Relying upon this order passed by the Commissioner dated 23.9.1998, plaintiff claimed that the proceedings had come to an end. 6. Counsel for the appellant-plaintiff submitted that the trial Court has committed an error in holding that the approval is not necessary. He invited attention of the Court to the provisions of section 11(1) of the Act wherein it is provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf. Second proviso further provides that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. In support of his contention, counsel for the appellant referred to the judgment in the cases of State of U.P. v. Rajeev Gupta [ (1994) 5 SCC 686 ]. In this case, it is held that prior approval of the appropriate Government or its authorised officer is mandatory and it is further held that the limitation period of two year prescribed under section 11A of the Act is mandatory. Proposed award was made by the Land Acquisition Officer within the statutory period and, communicated to the Commissioner for approval Commissioner has not granted approval within the statutory period, therefore, entire proceedings had lapsed. Proposed award could not be treated as award. Proposed award was made by the Land Acquisition Officer within the statutory period and, communicated to the Commissioner for approval Commissioner has not granted approval within the statutory period, therefore, entire proceedings had lapsed. Proposed award could not be treated as award. In support of this contention, counsel for the appellant referred to the judgment in the case of Mohd. Arif v. State of M.P. [ 1999(2) MPLJ 585 ] 7. Shri S.P. Jain, counsel appearing for the Krishi Upaj Mandi Samiti has referred to the three Judge Bench judgment of the apex Court in the case of Satendra Prasad Jain v. State of U.P. [ (1993) 4 SCC 369 ]. In this case, it is held that where no notification is issued under section 4 read with section 17 of the Act in such cases section 11A is not applicable and the proceedings will not lapse. He further invited attention to the judgment in the case of Vijayadevi Navalkishore Bhartia v. Land Acquisition Officer and another [2003 AIR SCW 1807] wherein it is held that the power of the Commissioner to grant refusal or approval is purely an administrative act and the commisioner cannot sit in appeal against the proposed award. It is held that the Commissioner acting under the provisions of section 11 (1) of the Act has no jurisdiction to reappreciate the material found in the records of the Collector as an appellate Authority and provisions of section 15A will be applicable. 8. Shri S.P. Jain, then raised an objection that the suit as filed itself is not maintainable. He referred to the judgment of the apex Court in the case of State of Bihar v. Dhirendra Kumar [1995(II) MPWN 106 = 1995 MPLJ 751]. While considering the scope of sections 4 and 6 of the Act and section 9 of the Code of Civil Procedure, it is held that civil Court has no jurisdiction to go into the question of validity or legality of the notification under section 4 of the Act and declaration under section 6. Act being a complete Code in itself, jurisdiction of civil Court is excluded by necessary implication. Act being a complete Code in itself, jurisdiction of civil Court is excluded by necessary implication. For the same principle he referred to another judgment in the case of Pashu Chikitsa Vibhagiya Sahkari Nirman Samiti Maryadit, Bhopal v. State of M.P. [ 2000(3) MPLJ 244 ] wherein it is held that the suit challenging land acquisition proceedings is not maintainable and jurisdiction of civil Court is excluded. In the case of S.P. Subramanya Shetty v. Karnataka State Road Transport Corporation [ AIR 1997 SC 2076 ] it is held that civil suit for mandatory injunction against the State restraining them from interfering with possession of the party or to denotify acquisition is not maintainable. 9. On the other hand, counsel for the appellant submitted that the suit as filed is maintainable and referred to the judgment in the case of Dhulabhai v. State of M.P. [1969 JLJ 1= AIR 1969 SC 78 ]. In that case, question involved was whether the suit for declaration that provisions of law relating to assessment were ultra vires and for refund of tax illegally collected was not baned by section 17 of the M.B. Sales Tax Act and it was held that the suit was maintainable. Counsel for the appellant then refened to another judgment in the case of State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao [ AIR 2000 SC 2220 ] and submitted that it is held in para 5 of the judgment that the normal rule of law is that civil Courts have jurisdiction to try all suits of civil nature except those of which cognizance by them is either expressly or impliedly excluded as provided under section 9 of the Code of Civil Procedure, but such exclusion is not readily inferred and the presumption to be drawn must be in favour of the existence rather than exclusion of jurisdiction of the civil Courts to try civil suit. The test adopted for examining such a question is (i) whether the Legislature's intent to exclude arises explicitly or by necessary implication and, (ii) whether the statute in question provides for adequate and satisfactory alternative remedy to a party aggrieved by an order made under it. Apex Court has also referred to the judgment in the case of Dhulabhai (supra) and held that the suit is maintainable. Apex Court has also referred to the judgment in the case of Dhulabhai (supra) and held that the suit is maintainable. Counsel for the appellant has also referred to the judgment in the case of State of Bihar v. D.N. Singh [ (1998) 2 SCC 572 ], wherein provisions of section 11(1) of the Act are considered and it is held that Commissioner has jurisdiction to exercise powers under section 11(1) of the Act. In this case, the apex Court has held that the High Court committed error in holding that the Commissioner has no jurisdiction and remitted the matter back to the High Court. 10. Question which requires to be determined in the present appeal is whether civil suit is maintainable. 11. In this case, notification is not under challenge, but declaration is sought that acquisition proceedings have lapsed on the expiry of period of two years after acquisition of land. In the relief clause, plaintiff has prayed that it be declared that after publication of notification under section 4 of the Act on 15.12.1995 entire proceedings had lapsed as the award was not passed within two years and fresh notification under section 6 of the Act on 13.8.1998 without publication of notification under section 4 is void and contrary to law and is unenforceable against the plaintiff. 12. In this case, proceedings under section 4 of the Act have not been challenged. What is under challenge is the fresh notification under section 6 of the Act dated 13,8.1998. Therefore, in such a situation, whether such suit will be maintainable. Apex Court, in the case of State of Bihar v. Dhirendra Kumar (supra), has held that the Act being a complete Code in itself, jurisdiction of civil Court is excluded by necessary implication, and jurisdiction under Article 226 of the Constitution of India can be invoked. Thus, in view of the judgment of the apex Court in the aforesaid case which has been followed by Division Bench of this Court in the case of Pashu Chikitsa Vibhagiya Sahakari Nirman Samiti Maryadit, Bhopal (supra), suit will not be maintainable. Since, direct judgment covering the question of law has been delivered in the matter Of the Act, therefore, judgment referred in the case of Dhulabhai (supra) will not be applicable to the present case. Therefore, the suit as filed itself is not maintainable. Since, direct judgment covering the question of law has been delivered in the matter Of the Act, therefore, judgment referred in the case of Dhulabhai (supra) will not be applicable to the present case. Therefore, the suit as filed itself is not maintainable. Even otherwise, since the proceedings are under section 17 of the Act and emergency clause was invoked, therefore, in the light of the judgment in the case of Satendra Prasad Jain (supra), provisions of section 11A of the Act will not be applicable. Therefore, the suit has rightly been dismissed by the trial Court. 13. In the result, no case is made out for interfering with the judgment and decree of the trial Court. Appeal fails and is dismissed without any order as to costs. ...................