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2010 DIGILAW 1693 (BOM)

Kai. Sahakar Maharshi Dagaji Ajba Patil Charitable Trust v. Shetkari Sahakari Sangh Ltd.

2010-11-26

D.G.KARNIK

body2010
JUDGMENT Heard. 2. Admit. 3. Mr. Joshi waives service for the respondent no.1. Issuance of notice to respondent nos.2 to 6. who are formal parties< is dispensed with. 4. By consent, taken up for hearing forthwith. 5. The appeal is directed against an order of injunction dated 17th January. 2009 passed by the learned Civil Judge. Senior Division. Malegaon. 6. By a registered sale-deed dated 8th September 1994. the appellant no. 1 (a public charitable trust) purchased the suit property from the respondent no.1. Proceedings for acquisition of the suit property were commenced and the acquiring body has also deposited in advance the estimated amount of compensation with the Land Acquisition Officer. It is however not clear whether the award has yet been passed or not. In the meanwhile. the respondent no. 1 filed a suit, bearing Special Civil SuitNo.117 of 2007. for a declaration that the sale-deed dated 8th September, 1994 was without consideration and ineffective and the respondent no. 1 be declared to be the owner and entitled to the amount of compensation for acquisition of the, suit property. In the said suit, the respondent no.1 made an application for an interim injunction restraining the appellants from receiving the amount of compensation and restraining the respondent no.2 (Special Land Acquisition Officer) from distributing the amount of compensation to the appellants. By the impugned order dated 17th January, 2009, the trial court allowed the application and restrained the Special Land Acquisition Officer as well as the State of Maharashtra from paying the amount of compensation to the appellants and also restrained the appellants from receiving the same. 7. Learned counsel for the appellants submitted that the respondent no. 1 had not made out a prima facie case for grant of an injunction which was a condition precedent for grant of injunction. Consequently, the relief of injunction ought not to have been granted. 8. The suit has been filed on 23rd October, 2007 for a declaration that the sale-deed dated 8th September, 1994 was ineffective, without consideration and void. The suit has been filed 12 years after the execution of the sale-deed and prima facie it is barred by limitation. In my view, therefore, the respondent no.1 has not made out a prima facie case for grant of injunction. 9. There are three more hurdles in the way of the respondent no.1. Firstly, the appellant no. The suit has been filed 12 years after the execution of the sale-deed and prima facie it is barred by limitation. In my view, therefore, the respondent no.1 has not made out a prima facie case for grant of injunction. 9. There are three more hurdles in the way of the respondent no.1. Firstly, the appellant no. 1 is a public charitable trust. The suit has been filed without obtaining permission of the Charity Commissioner. Secondly, the State of Maharashtra is a party defendant and the suit has been filed even without notice under section 80 of the Code of Civil Procedure and there is not even an averment in the plaint of having issued the notice under section 80 of the C.P.C. before filing of the suit. Thirdly, the respondent no. 1 has claimed that he is entitled to receive a sum of Rs.35,00,000/- being the amount of compensation. If there is any dispute regarding ownership of the land and consequently regarding the person who is entitled to receive the amount of compensation for acquisition of the suit property, the appropriate remedy for the respondent no. 1 was to make an application under section 30 of the Land Acquisition Act. In State of Bihar Vs. Dhirendra Kumar, AIR 1995 SC 1955 , the Supreme Court has held that the Land Acquisition Act is a complete code in itself. As such the remedy of the respondent no. 1 for claiming the compensation or a share in the compensation was under section 30 of the Land Acquisition Act. Assuming that the suit regarding the declaration or cancellation of a sale-deed as void was maintainable. certainly no suit could have been filed for an injunction restraining the Land Acquisition Officer from paying the amount of compensation as for that purpose the appropriate remedy was section 30 of the Land Acquisition Act. I am satisfied that the respondent no.1 has not made out a prima facie case for grant of injunction. Consequently, the order of injunction is required to be vacated. 10. For these reasons, the appeal is allowed, the impugned order is set aside and the injunction granted by the trial court is vacated. Appeal allowed.