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2015 DIGILAW 708 (ALL)

Santosh Anand v. Kanpur Development Authority

2015-04-06

KRISHNA MURARI, PRATYUSH KUMAR

body2015
JUDGMENT (Pratyush Kumar, J.) The present appeal has been filed under Order 43 Rule 1 CPC by the plaintiffs/appellants (hereinafter referred to as the 'appellants') against defendant/respondent (hereinafter referred to as the 'respondent') challenging the validity of the order dated 7.2.2014 passed by Civil Judge (Senior Division), Kanpur Nagar in Original Suit no.2396 of 2013, whereby application of the appellants for grant of interim injunction has been rejected. 2. Heard Shri R.K. Porwal, learned counsel for the appellants, Shri J.N. Sharma learned counsel for the respondent and perused the record. 3. The facts involved in the present appeal are as follows: - 4. The appellants filed a suit for prohibitory injunction against the respondent on the allegations that the property in dispute was purchased by late Bhagat Ram Anand, predecessor in interest of the appellants from late Pyare Lal vide sale-deed dated 12.1.1955. Thereafter, property was developed. Residential and commercial buildings were raised thereat. On 26.11.2013 some persons came to the office of the respondent asked them not to alter or raise any construction situated thereat. Threat was also extended that constructions would be demolished and they would be evicted from the property in dispute, details whereof were given at the foot of the plaint. 5. Along with the plaint an application under Order 39 Rule 1 and 2 CPC read with Section 151 CPC supported by an affidavit of Shri Karnal Bhatia, power of attorney holder of the appellants had also been moved, whereby request has been made to restrain the respondent and its agents not to demolish the constructions of the appellants and further not to evict them or interfere with the peaceful use and occupation of the property in dispute during the pendency of the suit. 6. On behalf of respondent before the court below, objection along with supporting affidavit was filed, wherein correctness of the pleadings of the appellants were denied and it was stated further that the property in dispute had been acquired for the respondent on 5.4.1957 under the provisions Land Acquisition Act. The constructions existing on the land in dispute were illegal and liable to be demolished. The appellants were not owners of the property in dispute. They had no right to make any alteration in the property in dispute. The constructions existing on the land in dispute were illegal and liable to be demolished. The appellants were not owners of the property in dispute. They had no right to make any alteration in the property in dispute. The appellants had no prima facie case, balance of convenience was not in their favour, since they were trespassers, they were not likely to suffer any irreparable loss. 7. Shri Karnal Bhatia, power of attorney holder of the appellants had filed rejoinder affidavit, whereby averments made in the counter affidavit were denied. It was specifically denied that the property in dispute had been acquired under the Land Acquisition Act, 1894. According to him neither any notification was published nor any award was made nor any possession was delivered to the respondent. The appellants were in possession of the property in dispute for more than 50 years. Their rights had been matured. 8. Learned Civil Judge after hearing the submissions of the parties vide order dated 7.2.2014 rejected the application for temporary injunction on the ground that the appellants failed to prove that house no.157 is situated in plot No.91. They also failed to produce any sanctioned map for the same. The property in dispute had been acquired and an Award No.54 dated 5.4.1957 was made. The respondent was put into possession of the same on 3.5.1956. Sale-deed executed in favour of the appellants' grandfather is null and void. No prima facie case in favour of the appellants is made out. 9. In support of the appellants' case, learned counsel for the appellants has argued that the appellants are owners in possession of the dispute since 1955. This fact has been established before the court below by cogent evidence which has been wrongly rejected. 10. The appellants have invested huge amount for construction of houses and shops, balance of convenience lies in their favour. He further submits that physical possession over the property in dispute is of the appellants not of the respondent. The learned judge has wrongly placed reliance on the forged possession paper filed by the respondent. He further submits that no notice of acquisition proceedings was given nor compensation was ever paid to the owner, therefore, acquisition proceedings are null and void. 11. The learned judge has wrongly placed reliance on the forged possession paper filed by the respondent. He further submits that no notice of acquisition proceedings was given nor compensation was ever paid to the owner, therefore, acquisition proceedings are null and void. 11. Learned counsel for the respondent however submits that record of acquisition proceedings is official record and there is presumption of correctness in favour of the proceedings recorded therein. Any sale-deed executed after issue of notification of acquisition proceedings is null and void. The learned judge has rightly observed that in absence of sanctioned map constructions situate in property in dispute are illegal. 12. Learned counsel for the appellants has placed reliance on the decision of the Hon'ble Supreme Court the case of Pune Municipal Corporation and another Vs. Harakchand Misrimal Solanki and others, JT 2014(3) SC 283 in support of his arguments that if compensation is not paid, the acquisition proceedings shall be deemed to have lapsed. The case law referred by the learned counsel for the appellants is in reference to Section 24(2), 114(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013, Sections 31, 7, 5A, 11A of the Land Acquisition Act, 1894. Here, it is significant to note that in case on hand, appellants have nowhere stated that no compensation was paid to the owners of the acquired land in this backdrop, we are of the opinion, the case referred by the learned counsel for the appellants does not support his arguments. 13. On the other hand, learned counsel for the respondent in support of his argument has referred to the case of Commissioner, Bangalore Development Authority and another Vs. Brijesh Reddy and another, 2013 (3) SCC 66 , wherein the Apex Court has observed as follows: - "18. It is clear that the Land Acquisition Act is a complete code in itself and is meant to serve public purpose. By necessary implication, the power of the civil court to take cognizance of the case under Section 9 CPC stands excluded and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under Section 4, declaration under Section 6 and subsequent proceedings except by the High Court in a proceeding under Article 226 of the Constitution. It is thus clear that the civil court is devoid of jurisdiction to give declaration or even bare injunction being granted on the invalidity of the procedure contemplated under the Act. The only right available for the aggrieved person is to approach the High Court under Article 226 and this Court under Article 136 with self-imposed restrictions on their exercise of extraordinary power. 19. No doubt, in the case on hand, the plaintiffs approached the civil court with a prayer only for permanent injunction restraining Defendants 1 and 2 i.e. BDA, their agents, servants and anyone claiming through them from interfering with the peaceful possession and enjoyment of the schedule property. It is true that there is no challenge to the acquisition proceedings. However, in view of the assertion of BDA, in their written statements, about the initiation of acquisition proceedings ending with the passing of award, handing over possession and subsequent action, etc. the said suit is not maintainable. This was rightly concluded by the trial court. For proper compensation, the aggrieved parties are free to avail the statutory provisions and approach the court concerned. All these aspects have been clearly noted by the trial court and ultimately it rightly dismissed the suit as not maintainable. On the other hand, the learned Single Judge of the High Court though adverted to the principles laid down by this Court with reference to acquisition of land under the Land Acquisition Act and Section 9 CPC committed an error in remanding the matter to the trial court on the ground that the plaintiffs were not given opportunity to adduce evidence to show that their vendor was in possession which entitles them for grant of permanent injunction from evicting them from the scheduled property without due process of law by the defendants." 14. In view of the decision of the Hon'ble Apex Court, we are of the view that the appellants has no locus to dispute the correctness of the land acquisition proceedings in respect of the property in dispute before a civil court on the grounds mentioned in the plaint. 15. Arguments submitted by the learned counsel for the appellants are not substantiated from the record. The learned judge has rightly observed that the appellants had failed to establish that house no.157 was situated in plot no.91. They could not produce any sanctioned map. 15. Arguments submitted by the learned counsel for the appellants are not substantiated from the record. The learned judge has rightly observed that the appellants had failed to establish that house no.157 was situated in plot no.91. They could not produce any sanctioned map. Plot no.91 was acquired and Award No.54 dated 5.4.1957 was made and possession was delivered to the respondent on 3.8.1956. 16. In view of the above, we are in agreement with the learned Civil Judge that no prima facie case in favour of the appellants is made out. Balance of convenience also does not lie in their favour. They have no occasion to suffer any irreparable loss. 17. Thus, arguments raised on behalf of appellant are liable to be rejected. Appeal is without substance and deserves to be dismissed with the clarification that observations made in the present order will not be binding on the court below when after production of oral evidence, it would be adjudging by final judgment merit of the rival contentions. Costs will follow the result of the suit. 18. The appeal is, accordingly, dismissed.