Competent Authority Calcutta, Under Land (Ceiling and Regulation) Act 1976 & Anr. vs David Mantosh and Ors.

CIVIL APPEAL Nos.10629­10631 OF 2014

The Competent Authority Calcutta, Under the Land (Ceiling And Regulation) Act, 1976 And Anr. ….Appellant(s)

Versus

David Mantosh & Ors. ….Respondent(s)

WITH

CIVIL APPEAL Nos.9829­9830 OF 2016

Apollo Gleneagles Hospitals Ltd. ….Appellant(s)

Versus

David Mantosh & Ors. ….Respondent(s)

AND

CIVIL APPEAL No.9900 OF 2016

Apollo Gleneagles Hospitals Ltd. ….Appellant(s) Signature Not Verified

Digitally signed by ASHOK RAJ SINGH Versus Date: 2019.02.26 16:27:04 IST Reason: David Mantosh & Ors. ….Respondent(s)

1 JUDGMENT

Abhay Manohar Sapre, J.

1. C.A. Nos.10629­10631 of 2014 are filed by the

Competent Authority against the Judgment and

Order dated 27.09.2013 in F.A. No. 202/2008,

Judgment and Order dated 24.07.2014 in the

Review Petition being RVW No. 36/2014 with CAN

No.1450/2014 in F.A. No.202/2008 passed by the

High Court at Calcutta.

2. C.A. Nos.9829­9830 of 2016 are filed by M/s

Apollo Gleneagles Hospitals Ltd. against the

judgment and order dated 27.09.2013 in F.A.

No.202/2008 with CAN No.1054/2014 and C.A. No.

9900/2016 against the judgment and order dated

24.07.2014 in RVW No.117/2014 in F.A.

No.202/2008 passed by the High Court at Calcutta.

3. In order to appreciate the controversy involved

in these appeals, it is necessary to set out the facts

2 in detail, which led to filing of these appeals. The

facts set out hereinbelow are taken from the list of

dates filed by the parties.

4. Appellant No.1 herein is the Competent

Authority, Calcutta­Defendant No. 3, Appellant No.2

is the State of West Bengal­Defendant No. 2,

whereas Respondent Nos. 1 to 7 herein are Plaintiff

Nos. 1 to 7, Respondent No. 8 is Defendant No.1

and Respondent No. 9 is Defendant No. 2 in the

Civil Suit out of which these appeals arise.

5. The dispute pertains to land bearing No.73,

holding No.42, Canal Circular Road, Calcutta ­ 700

054 measuring around 2 bighas, 2 katas, 4 chataks

and 25 sq. ft. (which is a part of and adjacent to a

bigger chunk of land measuring around 29 bighas)

(hereinafter referred to as “suit property”).

6. One Abdul Jabbar claimed to have purchased

the suit property on 29.07.1919 in an auction sale.

3 He, in turn, claimed to have sold it to one Maula

Ataul Haq on 29.09.1927 who, in turn, is alleged to

have sold it to one Poonam Chand Sethia on

15.08.1933.

7. Mr. Poonam Chand Sethia, in turn, on

17.08.1933 claimed to have transferred the suit

property to one Moti Chand Nakhat, Amrito Lal

Shah, Thakur Lal Mehta and Champa Lal Daphtary,

being the trustees of a Trust who, in turn, claimed

to have transferred it to one Mr. P.S. Mantosh ­ the

predecessor­in­interest of the original Plaintiff, who

is now represented by his legal representatives

(Respondent Nos. 1 to 7).

8. It may be mentioned here that after 1933 till

30.11.1962, the suit property went through several

transfers between various parties. It was also the

subject matter of civil and criminal proceedings

between the parties, who claimed to have possessed

4 the suit property. We, however, do not consider it

necessary to set out these details here.

9. Suffice it to say, that eventually the suit

property along with its adjacent land bearing

Nos.73, 60, 72, etc. came into the hands of Mr.

Monilal Goyee and Mr. Bijay Kumar Goyee who, in

turn, claimed to have sold it to M/s Hindustan

Housing on 15.06.1957. M/s Hindustan Housing, in

turn, transferred the suit property along with

adjacent land to M/s Orient Beverage Ltd.

(hereinafter referred to as “M/s OBL”) vide

registered sale deed dated 30.11.1962.

10. On 17.02.1976, the Urban Land (Ceiling and

Regulation) Act, 1976 (hereinafter referred to as “the

Act”) came into force. It was extended to the State of

West Bengal on the same day. The suit property

along­with the adjacent land was an “urban land”

under Section 2(o) of this Act, and was falling under

5 urban agglomeration as defined by Section 2(n) of

the Act.

11. M/s OBL claiming to be a “person” under

Section 2(i) of the Act, and claiming “to hold” the

suit property under Section 2(l) of the Act in excess

of the ceiling limits specified under Section 4 of the

Act filed a statement on 15.09.1976 under Section

6(1) of the Act before the Competent Authority.

12. It may be mentioned here that in the

statement M/s OBL showed the suit property as a

vacant land, and prayed that they be allowed to

hold the excess vacant land for constructing the

dwelling houses thereon under Section 21 of the

Act.

13. The Competent Authority by order dated

27.09.1988, however, rejected the prayer made by

M/s OBL. The rejection resulted in M/s OBL

agreeing to surrender the possession of the entire

6 excess land held by them beyond the prescribed

ceiling limit. On 04.01.1990, M/s OBL accordingly

surrendered their possession on the land bearing

Nos. 58, 60, 72, 73, 79, & 81 situated at Canal

Circular Road, Calcutta in favour of the State. The

said surrender included the suit property also. The

Deputy Secretary, Land & Land Reforms

Department then directed M/s OBL to file the

statement as required under Sections 8 to 10 of the

Act.

14. On 22.01.1990, M/s OBL informed the

Competent Authority that they are prepared to

surrender the possession of the suit property

subject to awarding them compensation as provided

under the Act. On 08.02.1990, the Competent

Authority served final statement under Section 9 of

the Act on M/s OBL. This led to the issuance of a

notification by the State under Section 10(1) of the

7 Act which was duly published in the Calcutta

Gazette Extraordinary on 15.02.1990 inviting

objections from the general public. The Competent

Authority, however, did not receive any objection

from any person pursuant to the notice published.

This was followed by issuance of the final

notification under Section 10(3) on 11.05.1990

which resulted in vesting of the suit property in the

State of West Bengal free from all encumbrances.

15. The Competent Authority, on 23.05.1990,

served notice to M/s OBL calling upon them to

physically surrender the possession of the suit

property to the State, which was done on

28.05.1990.

16. The State of West Bengal (Appellant No.2

herein) on 04.04.1991 allotted the suit property

(No.73) along with adjacent land measuring around

34,147 sq. meters bearing premises Nos. 58, 59, 60,

8 61, 62, 72, 73, 79, & 81 at Canal Circular Road to

Respondent No. 8 (Defendant No. 1­M/s Apollo

Gleneagles Hospitals) on a long term lease of 30

years. The Respondent No. 8 (Defendant No. 1) then

was given possession of the land from the State. The

State executed a lease deed dated 02.12.1994 in

favour of M/s Apollo Gleneagles Hospitals.

Thereafter, M/s Apollo Gleneagles Hospitals set up

a hospital at a huge cost, and is running their

hospital since the last two decades.

17. In the year 1992, Respondent No.1 (Plaintiff

No. 1) woke up from her slumber, and claimed to be

the owner and holder of the suit property and part

of the adjacent land. The Plaintiff felt aggrieved by

the notification issued under Section 10(3) on

11.05.1990 and filed a Writ Petition (WP

No.1382/1992) to challenge the same before the

Calcutta High Court.

9

18. The Single Judge vide Order dated 26.08.1992

allowed the Writ Petition and quashed the

notification dated 11.05.1990.

19. The Respondent No.8 (Apollo Gleneagles

Hospitals Ltd.) felt aggrieved by the order of the

Single Judge dated 26.08.1992 and filed Writ

Appeal No.324/1993 before the Division Bench of

the High Court.

20. The Division Bench vide order 03.04.1997

allowed the appeal and set aside the order of the

Single Judge, and dismissed the Writ Petition. As a

consequence, thereof, the notification dated

11.05.1990 issued by the State was held to be legal

and valid and was accordingly restored.

21. The Respondent No.1 felt aggrieved by the

Judgment of the Division Bench and filed S.L.P.(C)

No.12726 of 1997 in this Court. By Order dated

28.07.1997, this Court dismissed the said petition.

10 This Court, however, observed that if the Petitioner

(Respondent No.1 herein) has any appropriate

remedy under the Act or any other law, it would be

open to her to avail the same in accordance with

law.

22. It is in this background, that Respondent Nos.

1 to 7 filed Civil Suit (TS No. 101/1998) out of

which the present appeals arise. The suit was filed

against the present Appellants, i.e., the Competent

Authority under the Act, the State of West Bengal,

and Respondent Nos. 8 and 9 in the Court of

Additional District Judge, Sealdah.

23. The Civil Suit was filed for declaration and

possession of the suit property. The Plaintiffs

claimed a declaration that the entire proceedings

which culminated in the issuance of the notification

dated 12.02.1990 under Section 10 (1) under the

Act in relation to the suit property be declared null

11 and void and the plaintiffs be declared owners of the

suit property. The reliefs claimed in the suit read as

under:

“(a) A declaration that the Notification No.53­X­U.L.(Cal) dated February 12, 1990 is null and void.

a) A declaration the statement filed by the defendant No.2 under sub­Section 1 of Section 6 of Urban Land (Ceiling and Regulation) Act, 1976 is null and void so far as it relates to premises No.73, Canal Circular Road, Calcutta being the suit premises;

b) A declaration that the draft statement prepared by the defendant No.3 under Section 8 of the Urban Land (Ceiling and Regulation) Act, 1976, on the basis of the statement filed by the defendant No.2 is null and void and not binding upon the plaintiffs so far as it relates to the suit property;

c) A declaration that letter No.1500­UL/AV­ 11/19 dated April 4, 1991 and/or the purported allotment of the suit premises to the defendant No.1 by the defendant No.3 is inoperative, collusive, fraudulent and void;

d) A declaration that the plaintiffs are the owners of the premises No.73, Canal Circular Road, Calcutta and the plaintiffs

12 is entitled to possession of the suit property as owner;

e) A decree for recovery of possession evicting the defendant No.1 from suit property;

f) A decree for a sum of Rs.1 crore from the defendant No.1 as mesne profit and/or damages for illegal use and occupation of the suit premises;

g) Costs of the suit;

h) Such other or further relief or reliefs that the plaintiffs may be entitled to in law or equity.”

24. The Appellants­State of West Bengal, the

Competent Authority, and Respondent Nos. 8 and 9

herein filed their respective Written Statements.

25. The Trial Court on the basis of pleadings

framed the following 11 issues:

“1. Is there any cause of action for the suit?

2. Is the suit maintainable?

3. Is the suit barred by limitation?

4. Is the suit bad for non­joinder of necessary parties?

13

5. Has the plaintiff any right title and interest over the land in suit?

6. Has the suit property vested to the State?

7. Is the Plaintiff entitled to get a decree for declaration that Notification No.53­X­ UL(Cal) dated 12.02.1990 is null and void, or a declaration that the statement filed by the Defendant No.2 under provisions of Urban Land (Ceiling & Regulation) Act is null and void or declaration that the statement prepared by Defendant No.3 is null and void or a declaration that letter No.1500­ UL/AV/II/19 dated 04.04.1981 and the purported allotment of the suit premises to the Defendant No.1 is inoperative, collusive, fraudulent and void?

8. Is the Plaintiff entitled to a decree for declaration that the Plaintiff is entitled to a possession of the suit property as a co­owner?

9. Is the plaintiff entitled to get a decree for recovery of possession of the suit property by evicting the Defendant No.1 therefrom?

10.Is the Plaintiff entitled to a decree of Rs.1 crore against the Defendant and mesne profit?

11.To what other relief, if any, is the Plaintiff entitled to?”

14

26. The parties then adduced their evidence. The

Trial Court vide judgment and decree dated

24.04.2008 answered all the 11 issues against the

Plaintiffs (Respondent Nos. 1 to 7 herein) and

dismissed the Suit which gave rise to filing of First

Appeal (No.202/2008) before the Calcutta High

Court by the Plaintiffs ­ Respondent Nos. 1 to 7.

27. The Division Bench vide the impugned

Judgment allowed the plaintiffs’ appeal, and set

aside the Judgment and Decree of the Trial Court,

and decreed the suit filed by the Plaintiffs’. The High

Court held that the suit is maintainable; that it is

not barred; that the Civil Court has the jurisdiction

to try the civil suit on merits; that the Plaintiffs are

the owners of the suit property; that the competent

authorities did not follow the mandatory procedure

laid down under the Act; that the proceedings under

15 the Act are not binding on the Plaintiffs; that the

Appellant–Apollo Gleneagles Hospitals was in

unauthorized possession of the suit property and

were directed to deliver vacant possession of the

suit property to the Plaintiffs, or in the alternative,

to pay its value within 3 months to the Plaintiffs.

28. The Competent Authority ­ Defendant No. 3,

the State of West Bengal ­ Defendant No. 4 and

Apollo Gleneagles Hospitals ­ Defendant No.1 being

aggrieved by the Judgment of the High Court filed

the present Special Leave Petitions in this Court,

which have been renumbered as Civil Appeal Nos.

10629­10631/2014.

29. The question, which arises for consideration in

these appeals, is whether the Division Bench of the

High Court was justified in allowing the appeal filed

by the Plaintiffs’ (Respondent Nos. 1 to 7) and

decreeing the suit.

16

30. We have heard Mr. Kalyan Bandopadhya,

learned senior counsel appearing for the Appellant ­

State of West Bengal and Competent Authority, Mr.

C.U Singh learned Senior counsel appearing for

Appellant ­ M/s Apollo Gleneagles Hospitals and

Mr. Dhruv Mehta, learned senior counsel for the

Respondent – Plaintiffs.

31. The counsel for the Competent Authority inter

alia submitted that:

(i) the reliefs prayed for by the Plaintiffs

could not be granted by the Civil Court, as the

Civil Suit was barred under the Act. Having

regard to the scheme of the Act, the Act is a

self­contained Act which provided adequate

remedies to the land holders to challenge any

action taken, and orders passed by the

competent authorities in revision/appeals, as

17 the case may be, in ceiling proceedings under

the Act itself.

(ii) It was further contended that Respondent

Nos. 1 to 7 having lost their legal battle, which

had attained finality up to this Court in the

first round of litigation, all issues pertaining to

the suit property had already come to an end.

According to the learned counsel, no issue in

relation to the suit property survived for

adjudication by any Court, much less the Civil

Court.

(iii) It was further contended that the legal

effect of issuance of the notification under

Section 10 (1) of the Act on 12.02.1990,

followed by issuance of the consequential final

notification under Section 10(3) on

11.05.1990, was that the suit property stood

vested in the State free from all encumbrances.

18 Therefore, no person has any right to claim a

right, title and interest over the suit property

on and after the suit property stood vested in

the State on 11.05.1990.

(iv) Learned counsel for the Appellants then

contended that the Civil Suit filed by the

Plaintiffs (Respondent Nos. 1 to 7) was barred

by limitation, because the Plaintiffs had slept

over their alleged right of ownership over the

suit property by not availing of remedies under

the Act.

(v) According to learned counsel for the

Appellants, when M/s OBL claimed to have

purchased the suit property in 1962, the

Plaintiffs ought to have filed a Suit for

Declaration of their title, which they failed to

do so. In any case, the Plaintiffs had a remedy

to file their statement under Section 6 of the

19 Act on 15.09.1976, or raised an objection on

the issue of ownership qua M/s OBL at that

time under Section 10(4) of the Act.

(vi) It was contended that the Respondent­

Plaintiffs, at no stage of the pendency of the

ceiling proceedings, raised any objection under

Section 10 (1). Hence, their right, if any, to

claim any right, title and interest in the suit

property got extinguished consequent upon

vesting of the suit property in the State under

Section 10(3) of the Act on and after

11.05.1990.

32. The learned Senior Counsel for Apollo

Gleneagles Hospitals inter alia while elaborating the

submission of learned senior counsel Mr. Kalyan

Bandopadhya submitted that:

(i) The suit property is governed by the Act,

which continues to be in operation in the State

20 of West Bengal. As a consequence, according

to the learned counsel, a Civil Suit would

impliedly be barred and hence the

Respondents had a remedy which is available

under the Act. It was urged that the Act being

a complete Code creates rights, remedies and

fora for adjudication of disputes and hence the

Civil Suit filed by Respondents No.1 to 7 would

not be maintainable.

(ii) That in any event Respondent Nos. 1 to 7

had failed to establish their claim of ownership

and possession over the suit property. The suit

instituted by Respondent Nos. 1 to 7 was also

barred by limitation because the

Plaintiffs/Respondent Nos. 1 to 7 were not in

possession of the suit property since 1962. The

notification under the Urban Land Ceiling and

Regulation Act, 1976 was published on

21 17.02.1976 and as per scheme of the Act, the

owner of the suit property was obligated to file

a return, since the suit property was beyond

the ceiling limit.

(iii) Plaintiffs/Respondent Nos. 1 to 7 claimed

that their predecessor­in­interest viz. namely

Ms. Daisy Mantosh was the owner of premises

No. 71/1, 60,72 and 73 Canal Circular Road

and since the extent of land held was in excess

of the ceiling limit, yet she did not file any

return in respect of the suit properties.

(iv) On the other hand, M/s Orient Properties

Pvt. Ltd. (renamed as M/s Orient Beverages

Ltd. “OBL”) submitted a return under Section

6 of the Act, and also made an application

under Section 21 for retaining the excess land,

which was refused on 27.09.1986.

22

(v) The Land and Reforms Department on

04.04.1991 decided to allot the suit property to

M/s Janapriya Hospital Corporation Ltd., later

renamed as Apollo Gleneagles Hospitals for

setting up a hospital. This was done by

executing a lease for 30 years, for which a

premium of Rs. 98, 41,300 was paid to the

State. A large hospital with all amenities has

since been set up.

33. Mr. Dhruv Mehta, learned Senior Counsel,

appeared on behalf of Respondent Nos. 1 to

7/Plaintiffs and supported the reasoning and

conclusion of the Division Bench of the High Court

in the impugned Order. It was inter alia contended

that no case for interference was made out with the

impugned Order.

34. The Counsel submitted that there was a non­

compliance with the provisions of the Act and the

23 Rules framed thereunder while dealing with the suit

property. A mere notification in the Official Gazette

was not sufficient for vesting to take place under the

Act. The notification, according to learned counsel

was issued without ensuring proper compliance of

the Act read with Rules and therefore the entire

process of vesting of the suit property in the

Appellants was vitiated and bad in law.

35. It was then contended that the Civil Suit was

maintainable and the civil court’s jurisdiction was

not impliedly excluded as the Civil Suit was filed

pursuant to the directions of the Division Bench of

the Calcutta High Court and this Court in SLP (C)

No. 12726 of 2007. This Court had dismissed the

said SLP vide Order dated 28.07.1998 with the

liberty to pursue the remedy available under the Act

or any other law. It was submitted that since the

Respondent Nos. 1 to 7/Plaintiffs were illegally

24 dispossessed from the suit property (as they were

not given a proper and valid notice in terms of the

provisions of the Act and the Rules framed

thereunder), there was a violation of the principles

of natural justice.

36. Thus, according to learned counsel, even

where a statute gives finality to a decision, such a

provision does not exclude cases where the

provisions of the particular statute have not been

complied with, or the tribunal has not acted in

conformity with the statute or fundamental

principles of judicial procedure. Hence, the Civil

Suit filed by Respondent Nos. 1 to 7/Plaintiffs was

maintainable and not barred by law.

37. It was sought to be contended that the rights,

title and interest of the Respondent Nos. 1 to

7/Plaintiffs in the suit property are common law

25 rights and do not emanate from the Act and

therefore, must be adjudicated only by a civil court.

38. The learned counsel further contended that

there was no occasion for the Respondent Nos. 1 to

7/Plaintiffs to file a Return or declaration in respect

of the suit property since the suit property was not

a “vacant land” in terms of the Act. The Act only

contemplates filing of Returns with respect to

“vacant lands”. Hence, the provisions of the Act

were not applicable to the present case.

39. The learned Counsel further argued that the

civil court was therefore the proper forum for

adjudication of the disputes between the parties as

the Appellants/Defendants had colluded amongst

themselves with respect to the suit property and

had committed a fraud on the Respondent Nos. 1 to

7/Plaintiffs. Hence, the dispute could not have been

26 decided by a tribunal by ousting the jurisdiction of

the civil court.

40. Lastly, the Senior Counsel contended that the

Civil Suit filed on 29.06.1998 was well within

limitation since the cause of action of the

Respondent Nos. 1 to 7/Plaintiffs to file the suit

ripened only after this Court vide Order dated

28.07.1997 had disposed of the SLP (C) No.

12726/1997 granting liberty to the Respondent Nos.

1 to 7/Plaintiffs to pursue any appropriate remedy

under the Act or any other law.

41. We have heard the learned Senior Counsels

appearing for the parties and perused the record of

the case including the written submissions. We find

force in the submissions advanced on behalf of the

Appellants ­ Defendants.

42. The three principal issues, which arise for

consideration in these appeals, are:

27

First, whether the High Court was justified in

holding that the Civil Court has the

jurisdiction to try the civil suit in relation to

the suit property which was subjected to

ceiling proceedings under the Act.

Second, whether the Civil Court has

jurisdiction to declare the ceiling proceedings

under the Act as void and not binding on the

Plaintiffs even though the same had attained

finality in the first round of litigation upto this

Court.

Third, whether the High Court was justified in

holding that the Plaintiffs are the owners of the

suit property and entitled to claim possession

of the suit property or its value from the

Appellant ­ M/s Apollo Gleneagles Hospitals.

43. Before we examine the afore­mentioned three

issues, it is necessary to first examine the scheme of

28 the Act in question and the law governing the issues

raised in the present appeals.

44. The Act in question was enacted to provide for

the imposition of a ceiling on vacant land in urban

agglomerations, for the acquisition of such land in

excess of the ceiling limit, to regulate the

construction of building on such land, and for

matters connected therewith. It was enacted with

the object of preventing the concentration of urban

land in the hands of a few persons, and speculation

and profiteering with a view to bringing about the

equitable distribution of land in urban areas to sub­

serve the common good.

45. The Act has 47 Sections. Section 2(a) to (q)

defines the various expressions used in the Act.

Section 3 prohibits the person from holding the land

in excess of the ceiling limits after coming into the

force of the Act. Section 4 specifies the ceiling limit

29 for holding the land by any person. Section 5 deals

with the transfer of vacant land by its holder.

Section 6 provides for filing of Statement by the

persons holding vacant land in excess of ceiling

limits. Section 7 also deals with filing of Statement

in case if the land is situated within the jurisdiction

of two or more competent authorities. Section 8

deals with preparation of draft statement as regards

the vacant land in excess of ceiling limits. Section 9

deals with the preparation of final statement.

Section 10 deals with acquisition of vacant land in

excess of ceiling limits.

46. Section 11 provides for payment of amount for

vacant land acquired. Section 12 provides for

constitution of Tribunal and appeal to the Tribunal.

Section 13 provides for filing second appeal to the

High Court against the order of Tribunal. Section 14

provides for mode of payment. Section 15 provides

30 for ceiling limits on future acquisition by

inheritance, bequest or by sale in execution of

decree etc. Section 16 deals with filing of Statement

when the Act is adopted by the State subsequently.

Section 17 deals with power to enter upon any

vacant land. Section 18 provides for imposition of

penalties for concealment of particulars of vacant

land. Section 19 provides exclusion clause from

applicability of certain provisions of the Act to some

specified landowners. Section 20 deals with power

to exempt any land.

47. Section 21 provides that excess land not to be

treated excess land in certain cases. Section 22

deals with retention of vacant land under certain

circumstances. Sections 23 and 24 deal with

disposal of vacant land acquired under the Act.

Section 25 defines certain expressions. Section 26

enjoins notice to be given before transfer of vacant

31 land. Section 27 provides for prohibition on transfer

of urban property. Section 28 deals with regulation

of registration of documents in certain cases.

Section 29 deals with regulation of construction of

building with dwelling units. Section 30 gives power

of demolition and stoppage of building. It also

provides a right of appeal and bar of filing suits in

civil court in relation to matters falling under

Section 30.

48. Section 31 deals with powers of competent

authority. Section 32 deals with jurisdiction of

competent authorities and the Tribunal in special

cases. Section 33 provides a right of appeal to the

appellate authority whose order shall be final

whereas Section 34 provides for filing revision to

State. Section 35 empowers the State to issue

orders and directions to competent authority.

Section 36 gives power to central government to give

32 directions to the State Government. Section 37

deals with filing of returns and report by the

competent authority. Section 38 deals with offences

and punishment. Section 39 deals with offences by

companies.

49. Section 40 again provides for a bar from filing

of the suit or other legal proceedings against the

Government and officers in respect of anything,

which is done in good faith or intended to be done

by or under the Act. Section 41 deals with

cognizance of offences. Section 42 gives overriding

effect of the Act on other laws. Section 43 specifies

the court fees payable on the applications, appeals

or other proceedings under the Act. Section 44

specifies certain officers to be public servant.

Section 45 empowers the authorities to correct the

clerical errors. Section 46 is a rule making power

33 and lastly Section 47 gives power to remove

difficulties.

50. The entire scheme of the Act set out above

would make two things clear. First, the Act is a self­

contained code in itself, which provides complete

machinery while dealing with the rights of the land­

owners in relation to their lands, which are in

excess of the ceiling limits prescribed under the Act.

It also provides adequate remedies to correct all

kinds of errors committed by the competent

authority under the Act; and Second, the Act gives

finality to the orders passed by the appellate

authority under Section 33, and also provides a bar

to file the civil suits in relation to cases falling under

Section 30 (5) and Section 40 of the Act.

51. The Constitution Bench of this Court in the

case of Dhula Bai vs. State of MP (AIR 1969 SC 78)

examined the question as to when the jurisdiction of

34 the Civil Court can be held to have been expressly

or impliedly excluded in trying a civil suit in the

context of Section 9 of Code of Civil procedure,

1908.

52. Justice Hidayatullah, the then learned Chief

Justice, speaking for the Bench in his inimitable

style, laid down 7 tests for examining the afore­

mentioned question. These tests read as under:

“(1) Where the statute gives a finality to the orders of the special tribunals the civil courts’ jurisdiction must be held to be excluded if there is adequate remedy to do what the civil court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.

(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.

Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the

35 intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil courts are prescribed by the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals.

(4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit.

(5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies.

(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is

36 an express prohibition in the particular Act.

In either case, the scheme of the particular Act must be examined because it is a relevant enquiry.

(7) An exclusion of jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply.”

53. In the light of the tests laid down in Dhula Bai

(supra) and further keeping in view the scheme of

the Act, we have to examine the issue as to whether

the jurisdiction of the Civil Court is expressly or

impliedly excluded in trying the civil suit in relation

to matters arising out of the Act in question and

second, whether the Civil Court has the jurisdiction

to declare the proceedings held under the Act, as

being void.

54. Having examined the issue, we are clearly of

the opinion that the present case falls under

clause(1) of Dhula Bai (supra) and satisfies the test

laid down therein. Hence, the jurisdiction of the

37 Civil Court is held to be excluded by implication to

try the civil suit in question. This we say for the

following reasons: ­

First, the Act in question gives finality to the

orders passed by the appellate authority [refer

to Section 33(3)].

Second, the Act provides adequate remedies in

the nature of appeals, such as first appeal to

the Tribunal and second appeal to the High

Court. [refer to Sections 12 (4), 13 and 33 (1)].

Third, the Act is a complete code in itself and

gives overriding powers on other laws (refer to

Section 42).

Fourth, the Act expressly excludes the

jurisdiction of the Civil Court in relation to the

cases falling under Sections 30 and 40 (refer to

Section 30(5) and Section 40).

38 Fifth, as a result of dismissal of writ petition

and SLP, it is held therein that the proceedings

under the Act in question were done in

conformity with the Act in question.

55. In light of the aforesaid five reasons ­ a fortiori,

the jurisdiction of the Civil Court in relation to all

the issues arising under the Act is held impliedly

excluded thereby satisfying all the conditions set

out in clause (1) of Dhula Bai (supra).

56. We are, therefore, of the considered view that

the jurisdiction of the Civil Courts to try the civil

Suits with respect to the lands, which were

subjected to ceiling proceedings under the Act, are

held to be impliedly barred, since the Act excludes

the jurisdiction of the Civil Court.

57. Now coming to the facts of the case, we find

from the relief prayed for in the plaint (see prayers

(a) to (d) quoted supra) that the plaintiffs have

39 sought a declaration, that the notification dated

12.02.1990 issued under Section 10 of the Act be

declared null and void; Second, a statement filed by

M/s OBL ­ defendant No. 2 under Section 6 of the

Act before the Competent Authority be declared null

and void; Third, the statement filed by defendant

No. 3 under Section 8 of the Act be declared null

and void.

58. In our opinion, the Civil Court had no

jurisdiction to grant the afore­mentioned reliefs

inasmuch as its jurisdiction to grant such reliefs is

impliedly barred under the Act.

59. In our view, if Respondent Nos. 1 to 7 ­

Plaintiffs claimed themselves to be the lawful

owners and holders of the suit property to the

exclusion of others, there were three remedies

available in law which they could have availed of:

40

(i) First, a remedy accrued in favour of

Respondent Nos. 1 to 7 if not earlier when M/s

OBL claimed to have purchased the suit

property from the alleged vendors on

30.11.1962. It was at that point of time, a

cloud was cast on their alleged title in relation

to the suit property. Since registration of the

sale deed amounts to a public notice, the

Respondents should have filed a Civil Suit

against the vendors of M/s OBL, and M/s

OBL, for a declaration of their ownership and

cancellation of their sale deed in relation to the

suit property. It was not availed of.

(ii) The second remedy arose under Section 6

of the Act, for filing a statement as owners and

holders of the suit property before the

Competent Authority, after the Act came into

41 force in 1976. This was also not availed of by

the plaintiffs.

(iii) The third remedy was in filing objections

under Section 10 (1) of the Act before the

Competent Authority when the Competent

Authority invited objections on 12.02.1990

from public and pursuant to it, the notice was

issued in that behalf. The respondents again

did not avail of this remedy, and failed to file

any objections.

60. The Respondents­Plaintiffs having failed to

avail any of the three remedies at appropriate time,

resorted to fourth remedy of filing a Writ Petition to

challenge the notifications dated 11.05.1990 in the

High Court of Calcutta. This Writ Petition was,

however, dismissed by a Division Bench of the High

Court vide dated 03.04.1997. The order of dismissal

42 was affirmed vide order dated 28.07.1997 passed by

this Court in SLP (C) No.12726 of 1997.

61. In our considered opinion, the dismissal of the

SLP by this Court vide Order 28.07.1997 had a

three­fold effect on the rights of the parties to the

Lis in relation to the suit property:

First, the entire action taken by the competent

authority initiated from Section 6 of the Act till

issuance of notifications under Section 10(1)

and (3) of the Act issued on 12.02.1990 and

11.05.1990 in relation to the suit property

were held to be in conformity with the

provisions of the Act. This satisfied the last

condition of clause (1) of Dhula Bai (supra)

also.

Second, the suit property stood vested in the

State free from all encumbrances under

Section 10 (3) of the Act.

43 Third, the State Government was held to be in

legal possession of the suit property as the

owner on and after 11.05.1990, to the

exclusion of all, by following the due procedure

of law.

62. In such a situation, the Respondent Nos.1 to 7

could not take recourse to filing of the Civil Suit on

the basis of the observation made by this Court.

63. As observed supra, if there were any remedy

available to the Respondents in relation to the suit

property, then any such remedy was under the Act

but not by filing a civil suit in a Civil Court and

start a fresh round of litigation with respect to the

suit property. Such a suit was, in our view,

impliedly barred in the light of exclusion of

jurisdiction of the Civil Court under the Act.

44

64. Indeed, we find support for our reasoning by

the decisions of this Court rendered in several

decided cases as mentioned below.

65. In State of Bihar vs. Dhirendra Kumar (1995)

4 SCC 229, a question arose as to whether a civil

suit is maintainable, and if so, whether ad­interim

injunction could be issued by the Civil Court in

such suit against the State where the proceedings

under the Land Acquisition Act were taken

pursuant to the notice issued under Section 9 of the

Land Acquisition Act, and delivered to its

beneficiary.

66. This Court examined the issue in the context

of the scheme of the Land Acquisition Act in

juxtaposition with Section 9 of the CPC and held

that having regard to the object and scheme of the

Act, the jurisdiction of the Civil Court to deal with

the matters falling under the Act stands impliedly

45 excluded, and is barred. Para 3 of the decision is

apposite and reads as under:

“3. The question is whether a civil suit is maintainable and whether ad interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued under Section 9 of the Act and delivered to the beneficiary.

The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in Section 4 and Section 6 of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under Section 6, the public purpose gets crystallised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition of the land and to make the award. Section 11­A now prescribes limitation to make the award within 2 years from the last date of publication envisaged under Section 6 of the Act. In an appropriate case, where the Government needs possession of the land urgently, it would exercise the power under Section 17(4) of the Act and dispense with the enquiry under Section 5­A. Thereon, the State is entitled to

46 issue notice to the parties under Section 9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise, it would take possession after the award under Section 12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under Section 9 of 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 and declaration under Section 6, except by the High Court in a proceeding under Article 226 of the Constitution. So, the civil suit itself was not maintainable.” (Emphasis supplied)

67. This very issue then came up for consideration

in another decision of this Court in Laxmi Chand

vs. Gram Panchayat Kararia (1996) 7 SCC 218. In

that case, the question arose as to whether the civil

suit filed to challenge the award passed under the

Land Acquisition Act is maintainable and, if so,

whether the Civil Court has jurisdiction to entertain

47 such suit for deciding the issue raised therein on its

merits.

68. This Court held that the Civil Court has no

jurisdiction to entertain and try such civil suit on its

merits. Its jurisdiction is impliedly barred having

regard to the object and the scheme of the Act.

Paras 2 and 3 of the decision are apposite and read

as under:

“2………..It is seen that Section 9 of the Civil Procedure Code, 1908 gives jurisdiction to the civil court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of reference under Section 18 and a further appeal under Section 54 of the Act. If the Government intends to withdraw from

48 the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition.

3. It would thus be clear that the scheme of the Act is complete in itself and thereby the jurisdiction of the civil court to take cognizance of the cases arising under the Act, by necessary implication, stood barred.

The civil court thereby is devoid of jurisdiction to give declaration on the invalidity of the procedure contemplated under the Act. The only right an aggrieved person has is to approach the constitutional courts, viz., the High Court and the Supreme Court under their plenary power under Articles 226 and 136 respectively with self­ imposed restrictions on their exercise of extraordinary power. Barring thereof, there is no power to the civil court.” (Emphasis supplied)

69. This view was reiterated by this Court in two

later decisions (refer ­ Bangalore Development

Authority vs. K.S Narayan (2006) 8 SCC 336 and

State of Punjab vs. Amarjit Singh (2011) 14 SCC

713).

49

70. On comparing the scheme of the Land

Acquisition Act with the scheme of the present Act

in question, we find that the intention of the

Legislature is more explicit in excluding the

jurisdiction of the Civil Court under the Act in

question.

71. Indeed, it is clear from a reading of Sections

12(4), 13, 30, 33(1), 33(3), 33(5) and 40 of the Act in

question. We also find that some sections of the Act

in question which has bearing on the question of

exclusion of the jurisdiction of the Civil Court are in

pari materia with the Sections in the Land

Acquisition Act whereas some Sections of the Act

which also have bearing on this question are not to

be found in the Land Acquisition Act. Yet, this

Court on examining the scheme of the Land

Acquisition Act and the remedies provided therein

has held that the jurisdiction of the Civil Court is

50 impliedly excluded and barred to try the civil suit.

The scheme of this Act, therefore, clearly indicates

that exclusion of Civil Court jurisdiction is provided

therein impliedly.

72. It is for all these reasons, we have no

hesitation in holding that the Civil Court had no

jurisdiction to try the civil suit in relation to the

land which is subject to ceiling proceedings under

the Act in question; nor did the Civil Court have the

jurisdiction to declare the proceedings held under

the Act, as void or illegal or non est, since it was

impliedly excluded and barred under the Act.

73. Mr. Dhruv Mehta, learned senior counsel for

the Respondents ­ Plaintiffs vehemently argued on

the facts of the case, which are set out in detail

above, that a perusal of the facts would go to show

as to how the plaintiffs derived their title over the

suit property from their predecessor­in­title, and the

51 prejudice which was caused to them by the ceiling

proceedings which proceeded against them behind

their back.

74. We reject the contentions and submissions

made on behalf of Respondent Nos. 1 to 7/ Plaintiffs

since we have inter alia held that the Civil Court

had no jurisdiction to entertain a Civil Suit with

respect to proceedings under the Urban Land

Ceiling Act, being a special and self­contained

enactment.

75. Furthermore, the Respondent Nos. 1 to 7/

Plaintiffs having failed to raise objections to the

ceiling proceedings at any stage, the suit property

stood vested in the State, free from all

encumbrances. The belated challenge to the same is

meritless. Having failed to avail of the remedies

under the Urban Land Ceiling Act and the one

resorted to resulted in rejection of the claim made

52 therein upto this Court, Respondent Nos.1 to 7/

Plaintiffs sought to start a fresh round of litigation

by filing a Civil Suit, which was barred under the

Act. Furthermore, the State after acquiring

ownership over the suit land has allotted the suit

land to the M/s Apollo Gleneagles Hospitals on a 30

years lease. Hence, the situation, in our view, has

now become irreversible.

76. In view of the foregoing discussion, we are of

the view that the Division Bench was not justified in

allowing the Respondents’ appeal, and decreeing the

Civil Suit whereas the Trial Court was right in

dismissing the Civil Suit.

77. As a consequence, the appeals succeed and

are allowed. The impugned judgments are set aside

and the judgment of the Trial Court is restored. As

a result thereof, the suit filed by Respondent Nos. 1

53 to 7 out of which these appeals arise is dismissed

with no order as to costs.

……...................................J. [ABHAY MANOHAR SAPRE]

...……..................................J. [INDU MALHOTRA]

New Delhi;

February 26, 2019.

54