URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. & OTHERS

JUDGMENT / ORDER OF THE SUPREME COURT

JUDGMENT HRISHIKESH ROY, J. Factual Backdrop

1Copy pinpoint1. The challenge here is to the judgment dated 12.1.2010 by the High Court of Judicature for Rajasthan at Jodhpur in SB Civil Regular Second Appeal No.114 of 2004 whereby the High Court upheld the verdict of the first Appellate Court and opined that the acquisition proceeding is null and void since notice was not given to the owners who were in possession but was given to original khatedaars whose names were existing in the revenue record.

2Copy pinpoint2. The respondent Gordhan Dass filed Regular Civil Suit No. 03/04 projecting the case that the plaintiff and the defendant nos.2 to 4 jointly purchased 3 bighas of land in Bikaner town in two tranches. Under the registered sale deed dated 2.3.1970, two and a half bigha land was first purchased and under the second registered sale deed dated 16.3.1970, another half bigha land was purchased from one Lal Khan. The plaintiff and the defendant nos. 2 to 4 thereby became joint khatedars of the said three bighas of purchased land. While the purchasers were in peaceful possession of the land bearing Khasra no.211/81 and 239/83, the defendant no.1 i.e. the Urban Improvement Trust, Bikaner started making claim over this land projecting that they had acquired the said land. Initially, the suit was filed seeking permanent injunction to restrain the defendant no.1 from trespassing into the land and initiating any acquisition process but later when the defendant no.1 was trying to obtain forceful possession of the land during the pendency of the suit, the plaintiff amended the suit on 11.11.2002 to secure restoration of possession through mandatory injunction. It was also pleaded that on the basis of a judgment dated 26.2.1998(WP 2243/95) in Bhanwarlal v State of Rajasthan, concerning some other land, the defendant no. 1 had taken possession of the plaintiff’s land and that the plaintiff was enjoying possession till 9.6.1998 during the pendency of civil suit. In the written statement, the Urban Improvement Trust admitted that the plaintiff together with the defendant nos.2 to 4 purchased total 3 bighas

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of land through 2 sale deeds dated 2.3.1970 and 16.3.1970, and those sale deeds are registered in the office of Sub-Registrar, Bikaner. The defendant no.1 also admitted that the plaintiff submitted an application before District Magistrate to convert one bigha land to non-agricultural category on which the District Magistrate issued NOC since the said land was needed to set up a petrol pump. Projecting their right over the concerned land, the defendant no.1 in the written statement claimed that they had acquired 24 Bigha 12 Biswa land comprising Khasra No.294/82 and requisite compensation was paid to the original khatedar. Therefore, no compensation is payable to either the plaintiff or the defendant nos.2 to 4 who had purchased the 3 Bigha land.

3Copy pinpoint3. The Trial Court on the basis of the rival contentions framed the following issues: “(i) Whether properties mentioned in paras 1, 1 (a), 1 (b) of the plaint are under the ownership of plaintiff and defendant no.2 to 4? (ii) Whether out of the above-stated lands, two bigha land has been wrongly acquired by the defendant no.1? (iii) Whether defendant no.1 has wrongly got possession over suit land according to para no.9 of the plaint, plaintiff is entitled to get the same restored? (iv) Whether compensation has already been paid to the concerning people having acquired 24 Bigha 12 Biswa suit land comprising Khasra No.294/83 adopting lawful process according to para No.115 of written statement?

(v) Relief (s) ?”

4Copy pinpoint4. The learned Additional Civil Judge (Sr. Division) Bikaner partially decreed the suit against the defendant no.1 by holding that the plaintiff is entitled to get possession of 1 Bigha land meant for petrol pump in Khasra No.284/83. However, for the balance suit land, it was held that the defendant no.1 had acquired the said land and accordingly the suit of the plaintiff for the 2 Bighas land, was dismissed. While granting relief for the 1 Bigha land, the learned Trial Judge noted that possession of the same was restored to the plaintiff after due permission from the State Government and therefore

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his ownership remained undisturbed. For the balance 2 Bighas land, relief was refused and it was held that even though the said land was purchased in 1970 through registered sale deeds, the names of the new owners were not mutated in the revenue records which continued to reflect the name of the previous owner (seller), to whom compensation was paid. It was further held that the onus was on the plaintiff to prove ownership, claim compensation, and get his name recorded in jamabandi.

5Copy pinpoint5. The plaintiff then filed an appeal before the District Judge, Bikaner and the learned Appellate Court by its judgment dated 16.4.2004 decreed the entire suit land in favour of the plaintiff and against the defendant no.1 and the defendant was restrained from interfering with the plaintiff’s peaceful possession, use and occupation of the suit land. The Appellate Court concluded in favour of the plaintiff after noting that no opportunity of hearing was provided to the plaintiff for acquisition of the land and furthermore, the plaintiff, Gordhan Dass was enjoying undisturbed possession of the land until 10.6.1988. Notwithstanding the mutation correction not being carried out in the revenue records by the purchasers, the Appellate Court noted that the plaintiff had already applied before the District Magistrate for conversion of 1 Bigha land for establishing petrol pump and NOC for the said purpose was issued in favour of the plaintiff with the active cooperation by the defendants and it was thus concluded that despite knowledge of the plaintiff’s ownership and possession, the defendant no.1 did not discharge its duty to issue notice to the land owner/plaintiff and accordingly the land acquisition proceedings were held to be invalid. Moreover, since during the pendency of the suit the plaintiff was forcefully evicted from the land on 10.6.1988 under cover of some other judgment of the High Court, the Court opined that without proper acquisition proceedings with notice to the owner, the possession of the plaintiff (who was enjoying uninterrupted possession till 10.6.1988), could not have been disturbed. It was further noted that neither was any acquisition notice issued to the plaintiff nor they were paid any acquisition compensation although they were the actual owners of the land. On the claim that the compensation was paid, the Court opined that it was a vague contention in the written statement and it was not categorically mentioned to whom compensation was paid nor any evidence on such payment was produced by the defendant

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No. 1. It was also found that the defendant no.1 had forcibly evicted the plaintiff from his property during the pendency of the suit without due legal process i.e. without service of notice, without providing the opportunity of hearing and without payment of compensation to the plaintiff, and thus, the proceedings of the defendant no.1 were declared to be invalid. The decree of the Trial Court dated 23.2.2004 was thus set aside allowing the plaintiff’s appeal. The decree of permanent injunction was accordingly granted favouring the plaintiff against the defendant no.1 and it was further ordered that defendant no.1 is to restore the suit land mentioned in para no.1 (a) & 1 (b) of the plaint and they were restrained from interfering with the use and occupation of the said land by the plaintiff.

6Copy pinpoint6. The defendant no.1 i.e. Urban Improvement Trust, Bikaner assailed the judgment and decree dated 16.4.2004 in Appeal Decree No.30/04. The High Court in the second appeal noted that the defendant no.1 in the written statement had admitted that the plaintiff together with the defendant nos.2 to 4 are the owners of the suit land. Therefore, it was held that suit for injunction without seeking relief of title declaration is maintainable as even the defendant no.1 does not claim any title over land purchased by the plaintiff and the defendant nos.2 to 4, by way of two registered sale deeds in the year 1970. Since the plaintiff together with the defendant nos.2 to 4 had obtained valid title by purchase in the year 1970 and were in peaceful possession, they were not required to seek relief of declaration of title, particularly when the title has not been disputed by the defendant no.1.

7Copy pinpoint7. The High Court adverted to the provisions of The Rajasthan Urban Improvement Act, 1959 (hereinafter referred to as the “1959 Act”) and observed that for compulsory acquisition of land under Section 52, the procedure to be followed is prescribed in the sub-Sections under Section 52 such as giving notice and providing opportunity of hearing to the owner and/or any other interested person and compensation must also be paid to the owner under Section 53. However, since the defendant no.1 failed to comply with the mandatory provisions under Section 52 and 53 of the 1959 Act and that acquisition process was initiated much after the purchase of the land by the plaintiff, the acquisition proceeding in the absence of notice and compensation was declared to be void and a nullity. It was specifically noted

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that the defendant no. 1 admitted the possession and title of the plaintiff in their written statement and thus it was opined that the plaintiff is entitled to protect their property. As the defendant no.1 had also raised an issue questioning the jurisdiction of the Civil Court, it was held that a suit in a civil Court will always lie to question the order of the tribunal created by a statute even if its order is expressly or by necessary implication made final, if the said tribunal abuses its power or acts in violation of its provisions. Consequently, the second appeal filed by the defendant no.1 was dismissed upholding the decree passed in favour of the plaintiff by the first Appellate Court. B. Submissions

8Copy pinpoint8. Challenging the above judgment of the High Court, Mr. Aruneshwar Gupta, Learned Senior Counsel on behalf of the appellant argued that pursuant to the notification dated 22.8.1974, public notice and personal notices were duly issued to the original Khatedars whose names were in the revenue records. The amount of compensation was also duly paid. Service of notice to the original khatedars in the record of rights was sufficient notice as State Government is not liable to make a roving or fishing inquiry about the ownership of land. Secondly, the purchaser of acquired land is ‘any other person interested’ and could have raised objections under Section 52(3) of the 1959 Act. There is no right to challenge the acquisition of land after expiry of 23 years as the suit for permanent injunction was filed on 21.4.1997. (Ahuja Industries Ltd. v State of Karnataka1; Bhola Shanker v The Disst. Land Acquisition Officer2). Thirdly, it was argued that the Land Acquisition Act, 1894 is a complete code in itself and thus, by necessary implication Civil Court has no jurisdiction to pass injunction for a land which is already acquired. Finally, it was argued that the nature of land acquired under the 1959 Act was ‘agricultural land’ as the same was not converted for ‘non-agricultural use’ u/s 90-A of Land Revenue Act,1956. Owing to Section 207 of the Rajasthan Tenancy Act, 1955 (hereinafter “Tenancy Act,1955”)read with

1 2003 5 SCC 365 2 (1973) 2 SCC 59

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entry 8A and entry 23C of third Schedule, matter relating to temporary and permanent injunction in respect of agricultural land could be heard and determined only by a revenue Court. No civil suit is maintainable for permanent injunction w.r.t agricultural land.

9Copy pinpoint9. Projecting the contrary view, Mr. Manoj Swarup, learned Senior Counsel for the Respondents argued that revenue authorities i.e. Patwari, Tehsildar and Collector had knowledge of the rights and interests of the plaintiffs. As per the requirements under Section 52(2) of the 1959 Act, notice should be given not only to the owner of the land but also any other person who in the opinion of State Government would be interested therein. The Learned Counsel has placed on record letters from Tehsildar, Bikaner acknowledging the sale deeds, thereby indicating that they had knowledge of plaintiffs being in possession of the land. Reliance was also placed on the decision of this Court in Ahuja Industries Limited v State of Karnataka3. On the aspect of maintainability, it was canvassed that the civil suit was not barred in law to adjudicate on the dispute. To substantiate the same, Mr. Swarup cites the Constitution Bench decision of this Court in Dhulabai and others v State of Madhya Pradesh4(hereinafter referred to as “Dhulabai”) and Firm Seth Radha Kishan v The Administrator5. C. Issues

10Copy pinpoint10. Having summarised the contentions of the respective parties, the following questions fall for our consideration: a) Whether land acquisition proceedings can be declared null and void for failure to give notice to the owners who had purchased the land two years earlier through registered sale deeds, before the initiation of the land acquisition proceedings, even though the name of original khatedaar was reflected in the Revenue records? b) Whether Civil Court has jurisdiction to grant injunction as Section 207 of the Tenancy Act,1955 bars jurisdiction of Civil Court in respect of agricultural land?

3 (2003)5 SCC 365 4 (1968) 3 SCR 3 662 5 (1964) 2 SCR 2 273

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c) Whether plaintiff’s suit for injunction is maintainable without seeking Declaration in a Civil Court? D. Notice requirements in land acquisition proceedings i) Constitutional right to property and procedural justice

11Copy pinpoint11. This is a case of compulsory acquisition of land where the land owner has no choice in the matter. The respondent purchased the concerned land for valuable consideration and was in peaceful possession of the land. At that stage, the appellant attempted to dispossess the respondent. Acquisition of land for public purpose is permitted by law, but the acquiring authority is required to ensure adherence to the statutory regime for compulsory acquisition. Only by strict adherence to the procedure, a measure of protection is afforded to the landowners and the interested persons, and implicit therein is fairness in the procedure. After all, one is concerned with protection of constitutional rights under Article 300A of the Constitution.

12Copy pinpoint12. In the context, the recent observations of this Court in Sukh Dutt Ratra v. State of H.P6., would bear consideration where the Court traced the recognition of the right to property since the 1700s and reiterated the high threshold of legality that ought to be satisfied, to dispossess an individual of their property: “13. While the right to property is no longer a fundamental right [“Constitution (Forty-fourth Amendment) Act, 1978”], it is pertinent to note that at the time of dispossession of the subject land, this right was still included in Part III of the Constitution. The right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Article 300-A.

14. It is the cardinal principle of the rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. The recognition of this dates back to the 1700s to the decision of the King’s Bench in Entick v. Carrington [Entick v. Carrington, 1765

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URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 531 DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.]

EWHC (KB) J98 : 95 ER 807] and by this Court in Wazir Chand v. State of H.P. [Wazir Chand v. State of H.P., (1955) 1 SCR 408 : AIR 1954 SC 415] Further, in several judgments, this Court has repeatedly held that rather than enjoying a wider bandwidth of lenience, the State often has a higher responsibility in demonstrating that it has acted within the confines of legality, and therefore, not tarnished the basic principle of the rule of law.

15. When it comes to the subject of private property, this Court has upheld the high threshold of legality that must be met, to dispossess an individual of their property, and even more so when done by the State.”

13Copy pinpoint13. The Land acquisition laws in India have their origins in British colonial law. Compulsory acquisition of land is based on the principle of eminent domain which can be understood as the State’s power to acquire private property without the owner’s consent for a ‘public purpose’7. Thus, when the State acquires property while exercising its eminent domain powers, the economic loss suffered by the owner is followed by a corresponding economic gain to the State. The State deals with the property as if it is the owner of the property8. Scholarly writings on the principle of eminent domain have shed light on this subject 9. In an article titled, “History of Eminent Domain in Colonial Thought and Legal Practice” published in the Economic and Political Weekly10, the author, while critiquing the principle of eminent domain reflects on the need to rethink compulsory acquisition from the lens of ethics and justice. Referring to the opening paragraph in the Tenth Report of the Law Commission of India:

7 Julius L. Sackman, Russell D Van Brunt, ‘Nichols on Eminent Domain’ vol 1 (3rd edn, Mathew Bender & co, 1959). § 1.11 8 Namita Wahi, ‘Property’ in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016) 9 Tom Allen, The Right to Property in Commonwealth Constitutions (Cambridge University Press 2000) 172; Preeti Sampat, ‘Limits to Absolute Power: Eminent Domain and Right to Land in India’ (2013) 48 Economic and Political Weekly 40; Usha Ramanathan, ‘A Word of Eminent Domain’ in Lyla Mehta(ed), Displaced by Development: Confronting Marginalisation and Gender Injustice. (SAGE 2009) 10 Debjani Bhattacharyya, ‘History of Eminent Domain in Colonial Thought and Legal Practice’ (2015) 50 Economic and Political Weekly 45.

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Law of Acquisition and Requisitioning of Land (1958) 11 dealing with land acquisition as per which “critical examination of the various stages of evolution of this(compulsory land acquisition) power and its ethical basis will serve no useful purpose as the power has been established in all civilised countries”, the author questions the precedence given to customary practices over ethics. There ought to be substantive limits on the power of eminent domain in order to avoid arbitrary action. Strict adherence to procedure is an essential safeguard towards achieving fairness and transparency in the land acquisition process. Such procedures provide land owners and interested persons a fair opportunity to say why their land should not be acquired and also whether the compensation assessed for their lands is adequate. To deny procedural safeguards to the land loser would mean that the doors of justice are shut for him. Such an interpretation, in my view, should be avoided. ii) International Legal Framework on Compulsory Land Acquisition

14Copy pinpoint14. Before proceeding to deal with the issue of the legitimacy of the land acquisition proceeding, it would be appropriate to set out the international legal framework on compulsory land acquisition. The right to self-determination is enshrined within the Charter of the United Nations, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR), amongst other instruments which is defined as the right of all people to freely dispose of their natural wealth and resources, and that no person may be deprived of its own means of subsistence. Article 17 of the Universal Declaration of Human Rights provides that, “Everyone has the right to own property alone as well as in association with others. No one shall be arbitrarily deprived of his property.” Self-determination also includes obligation for states to refrain from any forcible actions that deprive people of enjoying such rights. The concept of Free, Prior and Informed Consent(FPIC) within international development law is most clearly stated in the United Nations Declaration on the Rights of Indigenous Peoples in

11 Law Commission, ‘Law of Acquisition and Requisitioning of Land’ (Law Com No. 10, 1977).

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Articles 10, 11, 19, 28 and 29 which prescribes situations in which FPIC must be obtained before granting compensation, taking of indigenous property etc. Development experts have recognized that FPIC is not only important for Indigenous people but can also be used as a positive approach to involve local communities in decision-making about any proposed development. Engaging them in such processes fosters a greater sense of ownership and engagement and, moreover, helps safeguard their right to development as a basic human rights principle12. These principles are not to be found under the Land Acquisition Act, 1984 but the concept of acquiring land through consent and Social Impact Assessment (SIA) on whether a project serves “public purpose” has been added in the 2013 avatar of the Land Acquisition Act. Therefore, The Right To Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 is found to be more attuned to the notion of fairness and is progressive to this extent.

15Copy pinpoint15. While there are many instances of authorities failing to adhere to the acquisition regime, this Court has the benefit of a study conducted by the Lands Rights Initiative of the Centre for Policy Research13. The outcome of the extensive study of around 1269 judgments of the Supreme Court of India between 1950 to 2016 on the legal trajectory of land acquisition cases in India lead to the following comments: “The process of land acquisition in India has been the source of increasing political and legal contestation for almost two hundred years. This stems from the inherently coercive nature of the process, which creates a severe imbalance in power between the state and land losers. Our review of Supreme Court litigation since the time India became a constitutional republic in 1950 shows that while much of this imbalance was created within the very text of the Land Acquisition

12 Sambhav Shrivastava et al., ‘Subversion of Due Process for Seeking the Consent of Communities in Land Acquisition and Resultant Land Conflicts’ (Oxfam 2020) <https://policy-practice.oxfam.org/resources/subversion-of-due-process-for-seeking- the-consent-of-communities-in-land-acquis-621109/> accessed 19 September 2023. 13 Namita Wahi, Ankit Bhatia et al, ‘Land Acquisition in India: A Review of Supreme Court Cases 1950-2016’(Centre for Policy Research 2017)

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Act, a considerable part of it could also be attributed to executive non-compliance with the rule of law. The result was a situation of great inequity for the land losers”

[emphasis supplied]

16Copy pinpoint16. The Supreme Court in a recent judgment had the occasion to look at the process of compulsory land acquisition where the landowners had practically no means to oppose the proposed acquisition. A two judge bench in Vidya Devi v. State of H.P14 speaking through Indu Malhotra J. made the following significant observation: “12.2. The right to property ceased to be a fundamental right by the Constitution (Forty-fourth Amendment) Act, 1978, however, it continued to be a human right (Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn. [Tukaram Kana Joshi v. Maharashtra Industrial Development Corpn., (2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] ) in a welfare State, and a constitutional right under Article 300-A of the Constitution. Article 300-A provides that no person shall be deprived of his property save by authority of law. The State cannot dispossess a citizen of his property except in accordance with the procedure established by law. The obligation to pay compensation, though not expressly included in Article 300-A, can be inferred in that Article [K.T. Plantation (P) Ltd. v. State of Karnataka [K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1 : (2011) 4 SCC (Civ) 414] ]. 12.3. To forcibly dispossess a person of his private property, without following due process of law, would be violative of a human right, as also the constitutional right under Article 300-A of the Constitution.”

17Copy pinpoint17. The significance of complying with procedural requirements cannot, therefore, be overstated. iii) Burden is on the Authority to fulfil procedural requirements under Section 52 of the 1959 Act

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18Copy pinpoint18. Returning to the facts of the present case, let us now consider the implication of Section 52 of the 1959 Act. The provision having a bearing in this discussion, is extracted below: “52. Compulsory Acquisition of Land- (1) Where on a representation from the Trust it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under this Act, the State Government may acquire such land by publishing in the official Gazette a notice specifying the particular purpose for which land is required and stating that the State Government has decided to acquire the land in pursuance of this Section. (2) Before publishing a notice under sub-section (1), the State Government shall by another notice call upon the owner of the land and any other person who in the opinion of the State Government may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired. (3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit. (4) When a notice under sub-section (1) is published in the official gazette, the land shall on and from the date of such publication, vest absolutely in the State Government free from all encumberances. (5) Where any land is vested in the State Government under sub-section (4), the State Government may by notice in writing order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorised by it in this behalf within thirty days of the service of notice. **** **** **** **** ****”

19Copy pinpoint19. The implication of Section 52 of the 1959 Act, is that notice is required to be served not only to the owner but also to “any other person interested” thereby covering everyone interested in the concerned land. To avoid the rigour of this Section, the appellant- Trust have given their

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version by saying that the plaintiff, Gordhan Dass intentionally did not receive compensation so as to make it a ground thereafter and that the onus would lie on the plaintiff as found by the trial Court. Gordhan Dass was indisputably the actual owner and hence, as per the mandate of the law, it was the responsibility of the concerned Authority 15 to adhere to the due statutory process before depriving the landowner or interested persons, of their property. The burden is on the defendant No. 1 i.e. the Urban Improvement Trust to satisfy the high procedural threshold before acquiring any private property. Moreover, the defendant no. 1 was also unable to produce any evidence to indicate whether compensation was ever paid to the original khatedaars as was vaguely claimed by them. This fact was also noted by the First Appellate Court in para 20 of the decision that, despite a vague contention, there is no proof of payment of compensation even to the original khatedars. On the other hand, the plaintiffs have produced a letter wherein the original khatedaar is seeking compensation as on 10.1.1990. Be that as it may, neither was notice issued to the actual owners nor any compensation was paid to them by defendant no. 1. As already noted, Section 52 of the 1959 Act requires the Government to issue notice to the owner of the land and to any other person, who may be interested therein to seek protection of their land from acquisition. Only after consideration of the response to the notice, the concerned land is to vest on the State Government. The land owner or interested persons are also required to be given the opportunity of being heard. In the present case, neither any notice was issued nor any compensation was paid to the land owner. Moreover, it has been alleged that even after initiation of land acquisition proceedings in 1972, the plaintiff continued to enjoy possession till 10.6.1998 during the pendency of the civil suit. The plaintiff was forcefully dispossessed under the cover of a judgment concerning some other land. The said judgment has nothing to do with the land of respondents. This further points towards glaring procedural irregularities in the entire land acquisition process.

15 D.B. Basnett v Collector, East District, Gangtok, Sikkim (2020) 4 SCC 572; Jagan Singh & Co. v Ludhiana Improvement Trust 2022 SCCOnLine 1144

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20Copy pinpoint20. The observations in M.P. Housing Board v Mohd. Shafi16 are relevant in this context where the significance of giving proper notice was noted as under: “8…..The object of issuing a notification under Section 4 of the Act is two- fold. First, it is a public announcement by the Government and a public notice by the Collector to the effect that the land, as specified therein, is needed or is likely to be needed by the Government for the «public purpose» mentioned therein; and secondly, it authorises the departmental officers or officers of the local authority, as the case may be to do all such acts as are mentioned in Section 4(2) of the Act. The notification has to be published in the locality and particularly persons likely to be affected by the proposal have to be put on notice that such an activity is afoot. The notification is, thus, required to give with sufficient clarity not only the «public purpose» for which the acquisition proceedings are being commenced but also the «locality» where the land is situate with as full a description as possible of the land proposed to be acquired to enable the «interested» persons to know as to which land is being acquired and for what purpose and to take further steps under the Act by filing objections etc., since it is open to such persons to canvass the non-suitability of the land for the alleged "public purpose" also. If a notification under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notification, but also renders all subsequent proceedings connected with the acquisition, bad.”

[emphasis supplied]

21Copy pinpoint21. It logically follows from above that dispossession without following prescribed statutory process such as giving proper notice, is not only highly prejudicial but it is also a violation of constitutional rights and would thereby vitiate the entire process of land acquisition. Law is well- settled that strict adherence to the mandatory procedural requirements outlined in the legislation is sine-qua-non for the compulsory acquisition of land. Legally conducted acquisition procedures minimize the potential for arbitrary action by the concerned Authority. The findings to this effect by

16 (1992)2 SCC 168

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the Appellate Court and the High Court would therefore merit our approval. In other words, land acquisition proceedings for the entire 3 bighas of land is held to be void-ab-initio.

22Copy pinpoint22. As far as the judgment of this Court in Bhola Shankar v Dist. Land Acquisition Officer17 relied upon by Mr. Aruneshwar Gupta, learned Counsel for the Appellant is concerned, it is distinguishable from the facts of this case. In Bhola Shankar(supra), the factual matrix was such that the concerned plot was purchased subsequent to the publication of notification under Section 4 of the Land Acquisition Act,1894. However, in the present case, the plaintiff together with defendant no. 2 to 4 had bought the land well before commencement of the land acquisition proceedings. Therefore issue(i) is answered accordingly. E. Maintainability i) Expansive jurisdiction of Civil Courts under Section 9, Civil Procedure Code

23Copy pinpoint23. Adverting next to the appellant’s argument on maintainability of a suit, it is no more res-integra that ouster of jurisdiction of civil Courts cannot be a matter of course. Section 9 of the Code of Civil Procedure empowers the Courts to try all civil suits, unless barred. The contour of the jurisdiction of the Civil Court has been succinctly enunciated by a five-judge Constitution Bench in Dhulabai(supra). Chief Justice M Hidayatullah writing for the Bench laid down the tests on the bar of jurisdiction of the civil courts. The relevant principles are extracted below: “(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 courts 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.

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(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 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. (7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.” [emphasis supplied]

24Copy pinpoint24. In Ramesh Gobindram v. Sugra Humayun Mirza 18, a two-Judge Bench of this Court observed that the jurisdiction of the civil courts to try suits of a civil nature is expansive and the onus to prove the ouster of the jurisdiction is on the party that asserts it. The court observed that even in cases where the jurisdiction of the civil court is barred by a statute, the test is to determine if the authority or tribunal constituted under the statute has the power to grant reliefs that the civil courts would normally grant in suits filed before them. The relevant observations are extracted below: “12. The well-settled rule in this regard is that the civil courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the courts. The court would lean in favour of a construction that would uphold the retention of jurisdiction of the

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civil courts and shift the onus of proof to the party that asserts that the civil court’s jurisdiction is ousted.”

25Copy pinpoint25. In this case, applying the test laid down in Dhulabai (supra), it has to be determined whether the Act provides an adequate final remedy of the kind the civil Court would normally grant in a suit, such that the jurisdiction of the civil court must necessarily be inferred to have been ousted. For that purpose, the statutory scheme of the Tenancy Act, 1955 is to be carefully examined. Additionally, as per the test laid down by Dhulabai (supra), jurisdiction of civil Court would not be ousted in cases where the fundamental principles of judicial procedure and the provisions of the particular Act are not complied with.

26Copy pinpoint26. Proceeding with the above understanding of the law as laid down by this Court in Dhulabai (supra), let us now examine the scheme of the Tenancy Act, 1955 to determine whether the reliefs claimed in the suit, were within or outside the scope of the 1955 Act. The Preamble to the Tenancy Act, 1955 provides that it’s an Act to “consolidate and amend the law relating to tenancies of agricultural lands, and to provide for certain measures of land reforms and matters connected therewith”. The statutory scheme of the Act provides for tenancies of agricultural lands. Section 1 contained in Part I of the Act deals with short title and commencement. Section 5 deals with definitions. Importantly, Section 5(35) provides the definition of Revenue Court “as a court or an officer having jurisdiction to entertain suits or other proceedings relating to agricultural tenancies, profits and other matters connected with land or any other right or interest in land, wherein such court or officer is required to act judicially.” Section 5(43) provides for the definition of tenant. Chapter III deals with classes of tenant while Chapter IV is about Devolution, Transfer, Exchange, and Division of Tenancies. Chapter V is concerned with Surrender, Abandonment, and Extinction of Tenancies. A cursory look at the other chapters would also show that they relate to agricultural tenancies which has nothing to do with the relief of permanent injunction claimed in the suit. The title, as noted earlier, is not disputed. Section 207 and 208 of the Tenancy Act,1955 which is central to the present issue, reads as under: “207. Suits and applications cognizable by revenue court only— (1) All suits and application of the nature specified in the Third Schedule shall be heard and determined by a revenue court.

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 541 DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.]

(2) No court other than a revenue court shall take cognizance of any such suit or application or of any suit or application based on a cause of action in respect of which any relief could be obtained by means of any such suitor application. Explanation— If the cause of action is one in respect of which relief might be granted by the revenue court, it is immaterial that the relief asked for from the civil court is greater than, or additional to, or is not identical with, that which the revenue court could have granted.

208. Application of Civil Procedure Code— The provisions of the Code of Civil Procedure, 1908 (Central Act V of 1908), except: (a) provisions inconsistent with anything in this Act, so far as the inconsistency extends. (b) provisions applicable only to special suits or proceedings outside the scope of this Act, and (c) provisions contained in List I of the Fourth Schedule, shall apply to all suit and proceedings under this Act, subject to the modifications contained in List II of the Fourth Schedule.”

27Copy pinpoint27. Let us now look at the relief claimed in the suit in the context of the overall scheme of the Tenancy Act,1955. In the suit, the plaintiff, inter alia, sought permanent injunction from disturbing the ownership and possession w.r.t 3 bighas of land purchased through two registered sale deeds. Such a relief could not possibly be granted by the forums empowered under the Tenancy Act,1955 which primarily deals with tenancy rights and their protection. Therefore, the jurisdiction of the civil Court is not ousted by Section 207 or Section 208 of the Tenancy Act,1955 and the contrary submission made by the appellant has to be rejected. Therefore, evaluation of the scheme of the Act would lead us to the conclusion that jurisdiction of the revenue Court would be barred under Tenancy Act,1955, in view of the reliefs claimed by plaintiff.

28Copy pinpoint28. Moreover, even where a statute gives finality to the process, it does not exclude cases where the provisions of the particular statute have not been complied with or the Tribunal has failed to decide in conformity with

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the fundamental principles of judicial procedure19. In the present case, in the absence of notice to the actual owner under Section 52 of the 1959 Act, the acquisition proceedings are legally vitiated and therefore the affected owner should be entitled to seek relief from the civil Court. As noticed, the defendant no. 1 i.e., the Urban Improvement Trust failed to adhere to the essential requirements under Section 52 of the 1959 Act. When the fundamental judicial procedure is disregarded, the action rendered is legally void and should be seen as being “outside the Act”. The observations in Firm Seth Radha Kishan v. Administrator, Municipal Committee 20 would therefore be applicable in this context: “7. Under Section 9 of the Code of Civil Procedure the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.”

29Copy pinpoint29. Applying the principles laid down in Dhulabai (supra) and Firm Seth Radha Krishnan(supra) to the facts of the present case, there can be no difficulty in holding that a suit of this nature would be maintainable before the civil Court particularly considering the nature of relief prayed in the suit.

19 Dewaji v. Ganpatlal, AIR 1969 SC 560; Sree Kandregula Srinivasa Jagannath Rao Pantulu Bahadur Garu v. State of A.P., (1969) 3 SCC 71 20 (1964) 2 SCR 273

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 543 DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.]

ii) Plaintiff’s title is not under a cloud

30Copy pinpoint30. The next issue is whether a civil suit for permanent injunction can be filed without declaration. On this, it is settled that where the plaintiff’s title is not in dispute or under a cloud, a suit for injunction could be decided with reference to the finding on possession. The relevant tests were laid down in Anathula Sudhakar v P. Buchi Reddy21: “13.1. Where a plaintiff is in lawful or peaceful possession of a property and such possession is interfered or threatened by the defendant, a suit for an injunction simpliciter will lie. A person has a right to protect his possession against any person who does not prove a better title by seeking a prohibitory injunction. But a person in wrongful possession is not entitled to an injunction against the rightful owner. 13.2. Where the title of the plaintiff is not disputed, but he is not in possession, his remedy is to file a suit for possession and seek in addition, if necessary, an injunction. A person out of possession, cannot seek the relief of injunction simpliciter, without claiming the relief of possession. 13.3. Where the plaintiff is in possession, but his title to the property is in dispute, or under a cloud, or where the defendant asserts title thereto and there is also a threat of dispossession from the defendant, the plaintiff will have to sue for declaration of title and the consequential relief of injunction. Where the title of the plaintiff is under a cloud or in dispute and he is not in possession or not able to establish possession, necessarily the plaintiff will have to file a suit for declaration, possession and injunction.”

31Copy pinpoint31. At the cost of repetition, it must be noted that in the written statement in the suit, the defendant no.1 admitted that the plaintiff together with the defendant nos.2 to 4 purchased total 3 bighas of land through two sale deeds respectively dated 2.3.1970 and 16.3.1970 and it was also admitted that the plaintiff submitted an application before District Magistrate to convert one bigha land to non-agricultural category on which the District Magistrate issued NOC since the said land was needed

21 (2008) 4 SCC 594

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to set up a petrol pump. Here, the title for the plaintiff is not disputed by the defendants and the same is not under a cloud. Therefore, the question of title is not an issue in the suit. Moreover, the mandatory requirements under the provisions of the 1959 Act were itself not followed before issuing notification, without which the title cannot be said to be disputed. Such a suit for injunction in the absence of contest to the title would therefore, be maintainable.

32Copy pinpoint32. In State of Bihar v Dhirendra Kumar22, Laxmi Chand v Gram Panchayat Kararia23, Commissioner, Bangalore Development Authority and another v Brijesh Reddy and another24, it was held that validity of acquisition notification cannot be questioned in a Civil Court and it can only be challenged in the High Court under its writ jurisdiction. Would these ratios apply to the present case is a question that needs to be addressed. It is the case of the Appellant i.e. the Urban Improvement Trust that the nature of land acquired under the 1959 Act was ‘agricultural land’ which got converted for ‘non-agricultural use’ under Section 90-A of the Land Revenue Act,1956. As per Section 207 of the Tenancy Act,1955 read with entry 8A and entry 23C of Third Schedule, the matter relating to agricultural land could be heard and determined only by a Revenue Court. As the scheme of the Tenancy Act, 1955 was earlier examined, it is quite apparent that the prayers made in the suit are beyond the scope of the 1955 Act. Moreover, the relief for quashing the notification was also not sought in the Suit. That apart, it is not the case of the appellant that writ court is the legal option for relief but they want the land owners to be relegated to the Revenue Court under the 1955 Act. It is already noticed why the Revenue Court is not the appropriate forum for the reliefs claimed by the respondents. The facts here are clearly distinguishable and hence, the ratio laid down in Dhirendra Kumar(supra) can have no application here. Moreover, as per the five-judge bench judgment in Dhulabai (supra), an exception is carved out as per which if there is a violation of fundamental principles of judicial procedure and the provisions of a particular Act are not followed, a Civil suit is maintainable.

22 (1995) 4 SCC 229 23 (1996) 7 SCC 218 24 (2013) 3 SCC 66

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 545 DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.]

iii) Non-impleadment of State cannot be considered fatal for maintainability

33Copy pinpoint33. It was also pleaded by the Appellant that the suit was not maintainable on account of considerable delay and because the State was not impleaded as a party defendant in the suit proceeding. Such a contention upon consideration is only to be rejected. The legal position relating to necessary and proper parties was summarized in Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited25 as under: “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.”

34Copy pinpoint34. It must be borne in mind that the Urban Improvement Trust, Bikaner is an instrumentality of the State and was a contesting party in the suit as it was the beneficiary of the acquisition process. The observation of the seven-judge bench of this Court in Nagpur Improvement Trust v. Vithal Rao26, would be relevant in this context where, it was noted that “the acquisition is for the trust and may be at its instance, but nevertheless the acquisition is by the Government”. In the backdrop of differential compensation under different land acquisition Acts, it was held that as far as the owner is concerned, it does not matter whether the land was acquired by Improvement Trust, Municipal Corporation or the Government. In the facts

25 (2010) 7 SCC 417 26 (1973) 1 SCC 500

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of the present case, non-impleadment of the State cannot be perceived as fatal for the maintainability of the suit as the contesting defendant i.e. Urban Improvement Trust is an instrumentality of the State and the beneficiary of the acquisition process. At this point, we may also usefully refer to the conclusion of the Rajasthan High Court in Urban Improvement Trust v Shri Padmanand27, where after analysing the provisions of the Act 1959, it was noted as under: “15..............In our view, a close scrutiny of the provisions of the 1959 Act leave no doubt that the Improvement Trust, created under the aforesaid Act, works as an agent or instrumentality of the State Government and as such the Trust must be considered as a ‘State Government department’, for the purposes of Section 18 of the Act of 1953.ˮ

35Copy pinpoint35. In light of the above observation, can it possibly be said that the Urban Improvement Trust for the present purpose, is a separate entity altogether in relation to the State of Rajasthan, without whose participation, no authoritative pronouncement could possibly be made in the suit? The answer for this has to be in the negative. The ratio in Shri Saurav Jain v M/s ABP Design & Another28 would also not be applicable here. In that case, a suit was instituted by the 1st respondent in the Court of Civil Judge who claimed to be a “transferable owner and cultivator” of a certain piece of land. This Court, in the said case, inter alia, arrived at a finding that invalid transfer of land was made to the Respondent and it was null and void for being in violation of Section 5(3) of Urban Ceiling Act,1976. Significantly, neither the State nor any authority under the Urban Land (Ceiling and Regulation) Act 1976 were impleaded in that suit. The Court specifically noted that the real object of the suit was to affirm plaintiff’s title on the basis of an alleged permission for sale in his favour. It was in that context that the Court noted that the 1st respondent resorted to engineered drafting for declaration of title. However, in the present case, the title is undisputed and the necessary contesting party i.e. the Trust was arrayed as a party. These are the key distinguishing features for that case to be of no relevance in the present matter.

27 AIR 1980 Raj 176 28 2021 SCC OnLineSC 552

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 547 DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.]

36Copy pinpoint36. At this point, let us now refer to the observations of this Court in Urban Improvement Trust v Mohan Lal29 which are closer to the facts of the present case. This Court deprecated the tendency of State and its instrumentalities of filing appeals against all orders that came against them on false, frivolous, vexatious and technical grounds. The facts in that case were that the Urban Improvement Trust, Bikaner without notice, acquisition or consent, took over the allotted plot of the landowner and thereafter, when relief was granted to landowners by the National Commission, challenged it on technical grounds for absence of protest and Complaint, within two years of the cause of action. Moreover, it was argued by the Counsel for the Trust that even if it was an illegal encroachment, jurisdiction under Consumer Protection Act,1986 could not be invoked. Rejecting the arguments of the Counsel for the Trust, the Supreme Court made the following pertinent observations: “5. It is a matter of concern that such frivolous and unjust litigations by Governments and statutory authorities are on the increase. Statutory authorities exist to discharge statutory functions in public interest. They should be responsible litigants. They cannot raise frivolous and unjust objections, nor act in a callous and high-handed manner. They can not behave like some private litigants with profiteering motives. Nor can they resort to unjust enrichment. They are expected to show remorse or regret when their officers act negligently or in an overbearing manner. When glaring wrong acts by their officers are brought to their notice, for which there is no explanation or excuse, the least that is expected is restitution/restoration to the extent possible with appropriate compensation. Their harsh attitude in regard to genuine grievances of the public and their indulgence in unwarranted litigation requires to be corrected.

6. This Court has repeatedly expressed the view that Governments and statutory authorities should be model or ideal litigants and should not put forth false, frivolous, vexatious, technical (but unjust) contentions to obstruct the path of justice.”

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37Copy pinpoint37. What we see here are few landowners whose lands were subjected to compulsory acquisition for the benefit of the Urban Improvement Trust, Bikaner. The Trust took possession of their land without serving any notice on the landowners. It is also not clear whether any compensation was actually paid to the recorded khatedars. The respondents then filed suit seeking to injunct the appellant from dispossessing the landowners from their land. This was a situation of a genuine grievance attempted to be canvassed by the landowners before a Court of law. For a litigant who has partially succeeded from the 1st Court and later at the appellate stage obtained full relief from two courts be told that his suit is not maintainable? In my opinion, justice would be better served if the respondents are not forced to commence another round of litigation before the High Court to secure a redressal for their grievances pertaining to being deprived of their land without getting any notice or just compensation.

38Copy pinpoint38. As can be seen, the landowners had arrayed the Urban Improvement Trust, Bikaner as a defendant in the suit as their grievance was primarily against the appellant who dispossessed the respondents and took over their land. The State Authority which wronged the landowners was a defendant in the suit and also contested the suit by filing written submission and adducing evidence. In this backdrop, to non-suit the landowners would lead to manifest injustice. The issue no. (iii) is therefore answered against the appellant. F. Conclusion

39Copy pinpoint39. It must now be noted that the litigation in this case has been continuing for 25 years. Empirical Data30 shows that land disputes clog all levels of courts in India, and according to certain studies, land-related litigations account for the largest set of cases, in terms of both absolute numbers and judicial pendency. For those who are going to lose their land through compulsory acquisition, a key redressal mechanism is to enable them to access courts, at first instance. The aggrieved land loser is often

30 ‘Access to Justice Survey 2015-16’ (Daksh, May 2016) <https://dakshindia.org/wp- content/uploads/2016/05/Daksh-access-to-justice-survey.pdf > accessed 19 September 2023.

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unable to access justice from the judicial system. Therefore, having regard to the limited relief that can be obtained from a revenue court under Tenancy Act, 1955, to deny the land losers access to civil court in my opinion, would aggravate the injustice that would otherwise enure, in all cases of compulsory land acquisition.

40Copy pinpoint40. The upshot of the above is that the appellant here failed to establish that they had acquired the land in accordance with the law or paid due compensation to the affected party. The appellant took forceful possession of the respondents’ valuable land by disregarding the legal process and thereby denied the protection of procedural fairness to the respondents. At this moment, I am reminded of the words of former Associate Justice of the US Supreme Court, William O. Douglas who in his concurring opinion in Joint Anti-Fascist Refugee Committee v Mc Grath31 wrote the following: “It is procedure that spells much of the difference between rule by law and rule by whim or caprice. Steadfast adherence to strict procedural safeguards is our main assurance that there will be equal justice under law.”

41Copy pinpoint41. Noticing the departure from the due process by the authorities, relief was granted to the land owners. No infirmity is thus seen with those verdicts which invalidated the acquisition process. The impugned judgment of the High Court therefore merits this Court’s approval.

42Copy pinpoint42. The appellant i.e., the Urban Improvement Trust however claims to have developed the balance 2 bighas for the purpose of the Jai Naryan Vyas Yojana and divided it into plots. Therefore, considering the public interest and balancing the equity, it is clarified that notwithstanding the findings in this judgment, if the authorities wish to, they may even now acquire the land by following the due process of law.

43Copy pinpoint43. The appeal is accordingly dismissed leaving the parties to bear their own cost.

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MANOJ MISRA, J.

1. I had the benefit of reading the scholarly judgment of my learned Brother, Hrishikesh Roy, J., dismissing this appeal filed against the judgment and order of the High Court1 dated 12.01.2010 passed in S.B. Civil Regular Second Appeal No. 114 of 2004. However, since I’m of the opinion that plaintiff’s suit was not maintainable in respect of the land which was acquired by a notification, the defendant’s appeal is entitled to be allowed. Therefore, I’m recording my opinion separately. Appeal

2. This is a defendant’s appeal against the order of the High Court dismissing his second appeal preferred against the judgment and decree of reversal passed by the first appellate Court22 The first appellate Court had not only set aside the decree of the Trial Court33 to the extent it denied complete relief as sought in the suit,4 4 but decreed the suit of the first respondent in its entirety.

3. To have a clear understanding of the issues that arise for consideration in this appeal, it would be apposite to advert to the pleadings in the suit out of which the appeal arises. Suit

4. Gordhan Dass5 instituted the suit on 23.4.1997 against Urban Improvement Trust, Bikaner6, Narayan Das (Respondent no.2), Kanhaiya Lal (Respondent no.3) and Ganesh Ram (Respondent no. 4) seeking permanent prohibitory injunction to restrain the Trust from entering or acquiring the land in dispute7 without adopting due process of law.

1 High Court of Judicature for Rajasthan at Jodhpur 2 District Judge, Bikaner 3 Additional Civil Judge (Sr. Division/Additional Chief Judicial Magistrate No.1, Bikaner 4 Original Suit No.29 of 1997 5 Predecessor-in-interest of respondent nos.1/1 to 1/3 6 The Trust (Appellant) 7 Khasra Nos. 211/81 and 239/83-New No. 294/83, measuring 3 bighas, adjoining Bikaner Sagar Road

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 551 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

Plaint Case

5. The plaint case was that, -- (a) the land in dispute admeasuring 3 bighas was jointly purchased by the plaintiff and defendant nos.2 to 4 8 vide two separate sale-deeds dated 02.03.1970 and 16.03.1970; (b) out of the total area of the disputed land, 1 bigha, comprising a portion of plot no.294/83, was converted to non-agricultural use for setting up a Petrol Pump and, for that purpose, the District Collector issued NOC9 on 23.07.1971; (c) the Trust had not acquired the land by any lawful manner, yet, it started showing itself as owner in possession of the disputed land, as a result, when, on 23.4.1997, the Trust threatened to acquire the land, the suit had to be instituted. Additionally, it was pleaded that neither the provisions of the 1894 Act10 nor of the 1959 Act11 were followed to acquire the land as neither opportunity of hearing nor compensation was provided to either the plaintiff or defendant nos. 2 to 4. Appellant’s case in the Written Statement

6. The appellant12 in its written statement rebutted the plaint case and pleaded that, -- the land pertaining to Khasra no.239/83 stood in the name of Bhanwari Devi, which had already been acquired whereas, the land bearing Khasra no.211/81 is out of Jainarain Vikas Colony Scheme; the land in dispute has been duly acquired and compensation paid to the Khatedars13; the suit of the plaintiff is not maintainable; the land in dispute being agricultural, the Civil Court has no jurisdiction; and the plaintiff has not come to the court with clean hands as the disputed land had already been acquired and compensation paid to the recorded Khatedars. Amended Pleadings

7. During the suit proceeding, comprehensive amendments in the plaint were sought and allowed, resulting in filing of an amended plaint on 11.11.2002. Therein it was stated that though, pursuant to the order of

8 Respondent Nos.2 to 4 9 No Objection Certificate 10 The Land Acquisition Act, 1894 11 The Rajasthan Urban Improvement Trust Act, 1959 12 Defendant No.1 in the suit 13 Person whose name is recorded as tenure holder in the record of rights

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the High Court dated 26.02.1998 in S.B. Civil Writ Petition No.2243/95 (Bhanwarlal vs. State of Rajasthan), the Trust had taken possession of the land in dispute on 10.06.1998 but the writ court’s order related to some other land. Therefore, relief for a mandatory injunction to restore the possession of the plaintiff was sought.

8. In the amended written statement filed by the appellant, it was stated that after plaintiff had instituted the suit, report from Tehsildar was obtained. Then it was discovered that the plaintiff along with others had purchased the land in dispute vide sale deeds dated 02.03.1970 and 16.03.1970 and had also given an application for conversion of 1 bigha of that land for non- agricultural use, which was allowed, and, on payment of conversion fee, NOC was issued for setting up a Petrol Pump. It was, however, clarified that the appellant had, in all, acquired 24 bighas and 12 biswas of land comprising Khasra No.294/83 after following due procedure and compensation thereof was paid to the recorded owners. It was also stated that the plaintiff had never raised any objection to the acquisition. In respect of 1 bigha of that land, for which NOC was issued to set up a petrol pump, it was stated that the State vide order dated 7.8.2002 had taken a decision to return it to its owner. In paragraph 18 of the amended written statement, it was specifically stated that 2 bighas of the disputed land were acquired and its compensation was paid to the recorded tenure-holders. Trial Court Findings

9. The trial court found that there is no dispute between the parties that 1 bigha, out of 3 bighas of the land in dispute, was converted to non- agricultural land and that it was not acquired by the State. Therefore, the plaintiff is entitled to get possession of that one bigha. Regarding the remaining 2 bighas of land, in paragraph 15 of the judgment it was held that, though plaintiff had purchased it through separate sale-deeds of the year 1970, in the Jamabandi (i.e., record of rights), the name of the plaintiff was not entered rather it continued to reflect previous Khatedar’s name. Moreover, notice under Section 52(2) of the 1959 Act was issued to the recorded Khatedars, award was passed in the year 1985 and compensation was also paid to them. Trial Court also observed that plaintiff raised no objection, despite knowledge, even though the Trust had commenced development work over the land to make it habitable. A passing observation

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was also made that plaintiff’s intention appeared to be to enjoy the land and later stake a claim over it. The trial court thus concluded that plaintiff did not approach the Court with clean hands. Consequently, the suit was decreed only to the extent of that 1 bigha of the disputed land regarding which, the appellant had given up its claim. Appeal Before the First Appellate Court

10. Aggrieved by dismissal of the suit in part, the plaintiff preferred an appeal14. No appeal was preferred by the Trust. Consequently, the decree of the trial court to the extent of 1 bigha of the disputed land became final as against the Trust.

11. Before the first appellate court, on behalf of the plaintiff, it was argued that acquisition proceedings of the land had commenced in the year 1972 whereas the two sale-deeds in favour of the plaintiff were registered in the year 1970. The sale-deeds were in the knowledge of the officers of the State as conversion of 1 bigha land to non-agricultural land was sought, and the Collector had issued NOC in favour of the plaintiff. Therefore, even if plaintiff’s name was not recorded as Khatedar, it could be presumed that the State and its officers were aware about ownership rights of the plaintiff and other co-purchasers (i.e., defendant nos.2 to 4). Yet, no notice of the proposed acquisition was given to the plaintiff. Hence, the acquisition is void. It was also argued that the plaintiff and defendant nos.2 to 4 have been in continuous possession, which was disturbed during pendency of the suit on 10.06.1998. First Appellate Court Findings

12. The first appellate court in paragraph 14 of its judgment noted the admitted case of the parties that the land was purchased by the plaintiff vide sale-deeds dated 02.03.1970 and 16.03.1970 whereas notification, commencing proceedings for acquisition, was issued on 09.06.1972. Yet, the plaintiff was not served notice of proposed acquisition. In paragraph 18 of the judgment, the first appellate court observed that admittedly prior to the acquisition, NOC was issued to the plaintiff for conversion of agricultural land to non-agricultural land, therefore it is to be assumed

14 Appeal Decree No.30 of 2004

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that the State was aware of the ownership right of the plaintiff. Yet, notice of acquisition was not served on the plaintiff. In these circumstances, non-mutation of plaintiff’s name in the revenue records would not defeat plaintiff’s claim that acquisition notification was bad for non-service of notice on him. With these observations, and finding upon that possession of the land was taken on 10.6.1998, the first appellate court decreed plaintiff’s suit in its entirety. Second Appeal Before the High Court

13. Aggrieved by decision of the first appellate court, the appellant preferred second appeal before the High Court contending, inter alia, (a) mere suit for injunction is not maintainable unless a relief for declaration of title is sought; (b) the civil court has no jurisdiction to decide the suit when the land in dispute is subject matter of acquisition and, under Section 52 of the 1959 Act, on publication of the notification in the gazette, the land stood vested in the State free from all encumbrances; and (c) the plaintiff had failed to implead the State as a defendant even though it was a necessary party.

14. In rebuttal, on behalf of the plaintiff, it was argued that since the notification for acquisition was not preceded by service of notice on the owner of the land, as contemplated by sub-section (2) of section 52 of the 1959 Act, the acquisition was void and, therefore, the Civil Court held jurisdiction to grant the relief sought. High Court’s decision

15. The High Court opined that purchase of land by the plaintiff in the year 1970, prior to the acquisition was not disputed; the acquisition notification was issued without serving notice on the plaintiff, therefore, the acquisition was void and suit as instituted was maintainable. Moreover, the plaintiff was in possession up to the date of institution of the suit. It thus upheld the decree of the first appellate court and dismissed the second appeal.

16. Aggrieved by dismissal of its second appeal, the Trust is in appeal before us.

17. We have heard Sri Aruneshwar Gupta, learned senior counsel, assisted by Sri Rajeev Singh, Advocate-on-Record for the defendant- appellant; and Sri Manoj Swaroop, learned senior counsel, for the respondents.

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 555 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

Submissions on Behalf of the Appellant

18. Learned counsel for the appellant contended that Chapter VII of the 1959 Act deals with acquisition and disposal of land by the Trust. Section 52 of the 1959 Act provides for compulsory acquisition of land. Sub-section (1) of Section 52 empowers the State Government to acquire land by publishing in the Official Gazette a notice specifying the special purpose for which the land is required and stating therein that the State Government has decided to acquire the land in pursuance thereof. Sub-section (4) of section 52 provides that when a notice under sub-section (1) is published in the official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances. Sub-section (5) of Section 52 provides that where any land is vested in the State Government under sub-section (4), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorized by it in this behalf within 30 days of the service of the notice. Sub-section (7) of Section 52 provides that where the land has been acquired for the Trust, the State Government shall, after it has taken possession of the land and on payment by the Trust of the amount of compensation determined under Section 53, and of the other charges incurred by the State Government in connection with the acquisition, transfer the land to the Trust for the purpose for which the land has been acquired.

19. Learned counsel submitted that the mechanism for determination of compensation, the mode of its payment, and resolution of disputes in respect thereof are provided for by Sections 53, 54, 55, 56, 57, 58 and 59 of the 1959 Act. Thus, the 1959 Act is a complete Code insofar as acquisition of the land, payment of compensation for its acquisition and settlement of disputes regarding the compensation payable therefor are concerned. As a result, by necessary implication, the Civil Court’s jurisdiction is barred from entertaining any claim in respect of that land. Moreover, once the land vests in the State free from all encumbrances, in absence of seeking a declaration qua the validity of the acquisition notification, mere suit for injunction would not be maintainable. According to him, the trial court was justified in dismissing the suit to the extent the land was covered by the notification whereas the first appellate court and the High Court committed manifest

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error of law in holding the suit maintainable. In addition to the above, it was submitted that admittedly 2 bighas out of 3 bighas of the land in dispute was agricultural land, therefore, by virtue of Section 207 of the Rajasthan Tenancy Act, 1955 (in short, “the 1955 Act”), the suit was barred before a Civil Court and could only be filed in a Revenue Court.

20. Regarding non-service of notice upon the owners of the land prior to the notification under Section 52(1) of the 1959 Act, the learned counsel for the appellant submitted that as the original Khatedars, who stood recorded in the record of rights, were served with notice of the proposed acquisition, there was substantial compliance of the provisions of sub-section (2) of Section 52 of the 1959 Act. Hence, the notification under sub-section (1) of Section 52 cannot be treated as void.

21. In support of his submissions, the learned counsel for the appellant placed reliance on the following decisions: (i) Ahuja Industries Ltd. v. State of Karnataka & Others15; (ii) Bhola Shanker v. The District Land Acquisition Officer, Aligarh and Ors16; (iii) Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another17; (iv) Kiran Singh v. Chaman Paswan18; and (v) Munshi Ram v. Municipal Committee, Chheharta19. Submissions on behalf of the Respondents

22. Per contra, learned counsel for the respondents submitted that under sub-section (2) of Section 52 of the 1959 Act, the State Government is under an obligation to call upon the owner of the land and any other person who, in the opinion of the State Government, may be interested therein to show cause, within such time as may be specified in the notice, why the

15 (2003) 5 SCC 365 16 (1973) 2 SCC 59 17 (2013) 3 SCC 66 18 AIR 1954 SC 340 19 (1979) 3 SCC 83

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 557 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

land should not be acquired. The requirement of issuing such notice, before publishing the notification under sub-section (1) of Section 52, is mandatory. In absence thereof, the notification under sub-section (1) of Section 52 is void. Hence, there could be no deemed vesting under sub-section (4) of Section 52. Thus, the suit was maintainable, notwithstanding no relief was sought to annul the notification. In support of his submissions, the learned counsel for the respondents placed reliance on a Constitution Bench decision of this Court in Dhulabhai vs. State of Madhya Pradesh20 and a three-judge Bench decision in Firm Seth Radha Kishan vs. Municipal Committee21. Questions that arise for Our Consideration

23. On consideration of the rival submissions, in my view, the following questions arise for determination: (i) Whether for failure to serve notice under sub-section (2) of Section 52 of the 1959 Act on the plaintiff, the notification acquiring the land under sub-section (1) of Section 52 of the 1959 Act could be treated as void by the Civil Court? (ii) Whether in respect of the land covered by the acquisition notification, the suit of the plaintiff for injunction simpliciter, without seeking a declaratory relief and, that too, without impleading the State as defendant, maintainable? (iii) Whether the civil suit of the plaintiff was also barred by section 207 (2) of the 1955 Act? Discussion and Analysis

24. Though the aforesaid issues are interrelated but, for clarity, I propose to deal with them separately. Issue No.(i) — Whether the notification under Section 52(1) of the 1959 Act could have been treated as void by the Civil Court?

25. Before proceeding further on issue no.(i), it is apposite to observe that when an act is void, it is a nullity and can be disregarded and impeached

20 (1968) 3 SCR 662 21 (1964) 2 SCR 273

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in any proceeding before any court or tribunal whenever it is relied upon. In other words, it is subject to a “collateral attack”. But, in Nawabkhan Abbaskhan vs. State of Gujarat22, followed in Bharati Reddy vs. State of Karnataka23, this Court held that if illegal acts of authorities are defied on self-determined voidness, startling consequences will follow. In the light of settled legal position, the question which falls for consideration is, whether for want of service of notice of proposed acquisition under sub-section (2) of Section 52 of the 1959 Act, the acquisition notification, under section 52 (1) of the 1959 Act, could be treated as void and, therefore, vulnerable to a collateral attack.

26. To appropriately address the aforesaid issue, it would be useful to first examine the provisions of the 1959 Act which deals with compulsory acquisition of land. Chapter VII of the 1959 Act deals with acquisition and disposal of land. Section 52 deals with compulsory acquisition of land. For convenience, the same is reproduced below: “52. Compulsory acquisition of land- (1) Where on a representation from the Trust it appears to the State Government that any land is required for the purpose of improvement or for any other purpose under this Act, the State Government may acquire such land by publishing in the official Gazette a notice specifying the particular purpose for which such land is required and stating that the State Government has decided to acquire the land in pursuance of this section. (2) Before publishing a notice under sub-section (1), the State Government shall by another notice call upon the owner of the land and any other person who in the opinion of the State Government may be interested therein to show cause, within such time as may be specified in the notice, why the land should not be acquired. (3) After considering the cause, if any, shown by the owner of the land and by any other person interested therein and after giving such owner and person an opportunity of being heard, the State Government may pass such orders as it deems fit.

22 (1974) 2 SCC 121 23 (2018) 6 SCC 162

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(4) When a notice under sub-section (1) is published in the official Gazette, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances. (5) Where any land is vested in the State Government under sub-section (4), the State Government may, by notice in writing, order any person who may be in possession of the land to surrender or deliver possession thereof to the State Government or any person duly authorized by it in this behalf within thirty days of the service of the notice. (6) If any person refuses or fails to comply with an order made under sub-section (5), the State Government may take possession of the land and may for that purpose use such force as may be necessary. (7) Where the land has been acquired for the Trust, the State Government shall, after it has taken possession of the land and on payment by the Trust of the amount of compensation determined under Section 53, on the amount of interest thereon, and of the other charges incurred by the State Government in connection with the acquisition, transfer the land to the Trust for the purpose for which the land has been acquired.”

27. Section 53 of the 1959 Act is regarding payment of compensation for compulsory acquisition of land. Sub-section (3) of Section 53 provides that where the amount of compensation can be determined by agreement between the State Government and the person to be compensated, it shall be determined in accordance with such agreement. Sub section (4) of Section 53 provides that where no such agreement is reached, the State Government shall refer the case to the Collector for determination of the person to whom the amount of compensation is to be paid and the amount of compensation to be paid for such acquisition.

28. Section 54 of the 1959 Act provides that any party aggrieved by the decision of the Collector determining the amount of compensation may, within sixty days from the date of such decision, appeal to the court of the District Judge having jurisdiction.

29. Section 55 of the 1959 Act provides for reference of disputes regarding apportionment of compensation to the Court of the District Judge. It reads:

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“55. Disputes as to apportionment of compensation. - If any dispute arises as to the apportionment of compensation among persons claiming to be entitled thereto the State Government shall refer such dispute for the decision of the Court of the District Judge having jurisdiction.”

30. Section 56 confers on a person, aggrieved by the decision of the District Judge under Section 55 of the Act, a right to file an appeal to the High Court

31. Section 57 provides for the mode of payment of compensation, or deposit of the same in Court.

32. Section 58 empowers the Court to invest the amount of compensation deposited in court.

33. Section 59 provides that if any question or dispute arises as to the sufficiency of the compensation paid or proposed to be paid under any provision of the Act, otherwise than under the foregoing provisions of that Chapter, the matter shall be determined by the District Judge having jurisdiction upon a reference made to him either by the Trust or by the claimant within a specified period.

34. Section 60 provides for the disposal of the land by the Trust.

35. A conspectus of the provisions of Chapter VII of the 1959 Act makes it clear that once the acquisition notification is published in the Official Gazette under sub-section (1) of Section 52 of the 1959 Act, by virtue of sub section (4) of Section 52, the land shall, on and from the date of such publication, vest absolutely in the State Government free from all encumbrances and, thereafter, the owner or person interested in the land is entitled to receive compensation. Further, as to whom the compensation is payable and the quantum payable are all issues for which a mechanism is in place under the provisions of the 1959 Act.

36. Now, the question that falls for consideration is whether the notification under sub-section (1) of Section 52 of the 1959 Act could be treated as void for non-service of notice, under sub-section (2) of Section 52, on the plaintiff and other co-owners of the land who had purchased the same from the erstwhile owners, or their predecessors, entered in the record of rights.

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37. According to the learned counsel for the respondents, where the mandatory provisions of sub-section (2) of Section 52 of 1959 Act are not followed, the notification issued thereunder would be a nullity and, therefore, the Civil Court’s jurisdiction to grant appropriate relief shall not be ousted. Taking the proposition further, it was submitted that ouster of a Civil Court’s jurisdiction cannot be a matter of course even where finality to the orders of the Special Tribunals is provided for, particularly, where the provisions of the concerned Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure.

38. In support of the above submission, the learned counsel for the respondent relied on the decisions of this Court in Dhulabhai (supra) and Firm Seth Radha Kishan (supra).

39. In Dhulabhai (supra) the appellant before this Court had instituted a suit to recover sales tax alleged to have been realized illegally by the State of Madhya Pradesh. The State contested the suit by claiming that it was barred by Section 17 of the Madhya Bharat Sales Tax Act. The court of the District Judge decreed the suit. On appeal by the State, the High Court reversed the decision holding that the suit was barred even though it was conceded by the Revenue that the tax could not have been imposed in view of the bar of Article 301 of the Constitution of India. In that context, the question that arose for this Court to decide was whether the suit was barred expressly by Section 17 of that Act or by any implication arising from the Act. The contention on behalf of the appellant therein was that if it was a question of the correctness of the imposition within the valid framework of the statute, rules or notification, Section 17 might have operated but not when the imposition was under a void law. After considering several decisions, the Constitution Bench summarized the legal position as under: “35. … The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (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 courts would normally do in a suit. Such provision, however, does not exclude those cases

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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 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 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.

URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN 563 DASS (D) THROUGH LRS. [MANOJ MISRA, J.]

(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions above set down apply.” (Emphasis Supplied)

40. In Firm Seth Radha Kishan (supra), the question that fell for determination was whether a suit would lie in a civil court claiming refund of the terminal tax collected by a municipality under the provisions of the Punjab Municipal Act, 1911. The trial court decreed the suit on finding that imposition/collection of tax was illegal. On appeal, the High Court of Punjab held that even though the imposition of tax might not be authorized but the civil court had no jurisdiction to entertain the suit as the Act provided for a remedy by way of appeal against the wrong orders of the authorities thereunder. In that context, this Court, after considering a plethora of decisions, held: “7. Under Section 9 of the Code of Civil Procedure the court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil courts. The statute may specifically provide for ousting the jurisdiction of civil courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the remedy could be had. Even in such cases, the civil court’s jurisdiction is not completely ousted. A suit in a civil court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.” (Emphasis supplied)

41. The decisions of this Court in Dhulabhai (supra) and Firm Seth Radha Kishan (supra) reiterate the settled legal position that if the act impugned is not under the statute but in violation of its provisions, the

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