CASE DETAILS v. GORDHAN DASS (D) THROUGH LRS & Ors.

: Upholding the judgment of the High Court, it was held that the land acquisition proceedings is held to be void ab initio for not following the procedure of serving notice; that 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 would aggravate the injustice, thus, civil court has jurisdiction to grant injunction; and that the suit for injunction can be fi led without seeking declaration in a civil court [Paras 10, 21, 38, 39 and 41] Per Manoj Misra, J: Setting aside the judgment of the High Court it was held that if the landowners did not get their names mutated in the record of rights, how would the State come to know of their ownership, thus, mere non-service of notice, u/s. 52(2) of the 1959 Act, upon non-recorded owners, would not render the acquisition notifi cation void; that suit before the civil court was barred by s.207 of the 1955 Act; and that the suit as framed was not maintainable, not only for not seeking a declaratory relief but also for not impleading the State as a party – In view of diff erence of opinion, matter to be placed before Hon’ble the Chief Justice of India for referring the matter to a larger Bench – Reference to larger Bench – Land acquisition. [Paras 51 and 64] LIST OF CITATIONS AND OTHER REFERENCES In the judgment of Hrishikesh Roy, J. Dhulabhai vs.

State of Madhya Pradesh (1968) 3 SCR 662; Firm Seth Radha Kishan vs. Municipal Committee (1964) 2 SCR 273 – relied on. Bhola Shanker v. The District Land Acquisition Offi cer, Aligarh and Ors. (1973) 2 SCC 59; State of Bihar v Dhirendra Kumar (1995) 4 SCC 229; Shri Saurav Jain v M/s ABP Design & Another 2021 SCC OnLine SC 552 – distinguished. 522 SUPREME COURT REPORTS [2023] 14 S.C.R. Vidya Devi v. State of H.P (2020) 2 SCC 569; Ahuja Industries Ltd. v. State of Karnataka & Others (2003) 5 SCC 365: [2003] 3 SCR 351; Sukh Dutt Ratra v. State of H.P (2022) 7 SCC 508; D.B. Basnett v Collector, East District, Gangtok, Sikkim (2020) 4 SCC 572; Jagan Singh & Co. v Ludhiana Improvement Trust 2022 SCC OnLine 1144; M.P. Housing Board v Mohd. Shaf (1992)2 SCC 168; Ramesh Gobindram v. Sugra Humayun Mirza (2010) 8 SCC 726; Dewaji v. Ganpatlal, AIR 1969 SC 560; Sree Kandregula Srinivasa Jagannath Rao Pantulu Bahadur Garu v.

State of A.P., (1969) 3 SCC 71; Anathula Sudhakar v P. Buchi Reddy (2008) 4 SCC 594; Laxmi Chand v Gram Panchayat Kararia (1996) 7 SCC 218; Commissioner, Bangalore Development Authority and another v Brijesh Reddy and another (2013) 3 SCC 66; Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited (2010) 7 SCC 417; Nagpur Improvement Trust v. Vithal Rao 6 (1973) 1 SCC 500; Urban Improvement Trust v Shri Padmanand AIR 1980 Raj 176; Urban Improvement Trust v Mohan Lal (2010) 1 SCC 512 – referred to. Joint Anti-Fascist Refugee Committee v Mc Grath 341 US 123 (1951) – referred to. Namita Wahi, ‘Property’ in Sujit Choudhry, Madhav Khosla, Pratap Bhanu Mehta (eds), The Oxford Handbook of the Indian Constitution (Oxford University Press 2016); 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); Debjani Bhattacharyya, ‘History of Eminent Domain in Colonial Thought and Legal Practice’ (2015) 50 Economic and Political Weekly 45; Law Commission, ‘Law of Acquisition and Requisitioning of Land’ (Law Com No. 10, 1977); Sambhav Shrivastava et al., ‘Subversion of Due Process for Seeking the Consent of Communities in Land Acquisition and Resultant Land Confl icts’ (Oxfam 2020); Namita Wahi, Ankit Bhatia et al, ‘Land Acquisition in India: A Review of Supreme Court Cases 1950-2016’(Centre for Policy Research 2017) – referred to. Julius L. Sackman, Russell D Van Brunt, ‘Nichols on Eminent Domain’ vol 1 (3rd edn, Mathew Bender & co, 1959). § 1.11; Tom Allen, The Right to Property in Commonwealth Constitutions (Cambridge University Press 2000) 172 – referred to. URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. 523 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 – referred to.

In the judgment of Manoj Misra, J. Ahuja Industries Ltd. v. State of Karnataka & Others (2003) 5 SCC 365: [2003] 3 SCR 351; Bhola Shanker v. The District Land Acquisition Offi cer, Aligarh and Ors. (1973) 2 SCC 59; Commissioner, Bangalore Development Authority and another v. Brijesh Reddy and another (2013) 3 SCC 66: [2013] 1 SCR 853; Kiran Singh v. Chaman Paswan AIR 1954 SC 340: [1955] SCR 117; Munshi Ram v. Municipal Committee, Chheharta (1979) 3 SCC 83; Dhulabhai vs. State of Madhya Pradesh (1968) 3 SCR 662; Firm Seth Radha Kishan vs. Municipal Committee (1964) 2 SCR 273; Nawabkhan Abbaskhan vs. State of Gujarat (1974) 2 SCC 121: [1974] 3 SCR 427; Bharati Reddy vs. State of Karnataka (2018) 6 SCC 162: [2018] 3 SCR 137; Anathula Sudhakar v. P. Buchi Reddy (2008) 4 SCC 594: [2008] 5 SCR 331; State of Bihar v. Dhirendra Kumar and others (1995) 4 SCC 229: [1995] 3 SCR 857; Laxmi Chand v. Gram Panchayat, Kararia (1996) 7 SCC 218: [1995] 4 Suppl.

SCR 774; T. Arivandandam v. T.V. Satpal and another (1977) 4 SCC 467: [1978] 1 SCR 742; Shri Saurav Jain & Another Vs. M/s A.B.P. Design & Another 2021 SCC OnLine SC 552; Pyarelal v. Shubhendra Pilania (2019) 3 SCC 692: [2019] 1 SCR 717; Bank of Baroda v. Moti Bai (1985) 1 SCC 475: [1985] 2 SCR 784 – referred to. OTHER CASE DETAILS INCLUDING IMPUGNED ORDER AND APPEARANCES CIVIL APPELLATE JURISDICTION : CIVIL APPEAL NO.8411 OF 2014 From the Judgment and Order dated 12.01.2010 of the High Court of Rajasthan at Jodhpur in SBCRSA No.114 of 2004 Appearances: Aruneshwar Gupta, Sr. Adv., Himanshu Chaurvedi, Abhishek Sharma, Rajeev Singh, Advs. for the Appellant. Manoj Swaroop Sr. Adv., Achal Singh Bule, Nikhil Kumar Singh, Sudhanshu Khandelwal, Rishi Matoliya, Advs. for the Respondents. 524 SUPREME COURT REPORTS [2023] 14 S.C.R. JUDGMENT / ORDER OF THE SUPREME COURT JUDGMENT HRISHIKESH ROY, J. Factual Backdrop

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 fi rst 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.

The respondent Gordhan Dass fi led 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 fi rst 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 fi led 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.

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) ?

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 526 SUPREME COURT REPORTS [2023] 14 S.C.R. 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 refl ect 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.

The plaintiff then fi led 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.

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.

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 specifi cally noted 528 SUPREME COURT REPORTS [2023] 14 S.C.R. 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 fi nal, if the said tribunal abuses its power or acts in violation of its provisions. Consequently, the second appeal fi led by the defendant no.1 was dismissed upholding the decree passed in favour of the plaintiff by the fi rst Appellate Court. B. Submissions

Challenging the above judgment of the High Court, Mr. Aruneshwar Gupta, Learned Senior Counsel on behalf of the appellant argued that pursuant to the notifi cation 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 suffi cient notice as State Government is not liable to make a roving or fi shing 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 fi led on 21.4.1997. (Ahuja Industries Ltd. v State of Karnataka1; Bhola Shanker v The Disst. Land Acquisition Offi cer2). 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 2 2003 5 SCC 365 (1973) 2 SCC 59 URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 529 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.

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 plaintiff s. 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 plaintiff s 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

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 refl ected 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 4 5 (2003)5 SCC 365 (1968) 3 SCR 3 662 (1964) 2 SCR 2 273 530 SUPREME COURT REPORTS [2023] 14 S.C.R. 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

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 aff orded 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.

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 satisfi ed, 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.

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 6 (2022) 7 SCC 508 URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 531 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 confi nes of legality, and therefore, not tarnished the basic principle of the rule of law.

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.”

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 suff ered 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 subject9. 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 refl ects on the need to rethink compulsory acquisition from the lens of ethics and justice.

14. 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 defi ned 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). URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 533 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.

15. While there are many instances of authorities failing to adhere to the acquisition regime, this Court has the benefi t 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 Confl icts’ (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) 534 SUPREME COURT REPORTS [2023] 14 S.C.R. 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]

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 signifi cant 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.”

The signifi cance of complying with procedural requirements cannot, therefore, be overstated. iii) Burden is on the Authority to fulfi l procedural requirements under Section 52 of the 1959 Act 14 (2020) 2 SCC 569 URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 535

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 offi cial 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 specifi ed 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 fi t. (4) When a notice under sub-section (1) is published in the offi cial 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. **** **** **** **** ****

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 536 SUPREME COURT REPORTS [2023] 14 S.C.R. 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 Authority15 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.

The observations in M.P. Housing Board v Mohd. Shafi 16 are relevant in this context where the signifi cance of giving proper notice was noted as under:

8…..The object of issuing a notifi cation 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 eff ect that the land, as specifi ed therein, is needed or is likely to be needed by the Government for the «public purpose» mentioned therein; and secondly, it authorises the departmental offi cers or offi cers 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 notifi cation has to be published in the locality and particularly persons likely to be aff ected by the proposal have to be put on notice that such an activity is afoot. The notifi cation is, thus, required to give with suffi cient 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 fi ling 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 notifi cation under Section 4(1) of the Act is defective and does not comply with the requirements of the Act, it not only vitiates the notifi cation, but also renders all subsequent proceedings connected with the acquisition, bad.

[emphasis supplied]

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 fi ndings to this eff ect by 16 (1992)2 SCC 168 538 SUPREME COURT REPORTS [2023] 14 S.C.R. 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.

As far as the judgment of this Court in Bhola Shankar v Dist. Land Acquisition Offi cer17 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 notifi cation 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

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 fi ve-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 fi nality 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. 17 (1973) 2 SCC 59 URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 539 (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to fi nd the adequacy or the suffi ciency 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 fi nd 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]

In Ramesh Gobindram v. Sugra Humayun Mirza18, 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 fi led 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 540 SUPREME COURT REPORTS [2023] 14 S.C.R. civil courts and shift the onus of proof to the party that asserts that the civil court’s jurisdiction is ousted.

In this case, applying the test laid down in Dhulabai (supra), it has to be determined whether the Act provides an adequate fi nal 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.

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 defi nitions. Importantly, Section 5(35) provides the defi nition of Revenue Court

as a court or an offi cer having jurisdiction to entertain suits or other proceedings relating to agricultural tenancies, profi ts and other matters connected with land or any other right or interest in land, wherein such court or offi cer is required to act judicially.

Section 5(43) provides for the defi nition of tenant.

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 modifi cations contained in List II of the Fourth Schedule.”

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 .

Moreover, even where a statute gives fi nality 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 542 SUPREME COURT REPORTS [2023] 14 S.C.R. 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 aff ected 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 Committee20 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 specifi cally provide for ousting the jurisdiction of civil courts; even if there was no such specifi c 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 fi nal, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.

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 diffi culty 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 (1964) 2 SCR 273 20 URBAN IMPROVEMENT TRUST, BIKANER v. GORDHAN DASS (D) THROUGH LRS. [HRISHIKESH ROY, J.] 543 ii) Plaintiff ’s title is not under a cloud

The next issue is whether a civil suit for permanent injunction can be fi led 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 fi nding 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 fi le 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 fi le a suit for declaration, possession and injunction.”

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 594 544 SUPREME COURT REPORTS [2023] 14 S.C.R. 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 notifi cation, 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.

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 notifi cation 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 notifi cation 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 fi ve-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. ORDER In view of the diff erence of opinions and the distinguishing judgments (Justice Hrishikesh Roy dismissing the appeal and Justice Manoj Misra allowing the appeal), the Registry is directed to place the matter before Hon’ble the Chief Justice of India for referring the matter to a larger Bench. Headnotes prepared by: Nidhi Jain Matter to be placed before Hon’ble CJI for referring the matter to larger Bench.