High Court · 2015

27. 10.11.2015 This appeal is directed against order dated 24.07.200 9 passed by the learned Civil Judge (Senior Division), Jagatsinghpur in C.M.A. No.32 of 2009 a rising out of C.S. No.158 of 2008 rejecting an application under Order 39 Rules 1 and 2, CPC f iled by the plaintiffs. 2. Plaintiffs case relevant for adjudication of this appeal is as follows . The suit was for partition of the joint family property. Out of the sa me lot No.1 of Schedule A property was acquired for industrial development under the provision s of the Land Acquisition Act, 1894 When the compensation was awarded in re0spect of the defen dant/respondents 1 to 3, the plaintiffs filed the aforesaid application to restrain the Land A cquisition Officer (defendant/respondent No.4) from disbursing the amount in favour of defenda nts 1 to 3. It is their allegation that though the property is recorded in the name of one Bar aju Parida, the common ancestor of defendants/respondents 1to 3, the same was acquired from th e joint family nucleus. Therefore, the plaintiffs are entitled to a share in the compensation amount awarded by the referral Court. ss 3. Separate objections were filed to the aforesaid application. Defendant s/respondents 1 to 3 filed their objections stating therein that the acquired properties apper tain to lot 1 of Schedule A of the plaint. It was the self-acquired property of late Baraju Pa rida purchased in the year 1944 and 1951 respectively by virtue of separate registered sale de eds. Subsequently, the same were recorded in his name. Thus, the plaintiffs have no semblance of right over the same. Moreover, in the land acquisition proceeding they (plaintiffs) were ma de parties and served with notice to file their objection. However, they preferred not to file any objection in the land acquisition proceeding. They have also not challenged the award pas sed in the land acquisition proceeding in the appropriate forum. Moreover, a statutory authori ty cannot be restrained from exercising his duties under the statute by an order of injunction of the Civil Court exercising power under Order 39 Rules 1 and 2, CPC. Thus, they prayed for dismissal of the appeal. 4. Heard learned counsel for the parties. It is submitted on behalf of Mr.Subrat Mohanty, learned counsel for the appellants that during pendency of the suit for partition, th e land was acquired for public purpose and the Land Acquisition Collector passed the award. Th us, the plaint was amended impleading the special Land Acquisition Officer, Jagatsinghpur as a party to the suit and the compensation awarded was also included in the schedule, which is th e subject matter of partition. Thus, the learned Civil Judge has every right to consider as to whether the property acquired was a joint family property or self-acquired property of Baraju Parida. Till adjudication by the learned Civil Court, status quo in respect of the suit sched ule property should be maintained to protect the lis for an effective preliminary decree faili ng which, equity would be disturbed and the plaintiffs would suffer irreparable loss. 5. In course of hearing Mr.Mohanty fairly concedes that in spite of notice, the p laintiffs neither have appeared before the Land Acquisition Collector nor have challenged the award passed therein. However, the award being the subject matter of the suit, the Civil Court is competent to pass an order to protect their interest in respect of the compensation awarde d. 6. Mr.Mohanty, learned counsel for the appellants relied upon a decision of the G auhati High Court in the case of Asher Ali Vs. Sukhna Seikh, reported in AIR 1992 Gauhati 1, w herein, it has been held as under:- .if a pre-existing right in common law is recognized by the statute and a new statutory remedy for its enforcement is provided, without expressly excluding the jurisdiction of the Civil Co urt, then both the common law and the statutory remedies might become concurrent remedies leav ing upon an element of election to the persons of inherence. The Civil Courts jurisdiction is also not excluded in cases where the provisions of a particular Act has not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judi cial procedure. Thus, he submits that even if compensation is awarded in a proceeding under the Land Acquisiti on Act, the same is open to challenge in a Civil Court if fundamental procedure of law is not complied with. Learned Trial Court has also held that the question as to whether the property is a self-acquired one or joint family property can be adjudicated at the time of trial. Thus, it is his submissions that when Trial Court has jurisdiction to entertain the suit against th e award passed by the Land Acquisition Authority, it has all other jurisdiction to protect the subject matter of dispute. 7. Mr. Tanmay Mishra, learned counsel for the respondents 1 to 3, refuting the submissions made by Mr.Mohanty contends that the statutory authority can not be injuncted from exercising power in conformity with the provisions of the statute. In th is case, though alternative remedy was available to the plaintiffs to protect their interest, if any in respect of the compensation awarded for acquisition of land they did not prefer to a vail the same. Moreover, in view of the decisions reported in Dalpat Kumar And Another Vs. Pra hlad Singh And Others, reported in AIR 1993 SC 276, he submits that when an alternative remedy is available to the party to protect his interest, remedy available under Order 39 Rules 1 an d 2 should not be exercised. It should be exercised in exceptional cases. He also relied upon a decision in the case of S.P.Subramanya Shetty and others Vs. Karnataka State Road Transport Corporation and others, reported in (1997) 11 SCC 250, wherein the Honble Supreme Court held as under:- 4. In view of the settled legal position that the notification had become final a nd the proceedings had attained finality, the civil suit was not maintainable. This Court has repeatedly held that a civil suit relating to acquisition proceedings is not maintainable and by implication, cognizance undersection 9, CPC, is barred. The Court cannot issue mandatory in junction against the state to denotify the acquisition under section 48. Therefore, the questi on of granting an injunction against the authority; from proceedings in accordance with the la w does not arise. The High Court, therefore, was right in refusing to grant injunction. The Co urt cannot compel the Government to withdraw the notification undersection 4(1)of the Act. It is for the Government to consider the same on merits and it keeping in mind subservience of pu blic interest. In view of the fact that notification was upheld by this Court and has become f inal, the Government cannot retract from the steps taken. Thus, Mr. Mishra submits that though in the case cited above, notification under Section 4(1) of the Land Acquisition Act was challenged, but the ratio decided in that case is applicable t o the case at hand, wherein, it is held that injunction cannot be granted against the Land Acq uisition Authority from performing their statutory duties. Moreover, the plaintiffs have waive d their right of claiming interest over the compensation awarded, by not contesting the procee ding as well as assailing the same in competent forum provided under the provision of Land Acq uisition Act, 1894. 8. Having heard the learned counsel for the parties and gone through the rival co ntentions raised, it is clear that the plaintiffs were noticed by the Land Acquisition Officer to appear and file their respective objections in respect of the acquisition of land in quest ion. They did not appear and contest the case before the Land Acquisition Authority. Moreover, the award passed by the Land Acquisition Authority is not challenged before the appropriate C ourt/forum. In view of the above, prima facie it appears that they have waived their right to challenge the compensation awarded by the Land Acquisition Authority. Moreover, in view of the decisions cited by Mr. Mishra (supra), the Land Acquisition Authority cannot be restrained fr om disbursing the award to the claimants in a proceeding under Order 39 Rules 1 and 2, CPC. 9. In that view of the matter, the appeal is dismissed being devoid of any merit. Accordingly, interim order dated 14.10.2009 stands vacated. However, it is directed that lea rned Civil Judge should make endavour to dispose of the suit at an early date and parties are directed to cooperate in the proceeding. .. K.R. Mohapatra, J. 1