1.00. Present Second Appeal under section 100 of the Code of Civil Procedure has been preferred by the appellants herein – original plaintiffs to quash and set aside the impugned Judgement and Order passed by the learned Principal District Judge, Junagadh in Regular Civil Appeal No. 78 of 2001 dtd.12/5/2006, by which the learned appellate court has allowed the said appeal preferred by the respondents – original defendants and has quashed and set aside the judgement and decree passed by the learned Civil Judge (S.D.), Junagadh in Regular Civil Suit No.955 of 1984 dtd.27/4/2001, by which the learned trial court decreed the said suit preferred by the appellant – original plaintiffs and granted declaration in favour of the plaintiffs that the land in question is not liable to be acquired and the acquisition proceedings in respect of the suit land are illegal. That the land bearing Survey No.19/2 Paiki admeasuring 3808 sq.mtrs. (hereinafter referred to as “the suit land” for short) was sought to be acquired under the provisions of the Land Acquisition Act. It appears that at the relevant time notification under section 4 of the Land Acquisition Act came to be published on 17/2/1981. It appears that at the relevant time one Khushalbhai Vrajlal was the owner of the suit land. It appears that thereafter further proceedings under the provisions of the Land Acquisition Act were initiated and hearing under section 5 of the Land Acquisition Act had taken place. It appears that the predecessor-in- title also submitted his objections. Thereafter, notification under section 6 came to be published and even award under section 12 of the Land Acquisition Act came to be published. It appears that at the relevant time, original owner Khushalbhai Vrajlal also submitted his objections with respect to amount of compensation. Even thereafter possession of the suit land was also taken over by the acquiring body - respondent No.1 – GIDC. That at that stage, the appellants – original plaintiffs instituted Regular Civil Suit No.855 of 1984 in the court of learned Civil Judge (S.D.), Jamnagar challenging the acquisition proceedings as well as acquisition by submitting that at the relevant time when notification under section 4 of the Land Acquisition Act was issued and acquisition proceedings were initiated, plaintiffs have purchased the suit land and it was also brought to the notice of the competent authority and even the plaintiffs also submitted their objections. However, without giving any further opportunity and/or considering the objections raised by the plaintiffs the suit land has been acquired and therefore, it was submitted that the entire acquisition proceeding is vitiated and it is illegal.
2.00. The suit was resisted by the defendants by written statement Ex.Nos.16 and 21. It was submitted that as such the Civil Court has no jurisdiction to entertain the suit challenging the acquisition proceedings under the Land Acquisition Act. Even the suit was resisted on merits also. It appears that the learned trial court framed issues at Ex.24. However, at the relevant time did not framed issue with respect to jurisdiction. However, subsequently, the issue with respect to the jurisdiction was framed as Issue No.5A. That thereafter the learned trial court – Civil Judge (S.D.), Junagadh decreed the suit by the judgement and decree dtd.27/4/2001 and granted declaration in favour of the plaintiffs as prayed for declaring that the suit land is not liable to be acquired and also declared that acquisition proceedings with respect to the suit land are illegal and void ab-initio. It appears that though the issue with respect to the jurisdiction was framed as Issue No.5A, the learned trial court did not decide the same. However, the learned trial court discussed the question with respect to jurisdiction of the Civil Court in para 13 of the judgement and held that the notification under section 4(1) of the Land Acquisition Act was published only in the Gazette and no notice was served upon the plaintiffs who are interested persons and therefore, Civil Court has jurisdiction.
2.01. Being aggrieved by and dissatisfied with the judgement and decree passed by the learned trial court in decreeing the suit, respondent No.1 – original defendant No.1 - acquiring body preferred Regular Civil Appeal No. 78 of 2001 and relying upon the decision of the Hon'ble Supreme Court in the case of State of Bihar Versus Dhirendra Kumar and Others, reported in AIR 1995 S.C. 1955, the learned appellate court allowed the appeal quashing and setting aside the judgement and decree passed by the learned trial court on the ground that the Civil Court has no jurisdiction to go into the question of validity or notification under section 4 of the Land Acquisition Act and declaration under section 6 of the Land Acquisition Act. Being aggrieved by and dissatisfied with the Judgement and Order passed by the learned trial court in allowing the appeal preferred by the respondent No.1 – original defendant No.1, and quashing and setting aside the judgement and decree passed by the learned trial court, appellants herein – original plaintiffs have preferred the present Second Appeal under section 100 of the Code of Civil Procedure.
3.00. Mr.Anshin Desai, learned advocate appearing on behalf of the appellants – original plaintiffs has vehemently submitted that the impugned Judgement and Order passed by the learned appellate court is absolutely illegal. It is submitted that as such the learned appellate court has not framed the points for determination as required under Order 41 Rule 31 of the Code of Civil Procedure.
3.01. Mr.Anshin Desai, learned advocate appearing on behalf of the appellants – original plaintiffs has further submitted that the learned appellate court has not discussed other issues on merits and has allowed the appeal solely relying upon the decision of the Hon'ble Supreme Court in the case of Dhirendra Kumar and Others (supra), relying upon the decision of the Hon'ble Supreme Court in the case of State Bank of India and another Versus M/s. Emmsons International Ltd. & Another, reported in AIR 2011 S.C. 2906 it is submitted that when first appellate court reverses the judgement and order of the learned trial court, it is required to consider all the issues of law and facts. Therefore, it is requested to allow the present Second Appeal and remand the matter to the learned appellate court for deciding and considering all the issues of law and facts by the learned appellate court.
3.02. Mr.Anshin Desai, learned advocate appearing on behalf of the appellants – original plaintiffs has further submitted that even on merits also the learned appellate court has materially erred in holding that the Civil Court has no jurisdiction to consider the legality and validity of the acquisition proceedings. It is submitted that the learned appellate court has materially erred in relying upon the decision of the Hon'ble Supreme Court in the case of Dhirendra Kumar and Others (supra). It is submitted that as such in the present case, when the acquisition was challenged on the procedural defects, decision of the Hon'ble Supreme Court in the case of Dhirendra Kumar and Others (supra) would not be applicable.
3.03. Mr.Anshin Desai, learned advocate appearing on behalf of the appellants – original plaintiffs, relying upon the decision of the Hon'ble Supreme Court in the case of Dhruv Green Field Limited Versus Hukam Singh and other, reported in (2002) 6 SCC 416 as well as in the case of Swamy Atmanand and others Versus Sri Ramkrishna Tapovanam and others, reported in (2005) 10 SCC 51, has submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions, unless there is express bar in the statute with respect to the jurisdiction of the Civil Court, suit under section 9 of the Code of Civil Procedure before the Civil Court would be maintainable. It is submitted that as held by the Hon'ble Supreme Court in the aforesaid decisions, jurisdiction of the Civil Court under section 9 of the Code of Civil Procedure to try all suits of a civil nature is very expansive and statute which exclude such jurisdiction should be strictly interpreted. Therefore, it is submitted that the learned appellate court has materially erred in allowing the appeal and quashing and setting aside the judgement and decree passed by the learned appellate court on the ground that the Civil Court has no jurisdiction. It is submitted that even at the relevant time, the possession of the suit land was with the plaintiffs and therefore, the learned appellate court ought to have considered the appeal on merits on all issues, as the learned trial court had decreed the suit on merits on all the issues.
By making above submissions and relying upon above decisions, it is requested to allow the present appeal and remand the matter to the learned appellate court to decide the same afresh in accordance with law and on merits, on all the issues.
4.00. Present appeal is opposed by Mr.M.B. Gandhi, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1 – acquiring body and Mr.Kabir Hathi, learned Assistant Government Pleader, appearing on behalf of the respondent Nos.2 and 3.
4.01. Mr.M.B. Gandhi, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1 has submitted that as such the possession of the disputed land in question already been taken over since long and the GIDC is in possession of the suit land in question. It is submitted that as such the and has been acquired after following due procedure as required under the Land Acquisition Act. It is further submitted that as such though a specific issue was framed at Issue No.5A with respect to the jurisdiction of the Civil Court, the learned trial court did not decide the same in detail. It is further submitted that even the reasoning given by the learned trial court to hold that the Civil Court would have jurisdiction is absolutely illegal, contrary to the decision of the Hon'ble Supreme Court in the case of Laxmi Chand and others Versus Gram Panchayat, Kararia and others, reported in AIR 1996 S.C. 523, as well as in case of S.P. Subramanya Shetty and others Versus Karnataka State Road Transport Corporation, reported in AIR 1997 S.C. 2076. It is submitted that the learned trial court has observed in para 13 of the judgement that notification under section 4 of the Land Acquisition Act was published in the Official Gazette only and no notice was served upon the appellant – plaintiffs, though the plaintiffs had purchased the suit land in question prior to the notification under section 4 of the Land Acquisition Act and therefore the Civil Court would have jurisdiction, is absolutely erroneous. Mr.Gandhi, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1 has further submitted that as such the learned appellate court has rightly allowed the appeal quashing and setting aside the judgement and decree passed by the learned trial court on the ground that the civil court has no jurisdiction to consider the legality and validity of the notification under section 4 and/or acquisition proceedings. It is further submitted that as the learned appellate court was of the opinion that the appeal deserves to be allowed on the ground that the Civil Court has no jurisdiction and therefore, the learned appellate court has rightly not considered any other issues on merits, as it would be exercise in futility. It is submitted that it was found that the Civil Court has no jurisdiction to consider the legality and validity of the acquisition proceedings, other issues on merits were not required to be considered and decided and therefore, the learned appellate court has rightly not considered other issues on merits. It is further submitted that the learned appellate court has rightly held that the civil court has no jurisdiction to consider the legality and validity of the notification under section 4 of the Land Acquisition Act and/or proceedings under the Land Acquisition Act. It is submitted that in the case of Laxmi Chand and others (supra) as well as in case of S.P. Subramanya Shetty and others (supra), the Hon'ble Supreme Court has held that in the cases arising under the Land Acquisition Act, jurisdiction of the civil court to take cognizance thereof is barred.
4.02. It is submitted by Mr.Gandhi, learned advocate appearing on behalf of the respondent No.1 that in the case of S.P. Subramanya Shetty and others (supra), the Hon'ble Supreme Court has held that a civil suit relating to acquisition proceedings is not maintainable and by implication cognizance under section 9 of the Code of Civil Procedure is barred.
4.03. It is submitted by Mr.Gandhi, learned advocate appearing on behalf of the respondent No.1 that in the case of Dhirendra Kumar and Others (supra), the Hon'ble Supreme Court has specifically held that civil court has no jurisdiction to go into the validity of the notification under section 4 of the Land Acquisition Act and declaration under section 6 of the Land Acquisition Act and only High Court can do that in the proceedings under Article 226 of the Constitution of India and therefore, it is submitted that the learned appellate court has rightly held that the Civil Court has no jurisdiction and therefore has rightly quashed and set aside the judgement and decree passed by the learned trial court.
4.04. Now, so far as the request of the learned advocate appearing on behalf of the appellants to remand the matter to the learned appellate court is concerned, Mr.Gandhi, learned advocate appearing on behalf of the respondent No.1 – original defendant No.1, relying upon decision of the Hon'ble Supreme Court in the case of Ashwinkumar K. Patel Versus Upendra J. Patel and others, reported in AIR 1999 S.C. 1125 has submitted that High Court should not ordinarily remand the matter merely because in its view reasoning of the learned trial court in some aspects was wrong. Therefore, it is requested to consider the judgement and order passed by the learned appellate court on merits and has requested to dismiss the present appeal.
5.00. Heard the learned advocates appearing on behalf of the respective parties at length.
6.00. At the outset, it is required to be noted that notification under section 4 of the Land Acquisition Act, to acquire the suit land in question was published on 17/2/1981 and at the relevant time one Khushalbhai Vrajlal was the owner of the suit land in question. That notification under section 6 of the Land Acquisition Act was thereafter published.
6.01. The original plaintiffs instituted suit challenging acquisition proceedings mainly on the ground that though at the relevant time, plaintiffs purchased the suit land in question from the original owner and though it was brought to the notice of the officer by raising the objection, thereafter no further notices were served upon the plaintiffs at any point of time either at the stage of issuing declaration under section 6 of the Land Acquisition Act or at the time of declaration of the Award under section 12 of the Land Acquisition Act and therefore, it was submitted that the entire acquisition proceeding has been vitiated and therefore, the same is illegal. It was also contended on behalf of the plaintiffs that as such notification under section 4 of the Land Acquisition Act was not even published in news paper. A specific contention was raised on behalf of the defendants that civil court has no jurisdiction to consider the legality and validity of the acquisition proceedings, relying upon decision of the Hon'ble Supreme Court in the case of Dhirendra Kumar and Others (supra) and as such the learned trial court also framed issue with respect to jurisdiction at Issue No.5A. However, while deciding the suit, as such there was no specific finding on issue No.5A. However, it appears that there is some discussion with respect to jurisdiction in para 13 of the judgement and considering the decision of the Division Bench of this Court taking view that notification under section 4 of the Khushalbhai Vrajlal is required to be published in local news paper also, however, the same has not been done, and therefore, the learned trial court held that the civil court has jurisdiction. However, the learned trial court did not even consider the decision of the Hon'ble Supreme Court relied upon by the defendants. The learned trial court decreed the suit and thereafter in an appeal the learned appellate court, solely considering the decision of the Hon'ble Supreme Court in the case of Dhirendra Kumar and Others (supra) and and solely on the ground that the civil court has no jurisdiction, has allowed the appeal quashing and setting aside the judgement and decree passed by the learned trial court and consequently dismissing the suit. A grievance is raised that the learned appellate court ought to have decided and considered all the issues on merits and ought to have considered all the issues of law and facts. In support of the above submission, the learned advocate appearing on behalf of the appellants – plaintiffs has relied upon the decision of the Hon'ble Supreme Court in the case of M/s.Emmsons International Ltd. & Anr. (Supra). It is true that normally when the learned trial court has decided the suit on merits, as such the learned appellate court was required to consider all the issues of law and facts and therefore, it was desirable that the learned appellate court ought to have considered all the issues of law and facts in appeal rather than considering the question with respect to jurisdiction only in the appeal. However, in the facts and circumstances, and and for the reasons stated hereinafter, as this Court is confirming the view taken by the learned appellate court that the civil court has no jurisdiction to consider the legality and validity of the acquisition proceedings and the jurisdiction of the civil court is barred, this Court is not inclined to remand the matter to the learned appellate court. In the case of Ashwinkumar K. Patel (supra), the Hon'ble Supreme Court has observed that High Court should not ordinarily remand a case under Order 41 Rule 23 of the Code of Civil Procedure to the lower court merely because it considered that the reasoning of the lower court in some respects was wrong. It is further observed by the Hon'ble Supreme Court in the said decision that such remand orders lead to unnecessary delay and cause prejudice to the parties to the case. It is observed by the Hon'ble Supreme Court in the said decision that when the material was available with the High Court, it should have itself decided the appeal one way or the other. Under the circumstances, when this Court is also of the opinion that Civil Court has no jurisdiction to entertain the suit challenging acquisition proceedings, request made by the learned advocate appearing on behalf of the appellants – original plaintiffs to remand the matter to the learned appellate court, is hereby rejected.
6.02. Now, so far as the main issue which is posed for consideration of this court is whether jurisdiction of he Civil Court to consider the validity and legality of the Acquisition proceedings is barred or not?
6.03. In the case of Dhirendrakumar and other (supra), while considering issue of the jurisdiction of the civil court to go into the validity of the notification under section 4 of the Land Acquisition Act and declaration under section 6 of the Land Acquisition Act, in para 2A, the Hon'ble Supreme Court has observed and held as under :-
“2A. The question is whether a civil suit is maintainable and whether interim injunction could be issued where proceedings under the Land Acquisition Act was taken pursuant to the notice issued under S.9 of the Act and delivered to the beneficiary. The provisions of the Act are designed to acquire the land by the State exercising the power of eminent domain to serve the public purpose. The State is enjoined to comply with statutory requirements contained in S.4 and S.6 of the Act by proper publication and declaration within limitation and procedural steps of publication within limitation and procedural steps of publication in papers and the local publications envisaged under the Acts as amended by Act 68 of 1984. In publication of the notifications and declaration under S.6, of the Act by proper publication of notification and declaration within limitation and procedural steps of publication in papers and the local publications envisaged under the Act as amended by Act 68 of 1984. In publication of the notifications and declaration under S.6, the public purpose gets crystalised and becomes conclusive. Thereafter, the State is entitled to authorise the Land Acquisition Officer to proceed with the acquisition officer to proceed with the acquisition of the land and to make the award. Section 11-A, now prescribes limitation to make the award within 2 years of date of publication envisaged under S.6 of the Act. In an appropriate case, where the Govt. needs possession of the land urgently, it would exercise the power under S.1794) of the Act and dispense with the enquiry under S.5-A. Thereon, the State is entitled to issue notice to the parties under S.9 and on expiry of 15 days, the State is entitled to take immediate possession even before the award could be made. Otherwise it would take possession after award under S.12. Thus, it could be seen that the Act is a complete code in itself and is meant to serve public purpose. We are, therefore, inclined to think, as presently advised, that by necessary implication the power of the civil court to take cognizance of the case under S.9 of C.P.C. Stands excluded, and a civil court has no jurisdiction to go into the question of the validity or legality of the notification under S.4, and declaration under S.6, except by the High Court in a proceeding under Article 226 of the Constitution of India. So, the civil suit itself was not maintainable. When such is the situation, the finding of the trial court that there is a prima facie triable issue is unsustainable. Moreover, possession was already taken and handed over to Housing Board. So, the order of injunction was without jurisdiction.”
6.04. Similar view has been expressed by the Hon'ble Supreme Court in the case of Laxmi Chand and others Versus Gram Panchayat, Kararia and others, (supra) and it is held that the Scheme of the Land Acquisition Act is complete in itself and the jurisdiction of the civil court to take cognizance of the cases arising under the Land Acquisition Act by necessary implication stood barred. It is further held that the civil court thereby is devoid of itself to give declaration on the invalidity of the procedure contemplated under the Act and the only right an aggrieved person has is to approach the constitutional court, viz., the High Court and Supreme Court under plenary power under Articles 226 and 136 respectively with self-imposed restrictions on their exercise of extraordinary power.
6.05. Similar view is also expressed by the Hon'ble Supreme Court in the subsequent decision in the case of S.P. Subramanya Shetty and others (supra).
6.06. Considering the aforesaid decisions and considering the fact that as held by the Hon'ble Supreme Court, jurisdiction of the civil court is impliedly barred considering the scheme of the Land Acquisition Act and consequently when the learned appellate court has allowed the appeal by quashing and setting aside the judgement and decree passed by the learned trial court on the ground that the Civil Court has no jurisdiction, it cannot be said that the learned appellate court has committed any error and/or illegality.
6.07. Now, so far as the reliance placed upon the decisions of the Hon'ble Supreme Court in the case of Dhruv Green Field Limited (Supra) and Swami Swamy Atmananda and others (supra) relied upon by the learned advocate appearing on behalf of the appellants submitting that unless and until jurisdiction of the civil court is excluded under the statute, civil court would have jurisdiction, is concerned, it is required to be noted that as such the aforesaid decisions in the case of Laxmi Chand and others (supra) as well as in the case of S.P. Subramanya Shetty and others (supra), are with respect to the Land Acquisition Act itself, and the Hon'ble Supreme Court has specifically held that the jurisdiction of the civil court with respect to the Acquisition proceedings under the Land Acquisition Act is impliedly barred and therefore it is not possible for this Court take a contrary view and to hold that with respect to acquisition proceedings, civil court would have jurisdiction. Even otherwise, in the case of Dhruv Green Field Limited (Supra), the Hon'ble Supreme Court has also observed and held that bar against the jurisdiction of the civil court not to be inferred unless alternative remedy is provided. It is also further observed by the Hon'ble Supreme Court in the said decision that where there is no express bar but statutory provisions imply exclusion of the jurisdiction, exclusion still cannot be inferred unless statute itself provide adequate and efficacious remedy.
6.08. It is also required to be noted that as per the decision of the Hon'ble Supreme Court in the aforesaid decision in the case of Dhruv Green Field Limited (Supra) only in a case where it is alleged that order is a nullity despite the express or implied bar, Civil Court would have jurisdiction. It is held by the Hon'ble Supreme Court in the said decision that jurisdiction of the civil court would be retained despite express or implied bar if the order or action complained of is a nullity, whereas if the order is illegal, but not a nullity, jurisdiction of the Civil Court would remained barred.
6.09 In the present case it is to be noted that even as per the decision of the Hon'ble Supreme Court in the case of Dhruv Green Field Limited (Supra) even if there is no express bar in the statute with respect to bar against the jurisdiction of the civil court, still considering the statutory provisions of a particular Act, exclusion of the jurisdiction of the civil court can be implied subject to availability of adequate and efficacious remedy. It is required to be noted that as per the decision of the Hon'ble Supreme Court in the cases of Laxmi Chand and others (supra) and S.P. Subramanya Shetty and others (Supra), jurisdiction of the civil court with respect to acquisition proceedings is barred and remedy available to the concerned person is to approach High Court and/or the Hon'ble Supreme Court under Article 226 and 136 of the Constitution of India, respectively.
6.10. Considering the aforesaid facts and circumstances, when the jurisdiction of the Civil Court to consider the legality and validity of the notification under section 4 of the Land Acquisition Act and declaration under section 6 of the Land Acquisition Act and the acquisition proceedings under the Land Acquisition Act is held to be impliedly barred, learned appellate court has rightly allowed the appeal quashing and setting aside the judgement and decree passed by the learned trial court declaring the acquisition proceedings illegal and void and consequently dismissing the suit.
6.11. In view of the above and for the reasons stated above, present Second Appeal fails and the same deserves to be dismissed and is accordingly dismissed. In the facts and circumstances of the case, there shall be no order as to costs.
[M.R. SHAH, J.] rafik