in the high court of karnataka at bangalore dated this the 03rd day of

in the high court of karnataka at bangalore dated this the 03rd day of

IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 03RD DAY OF SEPTEMBER 2013 BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST...

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 03RD

DAY OF SEPTEMBER 2013

BEFORE THE HON’BLE MR. JUSTICE L. NARAYANA SWAMY REGULAR FIRST APPEAL NO. 1906 OF 2010 Between: The Bangalore Development Authority, By its Commissioner Palace Road, Kumarpark West Bangalore ….Appellant (By Smt. G.Lakshmi for M.N.Ramanjaneya Gowda, Advocate) AND Sri. M.S.Narayana Murthy S/o Shamanna Occ: Retired Government Official Aged about 70 years R/at W.C.Road, House No.5 4th Stage, 4th Block Basaveshwaranagar A.D.Halli, Bangalore 79. ….Respondent ( By Shri. B.V.Ramamurthy, Advocate )

This Regular First Appeal is filed under Section 96 CPC against the judgment and decree dated 20.07.2010

passed in

OS No.15286/2004 on the File of the XIII Addl. City Civil Judge,

2

Mayo

Hall

Unit,

Bangalore

partly

decreeing

the

suit

for

permanent injunction; and etc.,

This appeal coming on for hearing, this day, the Court made the following:

JUDGMENT The defendant in O S No.15286/2004 is the appellant herein challenging the judgment

passed by the XIII

Additional City Civil Judge, Bangalore dated 20.7.2010. The suit filed by the respondent – plaintiff for permanent injunction in respect of the suit schedule property. Earlier the suit was for declaration and possession and injunction. Thereafter, the relief of declaration and possession was deleted and the plaintiff confined his prayer only for permanent injunction.

2. The appellant B D A submits that the court below committed an error in granting injunction and the said order is without jurisdiction since the relief sought for by

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the plaintiff is barred under Section 9 of CPC, where the subject

matter

is

acquisition,

under

the

Bangalore

Development Authority Act which impliedly and expressly bars any civil dispute.

The suit property which was the

subject matter of preliminary and final notification of 8.1.1964 and 28.1.1971 respectively and order was passed on 8.8.1985 and possession was taken in 1.10.1985. Subsequent to the final notification, the plaintiff says that he has purchased the property on 2.12.1971.

3. The notifications were challenged before this Court in W P No.14462-70/2000 which came to be disposed of reserving liberty to the appellant to petitioner to workout the remedy before the facts court by filing suit.

Thus by

disposing of the writ petition, issuance of notification for acquisition has been confirmed without granting any relief to the petitioner.

In respect of jurisdiction, the learned

counsel refers the judgment of this Court in Commissioner,

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Bangalore Development Authority vs., Brijesh Reddy, Civil Appeal No.1501/2013 arising in SLP (Civil) No.1051/2013 and

also

referred

another

judgment

reported

in

(Poornaprajna House Building vs., Bailamma @ Dodda Bailamma reported in ILR 1998 KAR 1441 wherein it has been held that validation of the Act cannot be challenged before

the

Civil

Court

which

is

barred

from

being

adjudicated. After the acquisition, any transfer of property, the purchaser do not gets any title. 4. The learned counsel for the respondent submits that validation of the Act was challenged before this Court in W P No.13451/2002 and connected matters disposed of on 21.8.2000 wherein it has been observed at Para No.5 that the BDA not disputing the fact that the petitioners are in possession and enjoyment of the respective plots. Further in the statement filed on behalf of the BDA, it discloses that there are several shops, petrol bunk and other structures in the said Sy.No.39.

The sum and

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substance of the written statement as it is referred in the writ petition that the petitioners have unauthorizedly occupied the respective properties after the B.D.A took possession and land vests with them.

In the light of the

observation made by this Court, the petition was disposed of observing at Para-8 that the B.D.A shall not dispossess them and should not demolish their structures and the parties will have to workout the remedies by seeking appropriate relief as per the observations in John B.James & others vs., Bangalore Development Authority

& another

(2001(1) KLJ 364 (DB).

5. I have heard both.

The points that arise for

consideration are:

(i)

Whether the court below has committed an error in

not

dismissing

respondent-plaintiff?

the

suit

filed

by

the

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(ii)

Whether the suit filed by the respondent-plaintiff is barred by Section 9 of CPC and it is in contravention of the judgment in Brijesh Reddy, referred to supra?

6. Section 9 of CPC enables the Court to try all civil suits unless they are barred. It further contemplates that civil court has jurisdiction to try all suits of civil nature. Hence what is required to be examined is whether the relief sought for by the plaintiff is a civil nature or challenge to validity of acquisition proceedings. If it is a civil dispute, it is clear the civil court can proceed with the matter and if the relief sought for is relating to challenge to validity of acquisition proceedings, the civil court has no jurisdiction to entertain it.

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7. In the instant case, the relief sought for by the plaintiff

is

not

challenge

to

validation

of

acquisition

proceedings or even the award or possession taken by the B.D.A. When such being the case, the suit property is to be examined whether it situates within the acquired land or not.

Even if the answer would be that it falls in the

acquired area, then if the possession or occupation is established, even if it is unauthorized, that necessarily a civil in nature for which the suit for eviction has to be filed by filing a separate suit. This Court in earlier writ petition wherein the respondent-plaintiff approached this Court in W P No.14463/2000 where it is observed at para-5 & 8 that the B.D.A has admitted the fact of possession by the plaintiff and illegal structure and encroachment. However, it is observed, the B.D.A to file necessary suit for eviction.

8. The court below also while decreeing the suit, liberty was reserved to the B.D.A to dispossess the plaintiff

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from the suit schedule property with due process of law. As observed by the trial court, if the proper suit has been instituted by the B.D.A, by this time, the plaintiff could have been evicted from the property in question. Without taking appropriate steps, the appeal has been filed and made to wait for four years.

In the circumstances, I answer the

points formulated accordingly. dismissed.

The appeal shall stand

However, as it is observed in the writ petition

referred to above, liberty is reserved to the B.D.A to take appropriate

action

in

accordance

with

law

by

filing

necessary suit.

With these observations, the appeal stands dismissed.

Sd/JUDGE AKD