Bombay High Court
The Chairman, Nagpur Improvement … vs The State Of Maharashtra, Through The … on 5 February, 2025
2025:BHC-NAG:1159
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CIVIL REVISION APPLICATION NO.49 OF 2023
The Chairman,
Nagpur Improvement Trust,
Station Road, Sadar, Nagpur. ..... Applicant.
:: V E R S U S ::
1. The State of Maharashtra,
through the District Collector,
Civil Lines, Nagpur.
2. The Municipal Commissioner,
Nagpur Municipal Corporation,
Civil Lines, Nagpur.
3. The City Survey Officer No.2,
Old Administrative Building,
Civil Lines, Nagpur.
4. The Patwari, Talathi SAZA 34-A,
Wathoda, Nagpur.
5. Special Land Acquisition Officer,
(NIT), Nagpur.
6. Gopal Ganesh Padhye (dead)
through his legal heirs.
6a. Smt.Vashali w/o Gopal Padhye,
.....2/-
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r/o Trikoni Park, Cosmopolitan Housing
Society, Khamala, Wardha Road,
Nagpur - 25.
6b. Sau.Sayali w/o Manoj Barave,
aged : 48 years, occupation : household,
r/o Baner Road, Opp.Cafe Coffee Day,
Baner, Pune City, Pune - 45,
respondent Nos.6a 6b and 7
through their power of attorney
Shri Satish s/o Gopal Padhye,
r/o Trikoni Park, Cosmopolitan
Housing Society, Khamala,
Wardha Road, Nagpur-25.
7. Ramdas s/o Ganesh Padhye,
aged : 81 years, occupation : no-known
r/o 2-Vithaldham, Nav Sayadri
Society, Kothrud, Pune.
8. Satish s/o Gopal Padhye,
aged : 48 years, occupation : business,
r/o Trikoni Park, Cosmopolitan
Housing Society, Khamala,
Wardha Road, Nagpur-25. ..... Non-applicants.
=============================
Shri Girish A.Kunte, Counsel & Shri Pratik D.Khedikar,
Advocate for the Applicant.
Mrs.Ritu Sharma, AGP for Non-applicant Nos.1, 3, and
5/State.
Shri A.M.Quazi, Counsel and Shri T.Mirza, Adv. for Non-
applicant No.2.
.....3/-
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Shri Rajkarne, Advocate h/f Shri P.R.Suchak, Counsel for
Non-applicant Nos.6(a) & (b) and 8.
=============================
CORAM : URMILA JOSHI-PHALKE, J.
CLOSED ON : 16/01/2025
PRONOUNCED ON : 05/02/2025
JUDGMENT
1. Heard learned counsel Shri Girish Kunte for
the applicant; learned Additional Public Prosecutor
Mrs.Ritu Sharma for non-applicant Nos.1, 3, and 5;
learned counsel Shri A.M.Quazi for non-applicant No.2,
Advocate Shri Rajkarne h/f learned counsel Shri
P.R.Suchak for non-applicant Nos.6a, 6b and 7.
2. Rule.
3. By this civil revision application, the applicant
has challenged the order dated 13.7.2022 passed below
Exh.34 in RCS No.1129/2019 by learned 13th Joint Civil
Judge Senior Division, Nagpur rejecting the application
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under Order VII Rule 11 of the Code of Civil Procedure
for rejection of the plaint.
4. The relevant necessary facts for disposal of the
revision application are as under:
5. The non-applicant Nos.6 to 8 are original
plaintiffs who filed RCS No.1129/2019 for declaration
and permanent injunction by disputing the acquisition
proceedings. As per the plaintiffs, they are legal heirs of
late Ganesh Padhye who was owner of field property at
mouza Wathoda, admeasuring 22.69 acres bearing
khasra Nos.167, 168/1, 168/2, 169/1, and 169/2. In
the year 1955, the Madhya Pradesh Government
published Notification No.5671-7379-M-MIII- clause (a)
sub-section (1) of Section 45 of the Nagpur
Improvement Trust Act, 1936 (the NIT Act) for
implementing various schemes of improvement. By
…..5/-
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award dated 15.2.1962, vide Revenue Case No.27/A-65
of 19549-60 the land was acquired of said Ganesh
Padhye for Drainage and Sewage Disposal Scheme. As
per the contention of the plaintiffs, said Ganesh Padhye
and the plaintiffs were in possession and occupation of
the said lands. They had not received any compensation
amount and the entire acquisition procedure is totally
illegal and without following due process of law.
Therefore, the plaintiffs have filed a petition before this
court bearing Writ Petition No.6023/2016 and by order
dated 20.6.2019, liberty was granted to them to file suit.
It is further contended that by award dated 15.2.1962
compensation amount was fixed at Rs.2850/- which was
allegedly given to said late Ganesh Padhye. In fact,
dispute was raised by one Govinda Laxman as to
compensation and the dispute was referred to the court
under Section 30 of the Land Acquisition Act. It is
…..6/-
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contended that defendant Nos.1 to 3 (the applicant and
non-applicant Nos.1 and 3) had never taken possession
of the suit property till 2016-2017 and the plaintiffs
were in occupation and possession of the suit property
along with said Ganesh Padhye. The scheme for which
the property was acquired was never implemented for
five years and, therefore, they are bound to retain the
lands. As per the guidelines issued by the State of
Maharashtra, vide Resolution dated 10.10.1973, they
are entitled to retain the lands and, therefore, by
preferring the said civil suit, the plaintiffs claimed
following reliefs:
“a) To declare that the plaintiffs are the owners of
the suit property bearing Khasra Nos.167, 168/1,
168/2, 169/1, and 169/2 at mouza Wathoda,
admeasuring 22.69 acres, tahsil and district
Nagpur.
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b) To declare that the plaintiffs are entitled for
the suit property being the owner of the suit
property.
c) To declare that the procedure adopted by
defendant Nos.1 to 4 regarding acquiring of suit
property is illegally, unjust and improper one and
the same is being done without following due
process of law.
d) To declare that the plaintiffs or Late Ganesh
Padhye had never received the compensation
amount as alleged by the defendants.
e) To grant permanent injunction, restraining the
defendants, their agents and servants from
transferring the said land or dealing with the said
land without following due process of law.
f) Any other relief to which this court deems fit
and expedient may also kindly be granted in
favour of the plaintiffs and against the
defendants.”
6. The said reliefs are strongly opposed by the
present applicant who was original defendant No.2 on
the ground that the the plaintiffs’ suit for declaration
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and injunction by disputing the acquisition proceeding
which have already attained finality on 15.2.1962 vide
Revenue Case No.27-A/65/1959-60 and, therefore, the
suit is time barred in terms of Articles 58, 59, and 113 of
the Limitation Act. Moreover, this court has not granted
any liberty to the plaintiffs in WP No.6023/2016 by
order dt. 20.6.2019. There was no prior notice to the
present applicant in view of Section 115 of the NIT Act.
The plaintiffs challenged the acquisition proceedings in
Writ Petition No.2104/1994 dated 30.8.2010 which is
already dismissed. In the said writ petition, the
plaintiffs already admitted that the lands are already
vested in the Government. Now, the contrary plea, that
the plaintiffs were in possession of the suit property till
2016-2017, is not sustainable. The lands in question
were already handed over to the NIT vide Government
Resolution No.AGC/1768/4336/I-T by the Agricultural
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and Cooperational Department, Mantralaya, Mumbai
dated 11.4.1969 and accordingly, the name of the
defendant No.3 NMC mutated in the revenue record.
The said resolution was never challenged. Now,
plaintiffs have no locus to challenge the acquisition vide
Notification issued by the Urban Development
Department, Mantralaya, Mumbai. The Government
modified the proposal regarding changing the allocation
of the said lands from sewage farm area to Skill
Development and Management Centre and accordingly,
modification appended to the earlier Notification dated
7.1.2000 by which development plan was already
sanctioned. The land is already vested with the
Government and the Government passed notification on
27.1.2016 and the sewage farm area designated as
Skilled Development, University and Management
Centre cannot be objected. Thus, no cause of action
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arose to file the suit. The suit is barred by limitation
and the civil court has no jurisdiction to try and
entertain the suit.
7. On the similar grounds, the applicant herein
who is original defendant No.2 filed an application
under Order VII Rule 11 of the Code of Civil Procedure
for rejection of the plaint. In the said application, it is
contended by the applicant that as per the order passed
in Writ Petition No.6023/2016, no liberty is granted to
the plaintiffs to file the suit. Moreover, there is no prior
notice in view of Section 115 of the NIT Act which states
that no suit can be filed against answering defendant(s)
unless prior notice of two months is given by the
plaintiffs. It is further contended in the application that
the earlier Writ Petition No.2104/1994 is dismissed.
The review application against the said order is also
rejected and thus the order has attained the finality.
…..11/-
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Therefore, no cause of action arose to file the suit and
the suit is not within the limitation as well as civil court
has no jurisdiction to entertain the suit.
8. The said application is opposed by the plaintiffs.
After hearing both the sides, learned 13 th Joint Civil
Judge Senior Division, Nagpur held that the delay and
laches, jurisdiction of the civil court in acquisition
matters, maintainability of suit on the point of res
judicata are points of law which should be seen at the
final hearing of the suit and these aspects are not
covered under the provisions of Order VII Rule 11 of the
Code of Civil Procedure (a to f) and rejected the
application.
Hence, the present revision.
9. Undisputedly, non-applicant Nos.2 to 8 (original
plaintiffs) are legal heirs of late Ganesh Padhye who was
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owner of field property mauza Wathoda admeasuring
22.69 acres bearing khasra No.167, 168/1, 168/2,
169/1 and 169/2. Vide Land Acquisition Case No.27/A-
65 of 1959-60, the NIT acquired the above said property
for Drainage and Sewage Disposal Scheme. Accordingly,
the award was passed. It is also part of the record that
the lands in question were already handed over to the
NIT vide Government Resolution No.AGC/1768/4336/I-
T by the Agricultural and Co-operational Department,
Mantralaya dated 11.4.1969 and accordingly the name
of the NMC mutated in revenue record. The 7/12
extracts on record show the lands in question are
owned by the Nagpur Municipal Corporation.
Subsequent to the possession handed over to the NIT,
the Government of Maharashtra, Urban Development
Department, vide its resolution dated 27.1.2016
modified the proposal regarding changing allocation
…..13/-
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from the said lands from sewage farm area to Skill
Development and Management Centre and accordingly,
modification appended to the earlier notification dated
7.1.2000 by which the development plan was already
sanctioned.
10. The said acquisition proceedings were
challenged by the plaintiffs by filing Writ Petition
No.2104/1994. While disposing of the said petition on
30.8.2010, this court observed as follows:
“It is not in dispute that the award in respect of
Survey Nos.167, 168/1, 168/2 and 169/2
admeasuring 22.49 acres of Mouza Bhandewadi
was passed on 15th February 1962 and in terms
of the averments made in para 2 of the writ
petition, its possession was also taken from the
land owners including the present petitioners
after paying compensation to them. The Prayer
made in the petition for restoration of land to the
original owner as the land has not been yet put to
the purpose for which it was taken, cannot be
considered in view of the fact that the petitioners
lost the ownership after award was passed,…..14/-
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possession was taken and compensation was paid.
The law is well settled in view of the judgment of
the Supreme Court in Administrator, Municipal
Committee Charkhi Dadri and another vs.
Ramjilal Bagla And Others (1995)5 Supreme
Court Cases 272 and followed by this Court in
Ramakant Vithobaji Gaikwad Vs. Government of
Maharashtra and Others 2000(4) Maharashtra
Law Journal 597 and fairly conceded by Mr.
Parchure that such lands vested in the
Government after acquisition cannot be restored
to the owner or who so ever. In that view of the
matter, it is not possible for us to interfere in the
matter. Insofar as Civil Application No. 1793 of
2010 is concerned we do not propose to say
anything except that the contents of the said civil
application and the prayer do not and cannot
form subject matter of present writ petition. Civil
Application disposed of. Writ petition disposed
of.”
11. The plaintiffs filed Misc. Civil Application
St.No.8068/2016 for review of the order passed in Writ
Petition No.2104/1994 along with Civil Application
(CAO) No.509/2017. While deciding the said review
…..15/-
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application, it is observed by this court in paragraph
Nos.4 and 5, as follows
“4. The pleadings in Writ Petition 2104/1994
reveal that even according to the petitioners, the
possession of the land was taken pursuant to the
land acquisition award on 15.2.1962 and
compensation was duly received. The petitioners
do contend that 10 years prior to the filing of the
petition, which would be in 1984, the petitioners
resumed physical possession of the land.
Needless to say, if the petitioners did resume
possession in the year 1984 unilaterally and
without taking recourse to law, from the rightful
owner which is the State Government with which
the land stood vested, the possession is of no
significance or relevance in the context of the
controversy involved in Writ Petition
No.2104/1994 and the prayer for restoration of
land.
5. The justification pleaded in support of the
prayer for condonation of delay of 2016 days in
preferring the review petition may now be noted.
The substratum of the justification is that after
the judgment and order dated 3082010 in Writ
Petition No.2104/1994, the applicants petitioners
submitted a representation dated 08.12.2011 to
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the State Government seeking change in the
record of mutation as regards the land which was
the subject matter of the writ petition. The
applicants state that since the said representation
dated 08.12.2010 did not evoke any response,
another representation dated 17.5.2014 was
preferred. The representation was not decided
and the applicants approached this Court in Writ
Petition 175/2015 seeking a direction that the
representation be decided within a stipulated
time frame. By order dated 22/1/2015 this Court
allowed the petition and directed the competent
authority to decide the representation within a
period of three months. The applicants then aver
that the representation was rejected on
13/8/2015, the rejection was assailed in appeal
under Section 247 of the Maharashtra Land
Revenue Code which is pending before the
Collector since 2015. The applicants preferred
Writ Petition 590/2016 seeking a direction that
the said appeal be decided by the Collector within
a stipulated time frame and this Court by order
dated 04.3.2016 directed the competent authority
to decide the representation/appeal within three
months. It is further contended by the applicants
that the relevant information as regards the land
was obtained under the Right to Information Act
in the year 2015 and the delay in preferring the
…..17/-
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review application is, therefore, adequately
explained.”
After hearing both the sides, it is specifically
observed by the Division Bench of this court that, “we
have no hesitation in observing that the proceedings
initiated are frivolous and an abuse of the process of
law. We have already observed that we were not inclined
to condone the delay and were of the prima facie view
that the applicants should be directed to deposit an
amount of Rs.10,00,000/ (Rupees Ten Lakhs) with the
registry to demonstrate their bona fides. However, since
the learned Counsel for the applicants, on instructions,
made a statement on 26.2.2019 that instead of
depositing the amount, the applicants shall pay the costs
which may be directed to be paid if the application
seeking condonation of delay is rejected, we proceeded
to continue with the hearing. We are of the considered
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view that the tendency to initiate frivolous and
vexatious proceedings must be curbed with an iron
hand. This Court is already heavily burdened and when
judicial time is spent on proceedings which are ex facie
unmerited and tainted with falsehood, the ultimate
casualty is the thousands of genuine causes which await
adjudication. We, therefore, direct the applicants to
deposit costs of Rs.1,00,000/ (Rupees One Lakh) with
the registry of this Court within two weeks, failing
which the said amount shall be recovered as arrears of
land revenue. We, therefore, dismiss Civil Application
(CAO) 509/2017 in Miscellaneous Civil Application
(Stamp) 8068/2017 and Miscellaneous Civil Application
(Stamp) No.8068/2016 which seeks review of the
judgment and order dated 3082010 in Writ Petition
No.2104/1994 with costs of Rs.1,00,000/ (Rupees One
Lakh).”
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12. Despite the above observations of the Division
Bench of this court, the plaintiffs preferred another Writ
Petition No.6023/2016 and the same was withdrawn as
the petition became infructuous. However, learned
counsel submitted for the petitioners before the Division
Bench that to agitate the issue of non-payment of
compensation, the petitioners would like to avail the
remedy of filing the civil suit. Therefore, the Division
Bench of this court passed an order on 20.6.2019 and
the same is reproduced as under:
“After hearing the learned counsels appearing
for the parties, we permit the petitioners to
withdraw this petition with liberty to file a Civil
Suit, if it is permissible in law. All the defenses,
which are raised to oppose the maintainability
of the suit, are kept open to be agitated.”
13. Learned counsel for the applicant submitted
that despite of the observations of the Division Bench of
this court, that the plaintiffs have no right to agitate the
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issue, as to the acquisition of lands and now the lands
acquired cannot be restored to the owner, the present
plaintiffs have filed the suit. In fact, in view of the
judgment of the Hon’ble Apex Court in the case of
Administrator, Municipal Committee Charkhi Dadri And
Another Vs. Ramjilal Bagla And Others, reported in
(1995)5 Supreme Court Cases 272 and Ramakant
Vithobaji Gaikwad Vs. Government of Maharashtra and
Others, reported in 2000(4) Maharashtra Law Journal
597, referred by the Division Bench of this court, while
disposing of Writ Petition No.2104/1994. No cause of
action arose to the plaintiffs to file the suit. Moreover,
the suit is hit by Articles 58 and 59 of the Limitation Act.
The suit is also barred in view of Section 115 of the NIT
Act as no previous notice is issued to the applicant. In
support of his contentions, he placed reliance on
following decisions:
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1. Civil Appeal No.11912/2018 decided by the
Hon’ble Apex Court on 7.12.2018 (Rajasthan
Housing Board and anr vs. Chandi Bai and ors);
2. Shri Mukund Bhavan Trust and ors vs.
Shrimant Chhatrapati Udayan Raje Pratapsingh
Maharaj Bhonsle and anr, reported in 2024 SCC
OnLine SC 3844;
3. Special Leave Petition (Civil) Diary
No.56230/2024 decided by the Hon’ble Apex
Court) on 20.12.2024 (Pandurang Vithal Kevne
vs. Bharat Sanchar Nigam Limited and anr;
4. Ramshetty Venkatanna and anr vs. Nasyam
Jamal Saheb and ors, reported in 2023 SCC
OnLine SC 521;
5. Colonel Shrawan Kumar Jaipuriyar alias
Sarwan Kumar Jaipuriyar vs. Krishna Nandan
Singh and anr, reported in (2020)16 SCC 594;
6. Rajendra Bajoria and ors vs. Hemant Kumar
Jalan and ors, reported in (2022)12 SCC 641;
7. Dahiben vs. Arvindbhai Kalyanji Bhanusali
(Gajra) dead thr. Legal representatives and ors,
reported in (2020)7 SCC 366;
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8. Dadu Dayalu Mahasabha, Jaipur (Trust) vs.
Mahant Ram Niwas and anr, reported in
(2008)11 SCC 753, and
9. Charu Kishor Mehta vs. Prakash Patel ors,
reported in 2022 SCC OnLine SC 1962.
14. Per contra, learned counsel for the non-
applicant Nos.6 to 8 submitted that liberty was granted
by this court to prefer the suit accordingly. The plaintiffs
filed suit for the compensation amount. The ground
that the suit is barred by limitation is a mixed question
of law and fact and parties have to litigate the dispute in
trial. It would not forfeit any rights of the defendants in
suit and, therefore, the application is rightly rejected by
13th Joint Civil Judge Senior Division, Nagpur. He
further submitted that neither the plaintiffs nor their
ancestors have received any compensation amount till
2016-2017 and possession was with them. As the lands
were not utilized after its acquisition, they are entitled
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for restoring the lands. In support of his contentions, he
placed reliance on following decisions:
1. Vaish Aggarwal Panchayat vs. Inder Kumar &
ors, reported in AIR 2015 SC 3357, and
2. K.Manavalan vs. M.Vedambal (dead) by Lrs,
reported in AIR 2023 (NOC) 718 (Mad).
15. After hearing both the sides and perusing the
entire record, it is not disputed that the property in
question was acquired by the Government by its award
dated 15.2.1962 vide Revenue Case No.27/A-65 of
1959-60. The observations of this court in Writ Petition
No.2104/1994 itself show that the plaintiffs who were
petitioners in the said petition averred in paragraph
No.2 that the possession was also taken from the land
owners including the present petitioners after paying the
compensation to them. The prayer made in the petition
for restoration of the lands to the original owner as the
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lands have not been yet put to the purpose for which it
was taken, cannot be considered in view of the fact that
the petitioners lost the ownership after award was
passed and the possession was taken and compensation
was paid. Contrary to this pleading, the plaintiffs have
come with a case that the Land Acquisition Officer had
passed an award on 15.2.1962 . However, they have not
taken the possession of the suit property till 2016-17
and plaintiffs and late Ganesh Padhye who were in
occupation and possession of the suit property had
continuously taken the crops from the suit property by
cultivating the same till the year 2017. This pleading
was made by the plaintiffs despite of the observations of
the Division Bench of this court while disposing of Civil
Application (CAO) No.509/2017 in Misc. Civil
Application St.No.8068/2016 in Writ Petition
No.2104/1994 wherein it is specifically held that
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proceedings initiated are frivolous and abuse of process
of law. As far as the contention of the plaintiffs that
they have not received any compensation amount is also
falsified by the defendants by producing on record the
chart of payment which was made to Shri Ganesh
Padhye on 15.2.1962 which shows that he has received
the amount by way of cheque No.560122 dated
3.2.1967. Thus, the contentions of the plaintiffs that
they have not received any compensation and possession
was with them till 2016-2017, are contrary to the
documents.
16. Now, the question is, whether after 58 years, the
proceedings can be challenged by the plaintiffs by
raising contrary pleading. The question is raised by
learned counsel for the applicant as to the non
maintainability of the suit and submitted that the
observation of the Division Bench of this court while
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disposing of Writ Petition No.2104/1994 itself is
sufficient to show that in view of the decision in the case
of Administrator, Municipal Committee Charkhi Dadri
and another supra wherein the Hon’ble Apex Court
concluded that since ownership is vested with the State
Government, prayer for restoration of the lands to the
petitioners is untenable.
17. The Hon’ble Apex Court in Rajasthan Housing
Board and anr vs. Chandi Bai and ors supra by referring
the earlier judgments in the cases of State of Bihar vs.
Dhirendra Kumar, reported in (1995)4 SCC 229, Laxmi
Chand vs. Gram Panchayat, Kararia, reported in (1996)7
SCC 218, and Commissioner, Bangalore Development
Authority vs. K.S.Narayan, (2006) 8 SCC 336 observed
that a civil suit to invalidate the land acquisition is not
maintainable. The trial court has committed an error of
law while decreeing the suit.
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18. It is necessary to refer the observations of the
Hon’ble Apex Court in State of Bihar vs. Dhirendra
Kumar supra wherein it is observed that civil suit is not
maintainable to question the land acquisition. The court
observed that, the question is whether a civil suit is
maintainable and whether ad interim injunction could
be issued where proceedings under the Land Acquisition
Act was taken pursuant to the notice issued under
Section 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 Section 4 and
Section 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.
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In publication of the notifications and declaration under
Section 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 of the land and to make the award.
Section 11A now prescribes limitation to make the
award within 2 years from the last date of publication
envisaged under Section 6 of the Act. In an appropriate
case, where the Govt. needs possession of the land
urgently, it would exercise the power under Section
17(4) of the Act and dispense with the enquiry under
Section 5-A. Thereon, the State is entitled to issue notice
to the parties under Section .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 the award under Section 12. Thus,
it could be seen that the Act is a complete code in itself
…..29/-
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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 Section 9 of CPC stands
excluded, and a civil court has no jurisdiction to go into
the question of the validity or legality of the notification
under Section 4 and declaration under Section 6, except
by the High Court in a proceeding under Article 226 of
the Constitution. 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.
19. In Laxmi Chand vs. Gram Panchayat, Kararia
supra also the Hon’ble Apex Court observed that the civil
court has no power to pronounce on invalidity of
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procedure adopted under Section 4 and 6 of the Land
Acquisition Act 1894 and further observed that, “it
would thus be clear that the scheme of the Act is
complete in itself and thereby the jurisdiction of the civil
court to take cognizance of the case arising under the
Act, by necessary implication, stood barred. The civil
court thereby is devoid of jurisdiction to give declaration
on the invalidity of the procedure contemplated under
the Act. The only right an aggrieved person has is to
approach the constitutional courts, viz., the High Court
and the Supreme Court under their plenary power under
Articles 226 and 136 respectively with self-imposed
restrictions on their exercise of extraordinary power.
Barring thereof, there is no power to the civil court.
20. In Commissioner, Bangalore Development
Authority vs. K.S.Narayan supra the Hon’ble Apex
Court held that the provisions of the Act are akin to the
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Land Acquisition Act and only the High Court could
examine its legality under Article 226 not the civil court.
21. In view of the settled legal position laid down
by the Hon’ble Apex Court in catena of decisions, the
civil court has no jurisdiction to go into the question of
the validity or legality of the Notification under Section
4 and declaration under Section 6 of the Land
Acquisition Act even the civil suit for permanent
injunction is not maintainable in view of the provisions
of the Land Acquisition Act.
22. In The Commissioner, Bangalore Development
Authority and anr vs. Brijesh Reddy and anr, reported in
(2013)3 SCC 66, the Hon’ble Apex Court held that, “it is
clear that the Land Acquisition Act is a complete Code in
itself and is meant to serve public purpose. By necessary
implication, the power of civil Court to take cognizance
…..32/-
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351 cra49.23
32
of the case under Section 9 of CPC stands excluded and
a Civil Court has no jurisdiction to go into the question
of the validity or legality of the notification under
Section 4, declaration under Section 6 and subsequent
proceedings except by the High court in a proceeding
under Article 226 of the Constitution. It is thus clear that
the civil Court is devoid of jurisdiction to give
declaration or even bare injunction being granted on the
invalidity of the procedure contemplated under the Act.
The only right available for the aggrieved person is to
approach the High Court under Article 226 and this
Court under Article 136 with self imposed restrictions on
their exercise of extraordinary power.”
23. Thus, the property in question was subject
matter of the acquisition for the purpose of defendant
No.4 by defendant No.2 that is the NIT. Though
defendant No.1 is the State of Maharashtra, the NIT
…..33/-
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33
wanted to acquire 5601.89 acres of land for
underground Drainage and Sewage Disposal Scheme
from 11 villages consisting of Wathoda, Bhandewadi,
Dighori, Godhani, Kharabi, Tarodi (Bk), Bahadurka,
Tarodi (Kd), Pandhurna, Khedi, and Bidgaon. The lands
of the plaintiffs were acquired for the said purpose. The
award was passed and the possession of the lands was
handed over w.e.f.15.2.1962. It is an admitted position
that the lands were acquired and possession was taken.
The prayer made in the suit is to restore the possession
of the lands which is acquired. Thus, the plaintiffs have
challenged the procedure of acquisition that when such
lands were vested in the Government, cannot be
restored to the owners or whosoever. As the subject
matter of the suit is in connection with land acquisition
and procedure followed while acquiring the lands, civil
court is devoid of jurisdiction to give declaration or to
…..34/-
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351 cra49.23
34
restore the lands to the plaintiffs. On the basis of
invalidity of the procedure, the suit is not maintainable
in view of the catena of decisions of the Hon’ble Apex
Court.
24. By filing the application under Order VII Rule
11 of the Code of Civil Procedure, another ground raised
by the NIT is that the suit is filed without any notice
under Section 115 of the NIT Act. As far as the issue
regarding the notice is concerned, the same is already
dealt by the Division Bench of this court to whom
reference was made that “whether the suit shall lie
against the NIT without issuing notice under Section
115 of the NIT Act if the action of the trust is outside the
purview of the expression in respect of anything
“purporting to be done” under the Act used in the said
provision.
…..35/-
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351 cra49.23
35
25. While answering reference in Second Appeal
No.568/2017 dated 10.10.2024, by considering various
decisions and pari materia provisions in other
enactments, it is held that the expression “purporting to
be done under the Act” will not include an Act which is
wholly outside the provisions of the Act. The acts like
levying of the tax, which are prohibited or levying excess
tax or dispossessing a person without following a due
process of law, are held to be acts outside the purview of
the Act. While answering the said reference, this court
answered that The word “purport” has many shades of
meaning. The expression “purporting to be done under
the Act” will not include an act which is wholly outside
the provisions of the Act. It cannot be gainsaid that the
actions, like demolition of structure, eviction of tenants,
retaining the possession or forcible eviction by granting
him lesser period and depriving the other party from
…..36/-
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351 cra49.23
36
challenging the action, are not in pursuance or
execution of the Act. The expression “purporting to be
done under the Act” will not include an act which is
wholly outside the provisions of the Act and, therefore,
the Notice of two months is not mandatory in such a
situation.
26. In view of the judgment of the Hon’ble Apex
Court in the case of Pune Municipal Corporation and
another vs. Mohan Shrikrishna Asava, reported in 1992
Mh.L.J. 1468, wherein the Hon’ble Apex Court, in the
light of Section 487 of the Bombay Provincial Municipal
Corporation Act which is pari materia to provision as
Section 115 of the NIT Act, while interpreting phrase
“purported to be done in pursuance or execution or
intended execution of the Act”, interpreted that what is
plainly prohibited by the Act cannot be claimed “to be
purported to be done in pursuance or intended
…..37/-
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351 cra49.23
37
execution of the Act”. It was therefore held that the suit
was outside the purview of the section 127(4) of the Act
and was not barred by limitation.
27. Thus, when the Act complains of is not “in
purport to be done” in pursuance of or execution or
intended execution of the Act, the notice is not required.
28. The application under Order VII Rule 11 of the
Code of Civil Procedure also raised the ground that
there was no cause of action and suit is barred by
limitation and, therefore, it is to be rejected.
29. As far as the issue of limitation is concerned, it
is generally a mixed question of law and facts, but when
upon meaningful reading of the plaint, the court can
come to a conclusion that under the given
circumstances, after dissecting the vices of clever
drafting creating an illusion of cause of action, the suit is
…..38/-
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351 cra49.23
38
hopelessly barred and the plaint can be rejected under
Order VII Rule 11 of the Code of Civil Procedure.
30. As far as the present suit is concerned, the facts
show that the award in respect of Survey Nos.167,
168/1, 168/2 and 169/2 admeasuring 22.49 acres of
Mouza Bhandewadi was passed on 15.2.1962 and its
possession was also taken from the land owners
including the present plaintiffs after paying
compensation to them. The suit is filed approximately
after 58 years for restoration of the acquired lands. The
suit is filed when this court in Writ Petition
No.2104/1994 observed by order dated 30.8.2010 that
the lands were acquired by award dated 15.2.1962 and
the possession was already handed over. The prayer
made in the petition for restoration of lands to the
original owners, as the lands have not been put for the
purpose for which it was taken, cannot be considered in
…..39/-
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351 cra49.23
39
view of the fact that the petitioners lost ownership after
the award was passed, possession was taken and
compensation was paid. By referring the judgment of
the Hon’ble Apex Court in the case of Administrator,
Municipal Committee Charkhi Dadri and another vs.
Ramjilal Bagla And Others supra and followed by this
court in Ramakant Vithobaji Gaikwad Vs. Government of
Maharashtra and Others supra, it is held that such lands
vested in the Government cannot be restored to the
owners or whosoever. After passing of the order and
despite of the observations that the lands cannot be
restored to the owners, in view of the decision of the
Hon’ble Apex Court, the suit is filed on 1.7.2019. Prior
to filing of the suit and after dismissal of the writ
petition, an attempt was made by the petitioners to seek
recalling of the order by filing Civil Application (CAO)
No.509/2017 in Misc. Civil Application
…..40/-
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351 cra49.23
40
St.No.8068/2016 wherein also the factual position was
noted that award was passed on 15.2.1962 and the
possession of the lands was also taken from the land
owners including the plaintiffs after payment of
compensation.
31. In Writ Petition No.2104/1994, the contentions
of the plaintiffs, who were petitioners therein, were that
the possession of the lands was taken pursuant to the
Land Acquisition Award on 15.2.1962 and the
compensation was duly received. The petitioners also
contended that ten years prior to filing of the writ
petition, approximately in 1984 the petitioners resumed
physical possession of the lands and it is observed that if
the petitioners resume possession in the year 1984,
unilaterally and without taking recourse of law from the
rightful owner which is the State Government with
which lands stood vested, the possession is of no
…..41/-
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351 cra49.23
41
significance or relevance in the context of controversy
involved in Writ Petition No.2104/1994 and they prayed
for restoration of the lands.
32. Thus, it is apparent that in Writ Petition
No.2104/1994 the plaintiffs who were petitioners
therein contended that the possession was handed over
on 15.2.1962. They further contended in the said
petition that the lands are not used for the purpose for
which it was taken and, therefore, it be restored back.
In review application, the petitioners (plaintiffs)
contended that ten years prior to the filing of the
petition, they resumed physical possession. If they
resumed the physical possession, there was no reason to
file the petition for restoration of the lands and now in
suit the plaintiffs came with a case that neither the lands
were used for the purpose for which it was acquired nor
the possession was taken and they have not received
…..42/-
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351 cra49.23
42
compensation and prayed for declaration that they are
owners of the suit property referred aforesaid and also
sought declaration that procedure adopted by the
acquiring body along with the State Government and
NIT is illegal, unjust and improper one and also to
declare that the plaintiffs or deceased Ganesh Padhye
had never received compensation amount as alleged by
the defendants.
33. Thus, in all proceedings, the pleadings raised by
the plaintiffs are contrary to each other.
34. While considering the application under Order
VII Rule 11 of the Code of Civil Procedure, which is an
independent and special remedy, the court is
empowered to summarily dismiss the suit at the
threshold, without proceeding to record evidence and
conducting trial on the basis of the evidence adduced if
…..43/-
Judgment
351 cra49.23
43
it is satisfied that the action should be terminated on
any of the grounds contained in the provisions. The
object of Order VII Rule 11(a) of the Civil Procedure
Code is that if in a suit no cause of action is disclosed or
the suit is barred by limitation under Rule 11(d), the
plaintiff to unnecessarily protract the proceedings in the
nature of the suit. In such a case, it would be just and
proper to end the litigation so that further judicial time
is not wasted.
35. Whether a plaint discloses a cause of action or
not is essentially a question of fact, but whether it does
or does not must be found out from reading the plaint
itself. For the said purpose the averments made in the
plaint in their entirety must be held to be correct. The
test is as to whether if the averments made in the plaint
are taken to be correct. The test is as to whether if the
…..44/-
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351 cra49.23
44
averments made in the plaint are taken to be correct in
their entirety, a decree would be passed.
36. The principle is laid down by the Hon’ble Apex
Court as to the maintainability of the application under
Order VII Rule 11 of the Code of Civil Procedure and the
interpretation of the said provision in catena of decisions
including in Shri Mukund Bhavan Trust and ors supra;
Ramshetty Venkatanna and anr supra; Colonel Shrawan
Kumar Jaipuriyar alias Sarwan Kumar Jaipuriyar supra;
Rajendra Bajoria and ors supra; Dahiben supra, and
Dadu Dayalu Mahasabha, Jaipur (Trust) is that a cause
of action means every fact, which if traversed, it would
be necessary for the plaintiff to prove in order to support
his right to a judgment of the court. In other words, it is
bundle of fact which taken with the law applicable to
them gives the plaintiff a right to relief against the
defendant. It must include some act done by the
…..45/-
Judgment
351 cra49.23
45
defendant since in the absence of such an act no cause
of action can possibly accrue. It is not limited to the
actual infringement of the right sued on but includes all
the material facts on which it is founded.
37. In the case of Shrihari Hanumandas Totala vs.
Hemant Vithal Kamat and ors, reported in (2021)9 SCC
99, the Hon’ble Apex Court laid down guiding principles
of deciding an application under Order VII Rule 11(d) of
the Code. Whereas, in the rest of the decisions, the
principles to be considered while deciding an application
under Order VII Rule11 are laid down. It is laid down
that while deciding an application under Order VII Rule
11 of the Code, few lines or passage from the plaint
should not be read in isolation and pleadings ought to
be read as a whole to ascertain its true import.
…..46/-
Judgment
351 cra49.23
46
38. Thus, relative scope and applicability, as laid
down by the Honourable Apex Court, is that where a
plaint as a whole did not disclose cause of action, Order
VII Rule 11(a) of the Code is applicable and it stops
continuation of suit. If the conditions mentioned under
Order VII Rule 11 are fulfilled, the entire plaint has to
be rejected.
39. The Hon’ble Apex Court in the case of Dahiben
supra, in paragraph No.23.6, observed that, “under
Order VII Rule 11, a duty is cast on the Court to
determine whether the plaint discloses a cause of action
by scrutinizing the averments in the plaint, read in
conjunction with the documents relied upon, or whether
the suit is barred by any law.
40. In the case of Liverpool and London S.P. & I
Association Limited vs. M.V.Sea Success and anr,
…..47/-
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351 cra49.23
47
reported in (2004)9 SCC 512, the Hon’ble Apex Court
by referring Order VII Rule 4 of the Code observed in
paragraph No.142, thus:
“In the instant case the ‘Club’ not only
annexed certain documents with the plaint
but also filed a large number of documents
therewith. Those documents having regard to
Order 7 Rule 14 of the Code of Civil Procedure
are required to be taken into consideration for
the purpose of disposal of application under
Order 7 Rule 11(a) of the Code of Civil
Procedure.”
41. Thus, in view of the observations of this court in
Writ Petition No.2104/1994 decided on 30.8.2010, in
the light of the referred judgments of the Hon’ble Apex
Court in the said order and in the light of the decision of
Rajasthan Housing Board and anr supra wherein catena
of earlier decisions are referred and it is specifically held
that the Land Acquisition Act is a complete Code in itself
…..48/-
Judgment
351 cra49.23
48
and civil suit to invalidate the land acquisition is not
maintainable. It is specifically held that the civil court
has no jurisdiction to go into the question of validity or
legality of the procedure adopted while acquiring the
lands only the High Court under Article 226 and the
Hon’ble Apex Court under Article 136 can entertain such
plea. It is specifically held that civil court has no
jurisdiction to go into the question of the notice under
Section 4 and declaration under Section 9. The civil suit
itself is not maintainable. In view of that, no cause of
action arose to file the suit and, therefore, the trial court
ought to have considered this aspect that suit is not
maintainable. Despite of the observations of this court
in Writ Petition No.2104/1994 that the lands are already
acquired and possession is already handed over, such
lands vested in the Government after acquisition cannot
be restored to the owners or whosoever and rejecting
…..49/-
Judgment
351 cra49.23
49
the application under Order VII Rule 11 of the Civil
Procedure Code is erroneous. The suit is also barred by
limitation as it is filed after 58 years approximately after
the acquisition proceedings.
42. It is settled law that when an application to
reject the plaint is filed, averments in the plaint and
documents annexed therewith are to be looked into. The
averments in the application filed under Order VII Rule
11 of the Code of Civil Procedure can be taken into
account whether the case falls within any of sub-rules of
Order VII Rule 11 of the Code of Civil Procedure by
considering averments in the plaint.
43. The application is filed in the present case under
Order VII Rule 11(a) and (d) of the Code of Civil
Procedure. There is no dispute that acquisition
proceeding was started in 1959-60 and award was
…..50/-
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351 cra49.23
50
passed in 1962 i.e. on 15.2.1962 and the possession was
handed over and suit is filed on 1.7.2019. Though the
question of limitation generally is mixed question of law
and facts, when upon meaningful reading of the plaint,
the court can come to a conclusion that under the given
circumstances, after dissecting the vices of clever
drafting creating an illusion of cause of action, the suit is
hopelessly barred and the plaint can be rejected under
Order VII Rule 11 of the Code of Civil Procedure.
44. In the present case, admittedly, the suit is
hopelessly barred being filed after 58 years of the
acquisition proceeding.
45. The frivolous proceeding is filed by the plaintiffs
before the trial court by filing the suit. As far as nature
of the proceeding, which is frivolous in nature, is
already observed by division of this court in Civil
…..51/-
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351 cra49.23
51
Application (CAO) 509/2017 in Miscellaneous Civil
Application (Stamp) No.8068/2016 in Writ Petition
No.2104/1994 wherein it is observed that proceedings
initiated are frivolous and an abuse of the process of
law. It is further observed that holistic reading of the
petition and particularly the averments in paragraphs 25
and 26 of the petition would reveal that it was always
the case of the applicants that they were in possession of
the land. Even if the averments in paragraphs 25 and 26
are taken at face value, the only inference is that the
applicants have taken illegal possession from the rightful
owner-State Government in the year 1983-84. The
averments, therefore, do not take the case of the
applicants any further. The judgment and order under
review is predicated on the settled position of law that
once the land acquired vests with the State Government,
…..52/-
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351 cra49.23
52
same cannot be restored to the original owners. Even if
it is assumed
46. It is pertinent to note that in Writ Petition
No.2104/2014 it was conceded by counsel for the
petitioners (plaintiffs) before the Division Bench that
lands vested in the Government after acquisition cannot
be restored to the owners or whosoever. The pleading in
the said petition shows that the lands were acquired on
15.2.1962 and possession was also taken after paying
compensation to them. In review application, pleading
was that the plaintiffs received possession of the lands in
the year 1983-84. The pleading in the said petition
shows that compensation is received, whereas in a suit it
is claimed that no compensation was received. Such
contrary pleadings sufficiently show that with frivolous
allegations, the suit is filed and various proceedings
were initiated which is absolutely an abuse of process of
…..53/-
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351 cra49.23
53
law. In the review application, the Division Bench of
this court observed that they are inclined to impose
costs of Rs.10.00 lacs, but considering the applicants are
not in a position to deposit the said amount, costs of
Rs.1.00 lac was imposed and directed to deposit the
same with the Registry. Despite of the stern action of
this court, again, the suit is filed by misinterpreting the
order passed by this court in Writ Petition
No.6023/2016 wherein it is specifically held that liberty
to file civil suit, if it is permissible in law. In view of the
judgments of the Hon’ble Apex Court supra, the suit
against the acquisition proceeding is not maintainable
which is clarified by the Division Bench of this court
while passing order in Writ Petition No.2104/1994
dated 30.8.2010. The aspect of frivolous litigation is
considered by the Hon’ble Apex Court in Special Leave
Petition (Civil) Diary No.56230/2024 (Pandurang Vithal
…..54/-
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351 cra49.23
54
Kevne vs. Bharat Sanchar Nigam Limited and anr) supra
wherein the Hon’ble Apex Court, by referring the
judgment in the case of Subrata Roy Sahara vs. Union of
India, reported in AIR 2014 SC 3241, observed as
follows:
“150. The Indian judicial system is grossly
afflicted, with frivolous litigation. Ways and
means need to be evolved, to deter litigants from
their compulsive obsession, towards senseless and
ill-considered claims. One needs to keep in mind,
that in the process of litigation, there is an
innocent sufferer on the other side, of every
irresponsible and senseless claim. He suffers long
drawn anxious periods of nervousness and
restlessness, whilst the litigation is pending,
without any fault on his part.”
47. In Dalip Singh vs. State of U.P. and ors, reported
in (2010)2 SCC 114, the Hon’ble Apex Court
condemned litigants who used the justice delivery
system for their benefits and thereby attempt to pollute
the stream of justice and observed that, “in last 40 years,
…..55/-
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55
a new creed of litigants has cropped up. Those who
belong to this creed do not have any respect for truth.
They shamelessly resort to falsehood and unethical
means for achieving their goals. In order to meet the
challenge posed by this new creed of litigants, the courts
have, from time to time, evolved new rules and it is now
well established that a litigant, who attempts to pollute
the stream of justice or who touches the pure fountain of
justice with tainted hands, is not entitled to any relief,
interim or final.”
48. In the case of K.C.Thakaran vs. State Bank of
India and ors, (Writ Petition (Civil) Diary
No.27458/2022 decided on 1.5.2023, the Hon’ble Apex
Court observed that, “no legal system can have a
scenario where a person keeps on raking up the issue
again and again once it is resolved at highest level. This
is complete wastage of judicial time. We, thus, dismiss
…..56/-
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351 cra49.23
56
this petition with costs, though we limit the amount of
costs considering the petitioner is a dismissed person.
The writ petition is dismissed with costs of Rs.10,000/-
to be deposited with the Supreme Court Advocates-on-
Record Welfare Fund to be utilized for the SCBA library.”
49. Considering the above observations of the
Hon’ble Apex Court and considering the fact that once
the Division Bench of this court has clarified the issue
that once lands vested in the Government after
acquisition cannot be restored to the owners or
whosoever, in the light of the decisions of the Hon’ble
Apex Court in the cases of Administrator, Municipal
Committee Charkhi Dadri and another supra and and
followed by this court in Ramakant Vithobaji Gaikwad
supra, it was held that the prayers do not and cannot
form subject matter of present writ petition. The
petitioners therein (plaintiffs) filed review application
…..57/-
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351 cra49.23
57
wherein while rejecting the condonation of delay
application which is caused in filing the review
application imposed the costs of Rs.1.00 lacs by
observing that that it is frivolous litigation. The
petitioners (plaintiffs) filed another writ petition
bearing Writ Petition No.6023/2016 which was
subsequently withdrawn. The present suit is filed by
misinterpreting the order of the Division Bench of this
court wherein it was specifically mentioned that liberty
to file civil suit if it is permissible in law.
50. Thus, precious time of this court as well as the
trial court is wasted by the plaintiffs and, therefore, in
my opinion, the plaintiffs to be burdened with heavy
costs to give clear message to unscrupulous litigants like
the petitioners for not filing any frivolous litigation and
not wasting the time of the courts. Such type of litigants
to be treated with stern hands. The precious time
…..58/-
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351 cra49.23
58
wasted could very well be used for other judicial work.
I, therefore, feel it appropriate to impose the costs of
Rs.1.00 lac upon the plaintiffs.
51. In the light of the above discussion, this court
passes following order:
ORDER
(1) The Civil Revision Application is allowed.
(2) The order dated 13.7.2022 passed below Exh.34 in
RCS No.1129/2019 by learned 13 th Joint Civil Judge
Senior Division, Nagpur rejecting the application under
Order VII Rule 11 of the Code of Civil Procedure for
dismissal of the plaint is quashed and set aside and
consequently the plaint is rejected.
(3) The non-applicant Nos.6(a), 6(b), 7, and 8 shall
deposit the costs of Rs.1.00 lac (Rupees one lac only)
with the Registry of this court within a period of two
…..59/-
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351 cra49.23
59
weeks from today, failing which the said amount shall be
recovered as arrears of land revenue.
The Civil Revision Application stands disposed of.
Rule is made absolute in the aforesaid terms.
(URMILA JOSHI-PHALKE, J.)
!! BrWankhede !!
Signed by: Mr. B. R. Wankhede
Designation: PS To Honourable Judge …../-
Date: 07/02/2025 14:29:00
