1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.5018 OF 2008 M/s Welworth Travels and another Versus State of Maharashtra and others ... Shri P.M.Shah, Sr.Advocate i/b Shri S.P.Shah, Advocate for petitioners, Shri K.B.Choudhary, Addl. Govt. Pleader for respondent No.1, Shri R.S.Deshmukh, Advocate for respondent No.2, Shri S.V.Gangapurwala, Advocate for respondents 3 and 6, Shri S.S.Ladda, Advocate for respondent No.4 and Shri R.N.Dhorde, Advocate for respondent No.5. ... CORAM : S.B.DESHMUKH & SHRIHARI P.DAVARE,JJ. Dated : November 26, 2009 PER COURT :- 1. Heard learned counsel for the respective parties. 2. Shri Shah, learned Sr. Advocate appearing for the petitioners, at the outset, took us through the prayers made in the Writ Petition. It is a long list. Paragraph No.28(A) to (L) are the prayers made by the petitioners. It seems that the petition has suffered amendment with the leave of the Court and amended prayers are also added to prayer clauses, which were in existence on the date of filing of the Writ Petition The Writ Petition has been filed on 14.8.2008. Shri Shah, learned Sr. Advocate, on our query, submits that two 2 reliefs petitioners are principally seeking from this Court which are embodied in paragraph 28(H) and (I), they are reproduced herein below :- " (H) The Honourable High Court may be pleased to declare that the alleged settlement by the Corporation dated 2.7.2008 (Annexure D to the petition) is a nullity and it is not binding and enforceable as against the petitioners. (I) The Honourable High Court may be pleased to declare that the action of demolition of the structure in question by the Municipal Corporation, carried out on 2nd, 3rd and 4th July, 2009, is illegal, collusive, arbitrary and without jurisdiction." Shri Shah, learned Sr. Advocate fairly concedes that Regular Civil Suit Nos.584 and 586 of 2008 are filed by the petitioners and pends in the trial Court. The applications seeking temporary injunctions under Order XXXIX Rule 1 and 2 of Code of Civil Procedure ("CPC") have been filed in the suits. Shri Shah, learned Sr. Advocate submits that the petitioners have already approached the trial Court and if this Court is not inclined to entertain the Writ Petition, it may be clarified that all questions, which are raised in this Writ Petition can be gone into by the Civil Court. 3. We have given our anxious consideration to the submissions of Shri Shah, Sr. Advocate. He points out the judgment of the Honourable Supreme Court in the matter of Commissioner, Bangalore Development 3 Authority Vs. K.S. Narayan [2006 (8) SCC 336]. With the assistance of the learned Senior Advocate we have considered paragraph Nos.2 to 5 of the said judgment, wherein the facts have been recorded by the Supreme Court. In paragraph No.2, it has been stated that the respondent K.S. Narayan filed Original Suit No. 5371 of 1989 in the court of City Civil Judge, Bangalore, praying that a decree for permanent injunction be passed against the defendant Bangalore Development Authority, their agents and servants restraining them from interfering with the plaintiff's possession and enjoyment of the plaint scheduled property and from demolishing any structure situate thereon. The plaintiff therein had alleged that the plaintiff purchased the property in dispute bearing No. 46, situated in Banasawadi village, K.R. Pura Hobli, Bangalore South Taluk from S. Narayana Gowda by means of a registered sale deed dated 17.6.1985. The erstwhile owners of the property had obtained conversion certificate from the Tehsildar and the property is situated in a lay-out which is properly approved by obtaining conversion for non- agricultural use from the competent authority. The plaintiff therein applied for mutation entries and the same was granted in his favour. The property in dispute was not covered by any acquisition proceedings as neither notice of acquisition had been received nor any award regarding the said property had been passed. It was further contended that the award regarding the said property is passed by the defendants, who had no right, title or interest over the property but it was trying to dispossess the plaintiff from the same on the ground of alleged acquisition. The plaintiff issued a notice to the defendant on 11.7.1989 calling upon it not to interfere 4 with his possession and enjoyment of the property in dispute but no reply had been received. In paragraph No.3, it has been mentioned that the suit was contested by the defendant Bangalore Development Authority on the ground inter alia that the plaintiff was not the owner of the property in dispute. S. Narayana Gowda, who is alleged to have executed the sale deed in favour of the plaintiff on 17.6.1985, had no right, title or interest over the property in dispute and he could not have conveyed any title to the plaintiff. It was further pleaded that the disputed land had been acquired by the Bangalore Development Authority after issuing preliminary and final notifications in accordance with Bangalore Development Authority Act and the possession had also been taken over and thereafter it was handed over to the Engineering Section on 22.6.1988 after completion of all formalities. The award for the land acquired had already been made and the compensation amount had been deposited in civil court under Sections 30 and 31(2) of the Land Acquisition Act. (Emphasis supplied). In paragraph No.4, the Honourable Supreme Court has observed that the parties have adduced oral and documentary evidence in support of their case before the trial court. It has been further recorded that the learned XIII Additional City Civil Judge, Bangalore, decreed all the ten suits by the judgment and decree dated 30.1.1991. The Bangalore Development Authority, the appellant herein, preferred ten appeals against the judgment and decree of the trial court before the Karnataka High Court. The High Court 5 held that though the plaintiffs had filed the suit claiming to have title and possession over the property in dispute but in fact their possession over the plaint scheduled property on the date of the suit was not established. The plaintiffs had not claimed any relief for delivery of possession over the property. The High Court accordingly allowed the appeal, set aside judgment and decree of the trial court and remanded the suit for fresh decision with liberty to the plaintiffs to apply for amendment of the plaint for which purpose one month time was granted. The High Court has further mentioned in the order that if the plaintiffs did not apply for amendment within one month the trial court shall dismiss the suit. It was further clarified that if the plaintiffs applied for amendment of the plaint, the defendant in each suit shall be given opportunity of filing further written statement and thereafter the suit shall be disposed of in accordance with law. In paragraph No.5 it has been mentioned that after remand of the suit additional written statement was filed by the defendant in that suit. The suits were ultimately tried by learned XVI Additional City Civil and Sessions Judge, Bangalore. The trial court, relying upon the decision of this Court in Laxmi Chand vs. Gram Panchayat, Kararia 1996 (7) SCC 218, held that validity or otherwise of the acquisition proceedings cannot be questioned before the civil court and accordingly dismissed the suits. Aggrieved by the judgment and decree of the trial court the plaintiffs preferred appeals under section 96 of CPC before the High Court. The High Court, in the second round, held that the acquisition proceedings 6 were invalid as said proceedings were without service of notice to the plaintiff. The appeals were accordingly allowed and suits were decreed as prayed by the High Court. That is how the Civil Appeal was before the Honourable Supreme Court. 4. Shri Shah, Sr. Advocate, with this, took us to paragraph Nos.11 and 12 of the judgment. In paragraph No.11, the Honourable Supreme Court referred to its earlier judgment in the case of State of Bihar vs. Dhirendra Kumar 1995 (4) SCC 229, wherein it was held that 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 of the Land Acquisition Act. In paragraph No.12, reference to the judgment in the case of Laxmi Chand vs. Gram Panchayat, Kararia 1996 (7) SCC 218 has been made. With this, in paragraph No.14, the Honourable Supreme Court came to the conclusion that the view taken by the High Court is wholly erroneous. Paragraph No.15 of the said judgment records that the appeal succeeded and allowed and the judgment of the High Court was quashed and set aside. 5. It is appropriate at this stage to consider the judgment of the Supreme Court on the point of Section 9 of CPC i.e. jurisdiction of the Civil Court. It is in the matter of Dhulabhai Vs. State of M.P. [AIR 1969 SC 78]. It is the judgment of the Five Honourable Judges of the Supreme Court. From the judgment, it appears that there were four appeals by certificate, against the common judgment of the High Court of Madhya Pradesh (Indore Bench) dt. 16.12.1964 / 5.1.1965 dismissing the suits filed by the appellants therein to 7 recover sales tax alleged to be realised illegally from them by the State of Maharashtra. The suits were earlier decreed by the learned District Judge, Ujjain. The facts have been stated in this judgment. The judgment was delivered for the Bench by His Lordship Honourable the Chief Justice Shri Hidaytullah (as he then was). Paragraph Nos.32 and 35 of this judgment are important, which are reproduced herein below :- " 32. Neither of the two cases of Firm of Illuri Subayya 1964-1 SCR 752 = (AIR 1964 SC 322) or Kamla Mills 1966 1 SCR 64 = (AIR 1965 SC 1942) can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows:- (1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the 8 statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional. or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for. the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply." 9 "35. No doubt the Madhya Bharat Sales-tax Act contained provisions for appeal, revision, rectification and reference to the High Court, the notifications being declared void the party could take advantage of the fact that tax was levied without a complete charging section. This affected the jurisdiction of the tax authorities because they could not even proceed to assess the party. The question was one falling in category Nos. 3 and 4 rather than in category No. 2 above. It was directly covered by the decision of this Court in Venkataraman's case 1966 - 2 SCR 229 = AIR 1966 SC 1089 read with Circo's Coffee Co. 1967-19 STC 66 (SC) and Senthulnathan Chettiar's case C.A.No.1045 of 1966, D/- 20.7.1967 (SC) already referred to We would have considered this matter again if Venkataraman's case 1966 - 2 SCR 229 = AIR 1966 SC 1089 had been doubted before but it seems to have been followed in the last mentioned case and Pabbojan Tea Company's case AIR 1968 SC 271. If Kamla Mills Ltd. case 1966-1 SCR 64 = AIR 1966 SC 249 had not expressly left the question open we would have applied the earlier case of the Special Bench but as it is we are bound not by the Special Bench decision but by Venkataraman's case 1966 - 2 SCR 229 = AIR 1966 SC 1089. We must therefore allow these appeals with costs. The judgment of the High Court is set aside and suits are decreed. The order for costs shall be as in the suit. The costs in the High Court shall be borne as incurred." 6. In the case on hand, as has been pointed out to us by the Senior Advocate, there are two civil suits pending before the trial Court. The petitioners, in our opinion, have already approached the Civil Court with the grievances in two suits which we have referred to above. The apprehension of Shri Shah, Sr. Advocate and the clarification sought by him is that whether the questions which are raised in this Writ Petition can be gone into by the 10 Civil Court. In our opinion, in the Civil Court, the plaintiff is master or author of the plaint. It is for the plaintiff to make an appropriate pleadings and seek desired reliefs from the Civil Court. After entering the appearance, the defendants may file their written statements in accordance with the procedure laid down under CPC. Issues to be settled by the Court and parties may lead oral evidence and also documentary evidence. The suit to go on in accordance with the provisions of the law. The questions raised in the Writ Petition are to be considered altogether on a different para meters. A general clarification by this Court that the Civil Court may consider the grievance raised in this Writ Petition, in our view, can not be made by us. The parties, and more specifically in the case on hand plaintiffs, have already chosen their pleadings which are part of the record of the Civil suits before the Civil Court. For valid reasons, party may seek amendment to his pleadings in accordance with the provisions of law. In short, in our opinion, general or blind observation cannot be made in this order. We may say that prayers (H) and (I) require recording of the evidence and for that purpose we are not inclined to invoke our jurisdiction under Articles 226 and/or 227 of the Constitution of India. In the facts and circumstances of the present case, we are not inclined to entertain the present Writ Petition involving plethora of disputed questions of facts. However, we make it clear that the plaintiffs who have approached the Civil Court and since their civil suits are pending, may decide themselves whether they wish to seek any amendment and in that circumstance, the Court seized with the matter may consider the prayer in accordance with law. 11 7. In the result, Writ Petition stands dismissed and disposed of with liberty to the petitioners / plaintiffs to seek appropriate amendments, if the plaintiffs wish to do so. No order as to costs. 8. With the assistance of the learned counsel for respective parties, we have seen the interim order dt. 22.8.2008. It is now well settled in law that interim orders passed by the Court are subject to final disposal of the proceedings before the Court. In other words, their life span is limited and the end of proceeding is the end of interim order also. Interim order stands vacated. (SHRIHARI P.DAVARE,J.) (S.B.DESHMUKH,J.) ... akl