1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.133 OF 2008 Laxman s/o Rambhau Gunnal, R/o. Dharur, Tq. Kaij, District Beed and others. .. Appellants Versus The State of Maharashtra through Collector, Beed District Beed and others. .. Respondents ... Mr. H.D. Deshmukh, Advocate for the appellants. Mr. M.L. Dharashive, A.G.P. for respondent No.1. Mr. Arun Dalal, Advocate holding for Mr. S.J. Salunke, Advocate for respondent No.2. ... CORAM : K.K. TATED, J. RESERVED ON : 2nd JULY, 2009. PRONOUNCED ON: 8th JULY, 2009. PER COURT : 1. Heard learned Counsel for respective parties. 2. Present Second Appeal is preferred by the original plaintiffs against the judgment and decree dated 27-04-2007 passed by the Ad hoc 2 District Judge-1, Majalgaon in R.C.A. No. 111/2004 (Old No. 109/2001) arising out of the judgment and decree dated 03-09-1997 passed by the Civil Judge, S.D. Ambajogai in Special Civil Suit No. 16/1992. The appellants hereinabove are the plaintiffs, whereas the respondents are original defendants. 3. It is the case of the plaintiffs that defendant No. 2 without any authority demolished their shop premises on Plot No.6, 7 and 16 from Survey No. 359 of Dharur, Ambajogai District Beed. The plaintiffs filed Special Civil Suit No. 16/1992 for the following reliefs. (A) The award, bearing No. LNQ/SR/59/81 passed by the Special Land Acquisition Officer NO. 1, Beed, may kindly be declared as illegal, null and void. (B) The Municipal Council Dharur may kindly be directed to restore the possession of the plaintiffs over the suit plots. The Municipal Council Dharur may also be directed to errect the shades of the shops which the plaintiffs possed prior to their eviction, in the same size and form with its own expenses. 3 (C) The Municipal Council Dharur may kindly be directed to hands over the goods ands articles to the plaintiffs according to the list prepared by the Municipality Officer at the time of destroying the shops of the plaintiffs. The Municipal Council Dharur may also be directed to compensate the price of the goods and articles which have been demolished, wasted or lost from its custody. (D) The Collector and the Municipal Council Dharur may kindly be jointly and severally be held responsible for the damages of Rs. 1,80,000/-, sustained by the plaintiffs because of their wrongful acts. The same amount of damages may kindly be recovered from the defendant Nos. 1 and 2 and be given to the plaintiffs. (E) That any other relief to which the plaintiffs are legally entitled to, may kindly be granted to the plaintiffs. (F) That the costs of the suit may kindly be awarded to the plaintiffs ands oblige. 4. The main contention of the plaintiffs is that the Special Land Acquisition Officer at the instance of State of State of Maharashtra passed award under Land Acquisition Act is bad in law. 4 The plaintiffs further contended that Municipal Council, Dharur without following due process of law demolished their suit structures and damaged their goods and therefore, they are entitled to reconstruct suit premises and also damages towards loss of their goods. 5. The defendants filed their Written Statement and opposed the prayers in Special Civil Suit No. 16/1992. The defendant - Municipal Council contended that the land was acquired for their benefit and same was handed over by the S.L.A.O. to them and thereafter, the plaintiffs encroached on those lands and occupied the same. Municipal Council further contended that from time to time they called upon the plaintiffs to take possession of their goods after paying their charges. The plaintiffs failed and neglected to pay their charges and collect their goods. Therefore, the plaintiffs are not entitled to any reliefs in the present litigation. They further contended 5 that the suit filed by the plaintiffs is barred by limitation as per Section 304 of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965. It is the contention of the defendant - Municipal Council that suit to be filed within six months next after accrual of the cause of action and notice of one month is mandatory. In the present case, the cause of action arose on 07-01-1998 when they demolished unauthorised structure of the plaintiff. In spite that though the cause of action arose on 07-01-1998 the plaintiff filed present suit on 19-08-1999 and therefore, the same is barred by limitation. 6. With the assistance of learned Counsel appearing on behalf of both the parties, I have gone through the Record and Proceedings in the present case. In a suit filed by the plaintiff first prayer is for declaring award passed by the Land Acquisition Officer under Land Acquisition Act as null and void. Though both 6 the Courts below failed to consider whether Civil Court have jurisdiction to declare award under Land Acquisition Act as null and void, in my view this question goes to the root of the cause of action. It is well settled principle of law that Civil Courts have no jurisdiction to decide the validity of award passed under Land Acquisition Act. In this regard, reliance can be placed on authority in the matter of Laxmi Chand and others vs. Gram Panchayat, Kararia and others, reported in (1996) 7 S.C.C. 218. In this case, Apex Court held that the scheme of Act is complete in itself and and therefore, Civil Court has no jurisdiction to give declaration on invalidity of acquisition and award. This can be done by High Court or Supreme Court in exercise of their extra ordinary power under Article 226 and 136 of the Constitution of India. Para 2 and 3 of this authority read as under. 7 "2. The contention raised by the learned counsel for the petitioner is that the acquisition proceedings having been dropped by the Land Acquisition Officer, he had no jurisdiction or power to reopen the same and to make the award under Section 11 of the Act. The award is, therefore, clearly illegal for want of jurisdiction. It would appear that after the High Court had upheld the validity of the notification under Section 4(1) and the declaration under Section 6, an application was filed in the High Court for claiming value of the property in which the High Court determined market value at Rs. 7000 per acre and also other values of the trees and buildings etc. and the application was dismissed. The order dated 23-01-1970 was upheld by this Court by dismissing the special leave petition. While the enquiry was in progress, it would appear that the Gram Panchayat had stated before the Land Acquisition Officer that it had no funds as to proceed with the award and requested him to drop the proceedings. On that basis, a report was submitted to the Government and the Land Acquisition Officer had stopped further action. The Government did not accede to the request. No notification under sub- section (1) of Section 48 of 8 the Act withdrawing acquisition of land, possession of which had not been taken, was published in the Gazette. Admittedly, the Government thereby had neither withdrawn from the acquisition nor published the same in the Gazette. Therefore, the mere fact that the Land Acquisition Officer had stopped further action to make the award did not divest him of his power and jurisdiction to make the award. It is seen that Section 9 of the C.P.C. 1908 gives jurisdiction to the Civil Court to try all civil suits, unless barred. The cognizance of a suit of civil nature may either expressly or impliedly be barred. The procedure contemplated under the Act is a special procedure envisaged to effectuate public purpose, compulsorily acquiring the land for use of public purpose. The notification under Section 4 and declaration under Section 6 of the Act are required to be published in the manner contemplated thereunder. The inference gives conclusiveness to the public purpose and the extent of the land mentioned therein. The award should be made under Section 11 as envisaged thereunder. The dissatisfied claimant is provided with the remedy of Reference under Section 18 and a further appeal under Section 54 of the Act. If the 9 Government intends to withdraw from the acquisition before taking possession of the land, procedure contemplated under Section 48 requires to be adhered to. If possession is taken, it stands vested under Section 16 in the State with absolute title free from all encumbrances and the Government has no power to withdraw from acquisition. 3. It would does declare that the scheme of the Act is complete in itself and thereby the jurisdiction of the Civil Court to take cognizance of the cases 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 to 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 extra ordinary power. Barring thereof, there is no power to the Civil Court." 7. Bombay High Court in the matter of Vijay Krishna Kumbhar vs. State of Maharashtra and 10 others,reported in 2000 Vol. 102 (1) B.C.R. 328 held that Civil Courts have no jurisdiction to go in to question of validity or legality of a notification under Section 4 of the Land Acquisition Act, and declaration under Section 6 thereof. It is further held by Hon'ble High Court that the land acquisition is complete code and therefore, Civil Courts have no jurisdiction. In view of these two authorities, it is crystal clear that suit filed by the plaintiffs itself is not maintainable in Civil Court. In the present Second Appeal, the appellants raised following grounds challenging concurrent findings of both the Courts below. (1) Whether the both court below have erroneously concluded the said award dtd. 23.02.1984 valid though, the said award was devoid of any description of the property to be acquired and hence vague.? (2) Whether both courts below have failed to hold that, the land to be acquired as per the award dtd. 23.02.1984 was not described and moreover, the land 11 mentioned in the award was a open space and therefore totally on the surmises and conjectures and held the acquisition as per the award to be valid? (3) Whether both courts below have perversely decided the act of the respondent No. 3 for the acquisition of the land in possession of the present appellants to be legal.? 8. These grounds show that the plaintiffs' main contention in the present litigation is to the challenge the award dated 23-02-1984 passed by the Land Acquisition Officer under Land Acquisition Act. In view of the authorities in the matter of Laxmi Chand and others vs. Gram Panchayat, Kararia and others, reported in (1996) 7 S.C.C. 218 and Vijay Krishna Kumbhar vs. State of Maharashtra and others,reported in 2000 Vol. 102 (1) B.C.R. 328 (supra) Civil Courts have no jurisdiction to decide the validity of award passed under Land Acquisition Act. In any case, both the Courts concurrently held that the suit filed by the plaintiffs is 12 barred by limitation. Learned Counsel appearing on behalf of the plaintiffs submitted that initially defendant No. 2 issued notice dated 31-03-1987 to the plaintiffs for eviction and same was challenged by the plaintiffs in Writ Petition. Said Writ Petition came to be withdrawn in view of the defendant No. 2 agreed to issue appropriate notice as per law. Thereafter, defendant No. 2 issued notice dated 08-12-1987 under Section 55 of the Maharashtra Regional and Town Planning Scheme Act calling upon the plaintiffs to vacate the suit land. Said notice challenged by the plaintiffs preferring Writ Petition No. 1974/2008. Said Writ Petition came to be withdrawn on 06-01-1988 and immediately the plaintiffs preferred another Writ Petition on 08-01-1988. Said Writ Petition came to be converted into C.R.A. No. 44/1988. Said C.R.A. disposed off on 02-02-1988 as a subject matter therein was infructuous as act of eviction on 07-01-1988 was already completed by defendant No. 2. Therefore, the plaintiffs 13 filed Writ Petition No. 1267/1990 on 24-01-1990 seeking direction for release of the articles seized by defendant No. 2 and further seeking interim relief for stay of eviction proceedings. In the said Writ Petition, Hon'ble High Court granted interim stay on 16-07-1990 and thereafter said Writ Petition came to be withdrawn on 21-02-1991. On 31-05-1991 the plaintiffs issued notice under Section 304 of M.R.T.P. Act to defendant No. 2 and notice under Section 80 of the Code of Civil Procedure to defendant No.1 for filing suit for declaration and damages. Thereafter, on 19-08-1991 plaintiffs filed R.C.S. No. 57/1991 for reliefs as disclosed hereinabove. Whether suit as filed by the plaintiffs on 19-08-1991 is within time. It is necessary to reproduce here Para. 21 of the plaint in which the plaintiffs explained limitation. Para. 21 reads as under. "21. That the defendant No. 1 had illegally passed the awar4d on 23-2-84. The 14 defendant No. 2 had illegally dispossessed the plaintiffs on 7-1-88. The plaintiffs had sent notice U/s. 80 of C.P.C. to the defendant No. 1 and U/s. 304 of Municipalities Act to the defendant No.2 on 31-5-91 for restoration of possession and payment of damages. The notices are duly served upon the defendant No. 1 and 2 but none of them had replied it within the time prescribed in notice. Therefore, the fresh cause of action arose to the plaintiffs against the defendant No. 1 on 30-7-91 and against the defendant No. 2 on 30-6-91. Every act of the defendant No. 2 is inspired and supported by the defendant No. 3. Hence the dates of cause of action against the defendant No. 3 are similar to that of the defendant No. 2. The defendant No. 4 is necessary party for deciding the subject matter of the suit. Thus the dates of cause of action to the plaintiffs against the defendants are 23-2-84, 7-1-88, 30-6-91 and 30-7-91." 9. It is crystal clear from Para. 21 of plaint as reproduced hereinabove, the plaintiffs specifically stated that cause of action arose to the plaintiffs against the defendant on 23-02-1984, 07-01-1988, 30-06-1991, and 15 30-07-1991. The suit premises came to be demolished on 07-01-1988. The present suit filed by the plaintiff on 19-08-1991. Therefore, it is crystal clear on the submissions of the plaintiffs themselves that the cause of action first arose on 23-02-1984 and therefore, filing of suit hits by law of limitation. In view of these facts, I do not find any reason to interfere with the findings of both the Courts below on the point of limitation. 10. Next contention is raised by the plaintiffs for the purpose of damages. It is clear from the pleadings of both the parties and findings recorded by both the Courts below that defendant No. 2 called upon the plaintiffs to collect their goods on payment of their charges. In spite of notice to that effect, the plaintiffs failed and neglected to collect the same after paying defendant - Municipal Council charges for collecting their goods. In any case, Section 16 303 of the Maharashtra Municipal Council and Township Act, 1965 says that suit bars against Council, its Officers, servants, etc. for the acts done in good faith. Section 303 of the said Act reads as under. "Section 303 - Bar of suits against Council, its officers, servants, etc. for acts done in good faith.- No suit shall lie in respect of anything in good faith done or intended to be done under this Act, against (the C0llector, the Director, the Regional Director or any other officer of the State Government or) any Council or against any committee constituted under this Act, or against any officer or servant of a Council or against any person acting under and in accordance with the directions of any such Council, committee, officer or servant or of a Magistrate." 11. It is clear from the record that the land was acquired for the benefit of defendant- Municipal Council and same was handed over to them. The plaintiffs encroached the said land. After following due process of law, the defendant-Municipal Council demolished the 17 unauthorised structures. Therefore, in view of Section 303 of the said Act, as quoted hereinabove, the suit is not maintainable against the Municipal Council for the damages. Both the Courts concurrently held that the plaintiffs failed to make out case for damages. Considering these facts, I do not find any reason to interfere with the concurrent findings of the both Courts below. In view of the above mentioned facts and circumstances, the plaintiffs have not indicated any legal flaw in the appreciation of evidence on record by the two Courts below. Therefore, no question of law, leave apart substantial question of law is involved in the present Second Appeal. Therefore, Second Appeal stands dismissed summarily. No order as to costs. [ K.K. TATED, J.] sut/JUL09/sa133.08