IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 8 TH DAY OF MARCH, 2011 BEFORE THE HON’BLE MR. JUSTICE ASHOK B. HINCHIGERI R.FA.No.2278/2007 (INJ) BETWEEN: The Commissioner, Bangalore Development Authority, Kumara Park West, Bangalore — 560 020. Appellant (By Sri U.Abdul Khader, Advocate) AND: Smt. Kavitha Reddy, W/o Shri Ashwathanarayana Reddy, No.280/i, 80 Feet Road, Subbaiahnapalya Extension, Banaswadi Post, Bangalore — 560 043. .. Respondent (By Sri E.Thirthappa, Advocate) This Regular First Appeal is filed under Section 96 of CPC against the judgment and decree dated 11.4.2007 passed in O.S.No.2222/97 on the file of the XXVII Additional City Civil Judge, Bangalore decreeing the suit for permanent injunction. This Regular First Appeal coming on for Admission this day, the Court delivered the following: JUDGMENT This appeal is directed against the judgment and decree, dated 11.4.2007 passed by the Court of the XXVII Additional City Civil Judge, Bangalore in O.S.No,2222/97. 2. The facts of the case in brief are that the respondent purchased the suit schedule property vide sale deed, dated 20.10.1994. It is also assessed to tax by the local body. The respondent claims to have constructed a shed and to be in possession of the same. On 27.12.1996, the officials of the appellant came to the suit schedule property to demolish the shed. This drove her to file a suit seeking the relief of permanent injunction. The appellant filed the written statement raising the defence interalia that the statutory notice under Section 64 of the BDA Act is not given, the suit schedule property is acquired under the preliminary notification, dated 21.3.1977. Based on the rival pleadings, the Trial Court formulated the following issues: 1. Whether the plaintiff proves her lawful possession of the suit schedule property on the date of the suit? 2. Whether the plaintiff further proves unlawful interference by the authorities of the defendants? qaK 3. Whether the defendant proves that the suit schedule property stood vested in the Bangalore Development Authority by virtue of acquisition proceedings, and as such, the suit is not maintainable? 4. Whether the suit is not maintainable for want of notice under Section 64 of the BDA Act, 1976? 5. Whether the plaintiff is entitled to a decree of permanent injunction, as sought for? 3. On behalf of the respondent, respondent was examined as PW1 marking the documents at Ex.P1 to P7. The appellant was content with filing the written statement. It did not cross- examine PW1. It did not enter the witness box. It did not produce any documents. At this juncture the respondent’s counsel, Sri E.Thirthappa submits that even the arguments were not addressed by the appellant. 4. Based on the pleadings, oral and documentary evidence placed on its record, the Trial Court answered the issues against the appellant and decreed the suit. Aggrieved by the same, this appeal is preferred. 5. Sri U. Abdul Khadder, the learned counsel for the appellant submits that no suit whatsoever is entertainable in 4 respect of the land, which is the subject matter of the acquisition proceedings. Without prejudice to this submission, he states that the suit schedule property is a Government property and that there was no need to issue the preliminary notification also. As the suit schedule property is a Government property, the appellant has formed the layout, which includes the suit schedule property also. 6. Sri Abdul Khader submits that the respondent has no manner of right, title and interest over the suit schedule property, as she has purchased the suit schedule property after the issuance of the preliminary notification. 7. Sri Abdul Khader submits that, if the appellant is given an opportunity, it would produce the necessary supporting documents in the suit and resist the suit. He would therefore pray for the allowing of the appeal by remanding the matter to the Trial Court for fresh enquiry. 8. Sri EThirthappa, the learned counsel for the respondent submits that the appellant did not take part in the suit proceedings after the filing of the written statement. He would therefore pray for the confirmation of the judgment and decree under appeal and for the dismissal of the appeal. 9. In the course of the rejoinder, Sri Abdul Khader states that the arguments were indeed addressed by the appellant before the Trial Court and that the same is referred in the order sheet. 10. My perusal of the appeal memorandum shows that the appellant has not made any attempts to explain as to why it did not take part in the suit proceedings. In this appeal, no application whatsoever is made for the production of additional evidence. Nothing is placed on the record to show as to how and on what basis the appellant claims to be the owner of the suit schedule property. Assuming that there was no need for issuing the preliminary notification, as the suit schedule property is a Government land, then also the Government has to pass the order placing the lands at the disposal of BDA and draw the Mahazar for handing over the possession of the lands to BDA. 11. In the wake of the non-production of these documents, there is nothing on record to show that the appellant BDA has become the owner of the suit schedule property. 6 12. There cannot be any second opinion that in respect of any property, which is the subject matter of land acquisition, the Civil Court has no jurisdiction. Because the acquisition of land falls within the eminent domain of the State. In the instant case, the appellant claims that the suit schedule property and the adjoining lands are Government lands. If they are Government lands, there would not have been any need to issue the preliminary notification. If the appellant’s submission that the suit schedule property is a Government land is not accepted, then also the acquisition cannot be said to have been completed. After the issuance of the preliminary notification, dated 21.3.1977, there has been no final notification or declaration for the last 34 years. It is not known whether the acquisition has spent itself. 13. On the doubtful acquisition, I do not propose to hold that the Civil Court has no jurisdiction. 14. It is not known on what basis the appellant BDA has formed the layout, which includes the suit schedule property also. As observed earlier, no documentary evidence regarding the transfer of the land from the Government to BDA is 7 produced, If the appellant is or has not become the owner, the question of the appellant interfering in the possession of the respondent cannot arise. 15. Not interfering with what the Trial Court has done, I dismiss this appeal. However, certain observations are required to be made and clarifications are required to be issued. If the suit schedule property is a Government land, it is always open to the Government to take the possession of the land from the respondent in a manner known to law either by resorting to the proceedings under the Public Premises (Eviction of Unauthorized Occupants) Act, 1974 or by filing a suit for the recovery of its possession. 16. Similarly, it is also open to the appellant BDA to file a duly constituted suit for declaration that it is the owner of the suit schedule property. It is further made clear that if any proceedings are initiated either by the Government or by the BDA or by both of them, the same are to be concluded without being influenced by the judgment and decree passed by the Trial Court in O.S.No.2222/1997. H. 17. Subject to the aforesaid observations and clarifications, this appeal is dismissed, safr IUDGE MD/NMB*