1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2568 OF 1996 Damu Soma Hanamgar & Ors. .. Petitioners versus The State of Maharashtra & Ors. .. Respondents Mr.K.Y.Mandlik for the petitioners. Mr.S.D.Rayrikar, A.G.P for the respondent No.1. Mr.P.K.Hushing for respondent Nos.4 and 5. Mr.Nitesh Bhutekar h/f Mr.Uday Warunjikar for respondent Nos.6 and 7. CORAM : A.S.OKA, J. DATE : 8th September 2009. JUDGMENT: . The petition was taken up for final hearing on the earlier date. I have heard the learned counsel appearing for the petitioners, the learned counsel appearing for the respondent Nos.6 and 7. I have also heard learned counsel appearing for the respondent Nos.4 and 5 and learned A.G.P for the 1st respondent. 2. The present petitioners are the original defendant Nos.6 to 10. The 1st respondent is the 1st defendant. The 2nd to 5th respondents are the 2nd to 5th defendants. The suit was filed by the 6th and 7th respondents. The suit relates to land bearing Gat No.1308 situated at Warwand Taluka Daund, District Pune which is more particularly described in the plaint. According to 2 the case of the original plaintiffs, there was a partition effected in the year 1965 between the plaintiffs and the 3rd defendant and in the said partition suit property which is the portion of Gat No.1308 on the western side of the canal running in south-north direction admeasuring 1 hectare and 10 ares was allotted to the share of the plaintiffs. It was further stated that area of 2 hectares and 7 ares on the eastern side of the canal was allotted to the share of the original defendant No.3. It is alleged that in the suit property the original plaintiffs have been taking sugarcane crop. It is stated that the original 3rd defendant has sold part of the property alloted to his share to the 4th and 5th defendants. 3. In the plaint it is stated that the State Government had decided to acquire land bearing Gat No.1308 for rehabilitation of the project affected persons. It is contended that the acquisition relates to the area allotted to the share of the original 3rd defendant. It is contended that no part of the area allotted to the plaintiffs has been acquired and therefore the acquisition proceedings are not binding on the suit property. It is alleged that though the suit property is not acquired, the officers of the State are alleging that area of 83 ares out of the suit property has been acquired. An objection was raised by the plaintiffs by contending that area of 83 ares from the property allotted to the 3rd defendant should be acquired. It was stated that the State Government issued notice dated 30th April 1982 to the 1st plaintiff calling upon him not to interfere with the land allotted to the 2nd defendant who was 3 a project affected person. In paragraph 8A of the plaint, a specific contention has been raised that area of 83 ares out of Gat No.1308 has been illegally shown to have been acquired by the State Government. The first substantive prayer made in the suit is that the acquisition of land by the State Government in respect of area of 83 ares out of Gat No.1308 was not binding on the plaintiffs. The second substantive prayer is that the State Government should be restrained from acquiring any part of the suit property in possession of the plaintiffs for the benefit of the 2nd defendant. The third prayer is for consequential relief against the 2nd to 5th defendants. The suit was contested by filing written statements. The trial Court framed preliminary issue regarding the jurisdiction. The said preliminary issue reads thus: “. Whether this Court has jurisdiction to entertain and decide the suit in view of the express provisions made under section 22 of the Maharashtra Project Affected Pesons Rehabilitation Act?” 4. By the impugned judgment and order, the trial Court has come to the conclusion that the suit was maintainable. The trial Court held that there was neither an express nor an implied ouster of jurisdiction of the Civil Court. 5. The learned counsel appearing for the petitioners invited my attention to the averments made in the plaint and the prayers made therein. He submitted that the challenge in the suit was in substance to the acquisition 4 made by the State Government and therefore in view of the settled law, the jurisdiction of the Civil Court was ousted. The learned A.G.P as well as the learned counsel appearing for the 4th and 5th respondents supported the learned counsel appearing for the petitioners. The learned counsel appearing for the 6th and 7th respondents supported the impugned order by contending that in substance the original plaintiffs intended to claim a relief of perpetual injunction and there is no challenge to the acquisition proceedings. He submitted that in the circumstances, the trial Court was justified in recording a finding on the preliminary issue in favour of the original plaintiffs. 6. I have carefully considered the submissions. At the outset, it must be stated here that a remedy of filing a revision application under section 115 of the Code of Civil Procedure, 1908 is available to the petitioners. Normally, this Court will not exercise power of superintendence under Article 227 of the Constitution of India if a statutory remedy is available. It is well settled that availability of statutory remedy does not affect the writ jurisdiction of this Court under Article 226 as well as Article 227 of the Constitution of India. The present petition is of the year 1996. After hearing the counsel for the original plaintiffs, on 11th September 1997 the writ petition was admitted for final hearing and rule was issued. After lapse of 13 years now it will be unjust to the parties if the petitioners are relegated to another remedy. Therefore, I have proceeded to hear the petition on merits. 5 7. Going by the averments made in the plaint, the original plaintiffs have not disputed that area of 83 ares out of land bearing Gat No.1308 has been acquired by the State Government. The contention in the plaint is that in fact what was intended to be acquired was that part of Gat No.1308 which has been allegedly allotted to the share of the original defendant No.3. It is sought to be contended that no part of the suit property which is allegedly alloted to the share of the plaintiffs is subject matter of acquisition. However, a specific allegation has been made that area of 83 ares which is a part of the suit property is shown as forming part of the property allegedly acquired. Therefore, the prayer for declaration is that the land acquisition proceedings are not binding on the plaintiffs. Thus, in substance, the challenge is to the acquisition proceedings. The issue of legality and validity of the acquisition proceedings will certainly arise in the suit. 8. The law on this point is well settled. In the case of Laxmi Chand Vs. Grampanchayat, Kararia (AIR 1996 Supreme Court 523), the Apex Court has specifically held that the law relating to acquisition being a complete code by itself, the jurisdiction of the Civil Court has been ousted by implication. The Apex Court held that the civil Court has no justification to give declaration on invalidity of the acquisition and the only right of the aggrieved person was to approach the constitutional Court. The view taken by the trial Court is completely contrary to the well settled law. The Civil 6 Court had no jurisdiction to entertain and try the suit and therefore, the issue of jurisdiction ought to have been answered against the plaintiffs. The impugned order being completely illegal will have to be quashed and set aside. 9. Hence, I pass the following order: : O R D E R : (a) The impugned order dated 1st January 1996 is quashed and set aside and issue of jurisdiction is answered in the negative. (b) The trial Court has no jurisdiction to entertain and try the suit filed by the 5th to 7th respondents (original plaintiffs). (c) The suit accordingly stands dismissed with no orders as to costs. (d) The dismissal of the suit will not take away the other remedies available to the original plaintiffs and all contentions in that behalf are kept open. (e) Rule is made absolute in above terms. (A.S.OKA,J)