Madras High Court
Indirani vs The State Of Tamil Nadu on 18 August, 2021
W.P.No.898 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.No.898 of 2015
and M.P.No.1 of 2015
1. Indirani
2. M.A.Venkat ... Petitioners
-Vs-
1. The State of Tamil Nadu
Rep by its Secretary to Government.
Public Works Department,
Fort St. George,
Secretariat, Chennai – 600 009.
2. The Divisional Engineer (Highways)
East Coast Road Project,
Mamallapuram – 603 104.
3. The Land Acquisition Officer,
and Revenue Divisional Officer,
Tambaram, Chennai. ... Respondents
Prayer :- Writ Petition filed under Article 226 of the Constitution of India
praying for the issuance of a Writ of Declaration, declaring that acquisition of
lands in respect of the petitioners herein to an extent of 2,296 sq.ft., comprised
in new survey No.3/485 and survey No.111/24, Uthandi Village, Tambaram
Taluk, made by the Government vide G.O.Ms.No.1105 P.W(Highways)
Department dated 04.08.1992 published in the Tamil Nadu Government
Gezatte dated 07.08.1992 and G.O.Ms.No.116 P.W (Highways) Department
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W.P.No.898 of 2015
dated 10.08.1993, published in the Tamil Nadu Government Gezette dated
11.08.1993 passed by the respondents stands lapsed in view of the Section 24
Clause 2 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Re-settlement Act, 2013.
For Petitioners : Mr.A.L.Ganthimathi
For Respondents
For R1 to R3 : Mr.Richardson Wilson
Government Advocate.
ORDER
The Writ Petition has been filed to declare that acquisition of lands
in respect of the petitioners herein to an extent of 2,296 sq.ft., comprised in
new survey No.3/485 and survey No.111/24, Uthandi Village, Tambaram
Taluk, made by the Government vide G.O.Ms.No.1105 P.W(Highways)
Department dated 04.08.1992 published in the Tamil Nadu Government
Gezatte dated 07.08.1992 and G.O.Ms.No.116 P.W (Highways) Department
dated 10.08.1993, published in the Tamil Nadu Government Gezette dated
11.08.1993 passed by the respondents stands lapsed in view of the Section 24
Clause 2 of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Re-settlement Act, 2013 (herein after called as
“the New Act”).
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W.P.No.898 of 2015
2. Heard Mr.AL.Ganthimathi, learned counsel appearing for the
petitioners, Mr.Richardson Wilson, learned Government Advocate appearing
for the respondents.
3. It is seen from the records that the petitioners are the subsequent
purchasers and they purchased the subject lands in the year 2002 and 2003 by
the registered sale deeds vide document Nos.2668 of 2002 and 3140 of 2003
dated 12.08.2002 and 26.08.2003 respectively. The subject lands were
acquired for the purpose of East Coast Road development. That apart, the lands
acquired were taken over and the possession was handed over to the Highways
Authorities as earlier as in the year 1995. Now the East Coast Road has been
formed and it is maintained by the Tamil Nadu Road Development Company
Limited.
4. Admittedly the petitioners are the subsequent purchasers and it is
settled position of law that the subsequent purchaser cannot have right to
challenge the acquisition proceedings. In this regard, it is relevant to rely upon
the judgment reported in (2019) 10 SCC 229 in the case of Shiv Kumar and
anr Vs Union of India and ors, in which the Hon'ble Supreme Court of India
held as follows :-
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W.P.No.898 of 2015
“13. The definition of 'landowner' is in
Section 3(r), the same is extracted hereunder:
3. Definition.-In this Act, unless the context
otherwise requires,-- .....
(r) "landowner" includes any person,-- (i) whose
name is recorded as the owner of the land or
building or part thereof, in the records of the
authority concerned; or
(ii) any person who is granted forest rights
under the Scheduled Tribes and Other Traditional
Forest Dwellers (Recognition of Forest Rights) Act,
2006 (2 of 2007) or under any other law for the
time being in force; or
(iii) who is entitled to be granted Patta rights on
the land under any law of the State including
assigned lands; or (iv) any person who has been
declared as such by an order of the court or
Authority;
Landowner is a person who is recorded as the
owner of land or building. The record of date of
issuance of preliminary notification Under Section
11 is relevant. A purchaser after Section 11 cannot
be said to be a landowner within the purview of
Section 3(r).
............................
21. Thus, under the provisions of Section 24
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W.P.No.898 of 2015
of the Act of 2013, challenge to acquisition
proceeding of the taking over of possession under
the Act of 1894 cannot be made, based on a void
transaction nor declaration can be sought Under
Section 24(2) by such incumbents to obtain the
land. The declaration that acquisition has lapsed
under the Act of 2013 is to get the property back
whereas, the transaction once void, is always a
void transaction, as no title can be acquired in the
land as such no such declaration can be sought. It
would not be legal, just and equitable to give the
land back to purchaser as land was not capable of
being sold which was in process of acquisition
under the Act of 1894. The Act of 2013 does not
confer any right on purchaser whose sale is ab
initio void. Such void transactions are not
validated under the Act of 2013. No rights are
conferred by the provisions contained in the 2013
Act on such a purchaser as against the State.
22. 'Void is, ab initio,' a nullity, is
inoperative, and a person cannot claim the land or
declaration once no title has been conferred upon
him to claim that the land should be given back to
him. A person cannot enforce and ripe fruits based
on a void transaction to start claiming title and
possession of the land by seeking a declaration
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W.P.No.898 of 2015
Under Section 24 of the Act of 2013; it will amount
to conferment of benefit never contemplated by the
law. The question is, who can claim
declaration/rights Under Section 24(2) for the
restoration of land or lapse of acquisition. It
cannot be by a person with no title in the land. The
provision of the Act of 2013 cannot be said to be
enabling or authorizing a purchaser after Section
4 to question proceeding taken under the Act of
1894 of taking possession as held in U.P. Jal
Nigam (supra) which is followed in M. Venkatesh
(supra) and other decisions and consequently
claim declaration Under Section 24 of the Act of
2013. What cannot be done directly cannot be
permitted in an indirect method.
23. The provisions of the Act of 2013 aimed
at the acquisition of land with least disturbance to
the landowners and other affected families and to
provide just and fair compensation to affected
families whose land has been acquired or
proposed to be acquired or are affected and to
make adequate provisions for such affected
persons for their rehabilitation and resettlement.
The provisions of Act of 2013 aim at ousting all
inter-meddlers from the fray by ensuring payment
in the bank account of landholders Under Section
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W.P.No.898 of 2015
77 of the Act.
24. The intendment of Act of 2013 is to
benefit farmers etc. Subsequent purchasers cannot
be said to be landowners entitled to restoration of
land and cannot be termed to be affected persons
within the provisions of Act of 2013. It is not open
to them to claim that the proceedings have lapsed
Under Section 24(2).”
5. In the above judgment, the Hon'ble Supreme Court of India held
that challenging the acquisition proceedings under the provisions of Section 24
of the New Act cannot be made, based on a void transaction nor declaration to
get the property back. The transaction once void, is always a void transaction,
as no title can be acquired in the land as such, no such declaration can be
sought. It would not be legal, just and equitable to give the land back to the
purchaser as land was not capable of being sold which was in process of
acquisition under the Act of 1894. Therefore, the New Act does not confer any
right on purchaser whose sale is ab initio void. Therefore the petitioners cannot
challenge the acquisition proceedings being the subsequent purchasers.
6. That apart, the grounds raised by the petitioners in this Writ
Petition have already been settled by the Hon'ble Supreme Court of India in the
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W.P.No.898 of 2015
judgment reported in (2020) 8 SCC 129 in the case of Indore Development
Authority Vs. Manoharlal and ors etc., which held as follows :-
“366. In view of the aforesaid discussion, we
answer the questions as under:
1. Under the provisions of Section 24(1)(a) in
case the award is not made as on 1.1.2014 the date of
commencement of Act of 2013, there is no lapse of
proceedings. Compensation has to be determined
under the provisions of Act of 2013.
2. In case the award has been passed within the
window period of five years excluding the period
covered by an interim order of the court, then
proceedings shall continue as provided under Section
24(1)(b) of the Act of 2013 under the Act of 1894 as if
it has not been repealed.
3. The word or used in Section 24(2) between
possession and compensation has to be read as nor or
as and. The deemed lapse of land acquisition
proceedings under Section 24(2) of the Act of 2013
takes place where due to inaction of authorities for five
years or more prior to commencement of the said Act,
the possession of land has not been taken nor
compensation has been paid. In other words, in case
possession has been taken, compensation has not been
paid then there is no lapse. Similarly, if compensation
has been paid, possession has not been taken then
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W.P.No.898 of 2015
there is no lapse.
4. The expression 'paid' in the main part of
Section 24(2) of the Act of 2013 does not include a
deposit of compensation in court. The consequence of
non-deposit is provided in proviso to Section 24(2) in
case it has not been deposited with respect to majority
of land holdings then all beneficiaries (landowners) as
on the date of notification for land acquisition under
Section 4 of the Act of 1894 shall be entitled to
compensation in accordance with the provisions of the
Act of 2013. In case the obligation under Section 31 of
the Land Acquisition Act of 1894 has not been fulfilled,
interest under Section 34 of the said Act can be
granted. Non-deposit of compensation (in court) does
not result in the lapse of land acquisition proceedings.
In case of non-deposit with respect to the majority of
holdings for five years or more, compensation under
the Act of 2013 has to be paid to the "landowners" as
on the date of notification for land acquisition under
Section 4 of the Act of 1894.
5. In case a person has been tendered the
compensation as provided under Section 31(1) of the
Act of 1894, it is not open to him to claim that
acquisition has lapsed under Section 24(2) due to non-
payment or non-deposit of compensation in court. The
obligation to pay is complete by tendering the amount
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W.P.No.898 of 2015
under Section 31(1). Land owners who had refused to
accept compensation or who sought reference for
higher compensation, cannot claim that the acquisition
proceedings had lapsed under Section 24(2) of the Act
of 2013.
6. The proviso to Section 24(2) of the Act of 2013
is to be treated as part of Section 24(2) not part of
Section 24(1)(b).
7. The mode of taking possession under the Act
of 1894 and as contemplated under Section 24(2) is by
drawing of inquest report/ memorandum. Once award
has been passed on taking possession under Section 16
of the Act of 1894, the land vests in State there is no
divesting provided under Section 24(2) of the Act of
2013, as once possession has been taken there is no
lapse under Section 24(2).
8. The provisions of Section 24(2) providing for
a deemed lapse of proceedings are applicable in case
authorities have failed due to their inaction to take
possession and pay compensation for five years or
more before the Act of 2013 came into force, in a
proceeding for land acquisition pending with
concerned authority as on 1.1.2014. The period of
subsistence of interim orders passed by court has to be
excluded in the computation of five years.
9. Section 24(2) of the Act of 2013 does not give
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W.P.No.898 of 2015
rise to new cause of action to question the legality of
concluded proceedings of land acquisition. Section 24
applies to a proceeding pending on the date of
enforcement of the Act of 2013, i.e., 1.1.2014. It does
not revive stale and time-barred claims and does not
reopen concluded proceedings nor allow landowners
to question the legality of mode of taking possession to
reopen proceedings or mode of deposit of
compensation in the treasury instead of court to
invalidate acquisition.”
7. The Hon'ble Supreme Court of India settled all proposition of law
in the above judgment including the grounds raised by the petitioners. That
apart, the acquisition proceedings have been completed and the subject lands
were taken over possession by the government and the same was handed over
to the Highways Authority on 17.08.1995 itself. Further the requisition body
also deposited the compensation as awarded by the Land Acquisition Officer.
Now the project has been completed and the East Coast Road was formed and
it is maintained by the Tamil Nadu Road Development Company Limited.
Therefore, the petitioners failed to satisfy the twin requirements under Section
24 (2) of the New Act i.e., the physical possession of the land was not taken
and the compensation has not been paid/tendered/deposited in accordance with
law. In view of the dictum laid down by the Hon'ble Supreme Court of India,
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W.P.No.898 of 2015
the issues raised by the petitioners herein were settled and therefore, the
acquisition proceedings have not been lapsed by operation of law under Section
24 (2) of the New Act i.e., Right to Fair Compensation and Transparency in
Land Acquisition, Rehabilitation and Resettlement Act, 2013. In view of the
settled position of law, the writ petition is devoid of merits and liable to be
dismissed.
8. In the result, the Writ Petition stands dismissed. Consequently,
connected miscellaneous petition is closed. There shall be no order as to costs.
18.08.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
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W.P.No.898 of 2015
To
1. The Secretary to Government,
State of Tamil Nadu
Public Works Department,
Fort St. George,
Secretariat, Chennai – 600 009.
2. The Divisional Engineer (Highways)
East Coast Road Project,
Mamallapuram – 603 104.
3. The Land Acquisition Officer,
and Revenue Divisional Officer,
Tambaram, Chennai.
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W.P.No.898 of 2015
G.K.ILANTHIRAIYAN, J.
rts
W.P.No.898 of 2015
and M.P.No.1 of 2015
18.08.2021
http://www.judis.nic.in
