Madras High Court
Mohana Seshamma vs The State Of Tamil Nadu on 25 August, 2021
W.P.Nos.28890, 29092, 30551 & 30552 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 25.08.2021
CORAM :
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.28890, 29092, 30551 & 30552 of 2016
and W.M.P.Nos. 24961, 24962, 25139, 351940
26490 to 26493 of 2016
Mohana Seshamma ... Petitioner in W.P.
No.28890/2016
T.Rose Pillai ... Petitioner in W.P.
No.29092/2016
M.Sundaram ... Petitioner in W.P.
No.30551/2016
Padma Singh Isac ... Petitioner in W.P.
No.30552/2016
-Vs-
1. The State of Tamil Nadu
Rep by its
Commissioner & Secretary,
Housing and Urban Development,
St. George Fort,
Chennai – 600 009.
2. Tamil Nadu Housing Board,
By the Chairman and Managing Director,
Nandanam, Chennai – 600 035.
3. The Executive Engineer,
Tamil Nadu Housing Board,
Anna Nagar, Chennai.
4. The Thasildar,
Aminjikarai Taluk,
Chennai – 600 107. ... Respondents in
all WPs
https://www.mhc.tn.gov.in/judis/
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
Prayer in W.P.No.28890 of 2016:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the land acquisition proceedings have lapsed in respect of the
property comprised in Sy.No.130/2 part and Sy.No.131/1 part of Villivakkam
Village, Chennai District Measuring 998 sq.ft., sought to acquired under “West
Madras Neighborhood Project” by virtue of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 Act 30 of 2013 as void.
Prayer in W.P.No.29092 of 2016:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the land acquisition proceedings have lapsed in respect of the
property comprised in Sy.No.130/2A5 of Villivakkam Village, Chennai
District Measuring 1334 sq.ft., sought to acquired under “West Madras
Neighborhood Project” as null and void by virtue of Section 24(2) of the Act
30 of 2013.
Prayer in W.P.No.30551 of 2016:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the land acquisition proceedings have lapsed in respect of the
property comprised in Sy.No.132 of Villivakkam Village, Chennai District
Measuring 698 sq.ft., sought to acquired under “West Madras Neighborhood
Project” by virtue of Section 24(2) of the Right to Fair Compensation and
Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013
Act 30 of 2013 as void.
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Page 2 of 16
W.P.Nos.28890, 29092, 30551 & 30552 of 2016
Prayer in W.P.No.30552 of 2016:- Writ Petition filed under Article 226 of
the Constitution of India praying for the issuance of a Writ of Declaration,
declaring that the land acquisition proceedings have lapsed in respect of the
property comprised in Sy.No.132 part & 133 part of Villivakkam Village,
Chennai District Measuring 687 sq.ft., sought to acquired under “West Madras
Neighborhood Project” by virtue of Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 Act 30 of 2013 as void.
For Petitioner
in all WPs : Mr.Zaffarullah Khan
For Respondents
For R1 & R4 : Mr.Richardson Wilson
Government Advocate.
For R2 & R3: Mr.M.Baskar
Standing Counsel.
COMMON ORDER
These Writ Petitions have been filed to declare that the land
acquisition proceedings have lapsed in respect of the petitioners' property
situated at Villivakkam Village, Chennai District, sought to acquired under
“West Madras Neighborhood Project” as null and void by virtue of Section
24(2) of the Right to Fair Compensation and Transparency in Land
Acquisition, Rehabilitation and Resettlement Act, 2013. Act 30 of 2013
(herein after called as “the New Act”)
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
2. Heard Mr.Zaffarullah Khan, learned counsel appearing for the
petitioner, Mr.Richardson Wilson, learned Government Advocate appearing
for the respondents 1 & 4 and Mr.M.Baskar, learned Standing Counsel
appearing for the respondents 2 & 3.
3. It is seen from the records that all the writ petitioners are the
subsequent purchases from the original owners. The acquisition proceedings
were initiated in the year 1961 and against which, the original owners have
filed civil suits and the same were also dismissed. In fact, the original owners
challenged the acquisition proceedings and they went up to the Hon'ble
Supreme Court of India. In the Writ Appeals filed by the Tamil Nadu Housing
Board, the Hon'ble Division Bench of this Court passed the orders in the batch
of Writ Appeals as follows:-
“(i) The report submitted by the Tamil Nadu
Housing Board is accepted.
(ii) In view of the reasons stated in the Report,
we hold that formation of a 60 feet width road in the
stretch of Thangam Colony is indispensable and
mandatory.
(iii) We also hold that two one way roads of 30
feet width is not permissible in view of the scheme
framed by the competent authority and approved by the
Government, keeping in view the traffic hazard as
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
detailed in the report.
(iv) Alternative site is to be provided as per the
order of the Government dated 02.02.1972. In Memo
No.24015(a)Hg.1(3)/70-17. It is made clear that if
there are authoritative records to show that alternate
site/sites have been provided by the Housing Board and
accepted by the persons concerned, there is no need to
provide alternate site to ever successive purchaser.
However, it is made clear that if any of the
petitioners/their vendors are not provided with
alternate site as directed by the Government, the
Housing Board is bound to implement the said order by
verifying their records and provide alternate sites at
concessional rate to those who are yet to be provided.
(v) The direction in Paragraph No.6 of the
common order of the learned Judge for payment of
Compensation for the superstructure is set aside.
(vi) The Housing Board is directed to verify from
their records and provided alternate sites at
concessional rate to those who are yet to be provided
as per the order of the Government within a period of
two months from today.
(vii) The petitioners are granted three months
time from today to vacate and handed over the actual
area required for the formation of 60 feet width road.”
4. Aggrieved by the same, the petitioners filed Special Leave
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
Petitions before the Hon'ble Supreme Court of India and the same were also
dismissed. In pursuant to the directions issued by the Hon'ble Division Bench
of this Court, some of the subsequent purchasers have obtained alternative
plots and some of them filed the present Writ Petitions challenging the very
acquisition proceedings on the ground that the acquisition proceedings itself
lapsed under Section 24(2) of the New Act. In fact, they have been duly served
notice and possession of lands have already been taken from the petitioners.
5. 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 :-
“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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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
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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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
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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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 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).”
6. In the above judgment, the Hon'ble Supreme Court of India held
that challenging the acquisition proceedings under the provisions of Section 24
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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.
7. That apart, the present Writ Petitions have been filed challenging
the acquisition proceedings on the grounds that the possession have not been
taken and also compensation was not paid and therefore, the entire acquisition
proceedings lapsed by virtue of Section 24(2) of the new Act. All the grounds
raised by the petitioners have been settled by the Hon'ble Supreme Court of
India in the 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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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 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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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
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
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
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
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.”
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
8. The Hon'ble Supreme Court of India settled all proposition of law
in the above judgment including the grounds raised by the petitioner. That
apart, the acquisition proceedings have been completed and the subject land
was taken over possession by the government and the same was handed over to
the Tamil Nadu Housing Board. Further the requisition body also deposited the
compensation as awarded by the Land Acquisition Officer and some of the
land owners have obtained the alternative plots. 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, the issues raised by the
petitioners 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.
9. In the result, all the Writ Petitions stand dismissed. Consequently,
connected miscellaneous petitions are closed. There shall be no order as to
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W.P.Nos.28890, 29092, 30551 & 30552 of 2016
costs.
25.08.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The Commissioner & Secretary,
State of Tamil Nadu
Housing and Urban Development,
St. George Fort,
Chennai – 600 009.
2. Chairman and Managing Director,
Tamil Nadu Housing Board,
Nandanam, Chennai – 600 035.
3. The Executive Engineer,
Tamil Nadu Housing Board,
Anna Nagar, Chennai.
4. The Thasildar,
Aminjikarai Taluk,
Chennai – 600 107.
https://www.mhc.tn.gov.in/judis/
W.P.Nos.28890, 29092, 30551 & 30552 of 2016
G.K.ILANTHIRAIYAN, J.
rts
W.P.Nos.28890, 29092, 30551 & 30552 of 2016
and W.M.P.Nos. 24961, 24962, 25139,
351940, 26490 to 26493 of 2016
25.08.2021
https://www.mhc.tn.gov.in/judis/
