Madras High Court
S.Ravi vs The Principal Secretary To ... on 13 December, 2021
WP.Nos.16842 to 16847 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.12.2021
CORAM
THE HONOURABLE Mr. JUSTICE G.K.ILANTHIRAIYAN
WP.Nos.16842 to 16847 of 2018 and
WMP.Nos.20031 to 20036 of 2018
WP.No.16842 of 2018
S.Ravi ... Petitioner
Vs
1.The Principal Secretary to Government,
Housing and Urban Development,
Fort St.George,
Chennai 600 009
2.The Managing Director,
Tamilnadu Housing Board,
No.331, Annasalai, Nandanam,
Chennai 600 035 ... Respondents
Prayer :- Writ Petition is filed under Article 226 of the Constitution of India
praying to issue a Writ of Declaration declaring the land acquisition
proceedings initiated by the respondents under the Land Acquisition Act,
1894 as amended as null and void by virtue of Section 24 (2) of The Right to
Fair Compensation and Transparency in Land Acquisition, Rehabilitation
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and Resettlement Act, 2013 (Act 30 of 2013) pertaining to the petitioner's
land measuring an extent 6280 sq.ft. in survey Nos.483, 485 and 486 in Plot
No.4 and 5 Mogappair Village, Ambattur Taluk, Thiruvallur District.
For Petitioners
in all WP's : Mr.Vinod Paul Tyagaraj David
For Respondents
in all WP's
For R1 : Mr.C.Kathiravan,
Special Government Pleader
For R2 : Mr.M.Baskar,
Standing Counsel
COMMON ORDER
The writ petitions are filed for Writ of Declaration declaring the
land acquisition proceedings initiated by the respondents under the Land
Acquisition Act, 1894 as amended 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)
pertaining to the petitioners' lands comprised in survey Nos.483, 485 and
486 situated at Mogappair Village, Ambattur Taluk, Thiruvallur District.
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2. Heard, Mr.Vinod Paul Tyagaraj David, the learned counsel for
the petitioners, Mr.C.Kathiravan, Special Government Pleader appearing for
the first respondent and Mr.M.Baskar, Standing Counsel appearing for the
respondents.
3. The petitioners have challenged the acquisition proceedings on
the ground that the physical possession has not been taken over and not paid
compensation. The petitioners have purchased their respective properties
only in the year 1997. Whereas, the subject land was acquired for
implementation of Ambattur Neighbourhood Scheme under the provisions
under Section 4(1) of the Land Acquisition Act, 1894, which was approved
by Government in GO.Rt.No.261 Housing Department dated 23.10.1975. It
was published in the Government Gazatte dated 12.11.1975. Draft
declaration under Section 6 of the Act was approved by the Government in
GO.Ms.No.1525 Housing and Urban Development Department dated
09.11.1978. It was published in the Government Gazatte dated 10.11.1978.
Accordingly, award was passed on 01.02.1988 in Award No.1 of 1988. As
per the award, the lands stood in the name of one, Thiru.Asirvadham and the
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entire compensation amount was also paid to him. Thereafter, power of
attorney of the said Asirvadham sold out the subject lands to various
persons. Therefore, all the petitioners are subsequent purchasers in the year
1997. They cannot challenge the acquisition proceedings since they have no
locus to challenge the same. 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 Dwellers (Recognition of
Forest Rights) Act, 2006 (2 of 2007) or under
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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
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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 Under Section 24 of the
Act of 2013; it will amount to conferment of
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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
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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).”
4. In the above judgment, the Hon'ble Supreme Court of India held
that challenging the acquisition proceedings under the provision 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.
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Therefore the petitioners cannot challenge the acquisition proceedings being
the subsequent purchasers.
5. That apart, the grounds raised by the petitioners in these Writ
Petitions have already 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 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
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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 compensation in
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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.
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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 rise to new cause of action to question the
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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.”
6. The Hon'ble Supreme Court of India settled all proposition of
law in the above judgment including the grounds raised by the petitioners.
The possession of the properties has already been taken over by the
Government and handed over to the requisitioning body and the
compensation was also paid. 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
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petitioner 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 petitions are devoid of merits and liable to be dismissed.
7. Accordingly, all the writ petitions are dismissed. However, the
petitioners are at liberty to approach the authority concerned for
reconveyance of their subject properties in the manner known to law.
Consequently, connected miscellaneous petitions are closed. No order as to
costs.
13.12.2021
lok
Index:Yes/No
Internet:Yes/No
Speaking/Non speaking
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G.K.ILANTHIRAIYAN, J.
lok
To
1.The Principal Secretary to Government,
Housing and Urban Development,
Fort St.George,
Chennai 600 009
2.The Managing Director,
Tamilnadu Housing Board,
No.331, Annasalai, Nandanam,
Chennai 600 035
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WP.Nos.16842 to 16847 of 2018
WP.Nos.16842 to 16847 of 2018
13.12.2021
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