Madras High Court
Selva Kumari vs The Government Of Tamil Nadu on 28 September, 2021
W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
W.P.Nos.1801 to 1810 of 2017 &
WMP.Nos.1790 to 1799 of 2017 and
WP.No.4596 of 2017 & WMP.No.4821 of 2017 and
WP.No.16465 of 2005 & MP.No.17917 of 2005 and
WP.Nos.32602 & 32603 of 2016 & WMP.Nos.28255 & 28256 of 2017
WP.No.1801 of 2017
Selva Kumari ... Petitioner
Vs
1.The Government of Tamil Nadu,
Rep. by its Secretary,
Housing and Urban Development Department,
Fort St.George, Chennai 600 009
2.The Chairman and Managing Director,
Tamil Nadu Housing Board,
331, Anna Salai, Chennai 600 035
3.The Executive Engineer,
Special Division I, Tamil Nadu Housing Board Building,
Thirumangalam, Chennai 600 040
4.The Special Tahsildhar,
Land Acquisition, Special Division,
MMDA, Chennai 600 006
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
5.The Member Secretary,
Chennai Metropolitan Development Authority,
Gandhi Irwin Salai,
Egmore, Chennai 600 008
(R5 is suo motu impleaded as per order dated
02.02.2017 in WP.Nos.1801 to 1810 of 2017) ... Respondents
PRAYER:- Writ Petition is filed under Article 226 of Constitution of India,
praying to issue a Writ of Declaration to declare that the acquisition
proceedings initiated under Land Acquisition Act, 1894, insofar the
petitioner plot No.1 covered under sale deed dated 30.11.1987 measuring an
extent of 3822 sq.ft. comprising in survey No.271/2 and 271/5, from and out
of total extent of 1 acre and 10 cents at No.81 of Mogappair Village,
Ambattur Taluk, Thiruvallur District, is lapsed under Section 24 (2) of
Right to Fair Compensation and Transparency in Land Acquisition,
Rehabilitation and Resettlement Act, 2013 and consequently restraining the
respondents from taking possession of the above said land.
WP.Nos.1801 to 1810 of 2017
For Petitioners : Mr.V.Srinivasa Babu
For Respondents
For R1 & 4 : Mr.Richardson Wilson,
Government Advocate
For R2 & 3 : Mr.M.Baskar,
Standing Counsel
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
For R5 : Mr.C.Johnson
WP.No.16465 of 2005
For Petitioner : Mr.M.Thamizhavel
For Respondents
For R1 : Mr.Richardson Wilson,
Government Advocate
For R2 & 3 : Mr.M.Baskar,
Standing Counsel
For R4 : Mr.M.Liagat Ali
For R5 to 8 : M/s.A.L.Ganthimathi
WP.Nos.32602 & 32603 of 2016
For Petitioners : Mr.V.Srinivasa Babu
For Respondents
For R1 & 4 : Mr.Richardson Wilson,
Government Advocate
For R2 & 3 : Mr.M.Baskar,
Standing Counsel
WP.No.4596 of 2017
For Petitioners : Mr.V.Srinivasa Babu
For Respondents
For R1 & 4 : Mr.M.R.Gokul Krishnan,
Government Advocate
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
For R2 & 3 : Mr.M.Baskar,
Standing Counsel
COMMON ORDER
All the petitioners have challenged the acquisition proceedings in
view of the provision under Section 24(2) of the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, 2013 as lapsed on the ground that the possession of the
respective property has not been taken and the compensation amount has
not been paid to them.
2. The case of the petitioners is that all the petitioners have purchased
their respective properties after 4(1) notification dated 23.10.1975. The
erstwhile owners were served notice under Section 5-A of the Land
Acquisition Act (hereinafter called as 'the Act') for the enquiry and the
enquiry was conducted on 05.08.1975. Their predecessors in title owned
extent of 1 acre and 10 cents comprised in survey No.271 situated at
Mogappair Village. The entire extent of 4 acres 10 cents comprised in
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survey No.271 was laid out and obtained approved layout plan from the
Director of Town Planning. Thereafter all the house plots were sold out to
the petitioners by the registered sale deed. Thereafter, every petitioner
applied for patta. The entire revenue records were also mutated in their
respective names. Even then, the physical possession of their respective
plots have not been taken over and the compensation has not been paid to
the petitioners.
3. On perusal of counter revealed that the land comprised in survey
No.271/2 and 271/5 to an extent of 1.10 acres originally stood registered in
the name of one Perumal. The 4(1) notification was issued in GO.R.No.261
dated 23.10.1975. He was served notice for enquiry under Section 5-A of
the Act. The enquiry was conducted on 05.08.1975 and the declaration
notice under Section 6 was issued in GO.Ms.No.1520 dated 09.11.1978.
Accordingly, award has been passed on 20.06.1983 in Award No.9 of 1983.
Compensation of Rs.26,615/- has been duly received by the legal heirs of
the said Perumal. Thereafter, the entire possession has been taken over by
the Government and handed over to the Tamilnadu Housing Board on
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
01.07.1973. In fact, the legal heirs of the said Perumal filed writ petition in
WP.No.7625 of 1982 challenging the acquisition proceedings and the same
was dismissed on 22.07.1994. However, while pending the said writ
petition, the petitioners and their vendors have purchased the house plots in
the year 1988 i.e. 12.02.1988 and 15.02.1988. Therefore, all the petitioners
are subsequent purchasers. The writ petition filed by the legal heirs of the
original owner of the land in WP.No.7625 of 1982 was dismissed by this
Court on 22.07.1994. Thereafter, they did not prefer any appeal. However,
the subsequent purchasers have filed writ petitions challenging the
acquisition proceedings in belated stage as follows:
S.No. WP.Nos. Name of the writ petitioner
1 13700 of 1996 N.Sampath
2 13701 of 1996 Siddhi Fareeda
3 13702 of 1996 S.Somasundaram
4 13703 of 1996 K.Rajasekhar
5 13704 of 1996 A.Shanmugam
6 13705 of 1996 A.Bitchai Arasu
7 13706 of 1996 M.Selvakumari
8 13707 of 1996 M.Liagat Ali
9 13708 of 1996 Bouse
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
10 13764 of 1996 K.Babu
11 13765 of 1996 S.Saraswathi
12 13865 of 1996 M.Murugavel
13 13866 of 1996 Malar Nilophar
4. Though all the writ petitions were allowed on 19.02.1997,
thereafter in the writ appeal by order dated 24.08.2004, disposed of with
directions. However, the second respondent filed appeal before the Hon'ble
Supreme Court of India and all the civil appeals have been allowed in Civil
Appeal Nos.736 to 737 of 2008 by order dated 11.05.2015. The subsequent
purchasers have also filed review applications in review application
Nos.2376 to 2377 of 2016 and all the review applications were dismissed on
26.07.2016. Therefore, already the issues raised by the petitioners were
dealt with in the earlier proceedings. That apart, the erstwhile owner of the
lands had already challenged the acquisition proceedings and went up to the
Hon'ble Supreme Court of India and failed. Therefore, the present writ
petitions are nothing but re-litigation. Insofar as the compensation is
concerned, already erstwhile owner received the entire compensation and in
respect of possession is concerned, already possession has been taken over
and handed over to the Tamilnadu Housing Board as early as on
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
01.07.1983. That apart, all the petitioners admittedly are subsequent
purchasers. 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 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
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
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
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 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
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
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 declaration Under Section 24 of the Act of
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
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).”
5. In the above judgment, the Hon'ble Supreme Court of India
held that challenging the acquisition proceedings under the provision of
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
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. As such, all the writ petitions are devoid
of merits and liable to be dismissed.
6. Accordingly, all the writ petitions are dismissed. Consequently,
connected miscellaneous petitions are closed. No order as to costs.
28.09.2021
lok
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
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W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
https://www.mhc.tn.gov.in/judis/
W.P.Nos.1801 to 1810, 4596 of 2017, 32602 & 32603 of 2016 and 16465 of 2005
G.K.ILANTHIRAIYAN, J.
lok
To
1.The Secretary,
Government of Tamil Nadu,
Housing and Urban Development Department,
Fort St.George, Chennai 600 009
2.The Chairman and Managing Director,
Tamil Nadu Housing Board,
331, Anna Salai, Chennai 600 035
3.The Executive Engineer,
Special Division I, Tamil Nadu Housing Board Building,
Thirumangalam, Chennai 600 040
4.The Special Tahsildhar,
Land Acquisition, Special Division,
MMDA, Chennai 600 006
5.The Member Secretary,
Chennai Metropolitan Development Authority,
Gandhi Irwin Salai,
Egmore, Chennai 600 008
W.P.Nos.1801 to 1810 of 2017 and
WP.No.4596 of 2017 and WP.No.16465 of 2005 and
WP.Nos.32602 & 32603 of 2016
28.09.2021
https://www.mhc.tn.gov.in/judis/
