Madras High Court
B.Nagaraj vs The State Of Tamil Nadu on 9 June, 2022
W.A.No.1204 of 2022, etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 09.06.2022
Coram:
THE HONOURABLE MR.MUNISHWAR NATH BHANDARI, CHIEF JUSTICE
AND
THE HONOURABLE MRS.JUSTICE N.MALA
W.A.Nos.1204, 1209, 1210, 1214, 1216, 1217, 1218 and 1239 of 2022
and
C.M.P.Nos.7614, 7697, 7704, 7717, 7719, 7739, 7741, 7750 to 7753, 7755,
7756, 7837 and 7841 of 2022
----
B.Nagaraj .. Appellant in W.A.No.1204 of 2022
Vs.
1. The State of Tamil Nadu,
Rep. by its Secretary,
Industries Department,
Fort St. George,
Chennai - 600 009.
2. The District Collector,
Thiruvallur District.
3. The Special Tahsildar (Land Acquisition),
Chennai Petroleum Corporation Limited,
No.62/1, East Jones Road,
Saidapet, Chennai - 600 015.
4. The Tahsildar,
Madhavaram Taluk,
Chennai - 600 060.
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5. The Superintending Engineer,
Transmission,
Tamil Nadu Electricity Board,
800, Anna Salai, Electricity Avenue,
Chennai - 600 002. ..Respondents in W.A.No.1204 of 2022
Writ Appeal No.1204 of 2022 filed under Clause 15 of Letters Patent
against the order dated 13.12.2021 passed by the learned Single Judge, in
W.P.No.28331 of 2014 on the file of this Court.
For Appellant
in W.A.No.1204 of 2022 : Mr.G.Ethirajulu
For Respondents
in W.A.No.1204 of 2022 : Mr.P.Muthukumar, State Govt. Pleader
assisted by
Mr.Alagu Gowtham, Govt. Advocate
for R1 to R4
COMMON JUDGMENT
(Common Judgment of the Court was delivered by The Honourable Chief Justice)
The Writ Appeals have been preferred to challenge the judgment dated
13.12.2021, by which a batch of Writ Petitions to challenge the acquisition of the
land under the Land Acquisition Act, 1894 and even in reference to Section 24(2)
of the Right to Fair Compensation and Transparency in Land Acquisition and
Rehabilitation and Re-settlement Act, 2013 (Act 30 of 2013), was dismissed.
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2. The learned counsel for the appellants submitted that the Notification
under Section 4(1) of the Act of 1894 was issued on 04.12.1990 and the
Declaration under Section of the Act of 1894 was issued on 27.07.1992, followed
by the Award, dated 26.08.1994. The said Award lapsed as per the provisions of
the Act of 1894 and Section 24(2) of the Act of 2013. However, it is in fact
admitted by the learned counsel for the appellants that the Writ Petitioners
purchased the lands after entering into the agreement in the year 2010, i.e.,
much subsequent to the Notification issued under Section 4(1) of the Act of
1894. The learned Single Judge, referring to the detailed facts of the case,
dismissed the Writ Petitions after referring to the judgment of the Supreme Court
in the case of Shiv Kumar Vs. Union of India (reported in 2019 (10) SCC 229). It
is also after referring to the judgment of the Supreme Court in the case of Indore
Development Authority Vs. Manoharlal (reported in 2020 (8) SCC 129).
3. The main ground to challenge the acquisition is the delay in passing the
Award, and therefore, the acquisition proceedings would lapse. According to the
learned counsel for the appellants, the Award could not have been passed
beyond the period of two years from the date of Declaration under Section 6 of
the Act of 1894, whereas in the case on hand, the Declaration under Section 6 of
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the Act of 1894 was issued on 27.07.1992, whereas the Award was passed on
26.08.1994, and therefore, the acquisition proceedings should have lapsed.
4. Before addressing the issue in regard to the lapse, the question is about
the locus of the writ petitioners to challenge the acquisition proceedings and to
seek its lapse, because, the writ petitioners had purchased the land much
subsequent to the issuance of the Notification under Section 4(1) of the Act of
1894.
5. The Apex Court, while dealing with the issue in the case of Shiv Kumar
(supra), has held that the purchaser of the land, after issuance of Notification
under Section 4 of the Act of 1894, has no right to challenge the acquisition
proceedings and he can, at the best, claim compensation. It is for the aforesaid,
even the issue in reference to Section 24 of the Act of 2013, was also dealt with,
because, any purchase, after the Notification under Section 4(1) of the Act of
1894, is termed to be "void ab-initio" and therefore, no Declaration can be
sought regarding the lapse of the acquisition under the Act of 1894 or the Act of
2013. The relevant paragraphs of the judgment are quoted hereunder for ready
reference:
"7.7. In M.Venkatesh Vs. BDA (2015 (17)
SCC 1 : 2017 (5) SCC (Civ) 387), a three-Judge Bench
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has opined: (SCC pp.8-9, para 16):
"16. That brings us to the question of
whether Prabhaudas Patel and other
respondents in SLP (C) No.12016 of 2013 were
entitled to any relief from the Court. These
respondents claim to have purchased the suit
property in terms of a sale deed dated
22.08.1990 i.e. long after the issuance of the
preliminary notification published in July 1984.
The legal position about the validity of any
such sale, post-issuance of preliminary
notification, is fairly well settled by a long line
of the decisions of this Court. The sale in such
cases is void and non est in the eye of the law
giving to the vendee the limited right to claim
compensation and no more. Reference may in
this regard be made to the decision of this
Court in U.P.Jal Nigam Vs. Kalra Properties (P)
Ltd. (1996 (3) SCC 124), wherein this Court
said: (SCC: pp.126-27, para 3):
"3. .... It is settled law that
after the notification under Section
4(1) is published in the gazette, any
encumbrance created by the owner
does not bind the Government, and
the purchaser does not acquire any
title to the property. In this case,
Notification under Section 4(1) was
published on 24.3.1973; possession of
the land admittedly was taken on
5.7.1973, and the pumping station
house was constructed. No doubt,
declaration under Section 6 was
published later on 8.7.1973.
Admittedly power under Section 17(4)
was exercised dispensing with the
inquiry under Section 5-A and on
service of the notice under Section 9
possession was taken, since urgency
was acute viz. pumping station house
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was to be constructed to drain out the
flood water. Consequently, the land
stood vested in the State under
Section 17(2) free from all
encumbrances. It is further settled law
that once possession is taken, by
operation of Section 17(2), the land
vests in the State free from all
encumbrances unless a notification
under Section 48(1) is published in the
gazette withdrawing from the
acquisition. Section 11-A, as amended
by Act 68 of 1984, therefore, does not
apply, and the acquisition does not
lapse. The notification under Section
4(1) and the declaration under Section
6, therefore, remain valid. There is no
other provision under the Act to have
the acquired land divested, unless, as
stated earlier, notification under
Section 48(1) was published, and the
possession is surrendered pursuant
thereto. That apart, since M/s.Kalra
properties, the respondent had
purchased the land after the
notification under Section 4(1) was
published, its sale is void against the
State, and it acquired no right, title, or
interest in the land. Consequently, it is
settled law that it cannot challenge
the validity of the notification or the
regularity in taking possession of the
land before the publication of the
declaration under Section 6 was
published.' " (emphasis supplied)
"8. It has been laid down that the purchasers
on any ground whatsoever cannot question
proceedings for taking possession. A purchaser after
Section 4 notification does not acquire any right in the
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land as the sale is ab initio void and has no right to
claim land under the policy."
"19. The 2013 Act presupposes that a person is
required to be rehabilitated and resettled. Such a
person who has purchased after Section 4 notification
as sale deed is void under the 1894 Act, cannot claim
rehabilitation and resettlement as per policy envisaged
under the 2013 Act, as his land has not been
acquired, but he has purchased a property which has
already been acquired by the State Government, he
cannot claim even higher compensation, as per
proviso to Section 24(2) under the 2013 Act. An
original landowner cannot be deprived of higher value
under the 2013 Act, which higher compensation was
not so contemplated when the void transaction of sale
had been entered, and right is conferred under the
proviso to Section 24(2) on recorded owners under
the 1894 Act. We have come across instances in
which after notification under Section 4 were issued
and, the property was purchased at throwaway prices
by the builders and unscrupulous persons, such
purchases are void and confer no right even to claim
higher compensation under Section 24(2) of the 2013
Act as it is to be given to the owner as mentioned in
the notification.
20. Given that, the transaction of sale, effected
after Section 4 notification, is void, is ineffective to
transfer the land, such incumbents cannot invoke the
provisions of Section 24. As the sale transaction did
not clothe them with the title when the purchase was
made; they cannot claim "possession" and challenge
the acquisition as having lapsed under Section 24 by
questioning the legality or regularity of proceedings of
taking over of possession under the 1894 Act. It
would be unfair and profoundly unjust and against the
policy of the law to permit such a person to claim
resettlement or claim the land back as envisaged
under the 2013 Act. When he has not been deprived
of his livelihood but is a purchaser under a void
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transaction, the outcome of exploitative tactics played
upon poor farmers who were unable to defend
themselves."
6. This apart, the learned Single Judge has even made a reference to the
subsequent judgment of the Apex Court in the case of Indore Development
Authority (supra). The issue in the present case is mainly in reference to the
lapse of the acquisition proceedings under the Act of 1894 and that too in the
hands of the subsequent purchaser after the Notification under Section 4(1) of
the Act of 1894.
7. In that regard, the judgment of the Apex Court in the case of Meera
Sahni Vs. Lt.Governor of Delhi (reported in 2008 (9) SCC 177), is also relevant,
wherein it was held that a person entering to the sale or any injunction of the
land under acquisition after issuance of the Notification under Section 4(1) of the
Act of 1894, has no right to challenge the acquisition proceedings or seek lapse
of the proceedings. The relevant paragraphs of the said judgment, are quoted
hereunder for ready reference:
"17. When a piece of land is sought to be
acquired, a notification under Section 4 of Land
Acquisition Act is required to be issued by the State
Government strictly in accordance with law. The said
notification is also required to be followed by a
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declaration to be made under Section 6 of the Land
Acquisition Act and with the issuance of such a
notification any encumbrance created by the owner, or
any transfer made after the issuance of such a
notification would be deemed to be void and would
not be binding on the government. A number of
decisions of this Court have recognized the aforesaid
proposition of law wherein it was held that subsequent
purchaser cannot challenge acquisition proceedings
and also the validity of the notification or the
irregularity in taking possession of the land after the
declaration under Section 6 of the Act.
18. In U.P.Jal Nigam Vs. Kalra Properties (P)
Ltd. (1996 (3) SCC 124), it was stated by this Court
that (SCC p.126, para 3):
"3. ...Having regard to the facts of
this case, we were not inclined to further
adjourn the case nor to remit the case for
fresh consideration by the High Court. It is
well settled law that after the notification
under Section 4(1) is published in the
Gazette any encumbrance created by the
owner does not bind the Government and
the purchaser does not acquire any title to
the property."
19. In Sneh Prabha Vs. State of U.P. (1996 (7)
SCC 426), it is stated as under (SCC p.430, para 5):
"5. ...It is settled law that any
person who purchases land after
publication of the notification under
Section 4(1), does so at his/her own
peril. The object of publication of the
notification under Section 4(1) is notice
to everyone that the land is needed or is
likely to be needed for public purpose
and the acquisition proceedings point out
and an implement to anyone to
encumber the land acquired thereunder.
It authorizes the designated officer to
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enter upon the land to do preliminaries
etc. Therefore, any alienation of the land
after the publication of the notification
under Section 4(1) does not bind the
government or the beneficiary under the
acquisition. On taking possession of the
land, all rights, title and interests in land
stand vested in the State, under Section
16 of the Act, free from all
encumbrances and thereby absolute title
in the land is acquired thereunder."
8. In the light of the ratio propounded by the Apex Court on the issue, so
far as the writ petitioners are concerned, they have no right to challenge the
Award issued in the year 1994, on the ground that it was after two years of the
Declaration under Section 6 of the Act of 1894, having purchased the land much
subsequent to the Notification issued under Section 4(1) of the Act of 1894.
9. The delay is another ground, which is also to be taken note of,
because, the acquisition proceedings herein were challenged by the
appellants/writ petitioners after a lapse of almost 20 years of the Award and
otherwise, the delay was not ignored pursuant to the Act of 2013.
10. The challenge was not made in reference to the possession of the land
with the appellants/writ petitioners or non-deposit of the compensation.
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11. Hence, for the reasons stated above, the Writ Appeals are dismissed.
There shall be no order as to costs. Consequently, C.M.Ps. are closed.
(M.N.B., C.J) (N.M.J)
09.06.2022
Index: Yes/no
Speaking Order: Yes/no
cs/hvk
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THE HONOURABLE CHIEF JUSTICE
and
N.MALA, J
cs
W.A.Nos.1204 of 2022 etc.
09.06.2022
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