Madras High Court
Tamil Nadu Housing Board vs R.Shanmugam on 2 September, 2022
Author: T.Raja
Bench: T.Raja
W.A.Nos.1254 to 1258 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.09.2022
CORAM:
THE HON'BLE MR.JUSTICE T.RAJA
AND
THE HON'BLE MR.JUSTICE K. KUMARESH BABU
W.A.Nos.1254 to 1258 of 2010
W.A.No.1254 of 2010
Tamil Nadu Housing Board,
rep. by his Executive Engineer &
Administrative Officer,
Coimbatore Housing Unit,
Tatabad, Coimbatore – 641 012. ... Appellant
vs.
1.R.Shanmugam
2.R.Arusamy
3.R.Balasubramaniam
4.R.Vijayan
5.R.Murugesan
6.R.Kumar
7.R.Palanisamy
8.Pongiammal
9.R.Sundaram
10.R.Nagaraj
11.R.Subramani
12.R.Sampath
13.Palaniappa Konar
14.V.P.Duraisamy
15.V.P.Thangarasu
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W.A.Nos.1254 to 1258 of 2010
16.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
17.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore,
Coimbatore District. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order made in
W.P.No.8096 of 2008 dated 2.7.2008 by this Court.
***
W.A.No.1255 of 2010
Tamil Nadu Housing Board,
rep. by his Executive Engineer &
Administrative Officer,
Coimbatore Housing Unit,
Tatabad, Coimbatore – 641 012. ... Appellant
vs.
1.Saraswathy
2.Palaniswamy
3.Chinnamani
4.Kandasamy
5.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
2/19
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W.A.Nos.1254 to 1258 of 2010
6.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore, Coimbatore District. ...Respondents
W.A.No.1256 of 2010
Tamil Nadu Housing Board,
rep. by his Executive Engineer &
Administrative Officer,
Coimbatore Housing Unit,
Tatabad, Coimbatore – 641 012. ... Appellant
vs.
1.Palaniapa Konar
2.V.P.Duraisamy
3.V.P.Thangarasu
4.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
5.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore,
Coimbatore District. ...Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order made in
W.P.No.8098 of 2008 dated 2.7.2008 by this Court.
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W.A.Nos.1254 to 1258 of 2010
***
W.A.No.1257 of 2010
Tamil Nadu Housing Board,
rep. by his Executive Engineer &
Administrative Officer,
Coimbatore Housing Unit,
Tatabad, Coimbatore – 641 012. ... Appellant
vs.
1.Rangasamy
2.Palaniappan
3.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
4.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore,
Coimbatore District. ...Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order made in
W.P.No.8099 of 2008 dated 2.7.2008 by this Court.
***
W.A.No.1258 of 2010
Tamil Nadu Housing Board,
rep. by his Executive Engineer &
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W.A.Nos.1254 to 1258 of 2010
Administrative Officer,
Coimbatore Housing Unit,
Tatabad, Coimbatore – 641 012. ... Appellant
vs.
1.V.A.Palaniappan
2.The State of Tamil Nadu,
Rep. by the Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
3.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore,
Coimbatore District.
Prayer: Writ Appeal filed under Clause 15 of Letters Patent, against the order made in
W.P.No.8100 of 2008 dated 2.7.2008 by this Court.
For Appellant in all W.Ps : Mr.S.Silambannan
Additional Advocate General
assisted by standing counsel
Ms.R.Shyamala
For R1 to R4 in W.A.No.1255/2010
For R1 & R2 in W.A.No.1257/2010 : Mr.S.Prabakaran, Senior Counsel
For R1 in W.A.No.1258/2010 for Mr.G.Sankaran
For R16 & R17 in W.A.No.1254/2010 and
For R5 & R6 in W.A.No.1255/2010 : Mr.Sajeev Kumar for
Special Government Pleader
For R4 & R5 in W.A.No.1256/2010
For R3 & R4 in W.A.No.1257/2010
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W.A.Nos.1254 to 1258 of 2010
For R2 & R3 in W.A.No.1258/2010 : Mr.V.Manoharan
Additional Government Pleader
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W.A.Nos.1254 to 1258 of 2010
COMMON JUDGMENT
(Judgment of the court was delivered by T.RAJA, J.) These Writ Appeals have been filed challenging the common order passed by the learned Single Judge in W.P.Nos.8096 to 8100 of 2008 dated 2.7.2008.
2.The impugned order has been passed under the premise that the Award has not been passed and hence, the acquisition proceedings would lapse pursuant to Section 11(A) of the Land Acquisition Act, 1894. The said order has been passed on the basis of the submission made by the learned Additional Government Pleader who had produced a letter of the Special Tahsildar, Housing Scheme Unit, Coimbatore dated 11.04.2008 wherein it had been clearly stated that the Award has not been passed even after the dismissal of the Writ Petition on 29.07.1997.
3.The instant Writ Appeals have been preferred by the Tamil Nadu Housing Board who was the beneficiary under the said acquisition proceedings.
4.Heard Mr.S.Silambannan, learned Additional Advocate General assisted by Ms.C.Shyamala, learned standing counsel for the Housing Board and Mr.S.Prabakaran, 7/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 learned Senior Counsel appearing on behalf of Mr.G.Sankaran, learned counsel for the private respondents, Mr.Sajeev Kumar, learned Special Government Pleader and Mr.V.Monoharan, Additional Government Pleader for the official respondents.
5.Mr.S.Silambannan, learned Additional Advocate General would contend that 4(1) notification in G.O.Ms.No.815, Housing and Urban Welfare Department was issued on 16.08.1982 which was notified in the Gazette on 01.09.1982 for acquisition of lands for the housing purposes by the Government of Tamil Nadu. 5-A enquiry was conducted on 19.10.1982 and thereafter a draft declaration under Section 6 of the Act was made in G.O.Ms.No.665, Housing and Urban Welfare Department dated 23.08.1984, which was published in the Government Gazette on 12.09.1984. The Award enquiry was conducted between 20.05.1985 and 23.05.1985 and an Award was passed on 30.05.1985 after the approval accorded by the District Revenue Officer/Collector who was the approving Authority. The Land Acquisition Authority had also handed over possession of the lands to the appellant on 14.10.1985 and layout approval was granted to the project on 11.11.2002. These Writ Petitions were filed by the land owners in the year 2008 seeking for a declaration that the entire land acquisition proceedings had lapsed in view of Section 11(A) of the Land Acquisition Act, 1894 as no Award has been passed. The learned Judge by his order dated 02.07.2008 had allowed the Writ Petitions recording the 8/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 submissions made by the learned Additional Government Pleader based on the written instructions given by the Special Tahsildar, Housing Scheme Unit, Coimbatore dated 11.04.2008 admitting that the Award has not been passed. The same is a factual error that has been made as in this case, the Award has been passed as early as on 30.09.1985 and the amount has also been deposited before the concerned reference Court viz., Principal Subordinate Court, Coimbatore. He had also produced various documents to substantiate the passing of Award, deposit of the Award amount before the reference Court and also the approval accorded by the District Revenue Officer/Collector. In the light of the aforesaid facts, he prayed that this Court to interfere with the order of the learned Judge and set aside the same.
6.Countering his arguments, Mr.S.Prabakaran, learned Senior Counsel appearing on behalf of the private respondents would vehemently contend that the appeal filed by the Tamil Nadu Housing Board itself is not maintainable. He also vehemently contended that as held by the Division Bench of this Court, the Housing Board, which is a beneficiary under land acquisition proceedings, cannot challenge the order setting aside the land acquisition proceedings. The Housing Board being a beneficiary would only come into the picture after the vesting of the land under Section 16 and thereafter possession being transferred to the beneficiaries.
7.It is his further case that even though it is claimed by the Housing Board that the 9/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 possession has been transferred to it pursuant to the alleged Award, he submits that when this Court has held that the proceedings have lapsed in view of non-passing of an Award, then, the subsequent proceedings also would be non-est and void ab initio. Hence, he vehemently argued that the Housing Board has no locus standi to maintain the appeal when the Government has not filed an appeal and had accepted the order passed by the learned Judge. He further argued that even assuming the Award has been passed as claimed by the Housing Board contrary to the letter dated 11.04.2008 of the Special Tahsildar, Housing Scheme Unit, Coimbatore, the said Award cannot be sustained, as the prior approval of the Competent Authority viz., the District Collector, has not been obtained and this apart, approval of the Award produced before this Court is signed only by the District Revenue Officer.
8.It is his further case that when the Government had not filed an appeal, the appellant has no locus standi to maintain the appeal and prayed this Court to dismiss the appeal in limine.
9.Having considered the rival submissions, the following facts would clearly emerge:
(a) that the impugned order had been passed by the learned Judge based upon a 10/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 letter dated 11.04.2008 issued by one V.K.Subramanian, Special Tahsildar (L.A.), Housing Scheme Unit, Tata bad, Coimbatore addressed to the learned Additional Government Pleader who had appeared before the learned Judge. In the said letter, he has categorically stated that the Award has not been passed in the land acquisition proceedings which were subject matter of W.P.Nos.8096 to 8100 of 2008. For better appreciation, the said letter is extracted hereunder:
From To
V.K.Subramanian Thiru.V.Arun
Special Tahsildar (LA) Addl.Govt.Pleader
Housing Scheme Unit, High Court,
Tata bad, Chennai-104.
Coimbatore.
Date:11.04.2008
Ref:(1) WP.Nos.8096 to 8100 of 2008
(2) Your telegram dated 04.04.2008
Sub: Land Acquisition – Coimbatore North Taluk, Coimbatore District, Survey Field No.286/1 etc – Writ Petitions filed by R.Shanmugam and others in WP Nos.8096 to 8100 of 2008 – instructions called for - submitted – regards With reference to your telegram dated 04.04.2008 and upon perusal of the affidavit, I am submitting the following particulars:
Acquisition proceedings initiated in respect of the above said lands by issuing the notification under section 4(1) of the Act on 16.08.1982 in G.O.No.815 and the same was published in the Gazette on 01.09.1982 and the local publication made on 24.09.1982 On completion of 5-A enquiry, the Declaration under section 6 of the Act made on 23.08.1984 in G.O.No.665, which was published in Gazette on 11/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 01.09.1984 and the locality on 12.09.1984.
Pending acquisition proceedings, an amendment was effected in the L.A. Act on 24.09.1984. Section 11-A of the L.A. Act, was introduced fixing two years for passing award from the date of the amendment in respect of where the declaration was made before the date of the amendment (ie., 24.09.1984). Hence the time limit as per the amendment for passing an award was on or before 23.09.1986. In the meanwhile the other landowners had challenged the L.A. Proceedings of the above notifications in Writ Petitions in WP.Nos.6698 to 6704 of 1985 and stay was granted on 02.07.1985 and the said writ petitions were dismissed on 04.09.1985. After the dismissal of the above said writ petitions on 04.09.1985, the then Special Tahsildar (Land Acquisition), Housing Scheme Unit-II did not pass the award within the date.
Then the writ petition filed by the petitioners was dismissed on 29.07.1997. But the award was not passed even thereafter with regard to the above and said notifications.
Special Tahsildar (LA) Housing Scheme Unit, Coimbatore Recording the said submissions and the contents of the letter, the learned Judge had passed the impugned order.
b) If the facts placed by the appellant Housing Board are correct, then it is for the Government/official respondents to agitate the issue by filing appropriate application, however, the Government had not made any such effort. Further, the Housing Board, which is a beneficiary, has also not produced any communication urging the Government to initiate appropriate proceedings to get the impugned order before us being corrected. In the above context, we are of the view that the Housing Board being a beneficiary under 12/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 the acquisition proceedings is not entitled to agitate the same by filing an appeal in view of the orders of the Division Bench in Tamil Nadu Housing Board vs. Sembanna Gounder and others reported in 2006 (4) CTC 803. For better appreciation, relevant portion thereof is extracted below:
“Appropriate Government” means, in relation to acquisition of land for the purposes of the Union, the Central Government, and, in relation to acquisition of land for any other purposes, the State Government.
Under Section 4 of the Land Acquisition Act the “Appropriate Government” - as defined under Section 3(ee) of the Act alone can proceed to initiate the proceedings for acquiring the lands exercising their power of eminent domain. The Housing Board has no interest, what so ever, at any stage of the proceedings initiated under the Land Acquisition Act, in the land intended to be acquired till such time possession of the acquired land is handed over to the Housing Board. Since admittedly in this case the declaration under Section 6 of the Land Acquisition Act had come to be quashed at the instance of the land owners, we have no doubt at all that it is only the Government and the Government alone, being the appropriate Government under the Land Acquisition Act, can challenge the order of the learned Single Judge impugned in the Writ Petition. We are very clear in our mind that the Housing Board cannot challenge the order of the learned Single Judge, having regard to the stage at which the Writ Petition came to be allowed. Accordingly the objection regarding maintainability raised by learned Senior Counsel appearing for respondents 2 to 4 is sustained and the Appeal stands dismissed as not being maintainable at the hands of the Tamil Nadu Housing Board. Since we have dismissed the Writ Appeal only on the maintainability issue, we are not expressing any opinion on the other points involved. No costs.” In the case of Executive Engineer, Tamil Nadu Housing Board vs. R.Parthasarathi 13/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 and Others reported in (2020) 3 Mad LJ 769, the Division Bench of this Court has held as follows:
“When the Government has not chosen to file an appeal, it is not open to the appellant/Housing Board/beneficiary to maintain the appeal as per the judgment reported in “(2006) 4 CTC 803” in the case of “Tamil Nadu Housing Board rep. by its Managing Director v.Sembanna Gounder”. Hence, the appeal at the instance of the Tamil Nadu Housing Board is not maintainable.“
10.In the aforesaid judgment, learned Judges of the Division Bench has categorically held that the Housing Board could not be termed as an aggrieved person as it will not be a person interested before possession handed over to them. In this case, even though it is claimed that the possession has been handed over to the appellant they have not produced any Panchanama before this Court to substantiate that possession has been taken from the land owners. The Hon'ble Apex Court in a Constitutional Bench Judgment of Indore Development Authority reported in 2020 (8) SCC 129 categorically held that the possession under the Land Acquisition Act can be drawn only by drawing a Panchanama and to prove that the possession has been taken such Panchanama is essential. We do not propose to traverse as to whether the Panchanama has been drawn to findout that the possession has been validly taken or the amount has been deposited into Court which has been disputed by the learned Senior Counsel appearing for the private respondents, because, when the acquisition proceedings have been held to be lapsed 14/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 statutorily by not passing an Award within the prescribed period, then any proceedings subsequent to the same would be non-est and void ab initio. Hence, the alleged possession and deposit of the compensation amount would be of no consequences as they are all proceedings subsequent to the passing of the Award and hence we hold that the appellant Housing Board has no locus standi to maintain the appeal.
11.Further contention of the learned Additional Advocate General, Mr.Silambannan that the learned Judge has not been appraised of correct facts of passing the Award with the prior approval of the District Revenue Officer/Collector would require interference by this Court. In our view, the aforesaid contention would not be of any help to the appellant for the reason that the official respondents viz., the Government has not preferred an appeal against the order. Even if they have preferred an appeal, the same would not be maintainable in view of the fact that learned Judge has passed the impugned order based on the letter dated 11.04.2008 of the Special Tahsildar, Housing Scheme Unit, Coimbatore stating that no Award was passed. If there is any factual error, an application for review would have been filed before the same learned Judge. The Government has not invoked the power of this Court of review to bring it to the knowledge of the learned Judge that the order has been passed on a factual error which has been wrongly placed by the respondent who is also a party in this Writ Appeal. At 15/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 this juncture, Mr.V.Arun, learned Additional Advocate General, by filing a Memo dated 02.09.2022, submitted that while he was serving as Additional Government Pleader, Mr.V.K.Subramaniam, Special Tahsildar (LA), Housing Scheme Unit, Coimbatore/second respondent herein, has given a written instruction, vide letter dated 11.04.2008, addressed to him and specifically stated that the Special Tahsildar (Land Acquisition), Housing Scheme Unit-II, did not pass the award within the date. Therefore, only based on the said letter, he intimated to the Court that no award was passed in this matter. However, this Court, by order dated 06.11.2017, directed the State Government to file an affidavit as to what action taken against him as though he made a false statement before the Court, hence, such an adverse remark may be recalled, he pleaded. From the Memo dated 02.09.2022, we are able to see that the submission of Mr.V.Arun, then learned Additional Government Pleader, that no award was passed in this matter is only based on the letter dated 11.04.2008 of the Special Tahsildar (LA), Housing Scheme Unit, Coimbatore/second respondent herein received from the office of the Government Pleader on 16.04.2008. Therefore, we are of the considered view that the observation of this Court in paragraph No.2 of the order dated 06.11.2017 directing the State Government to file an affidavit as to what action taken against the then Additional Government Pleader, is uncalled for, and accordingly, the said portion of the order dated 06.11.2017 in paragraph No.2 alone is recalled/dropped.
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12.Further, it is settled law that if a party thinks that there is some factual error in the judgment which requires the very attention of the very Judges, then such party is at liberty to move a review application before the same Judge. In this regard, it is apposite to refer to a decision of the Hon'ble Apex Court in State of Maharashtra vs. Ramdas Shrinivas Nayak and Another reported in (1982) 2 SCC 463, wherein it is held as thus:
“4.......We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. [ Per Lord Buckmaster in Madhu Sudan Chowdhri v.Chandrabati Chowdhrain, AIR 1917 PC 30 : 42 IC 527] That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an appellate court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice; but, he may not call in question the very fact of making the concession as recorded in the judgment.
8. So the Judges' record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else.” 17/19 https://www.mhc.tn.gov.in/judis W.A.Nos.1254 to 1258 of 2010 While such being the tenet of law, the filing of the appeal by the Housing Board sans resorting to the alternative remedy by filing review application before the very same Judge who passed the impugned order, is bereft of any merit. Besides, the aforesaid principle has been followed by the Hon'ble Apex Court in the case of National Insurance Special Voluntary Retired/Retired Employees Association and Another vs. United India Insurance Company Limited and Another reported in (2018) 18 SCC 186 and the Division Bench of this Court in the case of Union Territory of Puducherry and Others vs. N.Rajalakshmi and Others reported in 2022 SCC OnLine Mad 3407.
13.In the light of the aforesaid discussions, we are of the view that the appeals are not maintainable and therefore, it is dismissed. Consequently, connected miscellaneous petitions are closed, if any. However, there shall be no order as to costs.
(T.R., J.) (K.B.,
J.)
02.09.2022
Index: Yes
Speaking order: Yes
pam
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T.RAJA, J.
AND
K. KUMARESH BABU, J.
pam
To
1.The Secretary to Government,
Housing & Urban Development Department,
Fort St.George,
Chennai – 600 009.
2.The Special Tahsildar,
Land Acquisition,
Housing Scheme Unit II,
Coimbatore,
Coimbatore District.
W.A.Nos.1254 to 1258 of 2010
02.09.2022
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