Madras High Court
Salem Periyar Kudiyiruppu Nala Sangam vs The State Of Tamil Nadu
Author: M.Sathyanarayanan
Bench: D.Murugesan, M.Sathyanarayanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: .12.2008 CORAM THE HONOURABLE MR.JUSTICE D.MURUGESAN AND THE HONOURABLE MR.JUSTICE M.SATHYANARAYANAN W.A.NO.1365 of 2004 and WAMP No.2538/2005, WVMP No.1201/2005 & M.P.NO.169/2008 Salem Periyar Kudiyiruppu Nala Sangam, rep. by its Secretary Dadagapatty, Salem-600 006. ... Appellant Vs. 1.The State of Tamil Nadu, rep. by the Secretary to Government, Department of Housing and Urban Development, Fort St. George, Chennai-600 009. 2.Tamil Nadu Housing Board, Rep. by its Managing Director, Chennai-600 035. 3.The Executive Engineer and Administrative Officer, Salem Housing Unit, Tamil Nadu Housing Board, Ayyanthirumaligai Road, Salem-636 008. 4.V.K.O.Ramanathan 5.V.K.O.Varadarajan 6.O.Soundarajan 7.T.Obulisamy 8.T.Vijayaraghavan .. Respondents For Appellant : Mr.T.R.Rajagopalan, S.C., for M/s Sai Bharath and Ilan For Respondents : Mr.R.Thirugnanam, Spl.G.P. For R1 Mr.P.Wilson, Addl. Advocate General for Mr.K.Chelladurai for R2 & R3 Mr.K.M.Vijayan, S.C., for Mr.A.Muralidharan for R4 to R8 Writ Appeal filed under Clause 15 of the Letters Patent against the order dated 01.04.2004 passed by the learned single Judge in W.P.No.8671 of 2004. JUDGMENT
M.SATHYANARAYANAN,J.
The appellant herein is the writ petitioner and aggrieved by the dismissal of the writ petition in W.P.No.8671 of 2004 dated 01.04.2004, had preferred this writ appeal.
2. The facts which are necessary for disposal of this writ appeal are given here under:
The writ petition was filed by the appellant-Sangam challenging the vires of the Government order in G.O.(MS) No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001 passed by the first respondent wherein the first respondent has directed the assignment of 50 cents of land to respondents 4 to 8 and other original land owners.
2.1 The lands in T.S.Nos.2, 3 of Ward No.1, Block No.1 and Survey No.37/2 admeasuring an extent of 5.61 acres were acquired by the Government in the year 1972 for the purposes of the construction of houses by the Tamil Nadu Housing Board/the second respondent. Respondents 4 to 8 herein were the original owners of the acquired lands. After acquisition, the award came to be passed in Award No.3 of 1979 on 16.11.1979 and possession of the lands was taken on 04.12.1979.
2.2 Respondents 4 to 8, not satisfied with the quantum of compensation, had sought reference under Section 18 of the Land Acquisition Act and it was numbered as L.A.O.P.No.13 of 1980. In the reference, the quantum of compensation was further enhanced and respondents 4 to 8 had also received the same. On 04.12.1979, the second respondent herein took possession of the lands acquired and thereafter, the second respondent had plotted out the entire area of 5.61 acres and the layout was also approved vide LP/R(SC)No.198/80 dated 27.01.1981 after leaving out open areas and common spaces as provided in the approved lay out. Thereafter, the second respondent had constructed 148 flats and sold out the same to the members of the appellant-Sangam and the members are in occupation and enjoyment of the respective flats. On 01.04.1983, an order was passed handing over the common areas, open spaces and amenities etc to the petitioner-Sangam, who are maintaining the same.
2.3 As per the approved lay out, a portion of the land in T.S.No.2 and 3 of Ward No.1, Block No.1 in Survey No.37/2 in the South Eastern portion of the lay out and an extent of 7780 sq.ft were earmarked as open space in which the common well is situated, and it is also the drinking water source for the entire flats. The adjacent portion of the land admeasuring 14,520 sq.ft., though was initially earmarked for shops, was all along treated as open space for common enjoyment. According to the appellant-Sangam, the common area was earmarked as 10.25% and therefore, the second respondent-Housing Board is duty bound to leave the said portion as common area in terms of the Development Control Rules and the common area so calculated was 24,437 sq.ft.
2.4 During January, 2004, some third parties claiming to be a flat promoters, authorised by respondents 4 to 8, attempted to survey and fence the abovesaid open space claiming that they have got permission from the third respondent to do so. Immediately, the appellant-Sangam contacted the third respondent, who informed them that the second respondent was taking steps to allot the said open space to the original land owners, who are respondents 4 to 8. Therefore, the appellant-Sangam had filed a suit in O.S.No.127 of 2004 on the file of the Court of District Munsif, Salem against respondents 2 and 3 herein praying for injunction restraining the defendants thereon from executing any sale deed in respect of the suit property in favour of anybody and pending disposal of the suit, had obtained an order of ad interim injunction in I.A.No.215 of 2004 on 13.02.2004.
2.5 Respondents 2 and 3 filed written statement and counter in the suit as well as interlocutory application in I.A.No.215 of 2004 and from the averments, the appellant-Sangam came to know that respondents 4 to 8 herein had filed O.S.No.1866 of 1980 on the file of Court of District Munsif, Salem praying for declaration that they are entitled for allotment of 50 cents of land from the second respondent-Housing Board on the eastern side of the above area and for permanent injunction restraining the second respondent herein from putting up the area into use and the said suit came to be decided ex-parte on 15.06.1981. Thereafter, steps were taken by the second respondent-Housing Board to set aside the ex-parte decree by condoning the delay and the same was also dismissed for default. Ultimately, the Civil Revision petition filed before this Court by the second respondent-Housing Board as against the dismissal of the condonation of delay came to be dismissed.
2.6 It is further averred by the appellant herein that the official respondent had colluded with respondents 4 to 8 and made to appear as if the decree obtained in O.S.No.1866 of 1980 is a binding decree of the civil court and pursuant to the decree obtained in O.S.No.1866 of 1980, respondents 4 to 8 filed R.E.P.No.112 of 1990 and pursuant to the execution of the decree, they took possession of the said land with open space. Thereafter, the second respondent-Housing Board made the first respondent-Government to pass orders in G.O.Ms.No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001, wherein the lands admeasuring 9 1/4 were conveyed to respondents 4 to 8 for a sum of Rs.21,60,800/- and also G.O.Ms.No.376 Housing and Urban Development (LAIV(2) Department dated 25.11.2003 issued by the first respondent rejecting the clarification.
2.7 The abovesaid writ petition filed by the appellant herein came to be dismissed at the admission stage itself on 01.04.2004 on the ground that respondents 4 to 8 along with others filed a suit before a competent civil Court and obtained a decree in their favour against the Housing Board for re-conveyance of the property in dispute and the proceedings taken by the Housing Board to modify the said decree has also ended in futility and when that being the position, the prayer sought for in the writ petition cannot be granted. This Court, while dismissing the said writ petition, has made it clear that if at all the writ petitioner is aggrieved, their remedy is before the appropriate civil forum. The present writ appeal is preferred against the order dismissing the writ petition.
3. In the writ appeal, respondents 2 and 3 had filed their counter. In the counter, it is averred that during the pendency of the acquisition proceedings, the ex-land owners viz., respondents 4 to 8, at the time of enquiry under Section 5-A of the Land Acquisition Act, requested for allotment of 1.67 acres of land for their own use and it was rejected by the second respondent-Board. Thereafter, the declaration under Section 6 of the Land Acquisition Act was issued and possession of the land was taken on 04.12.1979 and aggrieved by the quantum of the compensation awarded, the land owners filed LAOP No.13 of 1980 and the Reference Court viz., Sub Court, Salem, had enhanced the quantum of compensation and an appeal in A.S.No.945 of 1982 has been preferred against the judgment in LAOP No.13 of 1980 and the same was also dismissed on 03.08.1989.
4. It is further averred in the counter that the ex-land owners are not willing for the allotment of houses and they have filed O.S.No.1866 of 1980 on the file of Sub Court, Salem, praying for declaration that they are entitled to the allotment of 9 1/4 grounds/0.50 acres/22200 sq.ft out of 5.61 acres on the eastern side and for permanent injunction restraining the defendants viz.,the Tamil Nadu Housing Board from putting up any construction or otherwise making use of the property, for which declaration was sought for and the said suit came to be decreed as ex-parte, granting the relief in favour of respondents 4 to 8 as prayed for. The steps taken by the Tamil Nadu Housing Board to set aside the ex-parte decree has ended in futility and it had, therefore, filed Civil Revision petition against I.A.Nos.289 and 290 of 1982 in O.S.No.1866 of 1980, which also came to be dismissed by this Court. Thereafter, respondents 4 to 8 filed REP No.112 of 1990 and got possession through Court on 22.11.1991. It is further averred by respondents 2 and 3 in their counter that the second respondent herein has decided to implement the decree passed by the Civil court in O.S.No.1866 of 1980 and therefore, it addressed the communication to the Government. The Government, after taking into consideration the request made by the second respondent, has issued impugned G.O.Ms.No.121 and G.O.Ms.No.376 Housing and Urban Development (LAIV(2) Department dated 09.03.2001 and 25.11.2003 respectively, wherein the land cost was fixed at Rs.2,33,600/- per ground. The second respondent, based on the above said Government order, has passed a resolution on 29.12.2003 and as per the said resolution, they have collected land cost at Rs.30,02,328/- on 31.01.2004 from respondents 4 to 8 for executing the sale deed.
5. It is also averred that the second respondent-Housing Board has already handed over the lands specified for road, open space and park except the suit land to the Salem Municipality and the lands handed over to the Salem Municipality is more than the statutory area required for open space and park. It is reiterated in the counter that the impugned Government orders came to be passed only pursuant to the decree obtained in O.S.No.1866 of 1980 by respondents 4 to 8, which had attained finality.
6. Heard Mr.T.R. Rajagopalan, learned Senior counsel appearing for the appellant, Mr.R.Thirugnanam, learned Special Government Pleader for the first respondent, Mr.P.Wilson, learned Additional Advocate General for respondents 2 and 3 and Mr. K.M.Vijayan, learned Senior counsel for respondents 4 to 8.
7. It is submitted by the learned Senior Counsel appearing for the appellant that the impugned order of re-conveyance under G.O.Ms.No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001 cannot be passed by the first respondent-Government except by invoking Section 48-B of the Land Acquisition (Tamil Nadu Amendment) Act. It is further submitted by the learned Senior Counsel that the power under Section 48-B of the Land Acquisition Act is not available as the lands came to be vested with the Government even in the year 1979 and the project was completed and the respective flats were handed over to the flat owners in the year 1981. It is also submitted by the learned Senior Counsel that the re-conveyance of the land by the impugned Government order to respondents 4 to 8 pertains to the common area and the lay out was approved taking into account the said common area and therefore, after the project was executed, re-conveyance in favour of respondents 4 to 8 under the Government Order is ex-facie illegal. The learned Senior Counsel made a further submission that the suit in O.S.No.1866 of 1980 filed by respondents 4 to 8 per se is maintainable in law and therefore, the decree granted in their favour is void ab initio and enforces the authority and since the suit decreed as void and illegal, it can be challenged in a collateral proceedings by filing a writ petition. The learned Senior Counsel appearing for the appellant made the further submission that the reasons assigned by the learned single Judge in dismissing the writ petition by relegating the appellant to invoke the civil Court remedy is unsustainable for the reason that validity of the exercise of power can be decided by the Civil Court under Section 48-B of the land Acquisition Act. In support of his submission, the learned Senior counsel placed reliance on the judgment reported in 2003 (3) MLJ 212 (THE SPECIAL TAHSILDAR, THE TAMIL NADU MAGNESITE LIMITED, SALEM AND ANOTHER VS. T.NAGENDRAN AND OTHERS), AIR 1995 SC 1955 (STATE OF BIHAR VS. DHIRENDRA KUMAR AND OTHERS), 2004 (1) SCC 287 (RAFIQUE BIBI(DEAD) BY LEGAL REPRESENTATIVES VS. SAYED WALIUDDIN) and submitted that the civil suit is not maintainable as the power of the Civil Court to take cognizance of the case under Section 9 of Code of Civil Procedure stands excluded and the Civil Court has no jurisdiction to go into the question of validity or legality of the notification under Section 4 and declaration under Section 6 of the Land Acquisition Act except by the High Court in a proceeding under Article 226 of the Constitution of India.
8. In 2002 (3) MLJ 212 (THE SPECIAL TAHSILDAR, THE TAMIL NADU MAGNESITE LIMITED, SALEM AND ANOTHER VS. T.NAGENDRAN AND OTHERS), it has been held that Section 48-B of the Act can be applicable only in respect of the cases where the acquired lands vested with the Government after the said Amendment Act XVI of 1997 came into force and therefore, the said provision is not available with the Government for invocation. In 2004 (1) SCC 287 (RAFIQUE BIBI(DEAD) BY LEGAL REPRESENTATIVES VS. SAYED WALIUDDIN), the question with regard to the "void/Null decree" and "illegal decree" was considered. The powers of Executing Court in that regard came for consideration and it has been held that if a decree is a nullity for want of jurisdiction and it is obtained on the face of the decree, then the Executing Court may take cognizance of the nullity and the remedy in case of illegally obtained a decree is to set aside in a duly constituted legal proceeding or by a superior court, failing which command of decree must be obeyed. It is further held that the decree passed by a Court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
9. The learned Additional Advocate General appearing for respondents 2 and 3 would submit that the suit in O.S.No.1866 of 1980 instituted by respondents 4 to 8 is not barred under Section 9 of C.P.C as they have not challenged the land acquisition proceedings, but only they want a declaration that they are entitled to allotment of 9 1/4 grounds out of 5.61 acres as promised to them by respondents 2 and 3 at the time of enquiry under Section 5-A of the Land Acquisition Act.
10. It is further submitted by the learned Additional Advocate General that inspite of best efforts taken by respondents 2 and 3 to get the ex-parte decree passed in O.S.No.1866 of 1980 to set aside, they have failed in their endeavour and therefore, they are left with no other option, but to implement the decree and hence, they addressed the Government, which ultimately passed G.O.Ms.No.121 dated 09.03.2001 releasing the land in favour of respondents 4 to 8 and also fixed the land costs. The said land cost has also been paid to respondents 4 to 8. It is further submitted by the learned Additional Advocate General that in a collateral proceedings in the form of writ petition, a validly obtained decree in O.S.No.1866 of 1980 cannot be set aside and therefore, the learned single Judge has correctly directed the appellant herein to invoke the civil remedy and therefore, no interference is warranted in the impugned order passed in this writ petition.
11. Mr.K.M.Vijayan, learned Senior Counsel appearing for respondents 4 to 8 would submit that the writ petition is not a public interest litigation to examine the legality of the order and therefore, it is not at all maintainable. It is further submitted by the learned Senior Counsel that on 10.02.2004, the suit in O.S.No.127 of 2004 was filed by the appellant herein and they obtained an order of ad-interim injunction in I.A.No.254 of 2004 and on 01.04.2004, W.P.No. No.8671 of 2004 was dismissed at the admission stage itself and on 02.04.2004 and they filed the present writ appeal and obtained interim orders. On 19.08.2004, the order of ad interim injunction granted in I.A.Nos.254 of 2004 in O.S.No.127 of 2004 was vacated and challenging the legality of the order, the appellant herein preferred an appeal in C.M.A.No.14 of 2004, which was also dismissed on 14.04.2004. On 1.11.2007, the suit in O.S.No.127 of 2004 came to be dismissed for default.
12. It is further submitted by the learned Senior counsel that in terms of Section 72 of the Tamil Nadu Housing Board Act, respondents 2 and 3 can dispose of the land acquired by the ex-owners and admittedly during the course of enquiry under Section 5-A of the land Acquisition Act, promise was made to respondents 4 to 8 to allot the same portion of the land acquired from them and since it was not complied with, they have filed the suit in O.S.No.1866 of 2001 and obtained a decree, which had also become final as against respondents 2 and 3 and that the said decree was put into execution and possession of the land was also obtained. Respondents 2 and 3 had approached the Government to comply with the terms of the decree and the Government, after taking into consideration the events in O.S.No.1866 of 1980, had passed G.O.Ms.No.121, Housing and Urban Development (LAIV(2) Department dated 09.03.2001, wherein they released 9 1/4 grounds of land after fixing the land costs, which was also paid by the original land owner viz., Respondents 4 to 8. The learned Senior counsel placed reliance in the case of R.SHANMUGAM VS. STATE OF TAMIL NADU, HOUSING AND URBAN DEVELOPMENT DEPARTMENT, CHENNAI reported in 2006 (4) CTC 290, which came to be rendered on facts of the case and it has been held that provisions of Section 16-B of the Tamil Nadu Housing Board Act and Section 48-B of the Land Acquisition Act construed to be applicable to the factual situation. The learned Senior counsel also made the submission that the open space available is more than the prescribed limit, which has also been reiterated by the respondents 2 and 3 in their counter and therefore, by conveying the land of 9 1/4 grounds, the approved plan is not violated or deviated in any manner and that the land owners viz., respondents 4 to 8 had also paid a sum of Rs.30,00,000/- and odd which includes interest on the said land conveyed to them. According to the learned Senior counsel, the learned single Judge was right in directing the appellant herein to work out their remedy before the civil forum and the said order is perfectly sustainable in law and sought for dismissal of the writ appeal.
13. In reply to the submissions made by the learned Additional Advocate General appearing for respondents 2 and 3 and the learned Senior counsel appearing for respondents 4 to 8, the learned Senior counsel appearing for the appellant would place reliance upon the following decisions i.e. AIR 1954 Supreme Court 340 (KIRAN SINGH AND OTHERS VS. CHAMAN PASWAN AND OTHERS), 2004(8) Supreme Court Cases 706 (BALVANT N.VISWAMITRA AND OTHERS VS. YADAV SADASHIV MULE (DEAD) THROUGH LRS.), 2005(7) Supreme court Cases 791 (HARSHAD CHIMAN LAL MODI VS. DLF UNIVERSAL LTD., AND ANOTHER), 2006 (8) Supreme Court Cases 336 (COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY VS. K.S.NARAYAN), 2006(10) Supreme Court Cases 96 (A.JITHENDERNATH VS. JUBILEE HILLS CO-OP HOUSE BUILDING SOCIETY AND ANOTHER), 2007 (2) Supreme Court Cases 159 (STATE OF A.P. VS. V.SHARMA RAO AND OTHERS) and 2007(2) Supreme Court Cases 355 (HASHAM ABBAS SAYYAD VS. USMAN ABBAS SAYYAD AND OTHERS). In paragraph 6 of the judgment reported in AIR 1954 Supreme Court 340 (KIRAN SINGH AND OTHERS VS. CHAMAN PASWAN AND OTHERS), it has been held as follows:
" It is a fundamental principle well established that a decree passed by a court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject-matter of the action, strikes at the very authority of the court to pass any decree, and such a defect cannot be cured even by consent of parties."
The Honourable Supreme Court on the facts of the case held that a decree passed in an appeal by a Court which had jurisdiction to entertain cannot be set aside by reason of under valuation.
14. In 2004(8) Supreme Court Case 706 (BALVANT N.VISWAMITRA AND OTHERS VS. YADAV SADASHIV MULE (DEAD) THROUGH LRS.), the distinction between void decree, illegal and incorrect or irregular came for consideration and it has been held that a void decree can be challenged at any stage, even in execution or collateral proceedings and on the other hand, an erroneous or illegal decision, which is not void cannot be objected to in execution or collateral proceedings. In the said decision, the judgment reported AIR 1954 Supreme Court 340 (KIRAN SINGH AND OTHERS VS. CHAMAN PASWAN AND OTHERS) was also considered.
15. In 2005(7) Supreme court Cases 791 (HARSHAD CHIMAN LAL MODI VS. DLF UNIVERSAL LTD., AND ANOTHER), it has been held that where a Court has no jurisdiction over subject-matter of suit it cannot take up the case or matter, and an order passed therein is a nullity. Invalidity of a null decree can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings and that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court otherwise incompetent to try the suit.
16. In 2006 (8) Supreme Court Cases 336 (COMMISSIONER, BANGALORE DEVELOPMENT AUTHORITY VS. K.S.NARAYAN), the main ground of challenge was non serving of notice as required under Section `7(5) of the Bangalore Development Authority Act, 1976 and it has been held that the civil suit challenging the validity of the land acquisition proceedings for want of notice is not maintainable and only writ petition under Article 226 of the Constitution of India is maintainable.
17. In 2006(10) Supreme Court Cases 96 (A.JITHENDERNATH VS. JUBILEE HILLS CO-OP HOUSE BUILDING SOCIETY AND ANOTHER), it has been held that if the order has been passed without jurisdiction, it need not be set aside and the said order being a nullity, never existed in the eye of law.
18. In 2007 (2) Supreme Court Cases 159 (STATE OF A.P. VS. V. SHARMA RAO AND OTHERS), it has been held that in matters falling under Sections 4, 6 and 11 of the Land Acquisition Act, 1894, the Civil Courts have no jurisdiction and it is barred under Section 9 of Civil Procedure Code, 1908.
19. In 2007(2) Supreme Court Cases 355 (HASHAM ABBAS SAYYAD VS. USMAN ABBAS SAYYAD AND OTHERS), it has been held that the order passed without jurisdiction is a nullity and the same ordinarily should not be given effect to. In such circumstances, principles of estoppel, waiver and acquiescence or res judicata, are not applicable to that order. Therefore, it is submitted by the learned Senior counsel appearing for the appellant that the suit in O.S.No.1866 of 1980 per se is not maintainable as it challenged the proceedings under the Land Acquisition Act initiated by the first respondent and even though an ex-parte decree came to be passed against the respondents 2 and 3, which has reached finality, it is a nullity and anybody fixed accruing out of the said decree, cannot enure in favour of respondents 4 to 8 and therefore, the impugned Government Order passed by the first respondent-Government conveying the land to respondents 4 to 8 per se and unsustainable in law and also on facts and therefore, the said impugned order has to be quashed.
20. In response to the submissions made by the learned Senior Counsel appearing for the appellant, the learned Additional Advocate General drew the attention of the Court to the decision of the Supreme Court reported in 2004(1) Supreme Court Cases 287 (RAFIQUE BIBI(DEAD) BY LRS. VS. SAYED VALIUDDIN (DEAD) BY LRS. AND OTHERS) wherein the question with regard to the void and null decree came up for consideration and in paragraphs 7, 8 and 10, it has been held as follows:
"7. Two things must be clearly borne in mind. Firstly, "the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be a nullity and void but these terms have no absolute sense: their meaning is relative, depending upon the courts willingness to grant relief in any particular situation. If this principle of illegal relativity is borne in mind, the law can be made to operate justly and reasonably in cases where the doctrine of ultra vires, rigidly applied, would produce unacceptable results. (Administrative Law, Wade and Forsyth, 8th Edn. 2000, p 308.) Secondly, there is a distinction between mere administrative orders and the decrees of courts, especially a superior court. The order of a superior court such as the High Court, must always be obeyed no matter what flaws it may be thought to contain. Thus a party who disobeys a High Court injunction is punishable for contempt of court even though it was granted in proceedings deemed to have been irrevocably abandoned owing to the expiry of a time-limit. (ibid., p.312)
8. A distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed in executable by the executing court; the remedy of a person aggrieved by such a decree is to have it set aside in a duly constituted legal proceedings or by a superior court failing which he must obey the command of the decree. A decree passed by a court of competent jurisdiction cannot be denuded of its efficacy by any collateral attack or in incidental proceedings.
10. It is not the plea of the appellant judgment-debtors that the court which passed the decree did not have the jurisdiction to do so. It is also not their case that a ground for eviction of the tenants on the ground of default in payment of arrears of rent was not available to the respondent landlords within the meaning of the Delhi and Ajmer Act or the successor Rajasthan Act. The only submission made is that before passing the decree the Court should have afforded the tenant an opportunity of depositing the rent in arrears, which was not done. Firstly, we find merit in the submission of the learned counsel for the respondents that it was for the tenants to have invited the attention of the Court by making an application in that regard so as to avail an opportunity of wiping out the effect of their default, which gave rise to cause of action to the respondents, by depositing the rent during the pendency of the suit. That having not been done, the appellant tenants cannot be heard to urge any infirmity in the decree. Secondly, accepting it at its face value, in the eyes of law, the challenge seeks to expose a procedural irregularity which may, at best, result in the decree being termed as an illegal decree, but that in itself would not amount to branding the decree as without jurisdiction or a nullity. The plea which is sought to be urged in the execution proceedings was available to be raised by the tenants before the High Court in an appeal against the decree. Such a plea was not taken before the passing of the decree and cannot now be allowed to be urged during the execution proceedings. It is unfortunate that a decree of eviction passed in a suit commenced in the year 1956 and culminating in a final decree in the year 1986 is still starving for its execution."
21. The Court has carefully considered the submissions made by the learned counsel appearing on either side and also perused the materials available on record in the form of counter affidavit and the typed set of documents.
22. A perusal of the averments in plaint in O.S.No.1866 of 1980 filed by respondents 4 to 8 would reveal that respondents 4 to 8, who are the plaintiffs therein having received the notice issued under Sections 4(1) and 5(A) of the Land Acquisition Act, have filed their objections on 22.09.1978 and the third respondent herein, who was arrayed as second defendant in the said suit, has sent his remarks on 22.06.1978 undertaking to consider the request of the plaintiffs/ respondents 4 to 8 herein. The prayer made in the suit was to declare that the plaintiffs are entitled to an allotment of 9 1/4 grounds 0.50 cents/i.e. 22000 sq.ft out of 5.61 acres of lands acquired by the Government for the benefits of respondents 2 and 3. The said suit in O.S.No.1866 of 1980 was filed on 28.11.2980 and it came to be decreed ex-parte on 15.06.1981. Thereafter respondents 2 and 3 herein filed an application in I.A.Nos.289 of 1982 in O.S.No.1866 of 1980 to set aside the ex-parte decree dated 15.06.1981 and also filed an application in I.A.No.290 of 1992 in the said suit praying for condonation of delay of 115 days in filing the said application to set aside the ex-parte decree and both the applications were dismissed for default. Respondents 2 and 3 instead of filing application for restoration of those applications, which were dismissed for default, have filed revision petitions in C.R.P.S.R.Nos.76469, 76471 of 1995 and also filed CMP SR.Nos.50542, 50543 and 50545 of 1997 to condone the delay of 56 days in representing the revision papers. The Registry of this Court has raised some objections and since the revision petitioners viz., respondents 2 and 3 herein have not complied with some objections raised by the Registry, the C.R.P.S.R.Nos.76469, 76471 of 1995 came to be rejected by the order of this court dated 11.11.1997. Therefore, the decree passed in O.S.No.1866 of 1980 has reached the finality. Thereafter the Managing Director of Tamil Nadu Housing Board had addressed the communication dated 08.06.1999 stating among other things that 3 grounds 108sq.ft (17 cents) was declared as open space vacant as on date and respondents 4 to 8 are specifically requesting the allotment of the said portion and afterwards pursuant to the decree obtained in O.S.No.1866 of 1980, respondents 4 to 8 filed R.E.P.No.112 of 1990 and executed the decree and obtained possession of 50 cents of land in Survey Nos.2, 3 and 37/2 on the eastern side on 22.11.1991 and therefore, it was suggested to the Government that the Housing Board has to comply with the Court orders. The Government had also accepted the recommendation and ordered in G.O.Ms.No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001 in depth that a sum of Rs.21,60,800/- has to be paid to respondents 4 to 8 for consideration of 9 1/4 grounds and the sale deeds shall be given in respect of the said lands to the original land owners. Subsequently, the second respondent-Tamil Nadu Housing Board sought clarification from the first respondent-Government pleading for collection of commercial rate and the first respondent-Government, after examining the said request, has decided in G.O.No.376 Housing and Urban Development (LAIV(2) Department dated 25.11.2003 that there is no reason to increase the rate already fixed as per the G.O.Ms.No.121 dated 09.03.2001 and accordingly, rejected the request made by the second respondent-Tamil Nadu Housing Board.
23.The appellant herein filed the suit in O.S.No.127 of 2004 on the file of the Principal District Munsif, Salem, on 10.02.2004 praying for a decree for permanent injunction restraining the Tamil Nadu Housing Board from executing any sale deed or sale deeds in respect of the suit property in favour of anybody and also obtained interim orders. It is pertinent to point out at this juncture that no plea of fraud has been made in the plaint averments. The second defendant viz., The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Salem, has filed written statement stating that the decree obtained in O.S.No.1866 of 1980 filed by respondents 4 to 8 attained finality in view of the dismissal of C.R.P.S.R.Nos.76469, 76471 of 1995 etc on 11.11.1997 and thereafter, after fixing the land costs by the Government in G.O.Ms.No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001, which was also paid by them, the lands in question were conveyed and even prior to that, the land owners filed REP No.112 of 1990 in O.S.No.1866 of 1980 and obtained possession of the lands. Even after filing written statement by the second defendant in the said suit, the appellant, who was the plaintiff, prayed to set aside the decree passed in O.S.No.1866 of 1980. The interim order obtained by them in the said suit was also vacated and challenging the legality of the same, the appellant herein preferred C.M.A.No.14 of 2004, which was also dismissed on 14.12.2005. On 1.11.2007, the suit in O.S.No.127 of 2004 itself came to be dismissed for default and during the pendency of the said suit, on 30.03.2004, W.P.No.8671 of 2004 was filed.
24.The submission made by the learned Senior counsel appearing for the appellant that the suit in O.S.No.1866 of 1980 is not maintainable as it challenged the land acquisition proceedings, in our considered opinion lacks merit for the reason that respondents 4 to 8 have not challenged the land acquisition proceedings, but they sought for declaration that they are entitled to an allotment of 0.50 cents out of 5.61 acres acquired by the first respondent for the benefit of respondents 2 and 3.
25.The further submission that any reconveyance can be given only by invoking Section 48-B of the land Acquisition Act also lacks merits for the reason that in pursuant to the decree passed on 15.06.1981 in O.S.No.1866 of 1980, respondents 4 to 8 took execution proceedings and also obtained possession of the land and thereafter, respondents 2 and 3 herein made a request to the first respondent-Government for conveying the land after fixing up the land value, which was also accepted by the Government which culminated in G.O.ms.No.121 Housing and Urban Development (LAIV(2) Department dated 09.03.2001. In pursuant to the said Government order, the land cost was also paid. The decisions relied on by the learned Senior Counsel as regards "void" and "null decree" are not applicable to the facts of the present case for the above said reasons. It is trite law that a Court executing the decree cannot go beyond the decree between the parties or their representatives and it must take the decree according to its tenor and cannot entertain any objections that the decree was incorrect in law or on facts and only it has to be set aside by the appropriate proceedings in appeal or revision. The decree even if it be erroneous, is still binding on the parties. The lack of jurisdiction of the Court passing the decree must be patent on its face in order to enable the executing court to take congnizance of such a nullity based on want of jurisdiction, else the normal rule that an executing court cannot go behind the decree must prevail. An erroneous or illegal decision, which is not void, cannot be objected in execution or collateral proceedings.
26. As already held by this Court in the foregoing paragraphs that the decree obtained in O.S.No.1866 of 1980 by the original land owners cannot said to be void or nullity as they have not challenged the original land acquisition proceedings and it has also reached finality by virtue of the orders passed by this Court in C.R.P.SR.Nos.76469, 76471 of 1995. The said decree was also put into execution and in order to comply with the terms of the decree, respondents 2 and 3 addressed to the Government, which also accepted the same and passed the impugned Government Order fixing up the land costs, which was also paid by the land owners.
27.That apart, the counter filed by respondents 2 and 3 in this writ appeal would disclose that the lands handed over to Salem Municipality, which are open space and park excluding the land conveyed to respondents 4 to 8 herein, are more than the statutory area required and therefore, it cannot be said that the appellant-Sangam is put to any kind of prejudice.
28. It is also borne out from a perusal of the typed set of papers that inspite of the specific stand taken by the second defendant in O.S.No.127 of 2004, that the lands in question were already conveyed to the original land owners in pursuant to the decree passed in O.S.No. 1866 of 1980, the appellant, who was the plaintiff in that suit, has not taken any steps either to amend the prayer or to obtain the leave of the Court to challenge the legality of the said decree. The fact remains that during the pendency of the suit, they filed the writ petition, which came to be dismissed by this Court at the admission stage itself, against which, the present writ appeal has been filed. More over, the suit in O.S.No.127 of 2004 itself came to be dismissed for default on 01.11.2007.
29. Since the issues raised by the appellant herein relatable to the adjudication of factual aspects, the learned Judge correctly held that if at all the writ petitioner/appellant is aggrieved, it's remedy is before the appropriate civil forum. In the light of the reasons stated above, we find no error apparent on the face of record in the impugned order. Therefore, the present writ appeal is liable to be dismissed and accordingly, dismissed confirming the order passed dated 01.04.2004 in W.P.No.8671 of 2004. But in the circumstances, there is no order as to costs. Consequently, connected miscellaneous petitions are also dismissed.
(D.M.,J.) (M.S.N.,J.) .12.2008 Index: Yes Internet: Yes raa Copy to: 1.The Secretary to Government, State of Tamil Nadu, Department of Housing and Urban Development, Fort St. George, Chennai-600 009. 2.The Managing Director,Tamil Nadu Housing Board, Chennai-600 035. 3.The Executive Engineer and Administrative Officer, Salem Housing Unit,Tamil Nadu Housing Board, Ayyanthirumaligai Road, Salem-636 008. D.MURUGESAN,J. and M.SATHYANARAYANAN,J. W.A.NO.1365 of 2004 .12.2008