Madras High Court
The Executive Engineer vs Saroja (Died) on 27 July, 2023
Author: R.Vijayakumar
Bench: R.Vijayakumar
CRP(MD).No.2217 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.07.2023
PRONOUNCED ON : 27.07.2023
CORAM
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
C.R.P(NPD).(MD).No.2217 of 2017
and CMP(MD).No.10857 of 2017
1.The Executive Engineer
Tamil Nadu Housing Board
Kajamalai
Tiruchirappalli
2.The Assistant Engineer
Tamil Nadu Housing Board
Gandhigramam
Pasupathipalayam Post
Karur Taluk ... Petitioners
vs.
Saroja (Died)
N.Gopalakrishnan ...Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
28.02.2017 passed in E.P.No.106 of 2011 in O.S.No.138 of 2001 on the
file of the Principal District Munsif Court, Karur.
1/20
https://www.mhc.tn.gov.in/judis
CRP(MD).No.2217 of 2017
For Petitioners : Mr.M.P.Senthil
For Respondent : Mr.V.Balaji
ORDER
The present revision petition has been filed challenging the order passed by the Executing Court directing arrest of the judgement debtors on the ground of violation of permanent injunction decree. Factual Background:
2.The respondent herein had filed O.S.No.138 of 2001 on the file of the District Munsif Court, Karur as against the Executive Engineer and the Assistant Engineer of Tamil Nadu Housing Board for the relief of permanent injunction as against them that they should not disturb the possession of the plaintiffs. The defendants namely the officials of the Housing Board were set exparte and an exparte decree came to be passed on 28.06.2002.
3.The defendants therein had filed I.A.No.187 of 2004 to condone the delay of 615 days in filing an application to set aside the exparte decree. The said application was dismissed on 13.02.2006. Challenging the same, the defendants are said to have filed a revision before the High Court which has not been numbered.2/20
https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017
4.The plaintiff/decree holder had filed E.P.No.106 of 2011 for executing the said decree under Order 21 Rule 32 of C.P.C as against the defendant officials on the ground that they have disturbed the possession of the plaintiff.
5.A counter was filed by the defendants contending that the said decree has been passed only as against two individuals who were holding the post of Executive Engineer and Assistant Engineer at the relevant point of time and they are no more in service. Therefore, the said decree cannot be executed as against the present officials. There is no decree as against the Tamil Nadu Housing Board and therefore, the land having vested with the Tamil Nadu Housing Board, the decree cannot be executed as against the Tamil Nadu Housing Board.
6.The Executing Court relied upon Exhibit P3 which is an advertisement board put up by the Tamil Nadu Housing Board and Exhibit P4 letter written by the officials of the Tamil Nadu Housing Board on 01.12.2008 to the Sub Registrar, Karur and Thanthonimalai Municipality, arrived at a finding that the officials have addressed these letters to stop registration of property and not to give electricity service connection to the property which is the subject matter of the suit. 3/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 Therefore, the defendants have violated the injunction decree granted by the Court. The Executing Court further found that the defendants have violated the injunction decree and passed an order directing the police authorities to arrest the judgement debtors and produce them before the Court on 22.03.2017. Challenging the said order of arrest, the present revision petition has been filed by the defendants/ officials of the Tamil Nadu Housing Board Contentions of the learned counsel for the revision petitioners:
7.The property having an extent of 3.50 acres in S.No.1407 in Senappiratti Village in Karur Taluk originally belonged to one Vellayappa Gounder. He had passed away leaving behind his wife Kamatchi and 5 children. The said land was acquired under Land Acquisition Act 1894 by way of 4(1) Notification dated 04.11.1982 published on 24.11.1982. A declaration under Section 6 of the said Act was published on 19.11.1984 and an award was passed on 10.06.1987. The Government has handed over the possession of the said property to the Tamil Nadu Housing Board on 06.01.1998.
8.The learned counsel for the revision petitioners had further contended that original owner namely Vellayappa Gounder had filed a 4/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 writ petition challenging the said acquisition proceedings in W.P. Nos. 2074 and 2075 of 1988 were dismissed. An appeal was filed in W.A.Nos. 1499 and 1500 of 1998 challenging the order of the writ Court. The writ appeals were dismissed by the Hon'ble First Bench granting liberty to the appellants to make an application under Section 48-B of the Land Acquisition Act for release of the lands. Therefore, according to the learned counsel for the revision petitioners, the acquisition proceedings have attained finality.
9.The learned counsel had further contended that the plaintiff in the present suit namely Saroja had purchased the property from the legal heirs of Vellayappa Gounder on 30.06.1998 i.e 10 years after the award was passed. Therefore, the sale deeds in favour of the plaintiff as void in the eye of law. Though the said facts have been reflected in the plaint filed in O.S.No.138 of 2001, the learned Judge had passed an exparte decree without considering the plaint averments. He had further contended that the order passed by the writ Court in W.P.No.2075 of 1988 reflects that the possession has been taken over by the Housing Board on 06.01.1998. Therefore, the question of granting decree for permanent injunction in favour of the purchaser who had purchased the 5/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 property on 30.06.1998 does not arise.
10.The learned counsel for the revision petitioners had relied upon Section 16 of the Land Acquisition Act to contend that the property is vested in the hands of the Government free form all encumbrances. The plaintiff being a purchaser subsequent to the passing of the award, her document is void and she cannot claim any title or possession over the property.
11.The learned counsel had further contended that in view of Section 88 of Tamil Nadu Housing Board Act, 1961, there is a bar of jurisdiction of civil Court to grant an order of injunction in respect of any action taken or to be taken in pursuance of any power conferred by the order under Chapter No.11 of the said Act. In the present case, the decree for permanent injunction has prohibited the authorities from taking possession of the property and therefore, the decree passed by the Civil Court is without any jurisdiction.
12.The learned counsel had further relied upon Section 138 of the Tamil Naud Housing Board Act, 1961 and contended that no suit can be initiated as against any officer or servant of the Board in respect of any act done under the Act without issuing a pre-suit notice to the Board and 6/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 waiting for a period of 60 days. In the present case, admittedly, no pre-suit notice has been issued to the Board and the Board was not made as a party to the said suit even though a decree was sought as against the officials of the Board for their official activities. Hence, the suit is not maintainable and the decree passed thereunder is not enforceable.
13.The learned counsel for the petitioners had further pointed that in view of Sections 88 and 138 of the Tamil Nadu Housing Board Act, the decree passed in the suit is null and void and therefore, it can be questioned even in the execution or collateral proceedings. Even though, the said issue was raised before the Executing Court, the same has not been properly appreciated and an order of arrest as against the officials of the Board. Hence, he prayed for allowing the revision petition and to set aside the order of arrest.
Contentions of the learned counsel for the respondent:
14.Per contra, the learned counsel for the respondent had contended that the plaintiff decree holder has not suppressed anything. In fact, in Paragraph Nos. 7 and 8 of the plaint, they have referred about writ and writ appeal proceedings. The decree passed by the trial Court on 28.06.2002 has become final and an attempt was made by the defendants 7/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 by filing I.A.No.187 of 2004 to set aside the exparte decree was also not successful. Therefore, the defendant cannot now turn around and contend that the decree itself is void and it is not enforceable.
15.The learned counsel for the respondent had further contended that the acquisition proceedings have got lapsed, in view of the fact that the award has not been passed within a period of two years form the date of declaration published under Section 6 of the Act. Therefore, the Housing Board cannot contend that the acquisition proceedings have attained finality and they are having title and possession over the suit property. He had further contended that the defendants in the suit have not been arrayed in their individual capacity, but only in their official capacity as officers of the Tamil Nadu Housing Board. One of the defendants had engaged a counsel and other has not engaged a counsel. They have not filed a written statement and therefore, they were set exparte and an exparte decree came to be passed. Now the officials cannot turn around and contend that it will be binding only upon the officers who were in charge on the relevant point of time and it will not be binding upon the present officers.
8/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017
16.The learned counsel had further contended that the plaintiff has not sought for any permanent injunction as against any order passed by the officials of the Tamil Nadu Housing Board Act. Since the Board was not a party, the question of issuing a notice under Section 138 of the Act would not arise. He had further pointed out that the Tamil Nadu Housing Board had filed O.S.No.154 of 2012 on the file of District Munsif Court, Karur for declaring the decree in O.S.No.138 of 2001 dated 28.06.2002 as not been binding upon the Board and the consequential relief of permanent injunction has been sought for. Having suffered a decree in O.S.No.138 of 2001, the said suit is an abuse of process of law and the same is liable to be struck off. For the said prayer, the defendant in the said suit had filed CRP(MD).No.1405 of 2012 to strike off the plaint.
17.The learned counsel for the respondent had further contended that as per direction of the Hon'ble Division Bench in W.A(MD).Nos. 1499 and 1500 of 1998, they have sent an application under Section 48 of the Land Acquisition Act for release of the said land on 26.12.2006. However, the said application is yet to be decided. Since the possession is with the decree holder and the disturbance made by the officials of the Tamil Nadu Housing Board is liable for punishment under Order 21 Rule 9/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 32 of C.P.C. Hence, he prayed for sustaining the said order.
18.I have considered the submissions made on either side and perused the materials available on record.
Discussion:
19.The land in dispute is having an extent of 3.50 acres, out of which, 15.36 acres is in S.F.No.1407 of Sanappiratti Village, Karur Taluk, Karur Registration District. The said land was acquired under the Land Acquisition Act, 1894 by way of 4(1) Notification dated 04.11.1982, published on 24.11.1982. The declaration under Section 6 of the said Act was issued on 19.11.1984 and an award was passed on 10.06.1987.
20.The decree holder's vendor had filed W.P(MD).No.2075 of 1988 for a declaration that the acquisition proceedings had got lapsed under Section 11-A of the Land Acquisition Act. The said writ petition was dismissed on 24.06.1998 with an observation that the acquisition proceedings have been challenged much belatedly that too after passing of the award. The writ Court further found that the possession has been taken over by the Tamil Nadu Housing Board on 06.01.1988 two months prior to the filing of the writ petition. With the said observations, the writ 10/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 petition was dismissed. Challenging the same, the decree holder's vendors had filed W.A.Nos. 1499 and 1500 of 1998. The Hon'ble Division Bench had concurred with the findings of the writ Court and dismissed the writ appeals with a liberty to the land owners to approach the Government under Section 48-B of the Act for release of the lands. In fact, the land owners have addressed a communication on 30.07.2005 requesting the Secretary to Government to release the said lands. However, the said request has been rejected by the Government by an order dated 26.12.2016. Therefore, it is clear that the acquisition proceedings have attained finality and the title and possession has got vested with the Government and ultimately with the Housing Board.
21.The decree holder had purchased the property on 30.06.1998 which is after dismissal of the writ petition. The plaintiff had filed the suit on 02.03.2001 and it has been decreed on 28.06.2002. Section 88 of the Tamil Nadu Housing Board Act, 1961 is extracted as follows:
“88. Bar of jurisdiction of courts: No order made by the Government or the competent authority in exercise of any power conferred by or under this Chapter shall be called in question in any court and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance 11/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 of any power conferred by or under this Chapter. “
22.In the present case, after acquisition proceedings have attained finality, a suit has been filed seeking permanent injunction to restrain the officials of the Housing Board from disturbing the alleged possession of the purchaser. Therefore, it is clear that the bar relating to the jurisdiction of the civil Court as enunciated under Section 88 of the said Act clearly gets attracted and the civil Court will not have any jurisdiction whatsoever to entertain a suit for permanent injunction restraining the officials of the Housing Board from disturbing the alleged possession of the plaintiff.
23.Section 138 of the Tamil Nadu State Housing Board Act, 1961 is hereby extracted as follows:
“138. Notice of suit against Board etc. : No suit shall be instituted against the Board, or any member, or any officer of servant of the Board, or any person acting under the direction of the Board, or of the Chairman or Managing Director of any officer or servant of the Board, in respect of any act done or intended to be done under this Act or any rule or regulation made thereunder until the expiration of sixty days next after written notice has been delivered or left at the Board's office or the place of abode of such officer, servant or person, stating the causes of action, the name 12/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 and place of abode of the intending plaintiff, and the relief which he claims, and the plaint must contain a statement that such notice has been so delivered or left.”
24.The present suit has been filed as against two officials of the Tamil Nadu Housing Board seeking a permanent injunction as against them from interfering with the possession of the plaintiff. The said suit refers to the writ petition already filed by the vendor of the plaintiff and dismissal of those writ petitions. Paragraph No.7 of the plaint also points out that the lands were acquired for Tamil Nadu Housing Board. The said suit proceeds on the basis that though acquisition proceedings are subsisting, possession has not been taken over by the Tamil Nadu Housing Board and the land owners continues to be in possession of the property. In fact, Paragraph No.10 points out that the defendants who are subordinate of the Tamil Nadu Housing Board are causing interference to the peaceful possession and enjoyment of the plaintiff. Therefore, it is clear that the official authorities have been impleaded only in their official capacity and not in their personal capacity.
25.A careful perusal of Section 138 of the said Act reveals that for filing a suit as against any one of the officials of the Housing Board, a pre suit written notice to the Board is mandatory and they have to wait 13/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 for a period of 60 days after service of notice for filing the suit. Though various allegations have been made as against the Housing Board, the relief that is sought for is only as against the Housing Board. The suit has been filed as if it is against two officials of the Housing Board. Admittedly, no pre-suit notice has been issued as contemplated under Section 138 of the Act.
26.The Hon'ble Division Bench of our High Court in a judgment reported in 2011 SCC Online Madras 2369 ( The Tamil Nadu Housing Board & others Vs. S.Nasiruddeen and others) in Paragraph No.25 has held as follows:
“25.... The issuance of notice under Section 138 is mandatory and in fact plaintiff Association was conscious about it by issuing Ex.P17 notice. As pointed out earlier, Ex.P.17 notice is captioned as “Notice u/s.138 of TNHB Act, 1961 (17 of 1961)” and having captioned it as “Notice under Section 138 of TNHB Act”, the plaintiff Association ought to have complied with the statutory mandate of durational requirement. In our considered view, non-compliance of mandatory requirement of Section 138 is fatal to the plaintiff's case and this point is answered accordingly.”
27.In view of the judgement of the Hon'ble Division Bench, it is 14/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 clear that the non compliance of the mandatory requirement of Section 138 is fatal to the case of the plaintiff and hence, the exparte decree passed by the District Munsif Court, Karur in O.S.No.138 of 2001 is void, in view of bar under Section 88 and non compliance of Section 138 of the Tamil Nadu Housing Board Act, 1961.
28.The Hon'ble Supreme Court in a judgment reported in (2004) 8 SCC 706 (Balvant N.Viswamitra and others Vs. Yadav Sadashiv Mule (dead) through Lrs. and others ) in Paragraph No.9 has held as follows:
“9.The main question which arises for our consideration is whether the decree passed by the trial court can be said to be 'null and 'void'. In our opinion, the law on the point is well settled. The distinction between a decree which is void and a decree which is wrong, incorrect, irregular or not in accordance with law cannot be overlooked or ignored. Where a court lacks inherent jurisdiction in passing a decree or making an order, a decree or order passed by such court would be without jurisdiction, non est and void ab initio. A defect of jurisdiction of the court goes to the root of the matter and strikes at the very authority of the court to pass a decree or make an order. Such defect has always been treated as basic and fundamental and a decree or order passed by a court or an authority having no jurisdiction is nullity. Validity of such decree or order can be challenged at any stage, even in execution or collateral proceedings.” 15/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017
29.In view of the Hon'ble Supreme Court, it is clear that whenever a decree is passed by a Court lacking jurisdiction, the said decree is a nullity. The validity of such a decree can be challenged even in the execution proceedings. In the present case, as pointed out in the preceding paragraphs, in view of Sections 88 and 138 of the Tamil Nadu Housing Board Act 1961, the decree passed by the civil Court in O.S.No. 138 of 2001 is null and void and therefore, the judgment debtors are entitled to challenge the same even in the execution proceedings. When a decree is null and void it becomes unenforceable. The Executing Court has directed the arrest of the officials of the Housing Board for violation of the decree which is null and void and unenforceable in the eye of law.
30.In view of the above deliberations, it is clear that the exparte decree dated 28.06.2002 made in O.S.No.138 of 2001 on the file of the District Munsif Court, Karur is null and void and it is unenforceable.
31.In fact, the sale deed in favour of the plaintiff is dated 30.06.1998 which is subsequent to the award in the land acquisition proceedings. The Hon'ble Supreme Court in a judgement reported in (2019) 10 SCC 229 ( Shiv Kumar and another Vs. Union of India and 16/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 others) in Paragraph No.8 has held as follows:
“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 land as the sale is ab initio void and has no right to claim land under the policy.”
32. In view of the judgement of the Hon'ble Supreme Court cited supra, the sale deed in favour of the plaintiff in O.S.No.138 of 2001 is null and void. Without considering the said fact, an exparte decree has been passed by the trial Court.
33.It is the further contention of the decree holder that though the acquisition proceedings were subsisting, possession was never taken over by the Housing Board and it is retained by them.
34.The Hon'ble Supreme Court in a judgement reported in (2020) 8 SCC 129 (Indore Development Authority Vs. Manoharlal and others) in Paragraph No.247 has held as follows:
“247..... When the State Government acquires land and draws up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of 17/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which is in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.”
35.In view of the above said categorical decision of the Hon'ble Supreme Court, even assuming that the plaintiff/decree holder had retained possession over the property after acquisition proceedings, he could only be treated as a trespasser and therefore, his possession could never be treated as a legal possession to be protected by a Court of law.
36.In view of the above said deliberations, the order passed by the Principal District Munsif Court, Karur in E.P.No.106 of 2011 in O.S.No. 18/20 https://www.mhc.tn.gov.in/judis CRP(MD).No.2217 of 2017 138 of 2001 on 28.02.2017 stands set aside and this Civil Revision Petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.
27.07.2023
Index : Yes/No
Internet : Yes/No
NCC : Yes/No
msa
To
1.The Principal District Munsif,
Karur.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
19/20
https://www.mhc.tn.gov.in/judis
CRP(MD).No.2217 of 2017
R.VIJAYAKUMAR,J.
msa
Pre-delivery order made in
C.R.P(NPD).(MD).No.2217 of 2017
and CMP(MD).No.10857 of 2017
27.07.2023
20/20
https://www.mhc.tn.gov.in/judis