IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 15.12.2008 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/Petitioner 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/Respondents For Appellant : Mr.T.R.Rajagopalan, S.C., for M/s Sai Bharath and Ilan https://hcservices.ecourts.gov.in/hcservices/ 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.Muraleedharan 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 Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of a 'Writ of Certiorari' calling for the records relating to the impugned G.O.No.121 dated 9.3.2001 and G.O.Ms.No.376 dated 25.11.2003 of the 1st Respondent and Resolution No.812 dated 29.12.2003 on the second Respondent and quash the same. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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, https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. https://hcservices.ecourts.gov.in/hcservices/ 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,