IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.07.2010 CORAM THE HONOURABLE MR.JUSTICE S.NAGAMUTHU W.P.No.2089 of 2001 1 SHANMUGAM 2 UMADEVI 3 SUGANTHI @ SHANTHA 4 BABY JANAKI 5 RAMATHAL 6 B.LAKSHMI 7 RAVI @ PALANISAMY 8 CHITRAKALA 9 K.KRISHNAMURTHY 10 R.RAJESWARI @ SARASU 11 AMSAVENI 12 R.KANNAMMAL 13 MANONMANI 14 MOHAN KUMAR @ PALANISAMY 15 R.MANJULA 16 R.KARUPPASAMAY ( MINOR) (REP BY MOTHER AND GUARDIAN KANNAMMAL) ..PETITIONERS 1 THE DISTRICT COLLECTOR, COLLECTORATE, COIMBATORE 2 THE SPECIAL TAHSILDAR LAND ACQUISITION, ADI DRAVIDAR WELFARE, COIMBATORE. 3 VASANTHA, 4 RAMATHAL, 5 UMA MAHESWARI, 6 MARUTHAMMAL, 7 THULASI 8 RATHINAM, S/o. DURAIRAJ 9 PADMAVATHY 10 NAGAMMAL 11 RATHINAM S/O.RAVI 12 NAGIRANGAN 13 RANGAMMAL 14 VADIVU 15 VELUMANI 16 VASANTHA 17 VIMALA 18 SELVANAYAGI https://hcservices.ecourts.gov.in/hcservices/ 19 RAMATHAL 20 KAVITHA 21 SELVI 22 PAPPATHI 23 THAYAMMAL 24 JAYALAKSHMI 25 RANGAMMAL 26 SUSILAS @ SASIKALA (R3 to 26 impleaded as per order dated 4.8.2009 by WP.Mp.5/2/09 in WP.2089/06) .. RESPONDENTS Prayer:- Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of Mandamus forbearing the respondents or their men, agents or subordinates from interfering with the petitioners’ peaceful possession and enjoyment of the land in S.F.No.492/1A in Telengupalayam Village, Coimbatore District measuring an extent of 15.1 acre. For Petitioner : Mr.V.Ayyathurai for Mr.Su Srinivasan, For RR1 and 2 : Mr.S.Sivashanmugam, GA For RR3 to 8 : No Appearance O R D E R Few interesting questions of importance, relating to the impact the of case in State of Tamil Nadu v. Ananthi Ammal (1995 (1) SCC 519), upholding the provisions of the Tamil Nadu Acquisition of Land for Harijan Welfare Schemes Act, 1978 have cropped up for consideration. 2.The background facts of the case are as follows:- The petitioners are the owners of the properties comprised in S.Nos.492/1A and 492/1B at Telengupalayam Vilalge in Coimbatore District. With a view to acquire these lands for the purpose of Harijan Welfare, proceedings were initiated and a notification under Section 4(1) of the Land Acquisition Act (hereinafter referred to as the Central Act) was issued on 23.02.1979. When the proceedings were in progress, the Tamil Nadu Acquisition of Land For Harijan Welfare Schemes Act, 1978 (Tamil Nadu Act 31 of 1978) (hereinafter referred to as “the State Act”), came into force with effect from 24.09.1979. Under Section 20 of the said Act, save as otherwise provided in the Act, the provisions of the Land Acquisition Act, 1894 (the Central Act) shall cease to apply to any land which is required for the purpose specified in sub-section (1) of Section 4 and any such land shall be acquired by the Government only in accordance with the provisions of this Act. https://hcservices.ecourts.gov.in/hcservices/ 3. Section 22 of the State Act states as follows:- “22.Application of the Act to certain pending cases of acquisition.-(1)The provisions of this Act shall apply also to any case or cases in which proceedings have been started before the commencement of this Act for the acquisition of any land for the Harijan Welfare Scheme under the Land Acquisition Act, 1894 (Central Act I of 1894) (hereinafter in this section referred to as the said Act) but no award has been made by the Collector under Section 11 of the said Act before such commencement, as if- (i)the notification published under sub- section (1) of section 4 of the said Act; or (ii)the declaration made under section 6 of the said Act; or (iii)the notice given under sub-section (1) of section 9 of the said Act, were a notice to show cause against the acquisition of the land served under sub-section (2) of section 4 of this Act. (2)Nothing contained in sub-section (1) shall apply in relation to any land unless and until after the District Collector has published a notice in the District Gazette to the effect that the said land is required for the purpose specified in sub-section (1) of section 4 of this Act." 4. Since in the case on hand, the earlier notification issued under Section 4(1) of the Central Act was pending as on 21.04.1979, the same was converted as a proceeding under the State Act as per Section 22 of the Act and therefore, a notice under Section 4(2) of the State Act was issued to the land owners. Declaration under Section 4(1) of the State Act was also made on 10.07.1980 and award was pased on 20.03.1981. When the said proceeding was in further progress, in a batch of writ petitions filed before this Court, a Division Bench of this Court [hereinafter referred to as "the Division Bench] in Ananthi Ammal’s case (cited supra) declared the said State Act as unconstitutional by judgment dated 09.09.1981. In view of the same, in the instant case, further proceeding could not be continued by the respondents under the State Act. While so, the petitioners filed a writ petition in W.P.No.10312 of 1981 before this https://hcservices.ecourts.gov.in/hcservices/ Court praying for a writ of mandamus to restrain the respondents herein from taking any further action under the State Act in respect of the land in question. A batch of similar writ petitions were also filed by the different land owners. By a common order dated 28.01.1992, a learned Single Judge of this Court allowed all the said writ petitions. In so far as the petitioners’ writ petition is concerned, this Court issued a mandamus not to proceed further under the provisions of the State Act as against the properties of the petitioners since the State Act stood struck down by the Division Bench. Therefore, further proceeding in the matter of acquisition as per the State Act had to be dropped by the respondents. 5. However, the said lands were required for the scheme. In view of the judgment of the Division Bench striking down the State Act and also the judgment of this Court in W.P.No.10312 of 1981, the respondents decided to acquire the said lands once again by issuing a fresh notice under Section 4(1) of the Central Act. Such notification was issued on 25.11.1982 in respect of the very same lands belonging to the petitioners. When further proceedings were again in progress, the Hon’ble Supreme Court set aside the judgment of the Division Bench of this Court in Ananthi Ammal’s case thereby declaring that the State Act is constitutionally valid. The said judgment was delivered by the Hon’bel Supreme Court on 22.11.1994. In the same judgment, the Hon’ble Supreme Court further declared that the proceedings already initiated under the State Act shall be revived. 6.In view of the above declaration made by the Hon’ble Supreme Court, the respondents once again proceeded to take possession on the basis of the declaration made under Section 4(1) of the State Act on 10.07.1980 under the first proceeding. According to the respondents, possession was allegedly taken on 02.03.2000. It is further submitted by the respondents that subsequently, the land has been given to the beneficiaries and as a matter of fact, pattas have been issued by the authorities in their favour. In the above stated circumstances, the petitioners have come forward with this writ petition seeking a mandamus to forbear the respondents from interfering with their alleged peaceful possession and enjoyment of the lands. It is pertinent to note that according to the petitioners, possession was never taken by the respondents. 7. In this writ petition, the foremost contention of the petitioners is that the original proceeding initiated under the Land Acquisition Act and converted as a proceeding under the State Act (hereinafter referred to as the first proceeding) was dropped by issuance of subsequent fresh notification under the Central Act on 25.11.1982. Therefore, it is not open for the respondents to re-open the first proceeding and to proceed to take possession so as to dispossess the petitioners. https://hcservices.ecourts.gov.in/hcservices/ 8.The next contention of the learned counsel for the petitioners is that there is a judicial order passed by the learned Single Judge of this Court in W.P.No.10312 of 1981 dated 28.01.1992 wherein this Court issued a mandamus to forbear the respondents from proceeding further under the State Act as per the first proceeding and when the said judicial order has not been challenged by the respondents, it is not open for the respondents to proceed under the State Act under the first proceeding to disturb the possession of the petitioners, as it would be in violation of the judicial order passed in W.P.No.10312 of 1981. 9. The next contention of the learned counsel for the petitioners is that the notification issued under Section 4(1) of the Central Act during the second proceeding on 25.11.1982 also cannot be proceeded with further in view of the fact that it is barred by limitation provided in the Act itself in Section 6. Therefore, relying on the second proceeding also, according to the learned counsel, no further action could be continued, so as to dispossess the petitioners. The learned counsel would further submit that the order of this Court in W.P.No.10312 of 1981 will not become automatically void under law. For this proposition, the learned counsel would rely on some judgments about which, I will make reference at the appropriate statges of this order. 10. The learned Government Advocate appearing for the respondents 1 and 2 would oppose all the above grounds. I would refer to his contentions as this order progresses further. 11. Let me now consider all the above grounds raised by the learned counsel for the petitioners together. There is no controversy before this Court that the first proceeding initiated under the Central Act was converted as a proceeding under the State Act as per Section 22 of the State Act and therefore, a notice under Section 4 (2) was issued to the land owners. It is also not in controversy that a publication was made under Section 4(1) of the State Act on 10.07.1980 itself thereby acquiring the land of the petitioners and award was also passed on 02.03.1981. It was only at that juncture, the Division Bench of this Court in Ananthi Ammal’s case (cited supra) struck down the State Act as unconstitutional. Quite naturally, the respondents could not thereafter, proceed under the State Act since in the appeal preferred before the Hon’ble Supreme Court in Ananthi Ammal’s case there was no interim stay granted. The Hon’ble Supreme Court ultimately set aside the judgment of the Division Bench on 22.11.1994 thereby declaring the constitutionality of the State Act. In the same judgment, the Supreme Court further directed that all proceedings initiated under the State Act, which were terminated because of the Division Bench judgment of the Ananthi Ammal’s case, will get revived. The relevant portion of the judgment of the Supreme Court is as follows:- https://hcservices.ecourts.gov.in/hcservices/ "18. Section 20 of the said Act states that the provisions of the land Acquisition Act, save as expressly provided in the said Act, shall cease to apply to any land which is required for the purpose specified in section 4(1) and such land shall be acquired only in accordance with the provisions of the said Act. Consequently, section 22 makes the provisions of the said Act applicable also to cases in which proceedings have been started before the commencement of the said Act under the Land Acquisition Act for the purpose of Harijan Welfare Schemes, provided that judgement under appeal striking down the said Act was delivered no award have been made under the Land Acquisition Act. We see no unreasonableness in this provision, particularly having regard to the terms of section 20. We must, however, take account the fact that the judgment under appeal striking down the said Act was delivered as far as back as September, 1981, and no stay thereof, was obtained from the court. It is likely, therefore, that in cases where proceedings under the Land Acquisition Act had already been started to acquire lands for Harijan Welfare Schemes, they might have been revived and completed in the interregnum. We, therefore, make it clear that the provisions of section 22 shall have no effect in such cases where awards have been made." 12.In view of the said law declared by the Hon’ble Supreme court, the first proceeding in the instant case whereunder a declaration was issued under Section 4(1) of the State Act got revived and therefore, after 22.11.1994, namely the judgment of the Hon’ble Supreme Court in Ananthi Ammal’s case, the authorities can very well proceed under the first proceeding. 13. It is not as though the judgment of the Hon’ble Supreme Court in Ananthi Ammal’s case is a prospective overruling. It is needless to point out that whether a judgment declaring law by the Hon’ble Supreme Court is prospective or retrospective, is a matter to be looked into in the very same judgment. Unless, the Supreme Court directs that the overruling is prospective, it shall have the effect of retrospective operation. For this proposition, I may refer to the following judgments of the Hon’ble Supreme Court. 14. In Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa (2) , (2009) 4 SCC 299 wherein the Hon'ble Supreme Court in para 50 has held thus:- https://hcservices.ecourts.gov.in/hcservices/ "50. We may also observe that the application of doctrine of prospective overruling in Rajasthan SRTC v. Krishna Kant (1995) 5 SCC 75 may not be correct because either a court has the requisite jurisdiction or it does not have. It is well settled principle of law that the court cannot confer jurisdiction where there is none and neither can the parties confer jurisdiction upon a court by consent. If a court decides a matter without jurisdiction as has rightly been pointed out in Rajasthan SRTC v. Zakir Hussain (2005) 7 SCC 447 in view of the seven- Judge Bench decision of this Court in A.R. Antulay v. R.S.Nayak, (1988) 2 SCC 602 the same would be nullity and, thus, the doctrine of prospective overruling shall not apply in such cases. Even otherwise doctrine of prospective overruling has a limited application. It ordinarily applies where a statute is declared ultra vires and not in a case where the decree or order is passed by a court/tribunal in respect whereof it had no jurisdiction. [See Golak Nath v. State of Punjab, AIR 1967 SC 1643] 15. In the aforesaid judgement, the Hon'ble Supreme Court has followed the earlier judgement in M.A.Murthy v. State of Karnataka, (2003) 7 SCC 517 wherein the Hon'ble Supreme Court in para 8 has held as follows:- "8. ....It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling." 16. Again in Rajasthan State Road Transport Corporation and another v. Bal Mukund Bairwa (2) , (2009) 4 SCC 299, the Hon'ble Supreme Court in para 52 has held as follows:- "52. As has been pointed by Justice Cardozo, in his famous compilation of lectures - The Nature of the Judicial Process, that in the vast majority of cases, a judgement would be retrospective. It is only where the hardship is too great that retrospective operation is withheld. A declaration of law when made shall ordinarily apply to the facts of the case involved." https://hcservices.ecourts.gov.in/hcservices/ 17.In view of the law reiterated in the above cases, the judgment of Ananthi Ammal’s case cannot be construed as a prospective overruling and therefore, the eclipse caused by the judgment of the Division Bench of this Court during the interregnum period would not in any manner affect the validity of the Act from the day one of its enforcement. It is needless to point out that under Section 20 of the Act, the Government cannot initiate any proceeding for acquiring properties for Harijan Welfare Scheme under the Land Acquisition Act, after the date of coming into force of the State Act. Therefore, in this case, the notification issued under Section 4(1) of the Central Act during the second proceeding on 25.11.1982 is void. But, what all that the learned counsel for the petitioners would contend is that since the order of the Division Bench in Ananthi Ammal’s case was in force as on 25.11.1992, the above said notification should be construed as a valid notice. It is on this premise, the learned counsel would submit that because the said notification dated 25.11.1992 is valid, the first proceeding cannot be revived as the same will stand automatically terminated. This argument cannot be countenanced at all for the simple reason, that as I have already stated, the judgment in Ananthi Ammal’s case will not amount to prospective overruling as the same is undoubtedly retrospective in operation. Therefore, I am sure to declare that the notification issued during the second proceeding under Section 4(1) of the Central Act on 25.11.1992 is void under law for all practical purposes and therefore, the respondents cannot proceed further in pursuance of the said notification. If that is once so held as void, then there is no question of automatic termination of the first proceeding which was continued under the state act. In this regard, the learned counsel would rely on the judgment of the Hon’ble Supreme Court in State of Punjab v. Gurdev Singh [AIR 1991 SC 2219] to say that unless it is declared by the Court in any proceeding that Section 4(1) notification issued during the second proceeding dated 25.11.1982 is void, the same will not automatically become void. In paragraph No.8, it has been held as follows:- “8.It will be clear from these princiles, the party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. If the statutory time limit expires the Court cannot give the declaration sought for.” 18. In my considered opinion, the law reiterated in the said judgment has got no application to the facts of the present case. That was a case where an order passed by the Executive Authority was sought to be assailed on the ground of voidability. But the Hon’ble Supreme Court in those circumstances, held that unless the said order https://hcservices.ecourts.gov.in/hcservices/ is declared as void by the Court on an approach made by the aggrieved party within the period of limitation, the same cannot be treated to be void automatically. But in the case on hand, Section 4(1) notification issued on 25.11.1982 under the Central Act by the authorities is void by operation of law namely Section 20 of the State Act. When the law by its operation declares an order as void, it does not require any further declaration from any Court. At this juncture, I may state that there is a vast difference between mere declaration made by a Court of law and an order setting aside the proceeding on the ground of voidability. In the former, it would be suffice if the Court declares a particular provision as void similarly, it would be suffice if the law itself declares a particular act or order as void. In these two circumstances, nothing more is required. But in the case of the latter, whether an order requires to be set aside on the ground of voidability unless the same is so done by the Court on an approach made by the aggrieved party, the said order would not automatically become void. It is on this distinction only, the Hon’ble Supreme Court in the above cited case has held that an executive order which needs to be set aside as void will remain in force unless the same is set aside by the Court. But in the instant case, as I have repeatedly referred to above, the notification made under Section 4(1) of the Central Act under the second proceeding on 25.11.1982 is void ab initio by operation of Section 20 of the Act. Therefore, the contention of the learned counsel in this regard is only to be rejected. 19. Now, let me come to the next contention of the learned counsel for the petitioners that so long as the order made in W.P.No.10312 of 1981 has not been disturbed, the respondents are bound by the same and so they cannot proceed further to go ahead under the first proceeding under the State Act. Of course, this argument, prima facie appears to be attractive. 20. But the learned Government Advocate has relied on two judgments, one from this Court and another from the Hon’ble Supreme Court, which clearly clarify the doubt, if any, regarding the said legal position. The first one is the judgment of this Court in Arunachalam v. The District Collector, Salem (1996(1) MLJ 63). That was a case where the proceedings initiated under the State Act were dropped as per the mandamus issued by this Court based on the judgment of the Division Bench in Ananthi Ammal’s case. There was no appeal preferred against the said judgment of the learned Single Judge by the Government. However, after the judgment of the Hon’ble Supreme Court in Ananthi Ammal’s case, when a contention was raised that the mandamus issued earlier by this Court will prevent the respondents from proceeding further under the State Act, Hon'ble Mr.Justice A.R. Lakshmanan [as he then was] disagreed with the said contention and held as follows:- https://hcservices.ecourts.gov.in/hcservices/ “19.Art.141 of the Constitution of India runs thus: “The law declared by the Supreme Court shall be binding on all courts within the territory of India.” All Courts in India are bound to follow the decision of the Supreme Court. In the instant case, a Division Bench of this Court allowed several writ petitions by a common judgment declaring the Tamil Nadu Act 31 of 1978 as unconstitutional but on appeal by the State, the Supreme Court upheld the validity of the said Act by setting aside the judgment of the High Court. The law declared by the Supreme Court would, in view of Art.141 of the Constitution be binding upon all the petitioners before the High Court and not merely one particular petitioner as against whom the State has preferred an appeal. As observed by the Supreme Court, the law laid down by the Supreme Court upholding the Validity of Tamil Nadu Act XXXI of 1978 will bind not only the parties before it but also other petitioners against whom the State had not filed any appeal, in view of the binding nature of the judgment of the Supreme Court under Art.141 of the Constitution. Therefore, I am of the view that the mandamus issued by a learned single Judge of this Court was rendered ineffective not only in one case but in all cases as a result of the Supreme Court verdict setting aside the common judgment of this Court. 20.As rightly pointed out by the learned Special Government Pleader, the Supreme Court by setting aside the common judgment of a Division Bench of this Court, has rendered the mandamus issued by a learned single judge of this Court ineffective not only in the case of the petitioners but in all other cases. The contention of Mr.K.Doraiswami, learned Senior Counsel for the petitioners, that the mandamus issued earlier reached its finality is fallacious. In this case, the Award has already been passed even in the year 1981 in all these cases and the proceedings for acquisition of the lands for providing house sites to Adi Dravidas were initiated only under special enactment viz., https://hcservices.ecourts.gov.in/hcservices/ Tamil Nadu Act 31 of 1978. The Supreme Court, in the judgment reported in State of Tamil Nadu v. Ananthi Ammal, (1995 (1) SCC 519), while upholding the validity o the Tamil Nadu Act of 1894 shall cease to apply to any land which is required for the purpose specified in Sec.4(1) of the said