Tamilnadu Housing Board v. Jaya Gurumurthy & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 06.02.2008Coram :THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANWrit Appeal No.1170 of 20071. Tamilnadu Housing Board, represented by its Managing Director, Anna Salai, Nandanam, Chennai 600 035.2. Executive Engineer & Administrative Officer, Madurai Housing Unit, Tamil Nadu Housing Board, Maderai 625 010.Appellantsvs.1. Jaya Gurumurthy2. The State of Tamilnadu, represented by its Secretary, Housing and Urban DevelopmentDepartment, Fort St. Georg, Chennai 600 009.3. The District Collector of Madurai District, Collectorate, Madurai.4. Special Tahsildar, Land Acquisition (South), Ellis Nagar Scheme, Madurai 625 020.RespondentsWrit Appeal filed under clause 15 of the Letters Patent againstthe order of the learned single Judge dated 10.04.2006 made in writpetition No.2589 of 2006 this petition presented to this Court underArticle 226 of the Constitution of India to issue a Writ of Mandamus,directing the respondents to deliver the possession of 5 1/2 cents ofHouse Site taken in pursuance of Section 4(1) Notification dated07.03.1979 and Section 6 Notification dated 25.03.1982 without anyencroachment in plot No.21 in S.No.6.1B/9 at Ponmeni Village, MaduraiTaluk, Madurai District along with the original sale deed thereof tothe petitioner https://hcservices.ecourts.gov.in/hcservices/ For appellants:Mr.K.ChelladuraiFor Respondents:Mr.N.Mani Narayanan (R1)Mr.A.Edwin Prabhakar,(R2 to 5)Government AdvocateJUDGMENT(Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.)This is an appeal filed by the Tamil Nadu Housing Boardquestioning the correctness of the order passed by the learned singleJudge dated 10.04.2006 made in writ petition No.2589 of 2006 directingthe Government and the Housing Board, respondents 1 and 2 respectivelyin the writ petition, to take appropriate action to evict theencroachers and deliver possession of the land in an extent of 0.06cents comprised in survey No.6 1B/9 at Ponmeni village, Madurai Taluk,Madurai District to the writ petitioner, within three months from thedate of receipt of the copy of the order. 2. That order came to be passed in the following circumstances :The first respondent's land in an extent of 0.06 cents in R.S. No.6,1B/9, Ponmeni village, Madurai Taluk, Madurai District had beenacquired by the Government for the Ellis Nagar Nieghbourhood schemeamong other lands under the provisions of the Land Acquisition Act. 3. The first respondent's mother filed writ petition No.8055 of1982 challenging the declaration under section 6 of the LandAcquisition Act before this Court and obtained a favourable orderquashing the declaration by order dated 07.04.1983. Subsequently, shefiled another writ petition in W.P. No.3109 of 1986 challenging the 4(1) notification and the same was quashed by this Court. TheGovernment and the Housing Board, after taking possession of the landsleft it to be encroached upon by certain persons. When the entireacquisition proceedings has been quashed by this Court, the Governmentas well as the Housing Board are duty bound to redeliver the landafter clearing encroachments. The learned single Judge by her orderimpugned in this appeal, has directed the respondents in the writpetition to redeliver possession of the land in question to the firstrespondent/writ petitioner. The correctness of the said order isquestioned in this writ appeal. 4. The learned Standing Counsel for the Housing Board contendedthat the acquiring body did not hand over the subject land to theHousing Board. When the land was not handed over to the HousingBoard, learned single Judge was wrong in directing the Housing Boardto redeliver possession of the land to the respondent. In order toestablish his case, the counsel produced transfer charge certificateissued by the Special Deputy Surveyor (L.A.) and Head Surveyor,Special Division, Ellis Nagar Scheme, Madurai dated 22.11.1982 whereinthe details of handing over of various survey numbers have been given.So far as the first respondent's land in survey No.6.1B/9 in an extent https://hcservices.ecourts.gov.in/hcservices/ of 0.06 cents is concerned, the charge certificate categoricallystates that as the land was covered by the writ petition before theHigh Court, possession of the land has not been handed over to theHousing Board. On that basis, the Housing Board contended that thedirection given by the learned single Judge directing the HousingBoard to re-handover the vacant land within the stipulated periodwithout any basis. When possession itself has not been handed over tothe Housing Board, directing the Housing Board to re-handoverpossession to the first respondent/writ petitioner is nothing but adirection to perform the impossibility.5. The Special Tahsildar, Southern Neighbourhood scheme has fileda solemn counter affidavit wherein in paragraph (g), it is stated thatthe 4th respondent had not taken possession of the land in question.Further, it is averred that the mother of the first respondent/writpetitioner filed a writ petition seeking for an order of mandamus inwrit petition No.3109 of 1986 to forbear the 4th respondent herein andhis employees and agents from interfering with her possession andenjoyment of the land in question and that writ petition was allowedby the High Court by its order dated 04.09.1997. The prayer in thewrit petition makes it manifestly clear that the land was and is underthe possession and enjoyment of the land owner, and was never takenpossession by the 4th respondent. As per the Land Acquisition Act,the property under acquisition vests with the Government only afterpassing award under section 11 of the Act. Though in respect of theproperty in question, award has been passed, possession has not beentaken under section 16 of the Land Acquisition Act. Even prior totaking possession under section 16 of the Act, the first respondent'smother filed a writ petition and obtained an order of injunctionpreserving her possession over the property. Ultimately, the writpetition had also been allowed and subsequently the writ petitionchallenging the 4(1) notification also came to be allowed. Whenpossession had not been taken, there is no obligation on the part ofthe Government to redeliver possession of the property which is underthe possession of the land owner. 6. Mr.Mani Narayanan, learned counsel for the firstrespondent/writ petitioner placed reliance on two documents to sustainthe order of the learned single Judge, one letter dated 17.01.2005from the Executive Engineer and Administrative Officer of the HousingBoard and the other by the Collector of Madurai dated 11.10.2005. Asper the letters, it is contended that it is obvious that possessionhas been taken by the Housing Board. Even the title deeds are withthe Government and hence, the order of the learned single Judgedirecting the Housing Board as well as the Government to handoverpossession of the property cannot be complained of, either by theHousing Board or by the Government.7. Heard the learned counsel on either side and perused thematerials available on record, particularly, the two letters on whichreliance has been placed by the learned counsel for the firstrespondent to contend that possession has been taken from her. https://hcservices.ecourts.gov.in/hcservices/

8. First, let us consider the statutory provision. Section 11 of the Land Acquisition Act, 1894 read as under :11. Enquiry and award by Collector .—(1) On the day sofixed, or on any other day to which the enquiry has beenadjourned, the Collector shall proceed to enquire into theobjections (if any) which any person interested has statedpursuant to a notice given under Section 9 to themeasurements made under Section 8, and into the value of theland at the date of the publication of the notification underSection 4, sub-section (1), and into the respective interestsof the persons claiming the compensation and shall make anaward under his hand of— ( i ) the true area of the land; ( ii ) the compensation which in his opinion should beallowed for the land; and ( iii ) the apportionment of the said compensation amongall the persons known or believed to be interested in theland, of whom, or of whose claims, he has information,whether or not they have respectively appeared before him: Provided that no award shall be made by the Collectorunder this sub-section without the previous approval of theappropriate Government or of such officer as theappropriate Government may authorise in this behalf: Provided further that it shall be competent for theappropriate Government to direct that the Collector maymake such award without such approval in such class ofcases as the appropriate Government may specify in thisbehalf. (2) Notwithstanding anything contained in sub-section(1), if at any stage of the proceedings, the Collector issatisfied that all the persons interested in the land whoappeared before him have agreed in writing on the matters tobe included in the award of the Collector in the formprescribed by rules made by the appropriate Government, hemay, without making further enquiry, make an award accordingto the terms of such agreement. (3) The determination of compensation for any land undersub-section (2) shall not in any way affect the determinationof compensation in respect of other lands in the same localityor elsewhere in accordance with the other provisions of thisAct. (4) Notwithstanding anything contained in theRegistration Act, 1908 (16 of 1908), no agreement made undersub-section (2) shall be liable to registration under thatAct. https://hcservices.ecourts.gov.in/hcservices/ Section 16 of the Act read as under :16. Power to take possession :When the Collector has made an award under section 11,he may take possession of the land, which shall thereuponvest absolutely in the Government free from all encumbrances.As per the provision only after passing an award under section 11 ofthe Act, the Collector is empowered to take possession of the land,which was subject matter of the acquisition, under section 16 of theLand Acquisition Act. In this case, the award came to be passed on25.03.1982. But the first respondent filed writ petition No.8055 of1982 and obtained an order of interim injunction on 01.10.1982preserving her possession over the land. In the affidavit it wasaverred that the first respondent was in possession. Hence,possession of the land has not been taken from the firstrespondent/writ petitioner. Subsequently, not only the writ petitionchallenging the declaration under section 6 of the Act was allowed on07.04.1983, but also the writ petition challenging the 4(1)notification was also allowed on 04.09.1997. It is obvious from theprayer and the solemn affidavit filed in support of W.P. No.3109 of1986 that possession of the subject land was only with the firstrespondent. 9. Now let us consider the two letters. The first letter is onewritten by the Executive Engineer and Administrative Officer, MaduraiHousing Unit dated 17.01.2005. From the letter is obvious that theDistrict Collector forwarded a petition received by him from oneGurumurthy. While disposing of the said petition, the ExecutiveEngineer referred to about the acquisition proceedings initiated inrelation to the land in question and informed him as the land was thesubject matter of writ proceedings, it was not handed over to theHousing Board and further informed the said Gurumurthy to approach theSpecial Tahsildar (L.A.) South Neighbourhood Scheme. The other letteris dated 11.10.2005 from the District Collector, Madurai to theGovernment Secretary of Housing and Development. From this letter itis evident that the District Collector informed the Secretary toGovernment that one Jaya Gurumurthy has sent a petition to the effectthat the writ petition filed challenging the acquisition proceedingshas been allowed by the Court and that she may be furnished with noobjection certificate and the title deed in respect of the subjectproperty may be returned to her, and the same may be granted.10. On the entire reading of the letter, we are of the view thatthe letter cannot be regarded as one which acknowledged receipt oftitle deed either from the first respondent or from the first https://hcservices.ecourts.gov.in/hcservices/ respondent's mother. By referring to the statement made by the firstrespondent in her letter, the Collector has requested the Governmentto issue no objection certificate and return the original title deedto the first respondent. Likewise, the other letter of the ExecutiveEngineer, Madurai dated 17.01.2005 referred by the learned counsel forthe first respondent to contend that possession in respect of thesubject land has been taken by the Government, cannot be regarded asone indicating that possession has been taken by the Government. Inthe first paragraph of the letter only the land acquisitionproceedings initiated for acquiring the first respondent's land byissuance of 4(1) of the Act has been referred to. The same cannot beunderstood that the possession of the land has been taken by theHousing Board.11. Whatever be the position, now that the proceedings initiatedagainst the first respondent's land has been held to be invalid bythis Court in more than one writ petition and that neither theGovernment nor the Housing Board has taken possession of the property,which is apparent from the filing of the writ petition No.3109 of1986, we are of the view that the order of the learned single Judgedirecting the Government and the Housing Board to redeliver thepossession is not legally sustainable. Accordingly, the order of thelearned single Judge is set aside. The writ petition is allowed.However, the Housing Board, the appellants herein and the Government,are hereby directed to issue a letter or certificate to the effectthat the first respondent's land in survey No.6 1B/9, Ponmeni village,Madurai Taluk, Madurai District has not been acquired by theGovernment. No costs. The connected miscellaneous petition isclosed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarmfTo1. The Managing Director, Tamilnadu Housing Board, Anna Salai, Nandanam, Chennai 600 035.2. The Executive Engineer & Administrative Officer, Madurai Housing Unit, Tamil Nadu Housing Board, Maderai 625 010. https://hcservices.ecourts.gov.in/hcservices/

3. The Secretary, State of Tamilnadu, Housing and Urban DevelopmentDepartment, Fort St. George, Chennai 600 009.4. The District Collector of Madurai District, Collectorate, Madurai.5. Special Tahsildar, Land Acquisition (South), Ellis Nagar Scheme, Madurai 625 020.1 cc To Mr.N.Mani Narayanan, Advocate, SR.6063.1 cc To Mr.K.Chelladurai, Advocate, SR.5972.1 cc To The Government Pleader, SR.5921.W.A. No.1170 of 2007 AKR(CO)RVL 15.02.2008