The Tamil Nadu Housing Board v. The Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 16.07.2009CORAMTHE HONOURABLE MR. JUSTICE D.MURUGESANANDTHE HONOURABLE MR.JUSTICE K.VENKATARAMANW.A.No.1522 of 2007 The Tamil Nadu Housing Boardrep.by its Member SecretaryChennai 600 006..Appellant(2nd Respondent in WP)-Vs-01. M.Kirubakaran02. M.Meera03. M.Selvi04. M.Premavathi05. M.Geetha06. M.Bharathi07. M.Ramakrishnan08. M.Rajalakshmi09. M.Shanthi10. M.Vijayalakshmi11. Vijayalakshmi Venkataramani12. The Government of Tamil Nadu rep.by its Secretary Housing & Urban Development Department Fort St.George Chennai 600 00913. M/s Ramcons (India) Properties Pvt. Ltd., rep.by its Managing Director K.Ramanujam No.143, Kodambakkam, Nungambakkam Chennai 600 034 (R13 impleaded as party respondent vide order of Court dt. 20.4.09 made in M.P.No.1/09).Respondents/ Petitioners &1st Respondent in WPAppeal filed under Clause 15 of the Letters Patent against theorder dated 30.08.2007 made in W.P.No.87 of 2006.WP 87/2006:Writ Petition praying to issue a writ of Certiorarified Mandamus https://hcservices.ecourts.gov.in/hcservices/ calling for the records relating to the impugned proceedings of the1st respondent in Letter No.2702/LA.2(1)/2005-2 dated 13.12.2005quash the same and direct the 1st respondent to transfer 77 cents ofland comprised in Survey No.87/1 of Thiruvanmiyur Village, Chennai 41to the petitioners herein.

For Appellant::Mr.P.S.RamanAdditional Advocate Generalassisted by Mr.D.VeerasekaranFor Respondents::Mr.C.Kanagaraj for R1 to R8Mr.K.Muthuramalingam for R9 to R11Mr.J.Raja KalifullahGovernment Pleader for R12Mr.A.ThiyagarajanSenior Counsel forMr.S.Rameshkumarfor R13JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN, J.) An extent of 96.92 acres of land was notified for acquisitionunder Section 4(1) of the Land Acquisition Act vide G.O.Ms.No.1096,Housing & Urban Development Department dated 17.7.78 for theformation of Besant Nagar Extension Phase-II Scheme. The proposedland was conveniently divided into five blocks. After the conduct of Section 5-A enquiry, Section 6 declaration was made and ultimately anaward was passed. The land belonging to the respondents 1 to 11 inan extent of 0.77 acres registered in the name of one ThiruK.Munusamy was also notified and ultimately an award was passed inrespect of the said land also. The possession of the land was alsotaken and was handed over to the Tamil Nadu Housing Board on 30.10.86for the purpose of the proposed housing scheme. There is no disputethat the acquisition proceedings have become final.

We are concerned only with an extent of 0.77 acres in SurveyNo.87/1 belonging to the respondents 1 to 11. It appears that someof the lands acquired under the same scheme were re-conveyed on theapplications being filed under Section 48-B of the Act. However, when a similar application was made by the respondents 1 to 11, thesame was rejected by the order dated 13.12.2005. The said order wasput in issue in the writ petition and the writ petition came to bedisposed of after quashing the impugned order and remitting thematter back to the Government to consider the application filed bythe respondents 1 to 11 and to pass orders after giving opportunityto them. That order came to be passed on the specific grievance ofthe respondents that except the land of the respondents, the otherlands were re-conveyed to the respective land owners.

Questioning the said order, the present appeal is filed atthe instance of the Tamil Nadu Housing Board. https://hcservices.ecourts.gov.in/hcservices/

We have heard Mr.P.S.Raman, learned Additional AdvocateGeneral assisted by Mr.D.Veerasekaran, learned counsel for theappellant-Housing Board, Mr.C.Kanagaraj, learned counsel for therespondents 1 to 8, Mr.K.Muthuramalingam, learned counsel for therespondents 9 to 11, Mr.J.Raja Kalifulla, learned Government Pleaderfor the respondent no.12 and Mr.A.Thiyagarajan, learned seniorcounsel for the impleaded respondent no.13.

The writ appeal raises the following two issues: (i) In an application under Section 48-B, whether the Governmentis bound to re-convey the unutilized land to the land owner as amatter of right or not?(ii) Whether the exemption granted in favour of some of the landowners would automatically enure the other land owners as well toclaim such benefit?6. Point No.(i): As far as the right of a land owner to seek forre-conveyance of the unutilized land as a matter of right, we mayusefully refer to the Division Bench judgment of this Court inR.Shanmugam and others v. The State of Tamil Nadu rep.by itsSecretary, Housing & Urban Development Department, Chennai andohters, 2006 (4) CTC 290. That was also a case where the acquisitionwas for the proposed construction of housing units by the Tamil NaduHousing Board. The land remained unutilized for quite some years andan application under Section 48-B was made. While considering theright of a land owner, this Court, having regard to the introductionof Section 16-B by the Tamil Nadu Amendment Act 16 of 1997 empoweringthe Government to re-possess the land from the Tamil Nadu HousingBoard in the event of the land having remained unutilized, held thatsuch a power could be exercised by the Government to re-possess theland from the Tamil Nadu Housing Board and on such re-possession, theland shall vest in the Government free from all encumbrances. Oncethe land vested in the Government, it has to be dealt with by the Government to explore the possibility of using the land for anypublic purpose at the first instance. In the event the Government isof the view that the land is not required for any other publicpurpose, thereafter, it has to be sold in public auction. Only if the Government could not do so, the claim of the owner for re-conveyancecould be considered. However, such consideration cannot be made inan arbitrary manner, but on acceptable grounds. In view of the saidlaw, the claim of the owners for re-conveyance, though not automatic, should be considered and could be rejected on reasonable grounds.

Point No.(ii): The grievance of the respondents 1 to 11 isthat some of the lands acquired for the very same scheme have beenre-conveyed, but the same benefit has not been given to them In thiscontext, it is to be noticed that after the acquisition of the landin question, the Tamil Nadu Housing Board started to implement thescheme and prepared a layout and the said plan was also approved bythe Chennai Metropolitan Development Authority in their letter dated6.8.2004. Necessary gift deed was also sent to the Corporation of Chennai for its approval on 14.2.2005. The scheme suggested forconstruction of 40 HIG flats, 20 HIG flats, 16 HIG flats and 32 HIG https://hcservices.ecourts.gov.in/hcservices/ flats in four pockets and the same were allotted to the public. Under these circumstances only, the request of the respondents 1 to11 for re-conveyance was not considered by the Government and thesame was communicated in the executive order dated 13.12.2005.Insofar as the grant of exemption to certain lands and the failure toextend such benefit to the land belonging to the respondents 1 to 11,we may usefully refer to the judgment of the Supreme Court in AnandButtons Ltd., etc v.

In view of the categorical pronouncement of the Supreme Courtand coupled with the fact that the lands were developed forimplementation of the scheme as such, we do not find any merit in thedirection for remitting the matter to the authorities for re-consideration solely on the ground that some other land owners havegot back their land and the respondents 1 to 11 alone are denied suchbenefit. In view of our finding, no useful purpose would be served https://hcservices.ecourts.gov.in/hcservices/ in remitting the matter for consideration by the Government solely onthe ground that some of the lands have been exempted and were re-conveyed to the land owners and such a benefit has not been extendedto the respondents 1 to 11.