A.N.Muthusamy v. The State of Tamilnadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:16.04.2009CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIANDTHE HON'BLE MRS.JUSTICE ARUNA JAGADEESANWRIT APPEAL NO.1428 of 2008A.N.Muthusamy.. Appellantvs.1. The State of Tamilnadu rep. By the Secretary to Government Housing Department Fort St.George, Chennai 9.2. Tamil Nadu Housing Board Nandanam, Chennai rep. By its Chairman.3. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai 600 035... RespondentsWrit Appeal is filed under Clause 15 of the Letters Patentagainst the order of the learned single Judge made in W.P.No.456 of2004 dated 29.10.2008, filed under Article 226 of the Constitution ofIndia, calling for the records in proceedings bearing Letter No.LAI(1)/21279/91, dated 30.10.2003 on the file of the 3rd respondent andto quash the same and direct the 2nd and 3rd respondents to allot aplot to the petitioner under "Owners Category" as per the directionsof this Honourable Court in WP.3743 of 1983 dated 31.01.1991 from theland acquired from the petitioner and not utilised for the scheme forwhich it was acquired and remaining vacant till date.For appellant: Mr.P.ValliappanFor respondents: Mr.R.Thirugnanam, Spl.Govt.Pleader for R.1 Mr.K.Chelladurai for R.2 & R.3 https://hcservices.ecourts.gov.in/hcservices/ JUDGEMENTP.JYOTHIMANI,J.The above appeal is against the order of the learned Judge dated29.10.2008 passed in W.P.No.456 of 2004, by which the learned Judgedismissed the writ petition filed by the petitioner challenging theimpugned proceedings of the Tamil Nadu Housing Board dated30.10.2003, by which the Tamil Nadu Housing Board has rejected theclaim of the writ petitioner/appellant, for allotment of a plot inthe land acquired from him on the basis that there was no Scheme tothat effect, however, considering the request of the appellant,accepted to allot a flat of his choice anywhere in the Madras Cityfor residential purpose.2. It is stated that 17 cents of land, which was purchased bythe appellant on 21.12.1981 was acquired from his vendors under theprovisions of the Land Acquisition Act by issuance of Section 4(1)notification on 26.03.1975 and Section 6 declaration on 23.03.1978.It was after the Section 6 declaration but before the award came tobe passed on 30.03.1983, the appellant purchased the property on21.12.1981 from his vendors, against whom the land acquisitionproceedings were initiated. It is also not in dispute that after theSection 6 declaration the appellant participated in the proceedingsunder Section 9-A of the Act and ultimately, an award was passed on30.03.1983, in favour of the appellant, and he received thecompensation in respect of the property. The appellant relies uponthe earlier writ petition filed by him in W.P.No.3743 of 1983challenging the acquisition proceedings, wherein this Court, whiledismissing the writ petition by order dated 31.01.1991, issuedcertain directions, as follows:"... Hence, there are no merits in the writ petition and ishereby dismissed. However, it is seen from the counteraffidavit that the respondents have state4d that as andwhen the acquisition proceedings are over, the claim madeby the petitioner for allotment of suitable plot underowner category, will be considered. Accordingly, therewill be a direction that as and when such an application ismade by the petitioner for allotment of suitable plot underowner category, the same will be considered on merits inaccordance with law. "3. After the dismissal of the said writ petition, the appellanthad made representations, which were not considered, resulting in theappellant filing another writ petition, viz., W.P.No.17931 of 1991,which was disposed of by this Court by order dated 08.01.1992, withdirection to the Tamil Nadu Housing Board to consider the claim of https://hcservices.ecourts.gov.in/hcservices/ the petitioner in his representation dated 01.10.1991, which was madeas per the direction given by this Court in the earlier writpetition. 4. It is the case of the appellant that thereafter, he madeseveral representations, but the Housing Board has not passed anyorders. In the meantime, it appears that the appellant has filedW.A.No.1478 of 1992 against the original order passed in W.P.No.3743of 1983 and the appeal came to be dismissed by a Division Bench ofthis Court in the judgment dated 27.10.1992. While dismissing theabove said writ appeal, the Division Bench has held that no prejudiceis caused to the appellant, since a direction has already been givenby a learned Judge that the appellant should be considered forallotment of suitable plot under the "owner category". The followingis the operative portion:-"I am to state that as per the existing allotmentprocedure, there is no provision to allot a plot house toan ex-land owner. However, the Board has considered yourrequest and approved to allot a flat of your choice anywhere in the city available for your residential purposesubject to payment of cost.""5. Thereafter, on many representations made by the petitioner,the Housing Board has passed the order dated 30.10.2003, which isimpugned in the writ petition. In the said order, the Housing Boardhas stated that while acquiring the lands there was no Schemeprovided for allotment of plot in the same property to the erstwhileowners. However, as stated above, the Tamil Nadu Housing Board, therespondent herein, has informed the appellant that he may be allotteda flat of his choice in the city of Madras for his residentialpurpose. The learned Judge having found that there was no Scheme atthe time of acquisition for providing plot to the erstwhile ownersand also having concluded that the appellant himself has not resortedto section 48B of the Land Acquisition Act for reconveyance,dismissed the writ petition. 6. The learned counsel for the Tamil Nadu Housing Board has nowstated that apart from the fact that there was no Scheme contemplatedat the time of acquisition of land for providing land to theerstwhile owners, 17 cents of land, which was acquired and which isthe subject matter of dispute in this proceedings, has already beenallotted to third parties after obtaining approval of lay out fromthe competent authorities and therefore, the petitioner's rightunder section 48B cannot also be considered.7. The law is well settled that when there is acquisition ofproperty under a Scheme, unless the Scheme provides for allotment ofland to the erstwhile owner in the same area in which the propertywas acquired, there is no possibility for considering the claim made https://hcservices.ecourts.gov.in/hcservices/ by the erstwhile owner that property in same area should be allottedto him. In any event, it is not the case of the appellant himselfthat the acquisition was on the basis of a Scheme. Further, it isnot possible to accept the contention of the learned counsel for theappellant that in spite of his purchase in the year 1981, theappellant has suffered enormous loss. It is not as if the appellanthas not been granted compensation as per the Land Acquisition Actafter the acquisition was made. 8. In such view of the matter, there is no reason to interferewith the order of the learned Single Judge. However, as submittedby the learned counsel for the appellant, it is seen in the impugnedorder of the Housing Board itself that the Housing Board is alwayswilling to allot a flat of the choice of the appellant for hisresidential purpose. It is therefore made clear that the HousingBoard shall consider the claim of the appellant in the allotment of aflat/plot to the petitioner of his choice as per the existing costand Rules of the Board and pass appropriate orders. With the above clarification, the writ appeal is dismissed. Nocosts. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarkhTo1. The Secretary to Government State of Tamilnadu Housing Department Fort St.George, Chennai 9.2. The Chairman Tamil Nadu Housing Board Nandanam, Chennai. 3. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai 600 035.1 cc To Mr.K.Chelladurai, Advocate, SR.14926.1 cc To Mr.P.Valliappan, Advocate, SR.14902.1 cc To The Government Pleader, SR.15390. WRIT APPEAL NO.1428 of 2008BVN(CO)RVL 29.04.2009