Madrasdated High Court · 2015

For Respondents:Mr.S.Gomathinayagam Addl.Advocate Generalassisted by Mr.M.S.Ramesh Addl.Govt. Pleader for R1Mr.R.V.Babu, H.B., for R2 & R3* * * * *O R D E RReserved on :12.12.2014Pronounced on:05.01.2015The prayer in the writ petition is for issuance of a writ ofcertiorarified mandamus to quash the impugned order, dated08.03.2013, passed by the third respondent and consequently todirect the respondents to reconvey the petitioner's land, comprisedin S.Nos.82/7 & 8 of Ayyamperumalpatti Village, Salem Taluk &District, measuring an extent of 0.87 Acres to the petitioner.The short facts of the case are as follows:2. The petitioner submits that he is having own land comprisedin Survey Nos.82/7 & 8, Ayyamperumalpatti Village, Salem Taluk andDistrict. In the year 1981, the Tamil Nadu Government acquired hisland to the extent of 0.87 Acres for the purpose of impleading theHousing Scheme i.e., construction of houses by the Tamil NaduHousing Board and in this connection the Government issued a 4(1)notification vide G.O.Ms.No.455, Housing and Urban DevelopmentDepartment, dated 23.06.1981, after that under Section 6 of the LandAcquisition Act, a declaration was published vide G.O.Ms.No.538,Housing and Urban Development Department, dated 07.07.1984, butsubsequently after a lapse of two years the award has been passed on23.09.1986 in Award No.07 of 1986-1987.3. Further, he submits that after acquisition of his landduring 1981, the Housing Board not at all implemented any scheme forconstruction of houses in his land and till today he is inpossession of the said land. Since he is an agriculturist, he isnot fully aware of the land acquisition proceedings as well as theprovisions of the Land Acquisition Act and after consulting law knowledgeable persons he came to understand that he should ask for re-conveyance and he should make a written representation under Section48-B of the Land Acquisition Act instead of sending writtenrepresentation for exclusion of his land from Land AcquisitionProceedings. https://hcservices.ecourts.gov.in/hcservices/

4. The petitioner further submits that he came to understandthat the Honourable Supreme Court and this Court were pleased topass orders with regard to re-conveyance of the land to the originalowners on the ground that if the Government or Housing Board has notimplemented the housing scheme for more than 15 to 20 years, thenthe land owners can be entitled to get the relief under theprovisions of the Land Acquisition Act specifically under Section48-B of the Land Acquisition Act.5. Further, he submits that the respondents may be aware thatthis Court was pleased to pass an Order in a batch of writ appealsin W.A.Nos.422 of 2011 etc., dated 14.09.2011 with regard to re-conveyance of land, wherein it is observed that:“It is seen that these batch of writpetitions are not the first set of cases, whichwere decided by this court, challenging the sameacquisition proceedings. It appears that thefirst batch of writ petitions were filed during1994, being W.P.No.12201 of 1994 etc., challengingthe Section 4(1) notification, the writ petitionswere disposed of by a common judgment, dated20.03.2001, by observing that it may not be properfor the State Government, to spent huge publicmoney for the acquisition proceedings, to acquirethe lands of the petitioners therein withsuperstructure and keep the land idle, if thescheme could not be successfully implemented.Therefore, this Court permitted the petitionerstherein to approach the Government seekingexemption or reconveyance. Another batch of caseswere filed during 1996 in W.P.Nos.9747 to 9749 of1996, challenging the notification issued underSec.4(1) and Section 6 of the Act and thenotifications were set aside, with the furtherobservation that the Government will take intoaccount ground realities before proceeding withthe acquisition. The other writ petitionchallenging the same acquisition proceedings inDr.N.Natarajan vs. Government, TNMANU/TN/0526/2020 was allowed and the notificationwas quashed. In Chinnayyagounder v. State ofTamil Nadu, 2003 (2) MLJ 481, the challenge was tothe same acquisition proceedings and the writpetition was allowed and the acquisition wasquashed. While allowing the said writ petition, https://hcservices.ecourts.gov.in/hcservices/ the Court took note of the fact that they wereapproved layouts and even as per the policy of theGovernment, those lands are not to be acquired.It is seen that the Division Bench of this Courtin more than one decision has quashed the landacquisition proceedings in respect of the samescheme. In Arumuga Gounder vs. State of TamilNadu, reported in MANU/TN/7522/2006, the Hon'bleDivision Bench presided by Justice P.Sathasivam(as he then was) observed that the entireKalapatti Neighbourhood Scheme has not beenimplemented till date and several orders have beenpassed by this Court, quashing the acquisitionproceedings. In M.Muraisamy vs. State of TamilNadu, reported in 2007 (3) MLJ 288, anotherDivision Bench of this Court quashed anotification in respect of the same scheme andobserved that it is not in dispute that the entireKalapatti Neighbourhood Scheme has been dropped inview of the several orders passed by the Court.In Tmt.Leelavathi vs. State of Tamil Nadu,reported in MANU/TN/0586/2008 and in Dhandapaniand another v. State of Tamil Nadu, 2008 (5) MLJ1416, the learned Single Judges of this Court havequashed the notifications and took note of thefact that the entire Kalapatti NeighbourhoodScheme has been dropped. Therefore, we have nohesitation to hold that the learned Single Judgewas perfectly justified in following the earlierDivision Bench Judgment and allowing the writpetitions, wherever prayer was made for quashingthe acquisition proceedings.As noticed above, in the earlier batch ofAppeals, this Court, after taking note of thedecisions in Writ Petition Nos.12201 of 1994 etc.,batch dated 20.03.2001, Dr.N.Natarajan vs.Government, TN MANU/TN/0526/2010, Chinnayyagounderv. State of Tamil Nadu, 2003 (2) MLJ 481, ArumugaGounder vs. State of Tamil Nadu, reported inMANU/TN7522/2006, M.Duraisamy vs. State of TamilNadu, reported in 2007 (3) MLJ 288, Tmt.Leelavathivs. State of Tamil Nadu, reported inMANU/TN/0586/2008, and in Dhandapani and anothervs. State of Tamil Nadu, 2008 (5) MLJ 1416,quashed the notification and held that the learnedSingle Judge was perfectly justified in allowingthe writ petitions by following the earlier https://hcservices.ecourts.gov.in/hcservices/ Division Bench Judgments.In that view of the matter, we have nohesitation to hold that the issues raised in thesebatch of appeals are squarely covered by theearlier decisions rendered by this Bench inW.A.Nos.252 to 255 of 2011, dated 16.08.2011 andalso taking note of the fact that there areseveral Division Bench decisions of this Court,quashing the Notifications in respect of the samescheme on identical grounds. Therefore, we see noreason to interfere with the Order passed by thelearned Single Judge in allowing the WritPetitions and also in another batch of WritAppeals in W.A.Nos.252 to 255 of 2011, dated16.08.2011 (2011) 5 CTC 503, were disposed infavour of the land owners and yet another Judgmentdelivered by the Division Bench of this Court byciting the Supreme Court Judgment made in the caseof Hariram vs. State of Haryana (2010) 2 CTC 336,regarding with re-conveyance to the originalowners passed orders in W.A.Nos.1652 of 2010 etc.,(2010 (5) CTC 261) whereby observed that if it isthe land not utilized for which purpose it wasacquired for a very long time then the land ownersare entitled to get an order from the Governmentfor re-conveying their land.”6. The petitioner further submits that in the saidcircumstances, he made a request before the first respondent to passorder under Section 48-B of Land Acquisition Act for re-conveyinghis land situated in Survey Nos.82/7 & 8, Ayyamperumalpatti Village,Salem Taluk and District, to the extent of 0.87 Acres of land tohim. In this connection, he made a written representation on21.01.2013 in that written representation, he expressed hisreadiness to pay whatever the necessary cost spent by the firstrespondent for acquisition proceedings. After receipt of the saidrepresentation, the third respondent, who do not have any power orjurisdiction to reject the petitioner's request as per Section 48-Bof the Land Acquisition Act only the Government alone i.e., thefirst respondent having power to pass orders under Section 48-B ofthe Land Acquisition Act. But, now the third respondent passed theimpugned order in his Letter No.LA.1/7337/79, dated 08.03.2013,whereby rejecting his request for re-conveyance of the said land.Hence, this writ petition has been filed.7. The third respondent Executive Engineer and Administrative https://hcservices.ecourts.gov.in/hcservices/ Officer, Tamil Nadu Housing Board has filed a counter statement andresisted the writ petition. He submits that the Tamil Nadu HousingBoard, Salem Housing Unit proposed for Housing Scheme in S.No.68/3etc., measuring an extent of 29.36 Acres including the petitionmentioned land in Survey Nos.82/7 and 82/8 in AyyamperumalpattiVillage, Salem Taluk and Salem District. The notification underSection 4(1) of the Land Acquisition Act, 1894 was approved inG.O.Ms.No.455, Housing and Urban Development Department, dated23.06.1981. The draft declaration under Section 6 of the LandAcquisition Act was approved in G.O.Ms.No.538, Housing and UrbanDevelopment Department, dated 07.07.1984. After completion of landacquisition proceedings, the award was passed by the LandAcquisition Special Tahsildar, Salem in Award No.7/1986-1987, dated23.09.1986. As per the award, the land is registered in the name ofGovindammal and Subramaniam and the award amount of Rs.36,229 andRs.35,194.55 has been deposited by the Land Acquisition Officerunder Sections 30 and 31(2) of the Land Acquisition Act to the Sub-Court, Salem, for the lands in Survey Nos.82/7 and 82/8respectively.8. He further submits that after passing the award, theacquired lands in Survey Nos.82/7 and 82/8 and some other acquiredlanded possession were taken over by the Land Acquisition SpecialTahsildar and handed over to the Tamil Nadu Housing Board, SalemHousing Unit, on 19.11.1986. After taking possession of theacquired lands, Patta was also transferred by the RevenueAuthorities in the name of Tamil Nadu Housing Board, Salem HousingUnit, under Patta No.446. The petitioner filed W.P.No.1488 of 1987before this Court challenging the acquisition proceedings and thesame was dismissed.9. Further, he submits that the petitioner is fully aware ofthe land acquisition proceedings as he had requested forreconveyance of the acquired lands. The Land Acquisition Officerpassed the award vide Award No.7/86-87, dated 23.09.1986 and thepossession of the acquired lands were taken over on 19.11.1986 andmutation of revenue records also done in the name of Tamil NaduHousing Board, Salem Housing Unit. The possession of the land hasalready been taken and Housing Scheme will be processed along withadjacent land in Survey No.82/6 shortly. The preparation of layoutis under process. Therefore, the lands in Survey Nos.82/7 and 82/8are essentially required for formation of Comprehensive HousingScheme. The petitioner had given a representation on 21.01.2013requesting re-conveyance of the acquired lands in Survey Nos.82/7and 82/8. The requisition was rejected by the first respondent. https://hcservices.ecourts.gov.in/hcservices/ The allegation of the petitioner that the third respondent rejectedthe petitioner's representation is false. The first respondent isthe superior of the third respondent, who rejected the petitioner'srepresentation and the same was communicated to him as theseacquired lands are essentially required for implementing theComprehensive Housing Scheme by the Tamil Nadu Housing Board, inthese circumstances re-conveyance of the above said lands is notpossible.10. The third respondent further submits that the Hon'bleSupreme Court in Tamil Nadu Housing Board v. Keeravaniammal, (CTC)447 SC, held that the Land Acquisition Act, 1894 under Section 48-Bwhere Award has been passed and possession has been taken, thecompensation payable under the award has been deposited. Therequest of the petitioner to reconvey the land is not consideredfavourably and rejected. No writ petition is filed challenging therejection of the representation to re-convey the land and no prayerof writ of certiorari to quash such rejection. Such order ofrejection becomes final. Further, it has been held that Section 48-B was introduced into the act only in the State of Tamil Nadu as anexception and such provision has to be strictly construedaccordingly and strict compliance with it's terms should be insistedupon.11. He further submits that in Mohammed Ibrahim vs. AnnavasalPanchayat Union, rep.by it's Chairman Annavasal and others, 2012 (2)CTC 389, this Court has observed as follows:“Application of Section 48-B will arise onlyif the requisitioning body did not use the landfor the purpose for which it was acquired”In the instant case, land had been put to use for the purpose forwhich it was acquired. Thus, invocation of Section 48-B of the Actfor re-conveyance of land would not arise in this situation.12. Further, he submits that in S.Balasubramaniam v. Secretaryto Government and another, reported in 2012 (4) CTC 510, this Courthas observed as follows:“As the value of the property has gone up.The petitioner attempts to get the property byabusing the process of Court, after a lapse of 60years. As the value of the properties is skyrocketing, the petitioner is trying his luck bythese proceedings and such a claim is not https://hcservices.ecourts.gov.in/hcservices/ sustainable in law. If the claims likepetitioner's, are entertained by this Court, itwill open a Pandora's box thereby many claims byerstwhile owners, whose properties were acquiredfor public purposes, would be made and it wouldnot be in the interest of public. The mattersalready reached finality about 50 years ago andthe same cannot be reopened. Rights of theparties already got crystallized long back and theneedle of the clock cannot be put in reverse. Theclaim itself is against the public interest, whichhas to be rejected in limini.”“When such is the position, the petitionercannot approach the respondents for reconveyanceof the land which was acquired over decades age.The attempt of the petitioner is nothing but anabuse of process of law. For having indulged inabuse of process of law and sought forreconveyance of the property, which was acquiredas early as 1949, the petitioner is liable to beslapped with very heavy cost. However, due tojudicial restraint, this Court is not awarding anycost. Accordingly, the writ petition is dismissedwith the above observations.”13. Further, he submits that the ex-land owner had givenrepresentation under Section 48(B) of the Land Acquisition Act, 1894on 21.01.2013 and the same was rejected by the first respondent on24.05.2013, on the ground that the land is essentially required forComprehensive Housing Scheme. The subject lands are acquired by theLand Acquisition Special Tahsildar, Salem, by an Award dated23.09.1986 and compensation amount has also been deposited into Sub-Court, Salem, under Sections 30 and 31(2) of the Land AcquisitionAct and the acquired lands possession also taken over on 19.11.1986and mutations of Revenue Records done in the name of Tamil NaduHousing Board, Salem Housing Unit under Patta No.446 and the ex-landowner filed W.P.No.1488 of 1987 before this Court and the same wasdismissed. Thereafter the petitioner had given a representation forre-conveyance of the acquired lands in Survey Nos.82/7 and 82/8, on21.06.2013 and the same was rejected by the first respondent on17.05.2013 stating that the acquired lands are necessary for HousingScheme along with other acquired lands. Therefore, this writpetition is liable to be dismissed in limini.14. The highly competent counsel Mr.C.Prakasam appearing forthe petitioner submits that the respondents had issued anotification in the year 1981 for acquiring the petitioner's land to https://hcservices.ecourts.gov.in/hcservices/ an extent of 0.87 Acres for the purpose of a Neighbourhood Scheme.After notification, a declaration was published on 07.07.1984 i.e.,after a lapse of two years and Award has been passed on 23.09.1986.As such, the third respondent has committed a lapse for acquiringthe said land. As on date the acquired lands are still vacant,hence the petitioner made a representation to the respondents underSection 48-B of the Land Acquisition Act, 1894 for reconveyance ofthe land in the name of the petitioner, the same was rejectedstating that the preparation of layout is under process and theacquired land is essentially required for formation of ComprehensiveHousing Scheme.15. The very competent counsel further submits that the landhad been acquired in the year 1984 and after acquiring the said landthe housing scheme had not been implemented, as such therespondents' proposal has been defeated. Further, the petitionerfiled a writ petition before this Court to consider hisrepresentation, dated 21.01.2013, and the same was considered bythis Court and directed the respondents 1 and 2 to consider thepetitioner's representation on merits. However, the saidrepresentation has not been disposed by the respondents 1 and 2 onmerits, after prior notice to the petitioner, as such, the impugnedorder passed by the third respondent is not suitable since it isfound inappropriate.16. The highly competent counsel, in support of his contention,has placed reliance upon the Judgment passed by the Hon'ble DivisionBench of this Court, dated 29.10.2014, in W.A.No.2254 of 2001,Varadaraja Naicker v. The Special Tahsildar (Land Acquisition) andanother and Order of this Court, dated 27.06.2014, W.P.No.10010 of2014, B.Rukmani and others v. The Member Secretary, C.M.D.A., andanother.17. In W.A.No.2254 of 2001, Varadaraja Naicker v. The SpecialTahsildar (Land Acquisition) and another, the Hon'ble Division Benchof this Court has observed as follows:“9.Since the lands in question belonging tothe appellant have not been taken possessionwithin 5 years, Section 24(2) of the Act wouldhave application and therefore, Land Acquisitionproceedings initiated against the appellant hereinshall be deemed to have been lapsed. That apart,in compliance of the judgment rendered by theConstitution Bench of the Hon'ble Supreme Court ofIndia (cited supra), the Government had withdrawn https://hcservices.ecourts.gov.in/hcservices/ the land acquisition proceedings in respect ofsome landowners in G.O.Ms.No.70, dated 01.03.2007and the appellant herein has also submitted arepresentation for withdrawal of land acquisitionproceedings and applying the Principle of Parity,he is also entitled for similar benefit, subjectto the condition that if he has received anycompensation, he shall be liable to remit the sameto the Government.10.In the result, this Writ Appeal is allowedand the order dated 30.07.1998 made inW.P.No.11697 of 1987 is set aside and the secondrespondent is directed to reconvey the lands inS.Nos.218/1B, 218/1B, 218/2B and 219/1, totallyadmeasuring 10.21 Acres situated in PotheriVillage, Chengalpattu District, to the appellantsubject to the condition that if the appellant hasreceived the compensation in terms of the AwardNo.7/1986, dated 17.09.1986, he shall remit backthe same within a period of six weeks from thedate of receipt of a copy of this order and ifnot, the second respondent is directed to re-convey the above said lands to the appellantherein within a period of twelve weeks from thedate of receipt of a copy of this Order. Nocosts. If the official respondents are of theopinion that the lands in question still requiredfor public purpose, they may do so by invoking theprovisions of the Right to Fair Compensation andTransparency in Land Acquisition, Rehabilitationand Resettlement Act, 2013.”18. In W.P.No.10010 of 2014, B.Rukmani and others v. The MemberSecretary, C.M.D.A., and another, this Court has observed asfollows:“12.The ratio decidenti laid down by theHon'ble Apex Court followed by the Division Benchas stated supra is squarely applicable to thefacts of the present case, wherein also, thecompensation which is not received by the landowners, is deposited in the Revenue account and isnot equated to “paid to the land owners or personsinterested”. In the present case, the award,having been passed before 20 years prior to newAct and the possession having not been taken andcompensation amount having not been deposited in https://hcservices.ecourts.gov.in/hcservices/ the court concerned, the acquisition proceedingsinitiated in respect of the land in question isdeemed to have lapsed.”Hence, the learned counsel prays this Court to allow this writpetition.19. The highly competent Additional Advocate General submitsthat the subject landed property had been acquired after observingnecessary legal formalities as per the old Act. The initialnotification had been issued in the year 1981 and a draftdeclaration was published under Section 6 of the Land AcquisitionAct, on 07.07.1984 and thereafter the award No.7/1986-1987, dated23.09.1986, was passed. At the time of initiating acquisitionproceedings, the subject land was registered in the name ofGovindammal and Subramanian. The award amount of Rs.36,229.98 andRs.35,194.55 have been deposited by the Land Acquisition Officerunder Section 30 of the Act to the Sub-Court, Salem.20. The very competent Additional Advocate General additionallysubmits that the acquired lands were handed over to the Tamil NaduHousing Board by the Special Tahsildar/Land Acquisition Officer.Therefore, all the records have been mutated in the name of TamilNadu Housing Board. The very same petitioner has filed a writpetition before this Court on an earlier occasion and the same wasdismissed on merits. Further, the preparation of the layout isunder process for implementing the Comprehensive Housing Scheme.Under such circumstances, the petitioner made a representationbefore the respondents for re-conveyance of the acquired land andthe same was rejected after assigning valid reasons.21. Further, the compensation amount had been deposited beforethe Sub Court, Salem and the same was intimated to the petitionerherein. The acquired landed property is absolutely required for theformation of Comprehensive Housing Scheme at Salem. The Patta alsotransferred in the name of Housing Board. The petitioner made arepresentation as an after-thought, hence the learned AdditionalAdvocate General entreats the Court to dismiss the writ petition.Since there is no lapse or shortcoming or lacuna for acquiring thesaid land under the old Act, the neighbourhood housing scheme is ofparamount importance.22. Per contra, the highly competent counsel Mr.C.Prakasamsubmits that the acquisition proceedings had been initiated by theLand Acquisition Officer in the name of the erst-while owner and not https://hcservices.ecourts.gov.in/hcservices/ in the name of the petitioner. Further, the compensation amount wasnot paid to the petitioner besides the petitioner is in possessionand enjoyment of the said property. The respondents sofar have notimplemented the said housing scheme. The draft declaration wasissued in the year 1984 and the award was passed in the year 1986.After a lapse of 28 years, the neighbourhood scheme has not beenimplemented, as such the petitioner's land is not absolutelyrequired for the said purpose. Further, the petitioner is inpossession and enjoyment of the said property. The Land AcquisitionOfficer had handed over the land only symbolically. As such theentire proceedings for acquiring the said lands acquires the stateof lapsing.23. From the above discussions, this Court is of the opinionthat:(i) The third respondent had acquired the said land inthe year 1984 after necessary notification, dated07.07.1984. The award was passed on 23.09.1986 inaward No.07 of 1986-1987 i.e., after a lapse oftwo years, as such the Land Acquisition Officerhad not strictly adhered to the land acquisitionproceedings as per the old Act. Therefore, thereis a lapse on the side of the respondents.(ii) The award amount had been deposited in thename of the erstwhile owner, but not to thepresent owner namely the petitioner herein as suchthe land acquisition proceedings is not properlyfollowed.(iii) The 4(1) notification was issued in the year1981 and declaration under Section 6 of the LandAcquisition Act was published in the year 1984 andaward was passed in the year 1986 and possessionwas taken over in the year 1986. As on date theComprehensive Housing Scheme has not beenimplemented, as such there is a huge delay i.e.,about 28 years for implementing the scheme and theacquired land is still vacant. Under suchcircumstances, the acquired land if re-conveyed tothe petitioner, the respondents will not beprejudiced or put into hardship or any otherirreparable loss, since the compensation amount islying in the Court custody.24. Considering the facts and circumstances of the case andarguments advanced by the learned counsels on either side and onperusing the typed set papers of both parties and the views (i) to(iii) mentioned above, this writ petition is allowed and the https://hcservices.ecourts.gov.in/hcservices/ impugned order, dated 08.03.2013, passed by the third respondent isquashed. Further, this Court directs the respondents to reconveythe petitioner's land situated in Survey Nos.82/7 & 8,Ayyamperumalpatti Village, Salem Taluk & District to the extent of0.87 Acres of land to the petitioner. Consequently, connectedmiscellaneous petitions are closed. No costs.Sd/-Assistant Registrar(J)//True Copy//Sub Assistant RegistrarkrkTo:1.The Secretary to Government, Housing and Urban Development Department, Fort St.George, Chennai-600 009.2.The Managing Director, Tamil Nadu Housing Board, Nandanam, Anna Salai, Chennai-35.3.The Executive Engineer /Administrative Officer. Tamil Nadu Housing Board. Salem Housing Unit. Salem-636 008.+1cc to mr.C.Prakasam, Advocate Sr 133+1cc to Mr.R.V.Babu, Advocate SR 314+1cc to Govt. Pleader SR 256BVR(CO)km/30.1.W.P.No.8743 of 2013