The Executive EngineerSpecial Division (II)Tamil Nadu Housing BoardKowli Brown RoadR.S.Puram, Coimbatore 2 v. I.Ravichandran (a) Ravi Sam2.Smt.Savithiri Sam3. The State

In the High Court of Judicature at MadrasDated:- 16.7.2009Coram :-The Honourable Mr.Justice D.MURUGESAN andThe Honourable Mr.Justice K.VENKATARAMANW.A.Nos.796 of 2008 and 378 of 2009 M.P.Nos.1 of 2008 and 1 of 2009 W.A.No.796 of 20081. The Managing DirectorTamil Nadu Housing BoardNandanam, Chennai 35.2. The Executive EngineerSpecial Division (II)Tamil Nadu Housing BoardKowli Brown RoadR.S.Puram, Coimbatore 2.... Appellants/Respondents 2&3 Vs.1. I.Ravichandran (a) Ravi Sam2.Smt.Savithiri Sam3. The State represented by the Commissioner and Secretary to GovernmentHousing and Urban DevelopmentDepartment, Fort St. George, Chennai 9. ... Respondents 1 & 2/Writ PetitionersW.A.No.378 of 2009 The State represented By the Commissioner andSecretary to GovernmentHousing and Urban DevelopmentDepartment, Fort St. GeorgeChennai 9.... Appellant/1st Respondent https://hcservices.ecourts.gov.in/hcservices/ Vs. 1. I.Ravichandran (a) Ravi Sam2.Smt.Savithiri Sam3.The Managing DirectorTamil Nadu Housing BoardNandanam, Chennai 35.4. The Executive EngineerSpecial Division (II)Tamil Nadu Housing BoardKowli Brown RoadR.S.PuramCoimbatore 2.... Respondents/1st & 2nd Petitioner/Respondents 2 & 3Prayer: Writ Appeals filed under Clause 15 of the LettersPatent against the order of the learned single Judge dated28.4.2008 made in W.P.No.5316 of 2006. WP.No.5316 of 2006: This Petition Presented to this Courtunder Article 226 of the constitution of India to issue of Writ ofCertiorarified Mandamus, to call for the records pertaining to theletter No.30488/LA3.3/2000, dated 17.8.2005 and 15.10.2005 of thefirst respondent, quash the same and consequently, direct the 1strespondent to exclude the lands in Survey Nos.46/2, 47/1, 48, 49,50, 51, 52, 53, 73/1, 2, 3, 74/1, 2, 3, 78, 79 & 89, totallymeasuring an extent of 19.04 acres situated in Sowripalayamvillage, Coimbatore taluk and district from acquisition and re-convey the same as has been done in respect of lands in Block II &III of the Uppilipalayam Neighbourhood scheme. For Appellants :- Mr.P.S.Raman, in W.A.No. 796 of 2008 Additional Advocate General for D.VeerasekaranFor appellant :- Mr.Mr.Raja Kalifullah, in W.A.No.378 of 2009 Govt. Pleader For Respondents :- Mr.Raja Kalifullah, in W.A.No. 796 of 2008 Govt. Pleader (R3)Mr.R.MuthukumarasamySenior counsel forMrs.Thenmozhi Shivaperumal (R1&R2) https://hcservices.ecourts.gov.in/hcservices/ For Respondents :- Mr.R.Muthukumarasamy in W.A.No. 378 of 2009 Senior counsel for Mrs.Thenmozhi Shivaperumal(R1&R2)Mr.D.Veerasekaran (R3 & R4)JUDGMENT(Judgment of the Court was delivered by D.MURUGESAN J.) The Writ appeal in W.A.No. 796 of 2008 is at the instanceof the Tamil Nadu Housing Board. The Writ appeal in W.A.No. 378 of2009 is at the instance of State. Both the writ appealsquestion the common order dated 28.4.2008 made in the writpetition in W.P.No. 5316 of 2006. By that order the writpetition was allowed by setting aside the impugned orders thereinand the Government was directed to exclude the lands insurvey numbers in question from the acquisition proceedings andreconvey the same in favour of the petitioners. 2. The controversy in the writ appeals arises under thefollowing circumstances:- An extent of 43.19 acres of land in S.No.46/2 etc., inSowripalayam Village, Coimbatore Taluk and District was notifiedunder Section 4(1) of the Land Acquisition Act for housingscheme. After considering the objection raised in 5A enquiry, adeclaration was made and ultimately the acquisition proceedingsculminated into one of an award and possession of land wastaken over and the same was handed over to the Tamil Nadu HousingBoard for implementing the scheme. The respondents earlierapproached this court in W.P.No. 6453 of 1991 questioning theacquisition proceedings and the writ petition came to be allowed.However, the appeal preferred at the instance of the State cameto be allowed on 14.2.1996. Hence, the acquisition proceedingsbecame final. No materials are placed before us that the order inthe writ appeal was questioned by way of further appeal.Thereafter, the respondents approached the Government with arequest to drop the acquisition proceedings insofar as theirlands are concerned. That request was rejected on 18.4.2000. Itwas again questioned by the respondents in W.P.No.8512 of 2000.This court while setting aside the said order remitted back thematter to the Government for fresh consideration. The respondentsagain approached this court by yet another writ petition inW.P.No.22200 of 2004 seeking for reconveyance of the lands. Byorder dated 11.9.2004, this court again directed the Governmentto consider their representations made in this behalf. By orderdated 17.8.2005, the Government rejected the request for https://hcservices.ecourts.gov.in/hcservices/ reconveyance on the ground that the Tamil Nadu Housing Board hadinformed the Government that the lands would be dealt with interms of Section 72 of the Tamil Nadu Housing Board Act 1961 andthe Tamil Nadu Housing Board did not give any consent forreconveyance. The respondents again made another representation,which was also rejected by the Government on 5.10.2005. Both theorders were put in issue before this court and by the order underchallenge in the writ appeal the learned Judge after settingaside the impugned orders had allowed the writ petition as statedearlier. Both the State and the Tamil Nadu Housing Board havecome up by way of present writ appeals. 3. We have heard Mr.Rajakalifullah, the learned GovernmentPleader appearing for the appellant State and Mr.P.S.Raman,learned Additional Advocate General assisted by Mr.D.Veerasekaran,the learned counsel appearing for the appellant Tamil NaduHousing Board and Mr.R.Muthukumarasamy, the learned Senior Counselappearing for the respondents. 4. The questions that arise for our consideration are asfollows:- (i) Whether in the given facts andcircumstances of the case, the respondents areentitled for reconveyance of the land especiallywhen the Government had not so far forfeited thelands in exercise of the power conferred underSection 16B of the Tamil Nadu Amendment Act to theLand Acquisition Act and (ii) Whether the reasons adduced by theGovernment in the impugned orders are justifiable ? 5. Point No.1. The Land Acquisition Act (Tamil NaduAmendment Act ) of 1996 (Act XVI of 1997) was enacted byinserting Sections 16A and Section 16B. By the same AmendmentAct Section 48-B was also introduced. Both the provisions read asunder:-Section 16-B Land to be forfeited in certaincases- Where the Government are satisfiedthat the land acquired under this Act for anypublic purpose as referred to in subsection(1) of Section 4 is not used for the purposefor which it was acquired, they may, by anorder, forfeit the land as penalty and theland shall vest in the Government in RevenueDepartment free from all encumbrances;provided that no order under this section,shall be made unless the person or authorityaggrieved has had a reasonable opportunity ofbeing heard. https://hcservices.ecourts.gov.in/hcservices/ 48-B Transfer of land to original owner incertain cases- Where the Government aresatisfied that the land vest in the Governmentunder this Act is not required for the purposefor which it was acquired, or for any otherpublic, the Government may transfer such landto the original owner who is willing to repaythe amount paid to him under this Act for theAcquisition of such land inclusive of theamount referred to in sub-section (1-A) and(2) of Section 23, if any, paid under thisAct."6. Factually, the lands in question were taken possession on20.11.1991. In terms of Section 16 of the Act, when theCollector has made an award under Section 11, he may takepossession of the land and once the possession is taken,thereupon the land shall vest absolutely in the Government freefrom all encumbrances. The wording "vesting in the Government"came up for consideration before the Division Bench of this courtin R.Shanmugam and others v. The State of Tamil Nadu rep.by itsSecretary, Housing & Urban Development Department, Chennai andothers, 2006 (4) CTC 290. 7. In the said Judgment, in paragraph 15, it has beenheld that the word "vest" used in Section 16 must includevesting of the land in Government not only in regard to titlebut also possession and the word "vest" used in Section 16 meansand includes not only conferring mere right to possess theland acquired by the Government but also confer title on it.There cannot be any difficulty that once the land is acquired forthe Housing Board , the Government is empowered to hand over theland to the Board for implementation of the scheme. Once the landis handed over to the Housing Board it shall be dealt with by theBoard in accordance with the provisions of the Tamil Nadu HousingBoard Act for the limited purpose of implementing the scheme. Incase, if the land is not used for the purpose for which it washanded over to the Housing Board, the Government in exercise ofthe power conferred under Section 16B is entitled to forfeit theland as penalty and once such exercise is made the land shallvest in the Government in Revenue Department free from allencumbrances. The provision of "vesting of land " ascontemplated under Section 16 and 16B are similar in meaning andtherefore the Government is free to deal with the said land as ifthe land does not belong to the Tamil Nadu Housing Board. 8. By the impugned order, the request of the respondentsfor reconveyance was rejected on two grounds viz., that in termsof Section 72 of the Tamil Nadu Housing Board Act 1961 the Board https://hcservices.ecourts.gov.in/hcservices/ has got right to deal with the property and there is no questionof either surrendering possession of the land to the Government orthe Government could exercise power under Section 16B of the Act.Further, the request was not considered on the ground that theconsent of the Board was not given for reconveyance of the lands.In our opinion both the above two reasons cannot be legallysustainable. In the very same judgment, in R.Shanmugam andothers Vs. The State of Tamil Nadu rep.by its Secretary, Housing &Urban Development Department, Chennai and others( 2006 (4) CTC290) the Division Bench also considered the word "vesting"employed in72 of the Tamil Nadu Housing Board . It has been heldthat the word "vest" employed in Section 72 of the HousingBoard Act, must be construed in the context it is used. Theobject of the Act is only to enable the Board to frame a Housingor Improvement Scheme and execute such a scheme . In the saidcontest, the word "vesting" may relate to title or possession forsome limited purpose of disposing of the same as contemplatedunder Section 72. The Government may forfeit the land aspenalty in case the land is not put in use by the Tamil NaduHousing Board for the purpose for which it was acquired underSection 16B of the Act. 9. Section 72 of the Housing Board Act cannot be pressedinto service by the Board. The amendment to the Central Act byinsertion of the Section 16B should over ride the provisions ofSection 72 of the Tamil Nadu Housing Board Act. Hence the reasonadduced in the impugned orders in the writ petition to reject therequest for reconveyance on the ground that Section 72 isavailable for Housing Board cannot be sustained. For the samereason for invoking Section 16B of the Act the consent of theBoard is absolutely immaterial for the Government. It is anindependent power vested in the Government to forfeit the landas penalty in case the land is not utilised by the Board for thepurpose for which it was acquired and handed over to the HousingBoard. On both the grounds the orders impugned in the writpetition cannot be sustained and they should be set aside.10. Point No.2:- This relates to the next contentionwhether by virtue of setting aside those orders, therespondents are entitled to reconveyance as a matter of right ?11. The procedure for acquisition of the lands forimplementation of the Scheme may be summarised as follows. TheBoard frames the scheme; makes a request to the Government forallotment of necessary land; in the event the Government issatisfied with the scheme and the approved plan submitted by theHousing Board, they initiate the acquisition proceedings and oncompletion of such proceedings and on taking possession, the landis handed over to the Housing Board for implementation of the https://hcservices.ecourts.gov.in/hcservices/ scheme. To this extent there is no difficulty as to the procedure.12. However, when the land so handed over to the HousingBoard is not utilised for the purpose for which it was acquiredtwo questions may arise, viz., Whether the Housing Board mayclaim that in the event the scheme for which the land wasacquired is not implemented it may resolve to deal with the landin terms of Section 72 of the Housing Board Act? In view of thejudgment in R.Shanmugam and others Vs. The State of Tamil Nadurep.by its Secretary, Housing & Urban Development Department,Chennai and others (2006 (4) CTC 290), in such contingency, theHousing Board cannot invoke Section 72. The other question wouldbe as to how such a land to be dealt with. The answer is Section16 B of the Tamil Nadu Housing Board Act. When once the StateGovernment is satisfied that the land so acquired and handed overto the Tamil Nadu Housing Board is not utilised for the purposefor which it was acquired it can forfeit the land as penalty andonce such exercise is made, the land shall vest in the Governmentin Revenue Department free from all encumbrances. When the landvests in the Government then how it should be dealt with hasalso been considered in the said judgment following the judgmentof the Apex Court in STATE OF KERALA VS. M.BHASKARAN PILLAI (1997(5) SCC 432) wherein the Apex Court has observed as follows:"The question emerges: whether theGovernment can assign the land to theerstwhile owners? It is settled law that ifthe land is acquired for a public purpose,after the public purpose was achieved, therest of the land could be used for any otherpublic purpose. In case there is no otherpublic purpose for which the land is needed,then instead of disposal by way of sale to theerstwhile owner, the land should be put topublic auction and the amount fetched in thepublic auction can be better utilized for thepublic purpose envisaged in the DirectivePrinciples of the Constitution." 13. Hence the land vests in the Government, in a casewhere possession is taken in terms of Section 16 or forfeitureof the land is made in exercise of the power under Section 16Bin Government. Once such vesting takes place, it shall be dealtwith only in accordance with the above guidelines of the ApexCourt. Therefore, even assuming that the reasons given in theimpugned orders in the writ petition are not sustainable, it forthe Government to first exercise the power in terms of Section16B and forfeit the land and only in such event an application48-B could be entertained for reconveyance. Even assuming that https://hcservices.ecourts.gov.in/hcservices/ the land is forfeited and is available for consideration of anapplication for reconveyance under Section 48B, the owner has noautomatic right for reconveyance . In that context, this Courtcould direct the Government to consider the above two aspects forthe purpose of dealing with the application, if any, filed byfor reconveyance under Section 48B. In the absence ofapplication of any of the provisions by the Government in orderto the vesting the land in Revenue Department, the land owner isnot entitled for a direction for reconveyance as has been done inthis case. On this score, the order in the writ petitiondirecting the Government for reconveyance of the lands inquestion is set aside and the writ appeals are disposed of withthe following directions. 14. The Government is entitled to invoke Section 16B of theTamil Nadu Amendment Act and on satisfying itself it can forfeitthe lands in question as penalty from the Housing Board. Inthe event the Government exercise the above power andconsequently the lands vests in the Government, the applicationfiled by the respondents for reconveyance under Section 48B ofthe Act shall be considered.Such consideration shall be donein accordance with the judgment of this Court made inR.Shanmugam and others Vs. The State of Tamil Nadu rep.by itsSecretary, Housing & Urban Development Department, Chennai andothers( 2006 (4) CTC 290) which was rendered by following thejudgment of the Apex Court in STATE OF KERALA VS. M.BHASKARANPILLAI (1997 (5) SCC 432) . Such exercise shall be completed bythe Government within a period of three months from today.Consequently, the connected M.Ps are closed. No costs.krr/Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Commissioner and Secretary to GovernmentHousing and Urban DevelopmentDepartment, Fort St. George, Chennai 9. https://hcservices.ecourts.gov.in/hcservices/

2. The Managing DirectorTamil Nadu Housing BoardNandanam, Chennai 35.3. The Executive EngineerSpecial Division (II)Tamil Nadu Housing BoardKowli Brown RoadR.S.Puram, Coimbatore 641 002.+ 1 cc to the Government Pleader, SR No.32100+ 1 cc to M/s. D. Veerasekaran, Advocate SR No.31766+ 1 cc to Mrs. Thenmozhi Shiva Perumal, Advocate SR No.31974SR(CO)SR/3.8.2009W.A.Nos.796 of 2008 and 378 of 2009