K.Sivakami v. The Secretary to Government Housing and Urban Development Department, Fort St.George Chennai – 600 009

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 4.11.2009CORAM: THE HONOURABLE MR.JUSTICE P.JYOTHIMANIW.P.No.21810 of 20091.K.Sivakami2.K.Mohan Kumar3.K.Senthil Nathan4.K.Suresh Kumar.. PetitionersVs.1. The Secretary to Government Housing and Urban Development Department, Fort St.George Chennai – 600 009.2. The Chairman Tamil Nadu Housing Board Nandanam, Chennai – 600 035.3. The District Collector Coimbatore District Coimbatore – 18.4. The Special Tahsildar Land Acquisition Housing Scheme Coimbatore – 18... RespondentsPRAYER: Petition under Article 226 of the Constitution of India forissue of a writ of Certiorarified Mandamus to call for the recordspertaining to the impugned letter No.17502/L.A.3(2)/09-3, dated13.10.2009, to quash the same and to direct the respondents toconsider the representation of the petitioners dated 27.11.2008.For Petitioners:Mr.D.KrishnakumarFor Respondents:Mr.R.Murali, Government Advocate for respondents 1, 3 and 4Mr.Vijayakumarfor 2nd respondent https://hcservices.ecourts.gov.in/hcservices/ ORDERThe writ petition is directed against the order of the firstrespondent dated 13.10.2009 under which the first respondent, relyingupon the letter of the second respondent dated 11.9.2009, hasrejected the claim of the petitioners made under Section 48-B of theLand Acquisition Act (for brevity, "the Act") for reconveyance of thelands comprised in Survey Nos.13/2, 13/3, 14/1A, 14/1B and 15/1 inVellakinar Village, Coimbatore District.2. The factum of acquisition of the said lands along withvarious other lands by the Government for the benefit of the secondrespondent is not in dispute. It is stated that the award was passedin respect of these lands on 28.9.1998 in Award No.4 of 1998 and itis the case of the second respondent that possession has been takenon 30.10.1998. It is the case of the petitioners, who are the ownersof the above lands which were acquired along with larger extent ofproperties in the adjacent survey numbers, that the lands acquired,including that of the petitioners, are not used for the purpose forwhich it was acquired and according to the petitioners, even thoughvarious issues are raised about the legality or otherwise of theenquiry conducted under Section 5A of Act, the lands have been keptvacant for many years.3. In the application filed by the petitioners under Section48-B of the Act requesting for reconveyance of agricultural landsmeasuring an extent of 2.83.0 Hectares, the petitioners havespecifically stated that many of the adjacent lands comprised invarious survey numbers have been deleted from the land acquisitionproceedings and restored to the land owners. The specific plea takenby the petitioners in the said application in this regard is asfollows:"We also have come to know that the following landsadjacent to our lands namely, Survey Nos.10/1, 10/2,15/2, 60, 61, 62/1, 63, 64, 65, 66, 67/1, 68/1, 69/1, 2,72, 73, 74, 75, 37, 38, 39, 90, 91, 92 and 93, 94, 95,96, 97, 98, 99, 100, 101 and 102 in VellakkinaruVillage, Coimbatore District have been deleted from theland acquisition proceedings and those lands wererestored to the landowners."4. In respect of survey Nos.10/1 and 10/2, which were alsosubject matter of acquisition along with the present lands, it isseen that the land owners have approached this Court by filingW.P.No.18195 of 1998 and this Court, by order dated 24.11.2006, whileallowing the writ petition, has quashed the land acquisitionproceedings. However, it is the case of the learned counsel for the https://hcservices.ecourts.gov.in/hcservices/ second respondent that against the said order of the learned SingleJudge, writ appeal has been filed and admittedly, there is no interimorder.5. Again, in respect of another adjacent land comprised inSurvey No.15/2, the owners have filed W.P.No.18272 of 1998 and thisCourt, by order dated 17.3.2008, has quashed the acquisitionproceedings on various grounds, including that notification underSection 4(1) of the Act was issued in the name of a dead person. Itis stated by the learned counsel for the second respondent that asagainst the said order also an appeal has been filed with a condonedelay petition and the same is pending at that stage.6. Mr.D.Krishna Kumar, learned counsel appearing for thepetitioners has also brought to the notice of this Court other ordersstated to have been passed relating to the same project wherein theland acquisition proceedings have been set aside by this Court. Itis also seen that in respect of Survey Nos.3/1A, 3/1C, 4/2B1, 4/2B2,4/3C1 and 4/3C2 which also form part of the same stretch of land, onthe owners filing a writ petition in W.P.No.18322 of 2008, thisCourt, by order dated 13.4.2009, has quashed the land acquisitionproceedings.7. However, under the impugned order passed by the firstrespondent, which is stated to be on the basis of a communicationfrom the second respondent for whose purpose the lands were acquired,the first respondent has not considered the said aspect raised by thepetitioners in the application filed under Section 48-B of the Act,as enumerated above. The first respondent has only passed thefollowing order in that regard:"4. The Managing Director, Tamil Nadu Housing Board hasfurther stated that the notice were served to thepetitioners, as per L.A. Act except S.Nos.10/1 and 10/2for which award has been passed already in AwardNo.2/99, dated 31.12.1999. There was no decision madein the said lands as mentioned in your letter dated27.11.2008. The above lands are essentially requiredfor implementing housing scheme, and your land issituated in the middle of the layout for a comprehensiveHousing Schemes. The Tamil Nadu Housing Board, hastherefore, suggested to reject the request forreconveyance of the land."8. Even though it is stated that there is deletion made in thesaid lands as mentioned by the petitioners in the letter dated27.11.2008, the fact remains that in respect of some of the lands, asstated above, the land acquisition proceedings were quashed and thesaid aspect has not been taken note of by the first respondent while https://hcservices.ecourts.gov.in/hcservices/ passing the impugned order. It is relevant to point out at thisstage that the orders of this Court, as enumerated above, are allmuch before the date of the impugned order and therefore, it cannotbe said that the first respondent was not aware of the orders passedby this Court. In respect of the other lands, except making a baldstatement that the said lands are not deleted from land acquisitionproceedings, the objections raised by the petitioners have not beenconsidered by application of mind by the first respondent. 9. It is true that the right given to the owner for reconveyanceunder Section 48-B of the Land Acquisition Act is not a matter ofcourse. It is for the acquisitioning authorities to decide and ifreally the purpose for which the acquisition was made continues,there is no question of reconveyance under Section 48-B of the LandAcquisition Act. Even if the acquisitioning authority decides not touse it for the purpose acquired, it is well settled that as a matterof right the owners cannot claim back the land by way ofreconveyance. But, the right given to the owners under Section 48-Bof the Land Acquisition Act is a substantial right, which isavailable to the extent that the claim of the owners has to beconsidered by the authority by application of mind. That was thedecision taken by the First Bench of this Court in R.Shanmugam andothers v. The State of Tamil Nadu and others, 2006 [4] CTC 290. TheDivision Bench has held that under Section 48-B of the Act theconditions stipulated are (i) the land must vest with the Government;(ii) in the opinion of the Government, the land must not be requiredfor any other public purpose; and (iii) the said land can bereconveyed to the original owner who is willing to repay the amountthat was paid to him at the time of acquisition of the land. Whileexplaining so, the Division Bench has held that the power underSection 48-B of the Act, which is a vital power, cannot be exercisedmechanically without application of mind, holding that fairness isinherent in the guarantee of equality provided under Article 14 ofthe Constitution of India. The operative portion of the judgment isas follows:"35. In order to apply the provisions of Section 48-B ofthe Tamil Nadu Amendment Act, 1996, firstly, the landmust vest with the Government under the Act in RevenueDepartment, and secondly, in the opinion of the StateGovernment, such land is not required for any otherpublic purpose and thirdly, the said land can be re-conveyed to the original owner who is willing to repaythe amount that was paid to him under the Act for theacquisition of such land inclusive of the amountreferred to in sub-sections (1-A) and (2) of Section 23,if any, paid under the Act. The power of the Governmentto transfer such land to the original owner is onlydiscretionary. Where the lands are forfeited by the https://hcservices.ecourts.gov.in/hcservices/ Government from the Housing Board, it can be utilised bythe Government for any other public purpose. In theevent, the Government is of the opinion that the landsare not required for any other public purpose, then itmust consider re-conveyance of the land under Section48-B. Only in the event, the Government is of the viewthat the lands cannot be re-conveyed, it may resort todispose the land by public auction. However, theexercise of the power under Section 48-B cannot bemechanical and whenever the discretion to take adecision is conferred on the authority by a statute,concept of fairness inherent in the guarantee ofequality under Article 14 of the Constitution of Indiamust be ensured. Exercise of such discretion could betested on fairness and reasonableness. This more sowhen such authority is bound to determine the questionsaffecting the right to property of individual. Thedecision must be supported by reasons with materials andnecessarily be an informed one. In this context, theexercise of such discretionary power as to whether theland should be re-conveyed to the original owner orshould it be sold by public auction, should not bearbitrary and unreasonable and fairness must prevail insuch decision. Though the land owners cannot have anyvested or absolute right to seek for automatic re-conveyance of the land, they have an element of rightfor consideration of their claim for re-conveyance interms of Section 48-B."The Division Bench has also taken note of the contention of the TamilNadu Housing Board that the land still is required for the HousingScheme and that the owners have already received the compensation andheld that the mere fact that compensation has been received does notprevent the owner from making request to the Government under Section48-B of the Act, in the following words:"38. For rejecting the request of the land owners, theGovernment has given two reasons viz., (1) the landowners have been awarded compensation and possession ofthe land has been given to the Housing Board, and (2)the land is still required for Housing Scheme. Insofaras the first reason, we are of the opinion that the samecannot be held good in view of the specific provisionsof Section 48-B enabling the land owners to make theapplication for re-conveyance. Mere fact that they havereceived compensation does not prevent them from makinga request to the Government invoking Section 48-B of theAct for re-conveyance of the unutilised lands. Insofaras the second reason, it must be kept in mind that https://hcservices.ecourts.gov.in/hcservices/ though the proposal was made by the Housing Board to theGovernment for acquiring an extent of 1997.02 acres ofpatta land, ultimately, the Government could pass awardonly in respect of 662.96 acres and even out of the saidextent of the land, only an extent of 105.61 acres wastaken possession and handed over to the Housing Board.But the Board could utilise only an extent of 21.47acres of land for Housing Scheme. In view of the aboveundisputed facts, we are of the considered view that theGovernment have not applied their mind to the aboveaspects while they came to the conclusion that the landis still required for Housing Scheme."10. Applying the above dictum laid down regarding the power ofthe Government under Section 48-B of the Act to the facts andcircumstances of the present case, there is no difficulty to concludethat the first respondent has not applied its mind taking note of thevarious objections raised by the petitioners in the application madeunder Section 48-B of the Act dated 27.11.2008. In such view of the matter, this writ petition is allowed andthe impugned order of the first respondent is set aside and thematter is remanded to the first respondent for fresh considerationwith a direction to the first respondent to take note of the variousobjections raised by the petitioners in the application made underSection 48-B of the Act dated 27.11.2008 and pass appropriate orders,giving opportunity to the petitioners and the second respondent toproduce records, if called for. Such orders shall be passed by thefirst respondent expeditiously, in any event within twelve weeks fromthe date of receipt of a copy of this order. No costs. Consequently,M.P.No.1 of 2009 is closed. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarsasiTo:1. The Secretary to Government Housing and Urban Development Department, Fort St.George Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/

2. The Chairman Tamil Nadu Housing Board Nandanam, Chennai – 600 035.3. The District Collector Coimbatore District Coimbatore – 18.4. The Special Tahsildar Land Acquisition Housing Scheme Coimbatore – 18.+1 cc to Mr.D.Krishna Kumar, Advocate, SR.No.59058+1 cc to Mr.A.Vijayakumar, Advocate, SR.No.58889W.P.No.21810 of 2009RSM {CO}TP/10.11.2009.