M. Sangameswaran v. Government of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 11-4-2008CORAMTHE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMARW.P.No.2964 of 2008 & M.P.No.1 of 2008andW.P.No.2965 of 2008 & M.P.No.1 of 2008M. Sangameswaran...Petitioner in W.P.2964/2008M. Varadaraj...Petitioner in W.P.2965/2008Vs.1.Government of Tamil Nadu,rep.by its Secretary,Housing and Urban Development Department,Fort St.George,Chennai - 600 009.2.Chairman and Managing Director,Tamil Nadu Housing Board,Nandanam,Chennai....Respondents in both petitionsPrayer in W.P.No.2964/2008:This writ petition is filed underArticle 226 of Constitution of India, praying this Court to issue awrit of certiorarified mandamus calling for the records relating tothe letter No.26645/Ni.A.3(2), dated 13.12.2006 and signed on28.12.2007 and issued by the Secretary to Government of Tamil Nadu,Housing and Urban Development Department, Fort St.George, Chennai-600 009, the first respondent herein and quash the same and directthe respondents to re-convey and re-transfer the lands comprised inS.Nos.151/1B (0.07.0 H), 151/1D (0.41.0 H), 151/3B (0.01.0 H) and151/3C (0.00.5 H) at No.13, Vilankurichi Village, Coimbatore NorthTaluk, Coimbatore District under section 48B of the LandAcquisition Act, 1894, as amended therein in favour of thepetitioner and within such time as may be prescribed by this Court.Prayer in W.P.No.2965/2008:This writ petition is filed underArticle 226 of Constitution of India, praying this Court to issue awrit of certiorarified mandamus calling for the records relating tothe letter No.26644/Ni.A.3(2), dated 14.12.2006 and signed on28.12.2007 and issued by the Secretary to Government of Tamil Nadu, https://hcservices.ecourts.gov.in/hcservices/ Housing and Urban Development Department, Fort St.George, Chennai-600 009, the first respondent herein and quash the same and directthe respondents to re-convey and re-transfer the lands comprised inS.Nos.151/1B (0.07.0 H), 151/1C (0.49.0 H), 151/3B (0.01.0 H)totally in an extent of Hectares 0.57.0 ares at No.13, VilankurichiVillage, Coimbatore North Taluk, Coimbatore District, under section48B of the Land Acquisition Act, 1894, as amended therein in favourof the petitioner and within such time as may be prescribed by thisCourt.For Petitioner :Mr.N.Damodaran in both petitionFor 1st Respondent :Mr.M.R.JothimanianGovernment Advocate in both petition For 2nd Respondent:Mr.R.Girirajan,Standing Counsel for TNHB in both petition O R D E RBy consent of both parties, the writ petitions are taken upfor final disposal.2.Prayer in the writ petitions are to quash the ordersdated 13.12.2006 and 14.12.2006 respectively, passed by the firstrespondent and direct the respondents to reconvey and retransfertheir respective lands at Vilankurichi Village, Coimbatore NorthTaluk, Coimbatore District, under section 48B of the LandAcquisition Act, 1894 as amended, in favour of the petitionersconcerned.3.The case of the petitioners is that they were the ownersof the lands comprised in S.Nos.151/1B (0.07.0 H), 151/1D (0.41.0H), 151/3B (0.01.0 H), 151/3C (0.00.5 H) and S.Nos.151/1B (0.07.0H), 151/1C (0.49.0 H), 151/3B (0.01.0 H) respectively, at No.13,Vilankurichi Village, Coimbatore North Taluk, Coimbatore District,and they got the said properties through registered familypartition deed dated 12.6.1981. The said lands along with otherlands belonging to other parties were acquired by the firstrespondent at the instance of the second respondent for GanapathyNeighbourhood Scheme and notification was also issued under theprovisions of the Land Acquisition Act, 1894, as amended. TheSpecial Tahsildar (LA), Housing Scheme, Coimbatore, passed anaward, pursuant to which petitioners also received compensationamount for the said acquired lands in January, 2000. https://hcservices.ecourts.gov.in/hcservices/

4.Number of other land owners of the very sameneighbourhood Scheme challenged the land acquisition proceedingsbefore this Court and insofar as they were concerned, theacquisitions were quashed and with regard to some of the adjacentlands situated in the very same scheme, first respondent issuednecessary notification for withdrawal of the proceedings.According to the petitioners, because of that development, thesecond respondent is not in a position to utilise the said lands asit was not feasible for the Board to implement the scheme and thesecond respondent also not utilised the lands acquired from thepetitioners and kept the same idle. Therefore, the petitionersapplied for restoration of the above said lands to them bysubmitting representation on 13.9.2004 stating that they arewilling to return back the compensation amount received from therespondents. Since no action was taken, petitioner sent a furtherrepresentation by registered post to the Divisional RevenueOfficer, Coimbatore, on 9.9.2004 and also to the first respondentherein and sought for reconveyance of the above said lands in theirfavour. Though the first respondent acknowledged the same on14.9.2006, no order was passed and the petitioner filedW.P.No.3059 of 2007 praying for early disposal of theirrepresentations. This Court by order dated 9.2.2007 directed thefirst respondent to dispose of the representations of thepetitioners dated 9.9.2006 within three months and the petitionerswere also permitted to raise additional grounds. Pursuant to thesaid order, petitioner raised additional grounds in the form ofrepresentation dated 19.3.2007, stating that the surrounding ownersof the said lands have already got approval from the competentauthority and they sold the plots to various third parties and mostof the purchasers of the plots put up pucca construction aftergetting building plan approval from the local authority.5.According to the petitioners, as per section 16B of theLand Acquisition Act, 1894, the first respondent has got power toforfeit the land if it is satisfied that the subject matter of theacquisition for public purpose stands unutilised, which shallthereafter vest with the Government or Revenue Department free fromall encumbrances, under section 48B the first respondent has gotpower to reconvey the land. The lands acquired from thepetitioners having not been utilised and the petitioners havinggiven their consent to return the compensation amount alreadyreceived, they claimed that they have got right for reconveyance.However, the first respondent passed the impugned order dated13.12.2007 and rejected the request of the petitioners by statingthat the lands for which the reconveyance is sought for, situate inthe center of the Scheme and it can be utilised for approach roadand therefore as per the second respondent, the said lands are inneed for its combined Housing Scheme and therefore the request ofthe petitioners for reconveyance is not feasible of compliance. https://hcservices.ecourts.gov.in/hcservices/

6.The said order is challenged in this writ petition on theground that relevant facts were not considered by the firstrespondent and on total non-application of mind the impugned orderis passed. The lands having been not utilised from the year 2000,the said lands vests with the first respondent under section 16-Bof the Land Acquisition (Tamil Nadu Amendment) Act, 1996 and theadjacent land having been either dropped from acquisitionproceeding or the acquisition proceeding having been set aside bythis Court, the subject matter of lands cannot be utilised for theneighbourhood scheme and therefore no purpose would be served inretaining the lands acquired from the petitioners by therespondents.7.The learned counsel for the petitioners argued that thelands acquired from the petitioners having not been utilised bythe second respondent under section 16-B, as amended by Tamil NaduAct, 16 of 1997, the right of the Housing Board gets forfeited andthe same vest with the Government and therefore under Section 48Bof the Land Acquisition Act, 1894, the first respondent is obligedto consider the request of the petitioners, without getting anyinstruction from the second respondent, who has no right over thesaid acquired lands of the petitioners. The reason stated in theimpugned order is that the Housing Board has objected forreconveyance on the ground that the said lands may be required tothe Housing Board after acquiring the adjacent lands and afterproviding road facility/approach road. The said reason is the onlyreason stated in the impugned order and the same is unsustainable,as the right of the Housing Board gets forfeited due to non-utilisation of the said land for various reasons.8.The learned counsel for the respondents on instructionssubmitted that the petitioners have no vested right to seekreconveyance and the application submitted by the petitioners undersection 48-B of the Land Acquisition Act having been considered bythe first respondent and negatived the request, the discretionexercised by the Government cannot be questioned.9.I have considered the rival submissions made by thelearned counsel for the petitioner as well as respondents.10.The point in issue is whether the petitioner has got anyright to claim reconveyance of the already acquired lands in thelight of Section 16-B of the Land Acquisition Act, as amended byTamil Nadu Act, 16 of 1997 and as per section 48B of the LandAcquisition Act, 1894.11.A Division Bench of this Court in the decision reportedin 2006 (4) CTC 290 (R.Shanmugam v. The State of Tamil Nadu)considered similar issued and held that in view of section 16-B of https://hcservices.ecourts.gov.in/hcservices/ the Act, the land not being utilised by the Housing Board, itsright can be forfeited by the Government as penalty and to considerthe request of the land owner for reconveyance, once the land vestswith the Government. In paragraph 21 it is held that Section 16-Bof the Land Acquisition Act can be invoked against the Tamil NaduHousing Board in view of the repealing of Section 17-A of the TamilNadu Housing Board Act, which reads thus,"21.Section 17-A of the Tamil NaduAmendment Act which was later repealed,contemplates payment of cost of acquisitionby the Board constituted under CityImprovement Trust Act. However, there is nosuch provision for payment of cost ofacquisition by Housing Board to theGovernment as the entire cost of acquisitionis borne by the Government. The provisionsof Section 16-B must also be considered inthis context. The lands are acquired underthe Central Act only on the proposal ofHousing Board. On acquisition, the land vestin Government under Section 16 of the Act andthereafter it is transferred to Housing Boardonly for the limited purpose ofimplementation of the Scheme. In the event,the State Government is satisfied that theland acquired and transferred to the HousingBoard is not utilized for housing orimprovement scheme for the purpose for whichit was acquired, in exercise of theprovisions of Section 16-B, it shall forfeitthe land as penalty and thereafter the landshall vest with the Government in RevenueDepartment free from all encumbrances."It is further held that even though the land owners do not have anyvested and absolute right to seek for automatic reconveyance of theland acquired from them, they have an element of right to considertheir claim for reconveyance. The Division Bench in paragraph 38of the judgment held thus,"38.For rejecting the request of theland owners, the Government has given tworeasons viz., (1) the land owners have beenawarded compensation and possession of theland has been given to the Housing Board, and(2) the land is still required for HousingScheme. Insofar as the first reason, we areof the opinion that the same cannot be held https://hcservices.ecourts.gov.in/hcservices/ good in view of the specific provisions ofSection 48-B enabling the land owners to makethe application for re-conveyance. Mere factthat they have received compensation does notprevent them from making a request to theGovernment invoking Section 48-B of the Actfor re-conveyance of the unutilised lands.Insofar as the second reason, it must be keptin mind that though the proposal was made bythe Housing Board to the Government foracquiring an extent of 1997.02 acres of pattaland, ultimately, the Government could passaward only in respect of 662.96 acres andeven out of the said extent of the land, onlyan extent of 105.61 acres was takenpossession and handed over to the HousingBoard. But the Board could utilise only anextent of 21.47 acres of land for HousingScheme. In view of the above undisputedfacts, we are of the considered view that theGovernment have not applied their mind to theabove aspects while they came to theconclusion that the land is still requiredfor Housing Scheme."Ultimately the Division Bench set aside the rejection order andremitted the matter back to the State Government forreconsideration of the application made by the appellants thereinfor reconveyance under section 48B of the Act on merits and inaccordance with law in a period of three months.12.Here in this case, the only reason stated by the firstrespondent to reject the request for reconveyance is the objectionraised by the second respondent. The Government has not consideredas to whether the Tamil Nadu Housing Board's right over theproperty can be forfeited due to non-utilisation of the lands undersection 16-B of the Act. The first respondent is thereforerequired to consider the issue under Section 16-B and thereafter itis bound to consider the request of the petitioners independently.As held by the Division Bench, even though the petitioners have novested right to seek reconveyance, they have got a right toconsider their request for reconveyance under section 48-B readwith Section 16-B of the Land Acquisition Act, 1894, on merits.13.In view of my above findings, the impugned order is setaside with direction to the first respondent to consider therequest of the petitioners as per their representation dated9.9.2006 followed with reminder dated 19.3.2007 and pass ordersthereon on merits and in accordance with Section 48-B read with https://hcservices.ecourts.gov.in/hcservices/ Section 16-B of the Land Acquisition Act, 1894, within three monthsfrom the date of receipt of copy of this order.The writ petitions are ordered on the above terms. No costs.Connected miscellaneous petitions are closed.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarvrTo1.The Secretary,Housing and Urban Development Department,Fort St.George, Chennai - 600 009.2.The Chairman and Managing Director,Tamil Nadu Housing Board, Nandanam, Chennai.+1cc to Mr.N.Damodaran, Advocate Sr 20708+1cc to Mr.R.Girirajan, Advocate Sr 20949+1cc to Govt. Pleader Sr 21049GB (CO)km/17.4. W.P.No.2964 & 2965 of 2008