Kannammal v. The State of Tamil Nadu

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:27-3-2008CORAM:THE HON'BLE MR.JUSTICE P.JYOTHIMANIW.P.No.36963 of 2007and M.P.No.1 of 20071. Kannammal2. Ranganayaki3. Padmavathi4. R.Thiruvengadasamy5. R.Krishnamurthy6. R.Devi7. M.Devaraj8. M.Ramadas9. Savithiri10.Punitha11.Kavitha12.R.Gunasekaran... Petitionersvs.1.The State of Tamil Nadu rep. By its Secretary to Government Housing and Urban Development Department Fort St.George, Chennai 9.2.The Tamil Nadu Housing Board rep. By its Chairman cum Managing Director No.331, Anna Salai, Nandanam Chennai 35.3.The Special Tahsildar Land Acquisition Housing Scheme Unit II Coimbatore.4.The Executive Engineer cum Administrative Officer The Tamil Nadu Housing Board Unit Tatabad, Coimbatore 12.... RespondentsWrit petition filed under Article 226 of the Constitution ofIndia praying for issuance of a Writ of Certiorarified Mandamuscalling for the records relating to the Ist Respondent letterNo.1577/L.A.3 (2) /07 dated 18.6.2007 quash the same and directthe first respondent to forfeit the land and reconvey the land infavour of th petitioners. https://hcservices.ecourts.gov.in/hcservices/ For petitioners: Mr. R.Muthukumarasamy,Sr.Counsel for Mr.R.N. AmarnathFor respondents: Mr. P.S.Raman Addl.Advocate General for Mr.L.S.M.Hasan Fizal Government Advocate for R.1 Mr. R.Girirajan for R.2toR.4ORDERThe writ petition is filed against the letter of the firstrespondent, the Secretary to Government, Housing and UrbanDevelopment Department dated 18.06.2007, by which considering therepresentation of the petitioners dated 20.12.2006 in the light ofthe order of this Court dated 07.03.2007 made in W.P.No.8173 of2007, the claim of exemption from land acquisition proceedings inrespect of the properties comprised in Survey No.12/3 to theextent of 3.26 acres of lands was rejected on the basis that thelands acquired are still required for the public purpose.2. The petitioners are the owners of the lands to the extentof 3.26 acres, comprised in S.F.No.12/3 situated atKrishnarayapuram Village, Coimbatore North Taluk, CoimbatoreDistrict. The lands were acquired by the first respondent, bynotification under Section 4(1) of the Land Acquisition Act,1894(Central Act) (in short, "the Act") published on 07.03.1983 anddeclaration under section 6 of the Act on 19.3.1986, andsubsequently, award was passed on 21.08.1987. The writ petitionsfiled against the acquisition proceedings were dismissed on02.08.2000 on the ground of laches, however, giving liberty to thepetitioners to approach the first respondent for reconveyance ofthe lands under Section 48B of the Act.2(a). Based on that, the petitioners have made representationfor reconveyance on 23.10.2000, since the Scheme under whichlands were acquired was not proceeded with and further, thepetitioners were under the impression that the Scheme has beendropped. According to the petitioners, neighbouring lands atKrishnarayapuram Village to the extent of 41 acres were alsoacquired under the Scheme and in the writ petitions filed byvarious owners, the acquisition in respect of certain portionswere set aside. The first respondent has also excluded some ofthe lands comprised in Survey No.2 to 6 at Ganapathi Village,Coimbatore.2(b). It was, again the petitioners made representation on20.12.2006, seeking for reconveyance. Since no order was passed,the petitioners filed W.P.No.8173 of 2007, which was disposed ofon 07.03.2007 with a direction to the first respondent to disposeof their representation. It is also the case of the petitionersin the affidavit that even after the above said order passed bythe High Court, respondents 2 to 4 took steps to allot properties https://hcservices.ecourts.gov.in/hcservices/ to the third parties, when representation of the petitioners forreconveyance was pending. 2(c). The petitioners have filed W.P.No.31906 of 2007forbearing the respondents from allotting the property to thethird parties till their writ petition is disposed of. When thematter came up, the learned Additional Government Pleader producedthe impugned order before this Court, by which the firstrespondent has rejected the representation of the petitioners madeunder Section 48B of the Act. In those circumstances, the abovesaid writ petition was directed to be withdrawn with liberty tochallenge the order dated 18.06.2007. In the light of the saidpermission, the present writ petition is filed challenging theimpugned order.2(d). Out of 40.59 acres of lands relating to which landacquisition proceedings are initiated, the petitioners are owning3.26 acres in S.No.12/3. In respect of 28.70 acres of land inSurvey Nos.10/3, 11/3, 13, 14, 15/1&2, 16, 17/1, 17/3a & 3b, 18/1Cand 22, the land acquisition proceedings were abated, sincedeclaration were not made. Out of the remaining 11.89 acres ofland, in respect of 1.81 acres of land in S.No.19/1, theproceedings were quashed in W.P.No.4188 of 1985, which wasconfirmed in W.A.No.738 of 1996 dated 16.07.2001. In respect of1.37, 1.88, 0.28 and 1.59 acres comprised in S.Nos.3/1C, 18/1C,18/2, 18/3A and 18/3B and 22/1, they are retained for residentialand commercial purposes by the owners and thus, the lands are notcovered by the acquisition proceedings. Therefore, according tothe petitioners, except their lands, the respondents have droppedfurther proceedings in respect of all other lands. 2(e). The impugned order of rejection of the applicationfiled under Section 48B of the Act is arbitrary and according tothe petitioners, the point raised in the impugned order that therespondents are still interested and proceeded with the publicpurpose is not valid. The petitioners also challenge the impugnedorder on the ground that it is mala fide. It is the further caseof the petitioners that the first respondent ought to haveindependently appreciated the facts of the case while exercisingthe powers under Sections 48-B and 16-B of the Act and thereliance placed on by the first respondent the Housing Board'sletter for rejecting the claim is not permissible. Further, it ischallenged on the ground that the purpose for which the lands wereacquired is no more in existence and the reason given in thepresent impugned order is invented to defeat the rights of thepetitioners for reconveyance.3. Respondents 2 and 4 have filed their counter affidavit.The said respondents, for whose benefit acquisition proceedingsare completed earlier under the Land Acquisition Act (Central Act)would submit that Section 4(1) notification in respect of 40.59acres was issued in G.O.No.551 Housing and Urban DevelopmentDepartment dated 07.03.1983, however, since in respect of 28.70acres certain court cases were pending, the approval for the saidextent was deferred and approval to the extent of 11.89 acres has https://hcservices.ecourts.gov.in/hcservices/ been made and 1.81 acres of land has been deleted due to Courtstay order. 3(a). In respect of the properties of the petitioners inS.No.12/3 to the extent of 3.26 acres at KrishnarayapuramVillage, Ganapathy, Coimbatore, award was passed for an amount ofRs.1,19,316/- and the same has been deposited in Court account andthe said land has been handed over by the Special Tahsildar (landAcquisition) to Tamil Nadu Housing Board on 21.04.1988. A lay outplan has been prepared and approval was got from the Director ofTown and Country Planning, Chennai in 2001, comprising of 54 plotsto accommodate the allottees under HIG, MIG and LIG Scheme andbased on the layout, a Scheme has been prepared for gettingapproval from the Board on 19.05.2006.3(b). The Housing Board has called for the demand details fortaking over the Scheme. 521 applications along with registrationfees were received and therefore, there was good response and theBoard has passed a resolution on 08.12.2006, approving the Schemeproposing to construct 54 Nos. of HIG, MIG and LIG houses in theapproved lay out of an extent of 3.26 acres in S.F.No.12/3,Krishnarayapuram Village, Ganapathy, Coimbatore District for avalue of Rs.251.00 lakhs.3(c). As per the decision of the Board, a Self FinanceScheme was proposed and the demand was heavy in the sense that asagainst 54 plots, nearly 151 applications were received and 15%of initial deposit to an extent of 186 lakhs have been collectedby the Board and the technical sanction was also obtained andtenders were invited from approved contractors. The work wasawarded to approved contractor by agreement No.20/07-08 and thesite was handed over on 21.11.2007 with the time limit of sixmonths to complete the scheme, viz., on or before 20.5.2008. 3(d). It is also stated in the counter that from 21.11.2007,the construction of 54 houses has been commenced and they are atvarious stages. Before commencement of the work, the planningapproval as well as No Objection Certificate from local body hasbeen obtained. It is also stated that the building licence fees,service charges and Tamil Nadu Labour Welfare General Fund, etc.have been paid to the local body and the Government has approvedthe allotment of houses under discretionary quota by conductingdrawal of lot to fix the bona fide applicants and the Governmenthas fixed 26.12.2007 for making allotment. It is stated that theentire construction of houses will be completed on 20.5.2008 andthe allottees will be handed over with respective houses. 3(e). According to respondents 2 and 4, the Board hasinvested huge amount towards land cost, contractors payment,supervision charges, payment towards layout approval, No ObjectionCertificate payment, materials testing payment, encroachment safeguarded measures payment, Tamil Nadu Electricity Board payment,demand advertisement charges, etc. It was in those circumstances,the preliminary work in respect of plots which commenced even in1999 is going on. The Housing Board has proposed to implement thehousing scheme in a vast manner and accordingly, the construction https://hcservices.ecourts.gov.in/hcservices/ of 54 houses was approved. In such circumstances, the claim ofthe petitioner cannot be accepted. It is also the case of therespondents that once the land acquisition proceedings arecompleted, the property vests with the Government and therefore,the reconveyance is not a matter of right. 4. Mr.R.Muthukumarasamy, learned senior counsel appearingfor the petitioners would submit that when the earlier writpetition was dismissed, liberty was given to the petitioners tomake representation under Section 48B of the Act for reconveyanceand pending the application under section 48B, furtherproceedings were initiated for allotment to show as if the Schemeis still in existence. It is also his contention that while theacquisition was originally in respect of total extent of 40.59acres in the said area, it is the petitioners land to the extentof 3.26 acres alone is retained. The learned senior counsel wouldalso submit that the impugned order refers to two issues, viz.,disputing the ownership of the petitioners as it is stated in para3 of the impugned order that only if the petitioners prove theirownership as registered holders or occupiers, the claim can beentertained and secondly, the project is still continuing. 4(a). According to the learned senior counsel for thepetitioners, the ownership of the petitioners over the propertyhas never been disputed by any of the respondents at any point oftime and therefore, the point raised is only a total non-application of mind. His further contention is that consideringthe large extent of land sought to be acquired for the Scheme,only with the retained meagre extent of land belonging to thepetitioners, it is impossible to execute the said Scheme. It ishis submission that the award itself is in the name of thepetitioners, and in such circumstances, it is not known how thepetitioners ownership is denied. It is also his submission thatthe case of the respondents that the Housing Project is inoperation cannot be accepted for the simple reason that the sameis not possible, considering the fact that meagre extent ofpetitioners lands alone is available.5. On the other hand, Mr.P.S.Raman, learned AdditionalGeneral would submit that as stated in the counter affidavit indetail it is not as if the Scheme has been dropped. In fact, hewould submit that the applications have been called for frompublic for allotment of 54 plots under the Housing Scheme and theapplicants have also paid necessary initial charges and thedevelopments have been effected in the sense that the property hasbeen handed over to the contractors for the purpose of putting upthe construction and the construction is at various stages. Hehas also produced photographs to show that the construction isgoing on in the site. 5(a). He would also rely upon the judgement of the SupremeCourt in Tamil Nadu Housing Board vs. Keeravani Ammal (2007 (2)CTC 447) to substantiate his contention that Section 48B of theAct does not confer any substantial right on the owners forreconveyance. He would also rely upon the judgement of theHon'ble First Bench of this Court in R.Shanmugam and others vs. https://hcservices.ecourts.gov.in/hcservices/ The State of Tamil Nadu (2006 (4) CTC 290). According to him, thepresent extent of land has been handed over to the Housing Boardand in its turn the Housing Board has got approval for lay out asper the Town and Country Planning Act and the building is beingput up and the acquired property has been vested with theGovernment for the use of the Housing Board, viz., therequisitioning body. He would also submit that the power of theGovernment for reconveyance under Section 48B of the Act willapply only in respect of unused lands, whereas in the presentcase, the lands of the petitioners are not unused.6. I have heard learned senior counsel for the petitioneras well as the learned Additional Advocate General for respondentsand perused the entire records.7. On the face of records it is clear and as correctlysubmitted by the learned Additional Advocate General that theTamil Nadu Housing Board, viz., the requisitioning body is usingthe acquired lands for the purpose of putting up housing plots inSurvey No.12/3 and obtained the lay out approval from thecompetent authority. It is not in dispute that the acquisitionproceedings in respect of these lands have been completed andaward has been passed much earlier. But the dispute raised by thepetitioners in this case is that originally a total extent of 40acres were sought to be acquired, whereas all the 40 acres werenot used and regarding major portion of the lands, either theyhave been given back to the parties or the acquisition proceedingshave become lapsed by virtue of the Court orders and only 3.26acres of land belonging to the petitioners is sought to be usedfor the housing purpose and therefore, it is to be presumed thatthe entire Scheme has become impossible and in that view of thematter, application of Section 48B of the Act to reconvey must beordered on the petitioners paying the amount received by them inaddition to the amount referred to under Sections 23(1-A) and (2)of the Act.8. In the counter affidavit it is made clear by therespondents that in furtherance of the Scheme, they have evencalled for applications from public and large number ofapplications were received with earnest money deposit and so onand pursuant to the same, the property belonging to thepetitioners which has been acquired and in respect of which theaward has been passed, has ultimately vested with the Governmentand has later been handed over to the Housing Board for thepurpose of construction of HIG, MIG and LIG houses. The counteraffidavit further makes it very clear that pursuant to the handingover of the land, the Housing Board has proceeded withconstruction and therefore, it cannot be said that the HousingBoard has not utilised the lands for the purpose for which it washanded over by the Government. It is well settled that once landacquisition proceedings are completed, the lands should absolutelyvest with the Government. It is no doubt true that on completionof the acquisition proceedings, the Government has right totransfer the property to the requisitioning body, viz., the TamilNadu Housing Board and the Housing Board can use it for the said https://hcservices.ecourts.gov.in/hcservices/ purpose alone. It is the right of the Government to use theproperty for any other purpose and the Housing Board has no rightto retain the said property for any other purpose.9. In R.Shanmugam and others vs. The State of Tamil Nadu(2006 (4) CTC 290), the Hon'ble First Bench of this Court hasclearly held that under Section 16 of the Act, the landsabsolutely vest with the State Government and only in cases wherethe State Government is of the opinion that such lands are notrequired for any other public purpose, the lands can be reconveyedto original owner, who is willing to repay the amounts paid to himfor acquisition of such land. In that case, it was held that thepower of the State Government to transfer such land to theoriginal owner is discretionary. It is also held in that casethat if the land which is vested with the Government by virtue ofSection 16 of the Act, is handed over to the Tamil Nadu HousingBoard, the Housing Board has no right to dispose of the unusedland for any other purpose for the reason that the Government hashanded over the said land to the Housing Board. In such case, itis for the Government to get back such lands from the HousingBoard and thereafter, it can decide about the reconveyance underSection 48B of the Act, if the same are not required for any otherpublic purpose. It is also specifically stated that if such landscannot be reconveyed, the Government can dispose of the same bypublic auction. 10. While dealing with the question of reconveyance infavour of the original owner from whom the property was acquired,it was held, by placing reliance on the judgement of the SupremeCourt in Jilubhai Nanbhai Khachar vs. State of Gujarat (1995Suppl.(1) SCC 596), as follows:"25. Right to property is not a fundamental rightafter the insertion of Article 300-A by the Constitution(Forty Fourth Amendment) Act,1978, but such right isstill a constitutional right. In terms of Article 300-A, "No person shall be deprived of his property save byauthority of law". The provisions of the Principal Actprovide such authority to the State and CentralGovernment, as the case may be, to acquire the land forpublic purpose. As the acquisition of land deprives theconstitutional rights of the land owners, stringentprovisions are made for acquisition and payment ofreasonable compensation. The right to acquire land bythe Government is sovereign power of eminent domain asheld by the Supreme Court in Jilubhai Nanbhai Khachar v.State of Gujarat, 1995 Suppl.(1) SCC 596.26. In Chandragauda Ramgonda Patil vs. Stateof Maharashtra, 1996 (6) SCC 405, the Supreme Court hasobserved as follows:"We do not think that this Courtwould be justified in making direction forrestitution of the land to the erstwhile ownerswhen the land was taken way back and vested inthe Municipality free from all encumbrances. https://hcservices.ecourts.gov.in/hcservices/ We are not concerned with the validity of thenotification in either of the Writ Petitions.It is axiomatic that the land acquired for apublic purpose would be utilised for any otherpublic purpose, though use of it was intendedfor the original public purpose. It is notintended that any land which remainedunutilised, should be restituted to theerstwhile owner to whom adequate compensationwas paid according to the market value as onthe date of the notification. Under thesecircumstances, the High Court was welljustified in refusing to grant relief in boththe Writ Petitions."11. On the factual position in this case, even though it istrue that originally large extent of lands were acquired,subsequently, the Scheme has been reformulated by way of SelfFinance Scheme in order to allot 54 number of Housing Plots and itis not as if the Tamil Nadu Housing Board, who is therequisitioning body is using the land for a different purpose.12. In Tamil Nadu Housing Board vs. Keeravani Ammal 2007(2)CTC 447, while dealing with the rights of the erstwhile ownersunder Section 48B of the Act for reconveyance, the Supreme Courthas held that by applying the doctrine of public trust, the Statecannot give back the property to the original owner for the value,less than the market value. It was held that even if the propertyis acquired for public purpose and after public purpose wasachieved and there were still remaining lands available, it can beused for some other public purpose and even in cases where theremaining properties are available, the properties can be disposedof by the Government instead of selling the same to the erstwhileowner, but by way of public action for the better utilisation ofpublic purposes envisaged under the Directive Principles of StatePolicy. The Supreme Court has further held as follows:"11. We may also notice that once a piece of landhas been duly acquired under the Land Acquisition Act,the land becomes the property of the State. The Statecan dispose of the property thereafter or convey it toanyone, if the land is not needed for the purpose forwhich it was acquired, only for the market value thatmay be fetched for the property as on the he date ofconveyance. The Doctrine of Public Trust would disablethe State from giving back the property for anythingless than the market value. In State of Kerala andothers vs. M.Bhaskaran Pillai and Another (1997 (2) CTC177 : 1997 (5) SCC 432) in a similar situation, thisCourt observed: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, the https://hcservices.ecourts.gov.in/hcservices/ rest 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 utilised for thepublic purpose envisaged in the DirectivePrinciples of the Constitution. In thepresent case, what we find is that theexecutive order is not in consonance with theprovision of the Act and is, therefore,invalid. Under these circumstances, theDivision Bench is well justified in declaringthe executive order as invalid. Whateverassignment is made, should be for a publicpurpose. Otherwise, the land of theGovernment should be sold only the through thepublic auctions so that the public also getsbenefited by getting higher value."Section 48-B introduced into the Act in the State ofTamil Nadu is an exception to this rule. Such aprovision has to be strictly construed and strictcompliance with its terms insisted upon. Whether such aprovision can be challenged for its validity, we are notcalled upon to decide here.12. We are thus of the view that the writpetitioners, the contesting respondents, have not madeout any case for interference by the Court or for grantof any relief to them. It is therefore not necessaryfor us to go into the further contention raised not hescope of Section 48-B of the Act, whether the writpetitioners have established any claim to the lands,whether the reconveyance can only be to the originalowners and not to others and whether if possession hasalready been made over the Housing Board, the Statecould exercise its power under that provision. We leaveopen those questions for the High Court to consider asand when the occasion arises on it being approached inthe context of Section 48-B of the Act. Suffice it tosay that the decision of the High Court in the WritPetition in question is totally unsustainable anddeserves to be set aside."13. The Supreme Court in that case has also held that simplybecause a portion of the property acquired has been abandoned fromthe project or released from acquisition, it does not mean thatthe remaining portion of the property can not be used for someother public purpose and that the Housing Board has suspended orabandoned its Scheme. https://hcservices.ecourts.gov.in/hcservices/

14. In view of the above said legal position and applyingthe same to the factual situation as it is narrated above, thereis absolutely no difficulty to come to the conclusion that thewrit petitioners are not entitled for any relief/claim in thiswrit petition. In view of the same, the writ petition fails andthe same is dismissed. No costs. Connected miscellaneouspetition is closed.After delivering the judgment, the learned counsel for thepetitioner has mentioned that an observation may be madepermitting the petitioners to make a representation on thecategory of ex-owners. Therefore, it is open to the petitionersto make a representation to the respondents for allotment on theex-owners category and in that event, it is for the Housing Boardto decide the same on merits and in accordance with law.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.abeTo1.The Secretary to Government Housing and Urban Development Department Fort St.George, Chennai 9.2.The Chairman cum Managing Director Tamil Nadu Housing Board No.331, Anna Salai, Nandanam Chennai 35.3.The Special Tahsildar Land Acquisition Housing Scheme Unit II Coimbatore.4.The Executive Engineer cum Administrative Officer The Tamil Nadu Housing Board Unit Tatabad, Coimbatore 12.1 cc to Mr.R.N. Amarnath, Advocate, SR. 17493W.P.No.36963 of 2007PA (CO)kk 1/4