Rani v. The Government of Tamil Nadu & Ors

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 25.04.2011CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.NO.28138 of 2010andM.P.Nos.1 and 2 of 20101.Rani2.Kamakshi.. Petitioners Vs.1.The Government of Tamil Nadu, rep by its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai-600 009.2.The Chairman & Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-600 035... Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the order of thefirst respondent in letter No.17549/LA.I/(1)/2008-3, dated30.10.2008 received on 20.01.2009, to quash the same and to directthe respondents to reconvey the property in Survey No.251/2measuring an extent of 1 acre 38.5 cents at Padikuppam village infavour of the petitioner and execute reconveyance deed and fixterms as decided by the court.For Petitioners : Ms.G.GokulavaniFor Respondents : Ms.C.Devi, GA for R-1 Mr.A.Vijayakumar for R-2ORDERThe petitioners have filed the present writ petitionseeking to challenge an order of the first respondent, dated30.10.2008 and seeks to set aside the same and for a furtherdirection to reconvey the lands in Survey No.251/2 measuring to anextent of 1 acre and 38.5 cents at Padikuppam village in favour ofthe petitioners. https://hcservices.ecourts.gov.in/hcservices/

2.When the writ petition came up on 09.12.2010, notice wasdirected to be issued to the respondents privately. On such notice,the second respondent has filed a counter affidavit, dated31.3.2011 justifying the impugned order. The petitioners hadearlier filed a writ petition in W.P.No.16269 of 2008. The saidwrit petition came to be disposed of by an order dated 10.7.2007directing the respondents to consider the petitioners'representation, dated 25.2.2008 in accordance with law. Pursuant tothat direction, the impugned order came to be passed. In theimpugned order, it was informed to the petitioners that Section 4(1) notification was issued by G.O.Ms.No.260, Housing and UrbanDevelopment Department, dated 23.10.1975. Subsequently, byG.O.No.1078, Housing and Urban Development Department, dated12.7.1978, an order under Section 6 of the Land Acquisition Act waspassed. Thereafter, awards in Award No.1 of 1983, dated 8.11.1983and Award No.5 of 1984, dated 28.5.1984 in respect of S.Nos.251/1and 251/2 were made. The lands were taken over by the Tamil NaduHousing Board. The Tamil Nadu Housing Board had proposed toconstruct a Hostel for working women and a Home for senior citizensvide its resolution No.5.04, dated 27.06.2008. Hence the HousingBoard was consulted and they expressed their intention to retainthe land. 3.The petitioners contended that several persons in Padi,Nolambur and Mogappair were given back their lands by reconveyance.Therefore, the petitioners' case should be considered. When a legalnotice was sent to that effect, the Housing Board informed thecounsel by a further letter dated 9.1.2009 intimating the reasongiven by the Government.4.In the counter affidavit filed by the Executive Engineer,Tamil Nadu Housing Board, Anna Nagar Division, dated 19.3.2011, itwas contended that the lands were acquired and possession was takenon 28.5.1984. Though the proposed Inner Circular Corridor RailAlignment was dropped, due to court cases further steps could notbe taken. In any event, the land was suitable for a housing schemeand is essential for framing a scheme. Since the proposal for theInner Circular Corridor Rail Alignment was dropped, the otherschemes are being formulated by the Board.5.The counsel for the petitioners strenuously contendedthat in several cases the Board had reconveyed the land, there mustbe uniformity in such matters. Once the original scheme wasdropped, the petitioners are eligible for reconveyance as a matterof right or on the basis of equal treatment given to others.6.This Court is not inclined to accept the said submission.A request in this regard has to be made only under Section 48-B ofthe Land Acquisition Act and it can be considered only in the lightof the said enabling provision. Even if the scheme is not put touse for the purpose for which acquisition was made, it can be usedfor any other public purpose. Only when the requisitioning bodyreturns the land to the Government and if the Government was of theopinion that it was not likely to be used for any other public https://hcservices.ecourts.gov.in/hcservices/ purpose, the question of reconveyance of the land to the originalowners will take place. 7.In this context, it is necessary to refer to the judgmentof the Supreme Court before and after the introduction of Section58-B. The Supreme Court in Tamil Nadu Housing Board v. KeeravaniAmmal and Ors reported in 2007 (2) CTC 447 in paragraph 11 hadobserved as follows:-"...Section 48-B introduced into the Act in the Stateof Tamil 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 arenot called upon to decide here." 8.The Supreme Court in Tamil Nadu Housing Board v.L.Chandrasekaran and Ors reported in 2010 (2) SCC 786, dealt withthe scope of Section 48-B and has considered all the cases arisingout of reconveyance. In paragraphs 28 and 29, it was observed asfollows:-"28. It need no emphasis that in exercise of power underSection 48-B of the Act, the Government can release theacquired land only till the same continues to vest in itand that too if it is satisfied that the acquired land isnot needed for the purpose for which it was acquired orfor any other public purpose. To put it differently, ifthe acquired land has already been transferred to otheragency, the Government cannot exercise power underSection 48-B of the Act and re-convey the same to theoriginal owner. In any case, the Government cannot becompelled to re-convey the land to the original owner ifthe same can be utilized for any public purpose otherthan the one for which it was acquired.(Emphasis added)29. Before concluding, we may notice the judgment of thisCourt in Tamil Nadu Housing Board v. Keeravani Ammal(supra). The question considered in that case was whetherthe Division Bench of the High Court could direct releaseof the acquired land which had been transferred to theappellant-Board. While setting aside the impugned order,this Court observed: (SCC pp.261-62, paras 13-16)"13.It is clearly pleaded by the State and theTamil Nadu Housing Board that the scheme had notbeen suspended or abandoned and that the landsacquired are very much needed for theimplementation of the scheme and the steps in thatregard have already been taken. In the light ofthis position, it is not open to the Court toassume that the project has been abandoned merelybecause another piece of land in the adjacentvillage had been released from acquisition in the https://hcservices.ecourts.gov.in/hcservices/ light of orders of the Court. It could not beassumed that the whole of the project had beenabandoned or has become unworkable. It dependsupon the purpose for which the land is acquired.As we see it, we find no impediment in the landsin question being utilised for the purpose ofputting up a multi-storied building containingsmall flats, intended as the public purpose whenthe acquisition was notified. Therefore, the HighCourt clearly erred in proceeding as if the schemestood abandoned. This was an unwarrantedassumption on the part of the Court, which has nofoundation in the pleadings and the materialsproduced in the case. The Court should have atleast insisted on production of materials tosubstantiate a claim of abandonment.14.We have already noticed that in the writpetition, there are no sufficient allegationsjustifying interference by the Court. Mere claimof possession by the writ petitioners is not afoundation on which the relief now granted couldhave been rested either by the learned SingleJudge or by the Division Bench of the High Court.On the materials, no right to relief has beenestablished by the writ petitioners.15.We may also notice that once a piece of landhas been duly acquired under the Land AcquisitionAct, the land becomes the property of the State.The State can dispose of the property thereafteror convey it to anyone, if the land is not neededfor the purpose for which it was acquired, onlyfor the market value that may be fetched for theproperty as on the date of conveyance. Thedoctrine of public trust would disable the Statefrom giving back the property for anything lessthan the market value. In State of Kerala v.M.Bhaskaran Pillai (1997) 5 SCC 432 in a similarsituation, this Court observed : (SCC p.433, para4)"4.....The question emerges whetherthe Government can assign the land tothe erstwhile owners? It is settledlaw that if the land is acquired fora public purpose, after the publicpurpose was achieved, the rest of theland could be used for any otherpublic purpose. In case there is noother public purpose for which theland is needed, then instead ofdisposal by way of sale to theerstwhile owner, the land should beput to public auction and the amount https://hcservices.ecourts.gov.in/hcservices/ fetched in the public auction can bebetter utilised for the publicpurpose envisaged in the DirectivePrinciples of the Constitution. Inthe present case, what we find isthat the executive order is not inconsonance with the provision of theAct and is, therefore, invalid. Underthese circumstances, the DivisionBench is well justified in declaringthe executive order as invalid.Whatever assignment is made, shouldbe for a public purpose. Otherwise,the land of the Government should besold only through the public auctionsso that the public also getsbenefited by getting a higher value."16.Section 48-B introduced into the Act in theState of Tamil Nadu is an exception to thisrule. Such a provision has to be strictlyconstrued and strict compliance with its termsinsisted upon. Whether such a provision can bechallenged for its validity, we are not calledupon to decide here. "9.Further, the similarity shown by the petitioners do notexist. In the matter of reconveyance, the other cases of other landowners cannot be shown as the reason for getting back the land.Unless the ingredients of Section 48-B is satisfied, the questionof the court granting any direction will not arise. The twodecisions relied on by the petitioners did not take into accountthe two decisions of the Supreme Court which directly arose underSection 48-B of the Land Acquisition Act. 10.The case cited by the petitioner in Hari Ram Vs. Stateof Haryana reported in (2010) 3 SCC 621 related to a case of theGovernment withdrawing from the acquisition selectively. In thepresent case, there was no withdrawal by the Government. On theother hand, the requestioning body itself had expressed itsintention to keep the land for a public purpose. 11.Further, the fact that some lands were reconveyed underorders of the Court by itself will not improve the case of thepetitioners. The Supreme Court in Shanti Sports Club & Another vs.Union of India & others reported in 2009 AIR SCW 6953 had held thatsuch an example will not enable any person to get a direction fromthe Court. It has been held in paragraphs 50 and 51 as follows:-"50.The plea of discrimination and violation of Article14 of the Constitution put forward by the appellants istotally devoid of substance because they did not produceany evidence before the High Court and none has beenproduced before this Court to show that their land is https://hcservices.ecourts.gov.in/hcservices/ identically placed qua the lands on which Hamdard PublicSchool, St. Xavier School, Scindia Potteries, etc.,exist. In the representations made to differentfunctionaries of the Government and DDA, the appellantsdid claim that other parcels of the land have been de-notified and before the High Court a copy ofnotification dated 6.9.1996 issued under Section 48(1)was produced, but the said assertion and notificationwere not sufficient for recording a finding that theircase is identical to those whose land had beendenotified. The burden to prove the charge ofdiscrimination and violation of Article 14 was on theappellants. It was for them to produce concreteevidence before the Court to show that their case wasidentical to other persons whose land had been releasedfrom acquisition and the reasons given by the Governmentfor refusing to release their land are irrelevant orextraneous. Vague and bald assertions made in the writpetition cannot be made basis for recording a findingthat the appellants have been subjected to invidious orhostile discrimination. That apart, we are prima facieof the view that the Government's decision to withdrawfrom the acquisition of some parcels of land in favourof some individuals was not in public interest. Suchdecisions had, to some extent, resulted in defeating theobject of planned development of Delhi on whichconsiderable emphasis has been laid by the Full Bench ofthe High Court and this Court. This being the position,Article 14 cannot be invoked by the appellants forseeking a direction to the respondents to withdraw fromthe acquisition of the land in question. Article 14 ofthe Constitution declares that the State shall not denyto any person equality before the law or the equalprotection of the laws within the territory of India.The concept of equality enshrined in that Article is apositive concept. The Court can command the State togive equal treatment to similarly situated persons, butcannot issue a mandate that the State should commitillegality or pass wrong order because in another casesuch an illegality has been committed or wrong order hasbeen passed. If any illegality or irregularity has beencommitted in favour of an individual or a group ofindividuals, others cannot invoke the jurisdiction ofthe High Court or of this Court and seek a directionthat the same irregularity or illegality be committed intheir favour by the State or itsagencies/instrumentalities. In other words, Article 14cannot be invoked for perpetuating irregularities orillegalities. In Chandigarh Administration vs. JagjitSingh (1995) 1 SCC 745, this Court made a lucidexposition of law on this subject. The facts of thatcase were that the respondents, who had given thehighest bid for 338 sq. yds. plot in Section 31A,Chandigarh defaulted in paying the price in accordance https://hcservices.ecourts.gov.in/hcservices/ with the terms and conditions of allotment. Aftergiving him opportunity of showing cause, the EstateOfficer cancelled the lease of the plot. The appeal andthe revision filed by him were dismissed by the ChiefAdministrator and Chief Commissioner, Chandigarhrespectively. Thereafter, the respondent applied forrefund of the amount deposited by him. His request wasaccepted and the entire amount paid by him was refunded.He then filed a petition for review of the order passedby the Chief Commissioner, which was dismissed.However, the Officer concerned entertained the secondreview and directed that the plot be restored to therespondent. The latter did not avail benefit of thisunusual order and started litigation by filing writpetition in the High Court, which was dismissed on March18, 1991. Thereafter, the respondent again approachedthe Estate Officer with the request to settle his casein accordance with the policy of the Government torestore the plots to the defaulters by chargingforfeiture amount of 5%. His request was rejected bythe Estate Officer. He then filed another writ petitionbefore the High Court, which was allowed only on theground that in another case pertaining to Smt.PrakashRani, the Administrator had restored the plot despitedismissal of the writ petition filed by her. Whilereversing the order of the High Court, this Courtobserved as under:-"We are of the opinion that the basis or theprinciple, if it can be called one, on which the writpetition has been allowed by the High Court isunsustainable in law and indefensible in principle.Since we have come across many such instances, we thinkit necessary to deal with such pleas at a littlelength. Generally speaking, the mere fact that therespondent-authority has passed a particular order inthe case of another person similarly situated can neverbe the ground for issuing a writ in favour of thepetitioner on the plea of discrimination. The order infavour of the other person might be legal and valid orit might not be. That has to be investigated firstbefore it can be directed to be followed in the case ofthe petitioner. If the order in favour of the otherperson is found to be contrary to law or not warrantedin the facts and circumstances of his case, it isobvious that such illegal or unwarranted order cannot bemade the basis of issuing a writ compelling therespondent-authority to repeat the illegality or to passanother unwarranted order. The extraordinary anddiscretionary power of the High Court cannot beexercised for such a purpose. Merely because therespondent-authority has passed one illegal/unwarrantedorder, it does not entitle the High Court to compel theauthority to repeat that illegality over again and https://hcservices.ecourts.gov.in/hcservices/ again. The illegal/unwarranted action must becorrected, if it can be done according to law – indeed,wherever it is possible, the Court should direct theappropriate authority to correct such wrong orders inaccordance with law – but even if it cannot becorrected,it is difficult to see how it can be made abasis for its repetition. By refusing to direct therespondent-authority to repeat the illegality, the Courtis not condoning the earlier illegal act/order nor cansuch illegal order constitute the basis for a legitimatecomplaint of discrimination. Giving effect to suchpleas would be prejudicial to the interests of law andwill do incalculable mischief to public interest. Itwill be a negation of law and the rule of law. Ofcourse, if in case the order in favour of the otherperson is found to be a lawful and justified one it canbe followed and a similar relief can be given to thepetitioner if it is found that the petitioner's case issimilar to the other person's case. But then whyexamine another person's case in his absence rather thanexamining the case of the petitioner who is presentbefore the Court and seeking the relief. Is it not moreappropriate and convenient to examine the entitlement ofthe petitioner before the Court to the relief asked forin the facts and circumstances of his case than toenquire into the correctness of the order made or actiontaken in another person's case, which other person isnot before the case nor is his case. In our consideredopinion, such a course – barring exceptional situations– would neither be advisable nor desirable. In otherwords, the High Court cannot ignore the law and thewell-accepted norms governing the writ jurisdiction andsay that because in one case a particular order has beenpassed or a particular action has been taken, the samemust be repeated irrespective of the fact whether suchan order or action is contrary to law or otherwise.Each case must be decided on its own merits, factual andlegal, in accordance with relevant legal principles.The orders and actions of the authorities cannot beequated to the judgments of the Supreme Court and HighCourts nor can they be elevated to the level of theprecedents, as understood in the judicial world".(Emphasis added)51. Similar is the ratio of the judgments inNarain Das v. Improvement Trust, Amritsar (1973) 2 SCC265,Gursharan Singh v.New Delhi Municipal Committee(1996) 2 SCC 459, Secretary, Jaipur DevelopmentAuthority v. Daulat Mal Jain (supra), Yadu Nandan Gargv. State of Rajasthan and others (supra), State ofHaryana v. Ram Kumar Mann [(1997) 3 SCC 321], FaridabadCT. Scan Centre v. D.G.Health Services [(1997) 7 SCC752], Style (Dress land) v. Union Territory, Chandigarh[(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad https://hcservices.ecourts.gov.in/hcservices/ Singh (2000) 9 SCC 94, Union of India v. InternationalTrading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v.Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay KumarMunjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v.State of M.P. and others (2006) 3 SCC 581, NationalInstitute of Technology v. Chandra Sekhar Chaudhary(2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtakv. Jahan Singh (2007) 5 SCC 77, State of Kerala andothers v. K.Prasad and another (2007) 7 SCC 140, PunjabState Electricity Board and others vs. Gurmail Singh(2008) 7 SCC 245 and Panchi Devi v. State of Rajasthanand others (2009) 2 SCC 589.12.In the light of the above, the writ petition will standdismissed. However, there will be no order as to costs.Consequently, connected miscellaneous petitions stand closed.Sd/-Asst.Registrar/True Copy/Sub.Asst.RegistrarvvkTo1.The Secretary, The Government of Tamil Nadu, Department of Housing and Urban Development, Fort St. George, Chennai-600 009.2.The Chairman & Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-600 035.+ 1 cc to Mr.A. Vijayakumar, SR.28616+ 1 cc to Mr.G. Gokulavani, Sr.28267+ 1 cc to government Pleader SR.28867W.P.NO.28138 of 2010GV(CO)Eu 2.5.11