Chandrammal2.Ravi Kumar3.Jayakumar4.Radhika v. The Government of Tamil Nadu

entire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about Acres 1.11 cents comprised inS.No.753/2, acquired in pursuance of the notification inG.O.Ms.No.306, Housing and Urban Development Department dated27.03.1985 to the petitioners. Prayer in W.P.No.45823 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 9.5 cents comprised in S.No.740/1B,acquired in pursuance of the notification in G.O.Ms.No.306, Housingand Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45824 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 25 cents comprised in S.No.750/1B,acquired in pursuance of the notification in G.O.Ms.No.306, Housingand Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45825 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 78 cents comprised in S.No.747/1, 71cents in S.No.747/2 and 76 cents in S.No.748 totalling in all Acres2.25 cents, acquired in pursuance of the notification inG.O.Ms.No.306, Housing and Urban Development Department dated27.03.1985 to the petitioners. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.45826 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 66 cents comprised in S.No.740/2 andAcres 1.29 cents comprised in S.No.743 totalling in all Acres 1.95cents, acquired in pursuance of the notification in G.O.Ms.No.306,Housing and Urban Development Department dated 27.03.1985 to thepetitioners. Prayer in W.P.No.45827 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 62 cents comprised in S.No.744,acquired in pursuance of the notification in G.O.Ms.No.306, Housingand Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45828 of 2006:-Petition filed under Article 226 of the Constitution of India,for issuance of a Writ of Certiorarfified Mandamus, calling for theentire records relating to the impugned order of the 1st respondent inLetter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same asillegal and direct the respondents to re-convey the petitioner'slands in Madhavaram Village, Ambattur Taluk, Chengalput Districtadmeasuring an extent of about 10 cents comprised in S.No.752/2 and10 cents comprised in S.No.752/3 totalling in all 20 cents, acquiredin pursuance of the notification in G.O.Ms.No.306, Housing and UrbanDevelopment Department dated 27.03.1985 to the petitioners. For petitioners in WritPetition Nos.45821 to45824 of 2006:Mr.A.Vijay Narayanan, SCfor Mr.R.Syed MustafaFor Petitioners in WritPetition Nos.45825 to45828 of 2006:Mr.K.M.Vijayan, SCfor R.Syed Mustafa https://hcservices.ecourts.gov.in/hcservices/ For petitioners in WritPetition Nos.45821 to45824 of 2006:Mr.A.Vijay Narayanan, SCfor Mr.R.Syed MustafaFor Respondents 1 and 2 inall the Writ Petitions:Mr.N.Senthilkumar, AGP for RR1 &2For Respondents in all thewrit Petitions:Mr.P.S.Raman,Addl. Advocate General Assistedby Mr.I.Paranthaman, AGPfor R3:Mr.R.Muthukumaraswamy, SC forMr.S.Selvanandam for R4COMMON ORDERThe lands belonging to the petitioners comprised in varioussurvey numbers at Madhavaram village, Ambattur Taluk, ChengalputDistrict were acquired by the Tamil Nadu Government for the purposeof organising a truck and bus terminal by the Chennai MetropolitanDevelopment Authority, Chennai (formerly Madras MetropolitanDevelopment Authority and hereinafter referred to as "the CMDA").Notification under Section 4(1) of the Land Acquisition Act, 1894(hereinafter referred to as "the Act") was issued by the Governmentin G.O.Ms.No.306, Housing and Urban Development Department, dated27.03.1985 and Declaration under Section 6 of the Act was made inG.O.Ms.No.196, Housing and Urban Development Department, dated07.02.1986. The land acquisition proceedings were challenged inW.P.No.547 of 1986 and the same was allowed by a learned SingleJudge of this Court on 21.06.1996. The Writ Appeal Nos.785 to 789 of1996 preferred against the said order by the Government were allowedon 09.07.2002. According to the respondents, possession was taken andthus the lands have vested with the Government. Out of the totalextent of 80.92 Acres of land acquired by the Government, 64.80Acres of land was utilised for the purpose for which it wasacquired. The remaining area of 16.12 Acres of land was notutilised. Out of the same, the very acquisition in respect of 5.06Acres of land is under challenge before this Court in Writ Petitionand therefore, the said area could not be utilised. The remainingarea of 11.06 Acres of land is still kept unutilized for the purposefor which it was acquired. Seeking reconveyance of the said land, thepetitioners who are the erstwhile owners of the same maderepresentation on 02.07.2006 to the Government. The same was notconsidered by the Government. Therefore, they filed W.P.Nos.22370 to22377 of 2006 before this Court praying for appropriate direction.By a common order , dated 14.07.2006, this Court directed theGovernment to dispose of the said representation and pass orders onmerits and in accordance with law within a period of eight weeks https://hcservices.ecourts.gov.in/hcservices/ from the date of receipt of copy of the order. However, this Courtdid not express any opinion regarding the merits of the claim made bythe petitioners. On 26.09.2006, the petitioners made yet anotherrepresentation. Finally, the 1st respondent under LetterNo.22014/UD3(1)/2006-3, dated 23.10.2006 rejected the claim of thepetitioners on the ground that the lands had already been takenpossession by the CMDA and it had been proposed to allot the land toThe Madras Gunny Bag Merchants' Association (hereinafter referred toas "the 4th respondent Association"). Challenging the said order, thepetitioners have come forward with these writ petitions.2. Since common grounds have been raised, all these writpetitions were heard together and they are disposed of by means ofthis common order.3. The main contentions of the petitioners are as follows:-(i) Since the land in question, though acquired in the year1986, has not been utilised for the purpose for which it wasacquired, under Section 16B of the Act, the 1st respondent is obligedto pass an order forfeiting the land as penalty and in turn toreconvey the same under Section 48B of the Act to the petitioners.(ii) The CMDA has got no power to transfer the land either to anindividual or to a Body, other than for a public purpose that toowithout the sanction of the Government as required under Section 16Aof the Act.(iii) The purpose for which the land in question has beenallotted to the 4th respondent Association viz., for the purpose ofdoing their business, cannot be termed as a public purpose andtherefore, even with the sanction of the Government under Section 16Aof the Act, the land cannot be allotted to the 4th respondentAssociation.(iv) Since there is no approved plan under The Tamil Nadu Townand Country Planning Act, 1971, for constructing either shops orfactories for the members of the 4th respondent Association, theproposed allotment cannot be stated to be for a public purpose andthus, the same is without jurisdiction.4. In the counter affidavit filed by the Government and the CMDAit is contended as follows:-(i) If once the land has been acquired and vestedwith the Government, it is the property of theGovernment and the same can be utilised by theGovernment either for the public purpose for which itwas acquired or for any other public purpose. https://hcservices.ecourts.gov.in/hcservices/ (ii) The members of the 4th respondent Associationhad made representation to allot suitable place forthem to run their business since they are running theirbusiness in the city in a congested area causinghealth hazards to the general public in that area.Considering the said request and on the recommendationof the Corporation of Chennai, they were allotted theland in question for running their business.(iii) The purpose for which the land is nowallotted by the CMDA is not against the public purpose.The object of the acquisition is in no way defeated bythe allotment made to the members of the 4th respondentAssociation. The Corporation of Chennai in letter No.Z.O.II. C.No.All O.II/A1/1041/2005, dated 17.09.2005has informed that Gunny Bag Shops are located in athickly populated residential area in the Chennai Citywhich is causing inconvenience and health hazards to theresidents of the locality and the residents also veryoften complained about the nuisance caused by the GunnyBag Shops. Therefore, the Corporation of Chennairequested to provide a suitable alternative site forrelocating the Gunny Bag Merchants. The Gunny BagMerchants also had requested to provide them alternativesite to run their business. In these circumstances,being for a public purpose, the CMDA has prepared a lay-out to accommodate the Gunny Bag Merchants.(iv) The Government duly considered the request ofthe petitioners, for reconveyance and rejected the samesince the possession of the land in question is neitherwith the Government nor the land is no more required forpublic purpose.5. The Madras Gunny Merchants' Association , which is one ofthe respondents in these writ petitions has not filed any separatecounter.6. I have heard Mr.Vijay Narayanan, learned senior counsel forthe petitioners in W.P.Nos.45821 to 45824 of 2006; Mr.K.M.Vijayan,learned senior counsel for the petitioners in W.P.Nos.45825 to 45828of 2006; Mr.P.S.Raman, learned Additional Advocate General appearingfor the Government as well as the CMDA and Mr.R.Muthukumaraswamy,leaned senior counsel appearing for the 4th respondent Association andI have also perused the records carefully.7. Admittedly, a total extent of 80.92 Acres of land wasacquired under the provisions of the Land Acquisition Act, 1894 forthe purpose of organising a truck and bus terminal by the CMDA. It https://hcservices.ecourts.gov.in/hcservices/ is also seen from the records that on such acquisition , thepossession of the land had been taken and handed over to the CMDA andthat the CMDA has utilised an extent of 64.80 Acres of land for thepurpose for which it was acquired. Before the acquisition of thesaid land, a lay-out plan for truck and bus terminal complex atMadhavaram was prepared and the same was approved. The area, whichnow remains unutilised, which is the subject matter of these writpetitions, has been shown in the said plan as "For FutureDevelopment". But, in the said plan, the purpose for which the saidland would be utilised in future has not been specificallyindicated. Admittedly, the said land has not been utilised from1986 onwards though the possession of the land continues to be withthe CMDA. 8. The request of the petitioners under Section 48B of the Actwas rejected by the Government on two grounds viz., (1) thepossession of the land has already been handed over to the CMDA and(2) the land is to be used for a public purpose viz., for allottingto the members of the 4th respondent Association.9. There can be no controversy that if the Government issatisfied that the land acquired under the provisions of the Act fora public purpose has not been used for the said purpose for which itwas acquired, it may, by an order, forfeit the land as penalty andthereafter the land shall vest in the Government in RevenueDepartment free from all encumbrances as provided in Section 16B ofthe Act. But, in the case on hand, the Government has not so farpassed any order under Section 16-B of the Act thereby forfeiting theland as penalty. Under Section 48-B of the Act, if only, the landstands vested in the Government under the Act and if the same is notrequired for the purpose for which they were acquired, or for anyother public purpose, the Government , using its discretion, mayreconvey such land to the original owner. But, in the case on hand,indisputably, as of now, the land stands vested with the CMDA andnot with the Government.10. In this back ground, of course, without exercising its powerunder Section 16-B of the Act, it may not be possible for theGovernment to reconvey the lands under Section 48-B of the Act to theerstwhile owners. But, when a request is made by the erstwhileowners of the land in question for reconveyance on the ground thatthe land has not been utilised for any public purpose for a longtime, it is absolutely necessary for the Government to consider suchrequest in terms of Section 16-B of the Act so as to examine as towhether the land in question should be forfeited. Though there isan element of discretion with the Government under Section 16-B ofthe Act to pass such an order of forfeiture, it is needless to say,such discretion should be exercised judiciously. Refusal to examinethe case in terms of Section 16-B of the Act, when a request is madeby the erstwhile owners of the lands, would amount to https://hcservices.ecourts.gov.in/hcservices/ arbitrariness. Similar lis arose for consideration before aDivision Bench of this Court in Shanmugam.R v. The State of TamilNadu (2006 (4) CTC 290). That was a case where a request was made bythe erstwhile owners of the lands to the Government to reconvey thesame under Section 48-B of the Act on the ground that the lands hadnot been utilised for the purpose for which they were acquired. TheGovernment, as has been done in the instant case, rejected the saidrequest on two grounds viz., (1) the land owners have already beenawarded compensation and the possession of the land had also beengiven to the Housing Board and (2) the land was still required forhousing scheme. While considering the first reason stated in theorder rejecting the request of the erstwhile owners, the DivisionBench held as follows:"Insofar the first reason, we are of the opinionthat the same cannot be held good in view of thespecific provision of Section 48-B enabling the landowners to make the application for reconveyance. Merefact that they have received the compensation does notprevent them from making a request to the Governmentinvoking Section 48-B of the Act for reconveyance of theunutilised lands. ....""...... In our opinion. merely because possessionis taken and the lands are handed over to the HousingBoard, the power of the State Government to forfeit theland under section 16-B of the Act, is not curtailed.The said power is independent and exclusive. In theevent , the lands are unutilised by the Board for quitelong number of years, the State Government has the powerto forfeit the lands by way of penalty. Of course, thefact that Section 17-A was repealed was not brought tothe notice of the learned Single Judge and consequently,the learned Single Judge has held that there is vestingof land in Housing Board under Section 17-A. In view ofSection 162 of the Tamil Nadu Housing Board Act, 1961,the City Improvement Trust Act, 1950 was repealed andconsequently, Section 17-A was also repealed. In thecircumstances, there cannot be any vesting of the landon the Housing Board under Section 17-A as well as theGovernment under Section 16 of the Central Actsimultaneously."11. The Division Bench ultimately held that the first reason forrejection viz., the land was still in the possession of the HousingBoard, cannot be countenanced. Applying the said ratio laid down tothe facts of the present case, I am of the view that the first reasonstated in the impugned order cannot be sustained. The Governmentought to have examined the request of the petitioners in terms ofSection 16-B of the Act as to whether an order is required to be https://hcservices.ecourts.gov.in/hcservices/ passed to forfeit the lands in question. The refusal to examine thesame would offend the constitutional right of the petitioners andalso Article 14 of the Constitution of India.12. While examining the case for the purpose of Section 16-B ofthe Act, the basic requirement is satisfaction of the Government thatthe land has not been utilised by the authority for the purpose forwhich it was acquired and handed over. Such satisfaction is to bearrived at on the basis of the materials available. But, in theinstant case, according to the counsel counsel, the Government hasnot considered, the request of the petitioners by having relevantconsideration in terms of section 16-B of the Act. Therefore,according to the petitioner, the impugned order is liable to be setaside with a direction to the Government to exercise its power underSection 16-B of the Act to forfeit the land and then to pass an orderunder Section 48-B of the Act. 13. The learned senior counsel for the petitioners would bringto the notice of this Court, the difference in language employed inSections 16-B and 48-B of the Act . To appreciate the said argument,it is worthwhile to extract the provisions of Sections 16-B and 48-Bof the Act hereunder:Section 16-B. Land to be forfeited in certaincases.- Where the Government are satisfied that the landacquired under this Act for any public purpose asreferred to in sub-section (1) of Section 4 is not usedfor the purpose for which it was acquired, they may, byan order, forfeit the land as penalty and the land shallvest in the Government in Revenue Department free fromal encumbrances:Provided that no order under this section, shall bemade unless the person or authority aggrieved has had areasonable opportunity of being heard." (emphasissupplied)Section 48-B. "Transfer of land to original ownerin certain cases.- Where the Government are satisfiedthat the land vest in the Government under this Act isnot required for the purpose for which it was acquired,or for any other public purpose, the Government maytransfer such land to the original owner who is willingto repay the amount paid to him under this Act for theacquisition of such land inclusive of the amountreferred to in sub-section (1-A) and (2) of Section 23,if any, paid under this Act." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/

14. A close reading of Section 16-B of the Act would show thatthe consideration of the Government under the said provision iswhether the acquired land has been used for the very same publicpurpose for which it was acquired; whereas under Section 48-B ofthe Act, the consideration is whether the acquired land is required,not only for the purpose for which it was acquired, but for any otherpublic purpose also. Thus the distinction between these twoprovisions is very obvious. In a given case, the Government may besatisfied that the land is required for any other public purposeother than the purpose for which it was acquired. In such asituation, the Government, may, decline to use its discretion underSection 48-B of the Act to reconvey the land to the erstwhile owner.But, under Section 16-B of the Act, if the Government is satisfiedthat the land has not been used for the purpose for which it wasacquired, de hors the fact as to whether the land is required for anyother purpose or not, the Government is obliged to exercise its powerunder Section 16-B of the Act and to pass an appropriate orderforfeiting the land. 15. The learned Additional Advocate General would contend thatthe language in Section 16B of the Act , more particularly, the word"may" would indicate that it is not obligatory on the part of theGovernment to forfeit the land in all situations where the land hasnot been used for the purpose for which it was acquired. An elementof discretion is involved. Therefore, according to him, thepetitioners cannot compel the Government to use its discretion underSection 16-B of the Act to forfeit the land. 16. Though the expression used in Section 16-B of the Act is“may”, in the context in which it has been used and going by thepurpose of the introduction of Section 16-B by Tamil Nadu AmendmentAct, it has to be held that it conveys the meaning of theexpression 'shall". It has been well settled in a catena ofjudgements of the Hon'ble Supreme Court that the expression "may"employed in a provision does not indicate discretion invariably inall situations. It all depends upon the context in which the saidexpression has been used. To know the real meaning of the term"may" used in Section 16-B of the Act, we should not, first of all,forget that the right to own an immovable property, though not afundamental right, nevertheless, is a constitutional right underArticle 300-A of the Constitution of India. Using its eminent domain,the Government acquires the said land against the will of the ownerthereby depriving him of his constitutional right. The Courts haveupheld the power of the Government to acquire the land only becauseit is done for a public purpose as it is permissible under theconstitution itself. When it is a question of public purpose andindividual's right, the Courts have uniformly held that theindividual's right should yield place to the larger public purpose.When a land is acquired under the Land Acquisition Act, for a publicpurpose, since there is deprivation of property right of an https://hcservices.ecourts.gov.in/hcservices/ individual, the property should be used only for public purpose. Thequestion , whether the land should be utilised only for the very samepublic purpose for which it was acquired is no more res integra. TheHon'ble Supreme Court has consistently taken the view that theGovernment is at liberty to utilise the land for a different purposeprovided such purpose is also a public purpose.17. Now, the next question is as to whether the authority, otherthan the Government, for whose purpose the land was acquired andhanded over, can use the same for any other public purpose otherthan the public purpose for which it was acquired and handed over. 18. Answer to this question could be found in Section 16-A ofthe Act. A look into the said provision would make it very clear thatsuch authority, in the case on hand, the CMDA, cannot either utiliseor transfer such land for any other purpose except for the purposefor which it was acquired without the saction of the Government. Theabsence of the expression "any other public purpose" in Section 16-A of the Act, as has been used in Section 48-B of the Act wouldundoubtedly clear the said position. Section 16-A of the Act runs thus: "16-A.- Restriction on transfer, etc. (1) No personor authority ( other than the Government), for whom anyland is acquired under this Act for any public purposeas referred to in sub-section (1) of Section 4, shalltransfer the said land or any part thereof by way ofsale, mortgage, gift, lease or otherwise except with theprevious sanction of the Government. (2) Where it is noticed or any information has beenreceived that any land has been transferred incontravention of sub-section (1), the Government may, byan order, declare the transfer to be null and void, andon such declaration, the land shall, as penalty, beforfeited to, and vest in, the Government in RevenueDepartment free from all encumbrances:Provided that no order under this sub-section,shall be made unless such person or authority has had areasonable opportunity of being heard. "19. It is the submission of the learned Additional AdvocateGeneral and the learned senior counsel appearing for the 4threspondent/Association that such authority can also transfer theland for a different public purpose. But, to substantiate the saidproposition, the learned Additional Advocate General and the learnedSenior Counsel have not cited any precedent before me during theirarguments. https://hcservices.ecourts.gov.in/hcservices/

20. As I have already stated, a simple comparison of thelanguage used in Sections 16-A, 16B and 48-B of the Act woulddisclose that the authority in whose favour the land was acquiredand handed over can transfer the same for a different public purposeonly with the sanction of the Government.21. The learned Additional Advocate General would further submitthat in the case on hand, such sanction was given by the Governmentand therefore, there is no need to invoke Section 16-B of the Act.To substantiate the said contention, the learned Additional AdvocateGeneral has produced a copy of a resolution passed by the CMDA inthe meeting held on 27.09.2006, wherein it was resolved thus:-(i) To send intimation letters to each traderindicating the price (to be worked out) with the sameterms of allotment approved by the Authority earlier inResolution A.R.No.29/2006, dated 03.02.2006.(ii) To approve the layout proposed in the landreserved for future development in the MBTT area.(iii) To relax the DCR requirements to the extentrequired.(iv) To reclassify the land into commercial usefrom Agricultural use zone.22. The learned Additional Advocate General would submit thatthe Hon'ble Minister for Law and Information Technology called ameeting with the officials of the CMDA and Corporation of Chennai on06.01.2006 and instructed to arrange for the allotment of plot ofsize 10 ft. X 15 ft. at affordable cost for about 110 Gunny BagTraders located at Ward No.20, in Royapuram identified by theChennai Corporation. He would further submit that the then Hon'bleMinister for Law and IT discussed with the representatives of GunnyBag Traders Association at Secretariat on 06.01.2006 and informedthem the availability of site measuring about 31200 sq.ft., atMadhavaram earlier earmarked for Police and Fire Stations. The costof the plot and mode of payment was also indicated and theauthority passed a resolution on 03.02.2006 to allot the plots inthat area to the Gunny Bag Traders. Subsequently, the Commissioner,Corporation of Chennai has informed that a meeting was convened bythe Hon'ble Minister for Local Administration on 29.06.2006 withregard to relocating Gunny Merchants. The officials of CMDA, TamilNadu Pollution Control Board and the Corporation of Chennai haveattended the meeting. In the said meeting , it was informed by thetraders that there are about 336 traders and all of them are to beallotted with the plots. It was only in that meeting, it was decidedto allot the land in question to the Gunny Bag Merchants. Fromthese facts, the learned Additional Advocate General would submit https://hcservices.ecourts.gov.in/hcservices/ that the Government has approved the transfer of the land in questionto Gunny Bag Merchants as required under Section 16A of the Act. Inmy considered opinion, the said argument cannot be countenanced.Though, the learned Additional Advocate General has produced theproceedings of the meeting of the CMDA, he is not able to produceany Government Order issued in exercise of its power conferred underSection 16-A of the Act. Therefore, it cannot be contended that theGovernment has issued sanction as required under Section 16-A of theAct thereby authorising the CMDA to transfer the land to the GunnyBag Merchants.23. Assuming that the Government has issued such sanction, thenext important question that arises for consideration is as towhether the allotment of the land in question to the Gunny BagMerchants would be for a public purpose as required under Section16-A of the Act. The term "public purpose" has not been specificallydefined exclusively with reference to Section 16-A , 16-B and 48-B ofthe Act. The general definition for this term, is found in Section 3(f) of the Act which reads as under:-24. 3. Definitions. - In this Act, unless there is some thingrepugnant in the subject or context, - ........ ......... (f) the expression "public purpose", includes (i) the provision of village-sites, or theextension, planned development or improvement ofexisting village-sites;(ii) the provision of land for town or ruralplanning;(iii) the provision of land for planned developmentof land from public funds in pursuance of any scheme orpolicy of Government and subsequent disposal thereof inwhole or in part by lease, assignment or outright salewith the object of securing further development asplanned; (iv) the provision of land for a corporation ownedor controlled by the State;(v) the provision of land for residential purposesto the poor or landless or to person residing in areasaffected by natural calamities, or to persons displacedor affected by reason of the implementation of anyscheme undertaken by the Government, any local authorityor a corporation owned or controlled by the State; https://hcservices.ecourts.gov.in/hcservices/ (vi) the provision of land for carrying out anyeducational, housing, health or slum clearance schemesponsored by Government or by any authority establishedby Government for carrying out any such scheme, or, withthe prior approval of the appropriate Government , by alocal authority, or a society registered under theSocieties Registration Act, 1860, or under anycorresponding law for the time being in force in aState, or a Co-operative society within the meaning ofany law relating to Co-operative societies for the timebeing in force in any State;(vii) the provision of land for any other scheme ofdevelopment sponsored by Government, or, with the priorapproval of the appropriate Government, by a localauthority;(viii) the provision of any premises or buildingfor locating a public office. but does not include acquisition of land forCompanies;25. The learned Additional Advocate General would submit thatthe present case would fall within the ambit of clauses (ii), (iii)and (iv) of sub-section (f) of Section 3 of the Act.Mr.R.Muthukumarasamy, learned senior counsel appearing for the 4threspondent Association would submit that it would also fall withinthe ambit of clause (vii) of sub-section (f) of Section 3 of the Act.The learned Additional Advocate General would further submit thatthese Gunny Bag Merchants are doing their business in Royapuram in athickly populated area, which is causing health hazards to thegeneral public in that locality and it is also causing greatpollution. Only to avoid the same, it has been planned to shift themall to a different place and for that purpose only the land inquestion is proposed to be utilised. In that view of the matter,according to him, the purpose for which the land is going to beused , is a public purpose. But, Mr.K.M.Vijayan, learned seniorcounsel would submit that the said purpose cannot be termed as apublic purpose.26. A reading of Clauses (ii), (iii) and (vii) of sub-section(f) of Section 3 of the Act would go to show that the purpose musthave a close nexus with the plan and development. But, in theinstant case, according to the learned senior counsel for thepetitioners , there is no approved plan for using the land for thebusiness establishments of these Gunny Bag Merchants either in themaster plan or in any other approved plan. He would submit that theexpression "public purpose" cannot be read in isolation, but, it https://hcservices.ecourts.gov.in/hcservices/ should be read in conjunction with plan and development asrepeatedly mentioned in these provisions and so the said purposewould not fall within the definition of Section 3(f) of the Act.Regarding Clause (iv), it is the contention that since the land isnot used by the CMDA, the said clause is also not applicable.27. Mr.Vijay Narayanan, learned senior counsel would contendthat since the land is sought to be allotted to the Gunny BagMerchants' Association, prior approval from the Government isrequired under Section 39 of the Act. The learned senior counselwould rely on a number of judgements to substantiate the saidargument. But, the learned Additional Advocate General as well asthe learned senior counsel appearing for the 4th respondentAssociation would submit that though initially, request was made bythe 4th respondent Association for allotment of these lands, theallotment, as a matter of fact, has not been made in favour of theAssociation, but, the same has been made only in the name of theindividuals, who are Gunny Bag Merchants. Though as per thedefinition of the term "Company" Gunny Bag Merchants' Association canbe termed as a company, since the transfer has not been effected infavour of the 4th respondent Association, Section 39 of the Act hasgot no role to play. Therefore, I do not propose to further delve onthis argument advanced by Mr.Vijay Narayanan.28. Let me now have a survey of the judgements cited at the barwith reference to interpretation of the expression "public purpose".The earliest judgement on this definition could be found in HamabaiFramjee Petit v. Secretary of State, AIR 1914 P C 20, where theirLordships of the Judicial Committee, following Bachelor J. took theview that the phrase "public purpose" must include a purpose in whichthe general interest of the community as opposed to particularinterest of individuals, is directly and vitally concerned. Afteradvent of the Indian Constitution, the expression "public purpose"came to be considered by the Hon'ble Supreme Court in Somawanti v.State of Punjab , AIR 1963 SC 151. In the said judgement byreferring to the definition in Section 3(f) of the Land AcquisitionAct, their Lordships pointed out that it is an inclusive definitionand not a compendious one and therefore, it does not assist verymuch in ascertaining the ambit of the expression 'public purpose' andthat broadly speaking the expression 'public purpose' would,however, include a purpose in which the general interest of thecommunity as opposed to particular interest of individuals isdirectly and vitally concerned. 29. In Arnold Rodricks v. State of Maharashtra, AIR 1966 SC1788, while considering the same, in the context of a landacquisition proceeding, the Hon'ble Supreme Court held thus: "The main idea in issuing the impugned notificationwas not to think as the private comfort or advantage of https://hcservices.ecourts.gov.in/hcservices/ the members of the public but the general public good.At any rate where a very large section of the communityis concerned its welfare is a matter of public concern,and when the notifications serve to enhance the welfareof this section of the community this is public purposeand the notifications are valid and cannot be impugnedon the ground that they were not issued for any publicpurpose."30. Before a Division Bench of this Court in R.Umraomal andothers v. State of Tamil Nadu and another, AIR 1986 Madras 63,challenge was to land acquisition proceeding on the ground that thepurpose for which notification was issued to acquire the land was notpublic purpose. In that case, few merchants, who were originally thetenants of the land in question formed an association known as"Rayapuram Cemetery Road Merchants' Sangam" consisting exclusively ofthe tenants under the land owners. When the said Sangam made arequest to the Government to acquire the lands and to allot the samefor them, the Government issued a Notification under Section 4(1) ofthe Land Acquisition Act. In the Notification , it was stated thatthe purpose for which the acqusition was made was to provide"shopping facilities to small traders and self-employed persons"Whether providing shopping facilities to small traders and self-employed persons would amount to public purpose was the questionposed before the Division Bench. The Division Bench had the advantageof looking into the judgements in Hamabai Framjee Petit's case (AIR1914 P C 20); Somawanti's case (AIR 1963 SC 151); and ArnoldRodricks case (AIR 1966 SC 1788) . The Division Bench after referringto the above judgements and having regard to the facts of the casemade the following observation:"As we earlier pointed out , it is only to benefitthe tenants who have defaulted to pay rents againstsome of whom the appellants have procured orders foreviction and decree for possession. This is not a caseof the landless poor being provided with shelter, butaccommodating who have defaulted. "The Division Bench ultimately held as follows: "In this case , it cannot be said that the welfare ofa large section of the community is concerned. We havenot been shown any precedent or incident where theGovernment have acquired buildings for accommodating thetenants of those buildings. The acquisition is meant forthe particular interest of the individual tenants of theappellants, and, therefore, in our view, does notinvolve the general interest of the community as awhole." https://hcservices.ecourts.gov.in/hcservices/

31. In Srinivasa Co-operative House Building Society Ltd. v.Madam Gurumurthy Sastry and others, (1994) 4 SCC 675, wherein theHon'ble Supreme Court once again had an occasion to consider thescope of definition of the term "public purpose". The Hon'bleSupreme Court, while considering the provisions of sub-section (f)of Section 3 of the Act, in the context of Article 31 of theConstition has held as follows:-"Public purpose is not capable of precisedefinition. Each case has to be considered in the lightof the purpose for which acquisition is sought for.Public purpose broadly speaking would include thepurpose in which the general interest of the society asopposed to the particular interest of the individual isdirectly and vitally concerned. Generally, the executivewould be the best judge to determine whether or not theimpugned purpose is a public purpose. Yet it is notbeyond the purview of judicial scrutiny. The interest ofsection of the society may be public purpose when it isbenefited by the acquisition. The acquisition inquestion must indicate that it was towards the welfareof the people and not to benefit a private individual orgroup of individuals joined collectively."32. In yet another judgement in Devinder Singh and others v.State of Punjab and others, (2008) 1 SCC 728, the Hon'ble SupremeCourt has considered the scope of the term "public purpose" and hasheld as follows:- 20. The High Court proceeded on the basis that asthe State formed an opinion that the purpose for whichthe provisions of the Act were taken recourse to is apublic purpose, the provisions of Part II would apply inthe instant case. We are not unmindful of the fact thatthe definition of “public purpose” as contained inSection 3(f) of the Act is an inclusive one. Therefore,the said definition need not be kept confined to thematters referred to therein. But with a view toascertain as to what should be a public purpose, we maynotice its dictionary meaning as contained in Black’sLaw Dictionary, 5th Edn. which is as under: “Public purpose.— In the law of taxation, eminentdomain, etc., this is a term of classification todistinguish the objects for which, according to settledusage, the Government is to provide, from those which,by the like usage, are left to private interest,inclination, or liberality. The constitutionalrequirement that the purpose of any tax, police https://hcservices.ecourts.gov.in/hcservices/ regulation, or particular exertion of the power ofeminent domain shall be the convenience, safety, orwelfare of the entire community and not the welfare of aspecific individual or class of persons.The term is synonymous with governmental purpose. Asemployed to denote the objects for which taxes may belevied, it has no relation to the urgency of the publicneed or to the extent of the public benefit which is tofollow; the essential requisite being that a publicservice or use shall affect the inhabitants as acommunity, and not merely as individuals. A publicpurpose or public business has for its objective thepromotion of the public health, safety, morals, generalwelfare, security, prosperity, and contentment of allthe inhabitants or residents within a given politicaldivision, as, for example, a State, the sovereign powersof which are exercised to promote such public purpose orpublic business.”In para 32 of the judgement, the Hon'ble Supreme Court has referredto Somawanti v. State of Punjab reported in AIR 1963 SC 151 and hasextracted para 40 of the aforesaid judgement which reads thus:-“40. Though we are of the opinion that the courts arenot entitled to go behind the declaration of theGovernment to the effect that a particular purpose forwhich the land is being acquired is a public purpose wemust emphasise that the declaration of the Governmentmust be relatable to a public purpose as distinct from apurely private purpose. If the purpose for which theacquisition is being made is not relatable to publicpurpose then a question may well arise whether in makingthe declaration there has been, on the part of theGovernment a fraud on the power conferred upon it by theAct. In other words the question would then arisewhether that declaration was merely a colourableexercise of the power conferred by the Act, and,therefore, the declaration is open to challenge at theinstance of the party aggrieved. To such a declarationthe protection of Section 6(3) will not extend. For, thequestion whether a particular action was the result of afraud or not is always justiciable, provisions such asSection 6(3) notwithstanding.” (emphasis supplied)33. Keeping in mind the fact that the definition of the term'public purpose' under Section 3 (f) of the Act is only inclusive innature and also the interpretation made by the Hon'ble Supreme Courtas well as the Division Bench of this Court in the judgements cited https://hcservices.ecourts.gov.in/hcservices/ supra, now it is the time to analyse as to whether there is any pubicpurpose involved in the matter of allotment of the land in questionto the Gunny Bag Merchants, who are doing business of their own inRoyapuram. It may be true, that the said business is causing airpollution and health hazards. For that, appropriate measures maybetaken to control the pollution under the Pollution Control Act. Itmay also be true that these allottees are doing their business in acongested area. For that purpose, at their request, the Governmentmay think it appropriate, as a welfare measure, to shift them fromthat place and to allot them a different place and in that case, ifthe Government so allots any land belonging to the Government, it isundertstandable. But, here , the CMDA is allotting the land inquestion to these individuals. The purpose of allotting these landsmay be laudable i.e. to help the beneficiaries viz., the allottees.The purpose of shifting these merchants from Royapuram area may be inthe interest of public also. But, that is not the relevantconsideration. In my considered view, the relevant considerationwould be whether the allotment of these lands to these Gunny BagMerchants would serve any public purpose. Admittedly, on suchallotment, the lands are going to be exclusively used by themerchants for their business. They are not going to do any publicservice. The business interest of an individual trader can, at nostretch of imagination, be for the benefit of the public. They arenot going to do any charity. They are only going to do a profitablebusiness for their own interest. Thus, the allotment of the land inquestion to the Gunny Merchants would be only for the benefit ofthese merchants. Acquisition of land to provide house sites to thepoor homeless is a public purpose as it is a constitutional duty ofthe Government to provide house sites to poor. But, allotting landfor construction of individual shops by the beneficiaries to do theirbusiness is not out of any such constitutional obligation of theState and so, the said purpose cannot be termed as a public purpose.Therefore , I have no hesitation to hold that no public purpose asdefined in Section 3(f) of the Act is involved in the proposedallotment of the land in question to the Gunny Bag Merchants.34. The learned Senior Counsel Mr.K.M.Vijayan, would submit thatthe scope of the expression 'public purpose' as defined in Section 3(f) of the Act is controlled by Section 36 of the Tamil Nadu Town andCountry Planning Act, 1971 under which the CMDA has got certainfunctions to discharge. According to him, the term 'public purpose'found in Section 36 of the Tamil Nadu Town and Country Planning Act,1971 has got a narrower meaning than the definition found in Section3(f) of the Act. He would submit that the definition in Section 3(f)of the Act is not exhaustive, but only inclusive; whereas underSection 36 of the Tamil Nadu Town and Country Planning Act, 1971, itis exhaustive. He would submit that unless there is a regional plan,master plan, detailed development plan or new town development planshowing the purpose for which the land is required, the land cannotbe used by the CMDA for any other purpose. According to him, the https://hcservices.ecourts.gov.in/hcservices/ purpose for which the land is going to be used is a public purpose ornot is traceable to the plan. In the absence of a plan showingspecifically the public purpose for which the land is going to beused; it cannot be said that the purpose is a public purpose, hecontends. He would further submit that the CMDA is not a welfaredepartment like Adi Dravida Welfare Department, wherein thedepartment can acquire the land for the welfare of a section of thepoor people as it is the constitutional duty of the Department toprovide house sites to the poor. According to him, the CMDA has gotpower to use the land only for the purpose which is covered underthe plan. The learned senior counsel would point out that in theplan, the land in question has been shown only "for futuredevelopment" . In the absence of any detailed plan approved by theCMDA for shopping complex for the benefit of the Gunny Bag Merchants, the CMDA cannot use the land in question for the said purpose.Therefore, according to him, the purpose for which the land is nowsought to be used is not a public purpose. The learned senior counselrelies on the judgement of the Hon'ble Supreme Court in MunicipalCorporation of Greater Bombay v. Industrial Development InvestmentCorporation Private Limited and others, (1996) 11 SCC 501, whereinthe Hon'ble Supreme Court has held that the plan must contain thedetails and the development activities to be under taken. 35. Mr.R.Muthukumaraswamy, learned senior counsel appearing forthe 4th respondent Association would repel the said contention bysaying that it is not at all necessary that such a plan should beprepared and approved first. Instead, according to him, it would besuffice if such a plan is drawn and approved after the allotment ismade in favour of the beneficiaries. He would place reliance on thejudgement in Ajay Krishna Shingal and others v. Union of India andothers, (1996) 10 SCC 721 wherein the Hon'ble Supreme Court, whiledealing with the acquisition for a planned development of Delhi,held that the developmental activities are to be taken subsequent tothe acquisition and, therefore, before preparation of Master Plan,Regional Plan, Zonal Plan, acquisition can be made first. The Hon'bleSupreme Court further held that preparation of these plans itselfwould amount to developmental activities. 36. A perusal of the judgement in Municipal Corporation ofGreater Bombay's case would go to show that it was a case ofacquisition under Section 126 of MRTP Act and not under the LandAcquisition Act. While considering the scope of S.126 of MRTP Act,the Hon'ble Supreme Court held that such plan is a conditionprecedent for acquiring the land under the said Act for developmentalactivities, but in Ajay Krishnan's case, the Hon'ble Supreme Courthas held that preparation of Master Plan, Regional Plan, Zonal Planitself would be part developmental activities and for suchpreparation, the lands are to be acquired first and therefore, evenin the absence of plan, acquisition can be made. In my consideredopinion, no detailed debate on this question is required, since, in https://hcservices.ecourts.gov.in/hcservices/ the case on hand, this Court has not been called upon to test thecorrectness of the acquisition. Here, the question is, whether theland already acquired can be allotted to the individual merchants.Even in the absence of any discussion about the Tamil Nadu Town andCountry Planning Act 1971, one can come to the conclusion , as Ihave already stated, that the purpose for which the land is nowsought to be allotted is not a public purpose.37. The learned senior counsel on either side relied on thejudgement of the Hon'ble Supreme Court in H.M.T. House Building Co-operative Society v. Syed Khader and others, AIR 1995 SC 2244. Inthe said case, the Hon'ble Supreme Court has dealt with distinctionbetween Part II and Part VII of the Act while interpreting theexpression 'public purpose'. That is also a case where theacquisition was sought to be made under Part VII of the Act. In thecase on hand, the acquisition was made under Part II of the Act andnot under Part VII of the Act. Insofar as the Part II is concerned,in the matter of interpretation of public purpose, the Hon'bleSupreme Court has not deviated from the interpretation made in theearlier judgements cited supra. As I have already stated, thisjudgement also is not more relevant for the issues involved in thecases on hand. 38. It was contended by the learned Additional Advocate Generaland as well as Mr.R.Muthukumarasamy, learned senior counsel for the4th respondent Association, if once the property is acquired itbecomes the property of the Government and therefore, it can be usedfor any other public purpose. They relied on the judgement in TamilNadu Housing Board v. Keeravani Ammal and others, 2007 (2) CTC 447.39. In the said case, the argument advanced was as to whetherthe Government is obliged to reconvey the land to the erstwhileowners, if the land is not required for any other public purpose.The Hon'ble Supreme Court , referred to State of Kerala and othersvs. M.Bhaskaran Pillai and another 1997 (2) CTC 177, wherein theHon'ble Supreme Court has held that whatever assignment is made, itshould be for a public purpose. Otherwise the land of the Governmentshould be sold only through the public auction so that the publicalso gets benefited by getting higher value. From that it could beseen that the assignment of the land which was once acquired could beused for a different purpose, provided the said purpose is also apublic purpose. Neither the Government, nor any other authority, inwhose favour, the acquisition was made could use it for a purposeother than a public purpose. It would be worthwhile to extract thejudgement of the Hon'ble Supreme Court in State of Kerala and othersv. M.Bhaskaran Pillai and another, 1997 (2) CTC 177 :-"The question emerges: Whether the Government canassign the land to the erstwhile owners? It is settledlaw that if the land is acquired for a public purpose, https://hcservices.ecourts.gov.in/hcservices/ after the public purpose was achieved, the rest of theland could be used for any other public purpose. In casethere is no other public purpose for which the land isneeded, then instead of disposal by way of sale to theerstwhile owner, the land should be put to publicauction and the amount fetched in the public auction canbe better utilised for the public purpose envisaged inthe Directive Principles of the Constitution. In thepresent case, what we find is that the executive orderis not in consonance with the provision of the Act andis, therefore, invalid. Under these circumstances, theDivision Bench is well justified in declaring theexecutive order as invalid. Whatever assignment is made,should be for a public purpose. Otherwise, the land ofthe Government should be sold only through the publicauctions so that the public also gets benefited bygetting higher value."40. From the above view taken by the Hon'ble Supreme Court, itis crystal clear that the Government is well within its power to putthe land for any other public purpose than the public purpose forwhich it was acquired. If the same is not required any more for anyother public purpose, the Hon'ble Supreme Court has held that theproperty should be sold only through public auction. The saidjudgement was with reference to a land acquisition in the State ofKerala, where there is no analogous provision, like 16-A, 16-B & 48-B of the Act. So, insofar as the State of Tamil Nadu is concerned,the said judgement can be taken as a precedent only to the extentthat the acquired land could be used for any other public purpose. InKeeravani Ammal's case cited supra while referring to Section 48-Bof the Land Acquisition Act, the Hon'ble Supreme Court has held asfollows :-"We are thus of the view that the writ petitioners,the contesting respondents, have not made out any casefor interference by the Court or for grant of any reliefto them. It is therefore not necessary for us to go intothe further contention raised on the scope of Section48-B of the Act, whether the writ petitioners haveestablished any claim to the lands, whether thereconveyance can only be to the original owners and notto others and whether if possession has already beenmade over to the Housing Board, the State could exerciseits power under that provision. We leave open thosequestions for the High Court to consider as and when theoccasion arises on it being approached in the context ofSection 48-B of the Act. Suffice it to say that thedecision of the High Court in the Writ Petition inquestion is totally unsustainable and deserves to be setaside." https://hcservices.ecourts.gov.in/hcservices/

41. From the above dictum laid down by the Hon'ble supremeCourt, it is crystal clear that insofar as the State of Tamil Naduis concerned, under Section 48-B of the Act, if the land is notrequired for any public purpose, the Government is obliged toreconvey the same to the erstwhile owners of the land. 42. In R.Shanmugam's case (2006 (4) CTC 290) cited supra, theDivision Bench had an occasion to examine the question as to whetherthe Housing Board, for whose benefit, the land was acquired andhanded over could utilise the same for a different purpose. TheDivision Bench held that the Housing Board can use the land only forthe purpose for which it was acquired and not for a differentpurpose. Ultimately, the Division Bench held that if the land is notrequired for the purpose for which it was acquired in favour of theTamil Nadu Housing Board, then it is for the Government to exerciseits power under Section 16-B of the Act and then to examine whetherit could be put to a different public purpose by the Government or itshould be reconveyed to the erstwhile land owners. The dictum laiddown in the said judgement squarely applies to the facts of thepresent case. 43. Let me now turn to the Tamil Nadu Town and Country PlanningAct, 1971. The functions and powers of the CMDA have been welldefined in Section 9(c) of the Act which reads as follows:-9-C - Functions and powers of the MetropolitanDevelopment Authority . - (1) Subject to the provisionsof this Act and the rules made thereunder, the functionsof the Metropolitan Development Authority shall be -(i) to carry out a survey of the ChennaiMetropolitan Planning Area and prepare reports on thesurveys so carried out;(ii) to prepare a master plan or a detaileddevelopment plan or a new town development planreferred to, under sub-section (2) of Section 17 orunder Section 20 or under Section 18, as the case maybe, for the Chennai Metropolitan Planning Area;(iii) to prepare an existing land use may and suchother maps as may be necessary for the purpose ofpreparing any development plan;(iv) to cause to be carried out such works as arecontemplated in any development plan;(v) to designate the whole of the ChennaiMetropolitan Planning Area or any part thereof within https://hcservices.ecourts.gov.in/hcservices/ its jurisdiction as a new town and to perform thefollowing functions, namely:-(a) to prepare a new town development plan for thearea concerned; and(b) to secure the laying out and development ofthe new town in accordance with the new town developmentplan;(vi) to perform such other functions as may beentrusted to it by the Government.(2) The Metropolitan Development Authority may, byorder, entrust to any local authority or other authorityas may be specified in such order, the work of executionof any development plan prepared by it.(3) The Metropolitan Development Authority may,by order, authorise any local authority or otherauthority as may be specified in such order, to exerciseany of the powers vested in it by or under this Act andmay, in like manner, withdraw such authority; and theexercise of any power delegated in this behalf shall besubject to such restrictions and conditions as may bespecified in such order.44. This provision is to be read along with Section 36 andSection 40 of the Tamil Nadu Town and Country Planning Act, 1971.Section 36 deals with the power to acquire the land for a publicpurpose. As I have already dealt with in the earlier paragraphs ofthis order, such public purpose could be presumed, if the purpose isdetailed in the development plan. Section 40 deals with the disposalof the land by new town development authority . It provides that anew town development authority may dispose of any land acquired by itto such person, in such manner, and subject to such terms andconditions as it considers expedient for securing the development ofthe new town in accordance with the new town development planapproved by the Government under this Act. Even such sale shall notbe made for more than 99 years. 45. A close reading of the said provision would indicate thatsuch sale can be made only in accordance with new town developmentplan that too only by a New Town Development Authority, and not byany other authority like the CMDA. The learned senior counselMr.R.Muthukumaraswamy would submit that under Section 9-B of theTamil Nadu Town and Country Planning Act, 1971 the CMDA has got powerto sell the property. In my considered opinion, it is only a generalpower and in any event, such sale should be for the purposes of itsconstitution. When a new town development authority has been https://hcservices.ecourts.gov.in/hcservices/ empowered to sell the property in accordance with new developmentplan, there is no such analogous provision in the Act empowering theCMDA to sell the same, other than for it's constitution. In theopinion of the CMDA, if the land could not be used for the purposefor which it was acquired and handed over, very well, it cansurrender the land to the Government to avoid penalty under Section16-B of the Act. Thus, the CMDA can not sell the land in question tothe Gunny Bag Merchants. 46. In view of the foregoing discussions, both the groundsstated in the impugned order viz., (1) the lands have already beenhanded over to the CMDA and (2) that they are going to allot the sameto the Gunny Bag Merchants, are not at all sustainable in law.Therefore, the impugned order is liable to be set aside.47. Now, the next question is, as to whether the Government isbound to exercise its power under Section 16-B of the Act and torecovey the same to the erstwhile land owners-the petitioners herein.As I have already concluded hereinbefore, since the lands have beenheld unutilised for about more than two decades, as held by theDivision Bench of this Court in R.Shanmugam and others v. The Stateof Tamil Nadu and others, 2006 (4) CTC 290, the Government is obligedto examine the request of the erstwhile land owners to issue anappropriate order forfeiting the land in favour of the Government.48. After such an order of forfeiture is passed, it is for theGovernment to examine whether the land is required for any otherpublic purpose. If it is not required so, then only it is for theGovernment to pass an order under Section 48-B of the Act to reconveythe said land to the erstwhile owners. 49. Recently, a Division Bench of this Court in Malarkodi andothers v. The Secretary to Government of Tamil Nadu, Adi Dravida andTribal Welfare Department, Fort St. George, Chennai and others, 2008(4) CTC 193, held thus:- "21. A perusal of the aforesaid Section would showthat the Government can act under the said Section evenin a case where Government has taken possession of theland and the land is vested in the Government. But, thesaid Section prescribes some conditions precedent beforethe Government can transfer the land to the originalowner and there are some conditions subsequent to thatexercise also. 22. The conditions precedent are that theGovernment must be satisfied that the land vested in theGovernment under this Act is (a) not required for thepurpose for which it was acquired; or (b) not requiredfor any other public purpose. The conditions subsequent https://hcservices.ecourts.gov.in/hcservices/ is that the Government can transfer such land to theoriginal owner who is (a) willing to repay the amountpaid to him under the Act for such acquisition; and (b)this amount would include also the amount referred to insub-section (1-A) and (2) of Section 23 of the said Act,if any paid............. 33. The argument of the learned Government Pleaderthat State has inherent power to return the land to theoriginal owners in spite of the provision of Section48-B cannot be sustained for various reasons. Factually,such assertion is not correct inasmuch as in the commoncounter filed by the second respondent, the DistrictCollector, Namakkal it has been averred that theacquired land can be reconveyed under Section 48-B ofLand Acquisition Act (Tamil Nadu Amendment) Act, 1996.Assuming but not admitting that there is no suchfactual assertion even then there are variousdifficulties in accepting the aforesaid contentions. Oneof such difficulties, is a time honoured legal principlewhich found its most glorious enunciation in the wordsof Lord Jessel, Master of the Rolls in Taylor v. Taylor,1875 (1) Chancery Division 426. At page 431 of thereport it is clearly stated "when a statutory power isconferred...... and the mode of exercising it ispointed out, it means that no other mode is to beadopted". The aforesaid principle was first applied inIndia by Lord Roche in Nazir Ahmad v. King Emperor, AIR1963 PC 253 at p.257. Since then this principle hadbeen accepted in our jurisprudence and the Hon'bleSupreme Court had applied the same in innumerable cases,some of which are mentioned below:- (a) State of Uttar Pradesh v. Singhara Singh, AIR1964 SC 358, p.361; (b) Dhananjay Reddy v. State of Karnataka, AIR 2001SC 1512, pp. 1518 & 1519; (c) A.K.Roy v. State of Punjab, AIR 1986 SC 2160; (d) Mayurdhwaj Co-op. Group Housing Society Ltd. v.P.O. Delhi Co., AIR 1998 SC 2401, p.2415; and (e) Chandra Kishore Jha v. Mahabir Prasad,AIR 1999 SC 3558, p.3562. https://hcservices.ecourts.gov.in/hcservices/

34. Therefore, the State Government cannotcircumvent the provision of Section 48-B by relying itsinherent executive power. In fact, Mr.R.Krishnamurthy,learned Senior Counsel for the land owner, whosupported the Government's stand has also advanced theargument as the Government Pleader by referring toArticle 162 of the Constitution."50. Applying the principles stated in the above two DivisionBench Judgements in R.Shanmugam & Malarkodi Cases, I have to holdthat in these writ petitions it is not possible to issue a positivedirection to the Government to pass an order Under Section 16-B ofthe Act and then to reconvey the lands in question to thepetitioners. As held in Malarkodi's case, it is for the Governmentto exercise its statutory power under Sections 16-B and 48-B of theAct and such powers should be exercised in the manner indicatedtherein.51. In the result, the writ petitions are partly allowed in thefollowing terms:-(i) The impugned order dated 23.10.2006 in Letter No.22014/UD/3(1)2006-3 passed by the 1st respondent is set aside;(ii) The Government is directed to examine the request of thepetitioners as required under Section 16-B of the Act and to issue anorder forfeiting the lands in question in favour of it as providedin Section 16-B of the Act.(iii) If any such order is issued under Section 16-B of the Actforfeiting the lands in favour of the Government as a penalty, thenthe Government is further directed to examine whether the lands inquestion are required for any other public purpose and if it isfound that the lands are not required for any other public purpose,then the Government shall reconvey the same under Section 48-B ofthe Act to the petitioners, provided they are prepared to fulfil theconditions stipulated in the said provision.(iv) In any event, the Government shall pass appropriatefinal orders on the representations of the petitioners already madewithin a period of six months from the date of receipt of a copy ofthis Order. https://hcservices.ecourts.gov.in/hcservices/ Considering the peculiar circumstances of the cases, there willbe no order as to costs.sd/-Asst.Registrar/true copy/Sub Asst.Registrar kmkTo1. The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-5.2. The Special Deputy Collector, (Land Acquisition) CMDA, Thalamuthu Natarajan Maligai, Egmore, Chennai-8.3. The Member/Secretary, Chennai Metropolitan Development Authority, Thalamuthu Natarajan Maligai, Egmore, Chennai-8.+ 2 c.cs. to Mr. S. Selvendran, Advocate. S.R.No.35586.+ 2 c.cs. to Mr. R. Syed Mustafa, Advocate. S.R.No.35472. Order in Writ Petition Nos.45821 to 45828 of 2006 MBS (CO)GSK 05.08.2009.