BSundaram Layout, RamanathapuramCoimbatore-45 v. Tamil Nadu Housing Board

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 23-12-2005CORAM:THE HONOURABLE MR. JUSTICE R. BALASUBRAMANIANW.P.NO.37583 OF 2004 R.ShanmugamS/o.Ramanna GounderNo.19, Thilakar StreetKarupparayanpalayamMayilampatti PostCoimbatore-14rep. by his Power AgentK.V.Jayaraman S/o.N.Vellingiri, residing at No.17BSundaram Layout, RamanathapuramCoimbatore-45. ..Petitioner-Vs.1. The State of Tamil Nadu rep. by its Secretary Housing and Urban Development Fort St. George Chennai-600 009.2. The Tamil Nadu Housing Board rep. by its Managing Director No. 331, Anna Salai Nandanam Chennai-35.3. The Special Tahsildar (Land Acquisition) Housing Scheme Unit-II Coimbatore-641 018. ..RespondentsPrayer:- Petition filed under Article 226 of the Constitution ofIndia praying for the issue of a writ of Certiorarified Mandamus tocall for the records relating to the proceedings of the firstrespondent in letter No. 9230/LA III-2/2002-15 dated 24-08-2004,quash the same and consequently direct the first respondent toreconvey the lands, an extent of 0.34.5 hectares in S.F.No. 838/2Bsituated in Kalapatti Village, Coimbatore North Taluk, CoimbatoreDistrict. For Petitioner : Mr.R.N.AmarnathFor Respondent 1 : Mrs.Rani Selvam, G.A.For Respondents : Mr.R.Muthukumarasamy, 2&3 Addl.Advocate General for Mr.D.Veerasekaran https://hcservices.ecourts.gov.in/hcservices/ O R D E RUnder the impugned order, the Government has rejected thepetitioner's claim for reconveyance under Section 48-B of the LandAcquisition Act as amended by the State of Tamil Nadu.Mr.R.N.Amarnath, learned counsel appearing for the petitioner wouldattack the order on the following grounds:"The property acquired and transferred to the HousingBoard remains unutilised for a long number of years andtherefore it must be held that the public purpose for whichthe lands were acquired no longer subsists. If that is so,the land owners have a right to have the lands reconveyed.When the lands, which were acquired is not used for thepurpose for which it was acquired, then the Government hasa right of forfeiture under Section 16-B of the LandAcquisition Act as amended by the State of Tamil Nadu.Therefore reading Sections 16-B and Section 48-B of theLand Acquisition Act (both amended by the State of TamilNadu) this Court has to necessarily hold, on the factsavailable in the order impugned, that the land owners areentitled to reconveyance."Mr.R.Muthukumaraswamy, learned Additional Advocate Generalappearing for the respondents would submit that the Government willget jurisdiction to exercise the power under Section 48-B of the LandAcquisition Act only when the land in respect of which, it has toexercise the power, vests with the Government and secondly it must besatisfied that the land is not required for the purpose for which itwas acquired. In this case, according to the learned AdditionalAdvocate General and it is an admitted fact, that the land vests withthe Housing Board. It is a statutory vesting under Section 17-A ofthe Land Acquisition Act as amended by the State of Tamil Nadu. Oncesuch vesting is there, then the land so vested with the Housing Boardis governed by the provisions of the Tamil Nadu Housing Board Act,which is a self contained Act defining the powers of the HousingBoard to deal with the property so vesting with them. LearnedAdditional Advocate General would submit that under Section 16-B ofthe Act, power is available to the Government to forfeit when itfinds that the land acquired is not used for the purpose for which itwas acquired and assuming that the Government can exercise that power– which is not available in this case – then such an exercise ofpower will result in the lands vesting in the Revenue Department andnot on the land owners. Learned Additional Advocate General bringsto my notice a judgment of the Supreme Court reported in 2004 (5)C.T.C. 506 (GOVERNMENT OF ANDHRA PRADESH v. SYED AKBAR) to contendthat the Government is at liberty to use the land for any otherpublic purpose other than the public purpose for which it wasoriginally acquired.2. Having regard to the submissions made by the learned counselfor the petitioner and the learned Additional Advocate General, Iwent through the relevant provisions of law. Before that, I want to https://hcservices.ecourts.gov.in/hcservices/ apply my mind to the order challenged in this writ petition. Theorder shows that the lands acquired have been transferred to theHousing Board; there is an approved lay out in D.T. And C.P videproceeding in ref.No.313 of 1999; the lands are in possession of theHousing Board and on account of several litigations filed by the landowners before this court, the Scheme could not be implemented andthat in the order, the scheme is going to be implemented. Thereforethere is no question of forfeiture. In a case governed by statutoryvesting under Section 17-A of the Land Acquisition Act, as amended bythe State of Tamil Nadu, it is needless to state that there is novesting with the Government. There cannot be vesting at the sametime on two persons. It is no doubt true that once the land isacquired, the initial vesting is with the Government under Section 16of the Land Acquisition Act. But once the Housing Board pays theland price, then under Section 17-A of the Land Acquisition Act, theland stands transferred to the Housing Board and on such transferthe vesting is with the Housing Board. Once the statutory vestingtakes place with the Housing Board, then the Housing Board, which isgoverned by the provisions of the Tamil Nadu Housing Board Act, aself contained Act, has to deal with such property only in accordancewith the provisions of the said Act. That Act itself contains as tohow the property so acquired; transferred and vesting with themshall be dealt with. Therefore it is clear to my mind that once thelands acquired were transferred and vested with the Housing Board,then the Tamil Nadu Housing Board Act alone would govern the dealingof the property in question and all rights and liabilities arisingout of that land have to be necessarily tested only with theprovisions of the said Act alone and not under the provisions of anyother Act.3. Since vesting of the land already with the Housing Board hadtaken place and the condition precedent to exercise the power underSection 48-B of the Land Acquisition Act is that the land mustcontinue to vest with the Government, then in the absence of suchvesting, the Government cannot exercise the power under Section 48-Bof the Land Acquisition Act. Once a statutory vesting takes placeunder Section 17-A of the Land Acquisition Act, the property has tobe dealt with under the provisions of the Tamil Nadu Housing BoardAct and unless there is an enabling provision, either in the LandAcquisition Act itself or in the Tamil Nadu Housing Board Act, thensuch vesting with the Tamil Nadu Housing Board cannot be divested byan order of court and consequently revesting in the Government shallnot take place. 4. As far as Section 16-B of the Land Acquisition Act isconcerned, I have again no doubt at all that the argument advanced bythe learned counsel for the petitioner do not deserve acceptance.The right to forfeit is exclusively available to the Government andit is they who can exercise that power, if they find that the landacquired is not used for the public purpose for which it wasacquired. The objects and reasons for introducing Section 16-B of theLand Acquisition Act is seen from the Tamil Nadu Amending Act 16 of1997 and one of the objects reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "Lands are acquired by Government on behalf ofseveral requisitioning bodies. But after acquisition therequisitioning bodies transfer the lands to otherswithout the prior permission of Government. With a viewto avoid the requisitioning body from transferring theacquired lands or any part thereof by sales, mortgage,gift, etc. without the prior permission of the Governmentit has become necessary to make a provision in the Act.In certain cases the requisitioning body does not use theland acquired for them. Similarly, the land is not putto use for the purposes for which it was originallyacquired and they may keep the land idle for yearstogether without utilising the land. To prohibit thistendency it has been decided to insert a new provision asSection 16-B in the Act, so as to provide that such landmay be forfeited and the land shall vest in theGovernment in Revenue Department."Therefore it is clear from the above object that the Governmentwanted to avoid arbitrary exercise of power by the requisitioningbody in dealing with the property transferred to them on their own,without even a reference to the Government. In other words, therewas no control over the requisitioning body in dealing with theproperty so transferred to them after the acquisition. Only to avoidthis mischief, section 16-B was inserted. But that is not the casehere, since admittedly, after vesting with the Housing Board, theycannot deal with the property in any manner as they like, but it issubject to the provisions of the Tamil Nadu Housing Board Act itself.I have already stated that the Tamil Nadu Housing Board Act is a selfcontained Act and therefore it gives no room at all to fall back uponany other provisions of law in dealing with the property vestingwith them. The contention of the learned Additional Advocate Generalthat the Government can invoke the power of forfeiture availableunder section 16-B of the Land Acquisition Act only when there is nocontrol over the requisitioning body in dealing with the propertytransferred to them, deserves acceptance. The objects and reasonsreferred to earlier behind introducing section 16-B of the LandAcquisition Act gives a clear support to the argument advanced by thelearned Additional Advocate General. 5. Learned counsel appearing for the petitioner brought to mynotice an unreported judgment dated 20.7.1999 in W.P.No.4600 of 1999of this court to contend that the land owners have a right to havetheir lands reconveyed, once if it is found that the public purposefor which it was originally acquired is not subsisting any more andthat on the day when the request for retransfer was made, the publicpurpose must be subsisting. Learned counsel also relied upon anunreported judgment dated 16.10.2003 in W.P.No.6308 of 2003 of thiscourt between the same parties wherein a learned Judge of this courthad given a direction to the Government to consider whether anyaction is required to be taken under Section 16-B of the LandAcquisition Act and depending upon the out come of such decision,whether reconveyance as contemplated under Section 48-B of the LandAcquisition Act is called for. With greatest respect to the learned https://hcservices.ecourts.gov.in/hcservices/ Judges, who dealt with the two cases relied upon by the learnedcounsel, I find that the impact of Section 17-A of the LandAcquisition Act, as amended by the State of Tamil Nadu, and theprovisions of the Tamil Nadu Housing Board Act had not been takeninto account in disposing of those two cases. Learned counselappearing for the petitioner is not in a position to show anyprovision of law either in the Tamil Nadu Housing Board Act itself orin the Land Acquisition Act prescribing an outer limit of periodbefore which the land acquired for a public purpose should beutilised for such public purpose, failing which, the entireproceedings would stand reversed in favour of the land owner. In theabsence of such a provision, it is not possible for this court to fixa period on it's own stating that, before the expiry of that periodif the lands acquired for a public purpose had not been utilised,then the entire proceedings would stand reversed. If that isencouraged, then every court would fix, in a given situation, anouter period of it's own leading to several anomalies. There is yetanother judgment relied upon by the learned counsel for thepetitioner reported in 2005(3) C.T.C. 145 (PRITHVI TRUST PRIVATE LTD.V. THE STATE OF TAMIL NADU) where a learned Judge of this court hadgiven liberty to the petitioner therein to make a representation tothe Government to exercise the power under Section 16-B of the LandAcquisition Act which empowers to forfeit the lands which remainvested with the Housing Board but not used for the purpose. Onceagain I have to state with respect that section 17-A of the LandAcquisition Act and the provisions of the Tamil Nadu Housing BoardAct have not been brought to the notice of the learned Judge when thelearned Judge was of the opinion as indicated above. As rightlycontended by the learned Additional Advocate General, the power underSection 16-B of the Land Acquisition Act would be available only whenthere is no statutory vesting in another Statutory Authority. Inother words, on such acquisition, if the Government transfers theproperty to any other person including individuals or otherdepartment, to be used for their public purpose and if they do notuse it for their public purpose then the Government exercising theirpower of forfeiture can call back the lands to vest with the RevenueDepartment so that they can use the lands for other public purpose.As already stated by me, once the statutory vesting takes place withthe Housing Board under Section 17-A of the Land Acquisition Act,then unless there is an enabling specific provision either in theLand Acquisition Act or in the Tamil Nadu Housing Board Act, for theGovernment to forfeit the lands if the lands are not used for publicpurpose, then such a power cannot be exercised at all. My reading ofsection 16-B of the Land Acquisition Act will not enable theGovernment to divest the Statutory vesting that had already takenplace in favour of the Tamil Nadu Housing Board. As referred toearlier, the Tamil Nadu Housing Board Act itself contains a provisionto sell the property vesting with them in open auction (see section72), if it is of the opinion that the land is not required for thepurpose for which it was acquired and transferred to them. ThatStatutory power available to the Housing Board cannot be interferedwith by exercising the power available under section 16-B of the LandAcquisition Act. There is no provision in the Tamil Nadu HousingBoard Act which would enable the Government to forfeit the vesting https://hcservices.ecourts.gov.in/hcservices/ already done in the Housing Board and recall the lands. There isalso no provision in the Land Acquisition Act to interfere with suchstatutory vesting with the Housing Board. Even otherwise, I findthat a Mandamus cannot be issued to compel the Government to exercisethe right of forfeiture when as on date, the petitioner has nosubsisting interest in the land.6. For all the reasons stated above, I do not find any groundmade out to interfere with the order under challenge and accordingly,the writ petition is dismissed. No costs.Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTr/To:1. The Secretary The State of Tamil Nadu Housing and Urban Development Fort St. George Chennai-600 009.2. The Managing Director The Tamil Nadu Housing Board No. 331, Anna Salai Nandanam Chennai-35.3. The Special Tahsildar (Land Acquisition) Housing Scheme Unit-II Coimbatore-641 018. +1cc to the Govt. Pleader SR 35JSK (CO)km/4.1.W.P.NO.37583 of 2004