Madras High Court
K.Duraisingam vs The State Of Tamil Nadu on 20 June, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.06.2012
CORAM:
THE HONOURABLE MR.JUSTICE VINOD K.SHARMA
W.P.No.25961 of 2011
K.Duraisingam ... Petitioner
-vs-
1. The State of Tamil Nadu,
Rep. by its Secretary to Government,
Housing and Urban Development Department
Fort St.George, Chennai-600 009.
2. The Managing Director,
Tamil Nadu Housing Board,
Anna Salai, Nandanam,
Chennai
3. The Special Tahsildar
Land Acquisition,
Tamil Nadu Housing Board Scheme,
Aringnar Special Shopping Complex,
Thirumangalam, Chennai. ... Respondents.
Prayer: Writ petition is filed under Article 226 of Constitution of India for issuance of a Writ in the nature of Mandamus, directing the 1st respondent to consider the representation dated 20.09.2011 in accordance with Section 48-B of the Land Acquisition Act and grant exemption / reconveyance of land in situated in Survey No.344/3 (0.14 cents), Survey No.344/5 (0.27 cents) and in Survey No.337/7B (0.33 cents) measuring in all acres 0.74 cents in Sholinganallur Village, Saidapet Taluk, Chennai.
For Petitioner : Mr.P.Venkatraman
For R1 : Mrs.A.Shri Jayanthi,
Spl.Govt. Pleader
Assisted by Mr.S.Navaneethan, AGP
For R2 : Mr.R.Jayaseelan
*****
O R D E R
The petitioner has invoked the extraordinary equitable jurisdiction of this Court under Article 226 of the Constitution of India for directing the State of Tamil Nadu to consider the representation dated 20.09.2011 in accordance with Section 48-B of the Land Acquisition Act and grant exemption / reconveyance of land situated in Survey No.344/3 (0.14 cents), Survey No.344/5 (0.27 cents) and in Survey No.337/7B (0.33 cents) in all measuring 0.74 cents in Sholinganallur Village, Saidapet Taluk, Chennai.
2. The petitioner is the owner of land in S.No.337/7B measuring acre 0.33 cents at Sholiganallur Village, Saidapet Taluk, Chennai. The petitioner subsequently, purchased lands falling in S.No.344/3, 344/5 measuring 0.14 and 0.27 cents respectively, vide sale deed dated 29.12.2006. The land was said to be acquired by the Government of Tamil Nadu for the purposes of Sholinganallur Neighborhood, to be implemented through the Tamil Nadu Housing Board.
3. The notification under Section 4(1) of the Land Acquisition Act with respect to land belonging to petitioner and other owners was issued on 03.05.1990 and after considering objections filed under Section 5-A of the Land Acquisition Act, declaration under Section 6 was issued on 21.06.1991.
4. The petitioner challenged the Acquisition proceedings by filing W.P.No.15410 of 1993 in this Court. The petitioner failed in his challenge to the acquisition proceedings and even the Hon'ble Supreme Court dismissed the Special Leave Petition (Civil) No.5372 of 2008, filed against the judgment of this Court upholding the acquisition.
5. It is submitted, that neither the petitioner nor the vendor of petitioner have received any compensation for the acquired land. It is pleaded by petitioner, that the land in Sholinganallur Village, was acquired by the State of Tamil Nadu in the year 1991 for the Tamil Nadu Housing Board for implementation of the project, which was to be implemented in three phases, i.e. Phase 1, 2 and 3. Several land owners had voluntarily surrendered their vacant land for implementation of the Phase-3 of the project. However, with respect to Phase 1 and 2, the lands being patta lands and many owners having put up their houses, the land owners had challenged the acquisition proceedings, but failed in their attempt.
6. The submission of petition is that even after more than 20 years, the Housing Board has not chosen to make any development on the acquired land and furthermore, the Neighborhood Scheme launched by the Housing Board has never been implemented properly, as part of the acquired land was kept unutilized and was not developed, which resulted in representation by the owners of land for exemption / reconveyance.
7. The State of Tamil Nadu thereafter formed a committee for the purpose of effective utilization of land, lying undeveloped in possession of the Tamil Nadu Housing Board and also thought of framing a policy for reconveyance of land, which was neither utilized nor was likely to be utilized.
8. According to petitioner, several extent of lands in Sholinganallur Village fell in the category of waste land, which was not being utilized by the Housing Board.
9. It is pleaded that many owners of adjacent land had approached the Tamil Nadu Housing Board for reconveyance of acquired land and that number of writ petitions were also filed in this Court for direction to consider their applications under Section 48-B of the Land Acquisition Act. Some of the writ petitions were disposed of with a direction to consider the representation filed by the land owners. In W.P.Nos.38302 to 38304 of 2003, this Court issued a direction in the light of G.O.Ms.No.254 Housing and Urban Development Department dated 06.10.2003 and permitted the petitioners to make representation to the committee constituted by the State Government to recommend withdrawal of acquisition proceedings.
10. The committee constituted by the State Governments submitted its report, which is said to be under active consideration of the Government and the petitioners were informed that their cases would be considered, once the Government finalizes the recommendation made by the committee. However, no final decision has been taken by the State Government.
11. It is also the submission of petitioner, that a number of representations have also been sent to the Hon'ble Chief Minister and various other authorities and in particular, the petitioner has also submitted the representation dated 15.12.2006 for exemption of his land from acquisition.
12. It is also pleaded that the State Government granted exemption in favour of M/s. Tata Consultancy Services and exempted the land measuring 3.04.5 Hectares of lands falling in S.No.408/8 from acquisition by permitting them to construct buildings. Similarly, the land in S.No.675/2 was exempted and planning permission was granted for developing the residential lay out. The submission of petitioner therefore is that the Government has already decided to exempt several lands from acquisition, as the Housing Board had not shown any interest for developing these lands even after 15 years of acquisition.
13. The stand of petitioner in the affidavit is that the Housing Board cannot be permitted to trade in real estate, when the object of the Housing Board is to provide housing accommodation to the poor and needy. The delay in implementation of project for 20 years only amounts to allowing the Housing Board to make profits after depriving of the original land owners of their valuable property.
14. The petitioner thereafter submitted a detailed representation on 03.05.2011, regarding his land and some other land, requesting the State Government to exercise powers under Section 48-B of the Land Acquisition Act and reconveyance of land of petitioner, subject to such condition as may be imposed.
15. On the facts, pleaded herein above, the prayer made is to issue a writ of Mandamus, to direct the respondents to consider the representation dated 30.09.2011 in accordance with Section 48-B of the Land Acquisition Act and grant exemption / reconveyance of land of petitioner.
16. In the counter filed by respondent no.2, it is stated, that the land was acquired vide Award No.1/93 to 5/93 in the month of June, 1993 to an extent of 204.70 acres for implementation of Sholinganallur Neighborhood Scheme Phase-III. The land of petitioner is said to be covered under Award No.2/93 dated 25.06.1993.
17. It is also submitted, that the land measuring 0.33 acres was under the ownership of Thiru K.Duraisingam. Notice under Section 9(3) and 10 was served on pattadars. The awarded compensation was directed to be paid to the registered owners of the land. The land measuring 0.41 acres was registered in the name of Thiru R.Gangadharan, S/o.Thiru Raji.
18. On notice issued under Section 9(3) and 10, the petitioner appeared and participated in the award enquiry. The entire compensation for the land was ordered to be paid to the registered owners. It is submitted that after passing of award, the petitioner filed W.P.No.15410 of 1993 in this Court to challenge the Land Acquisition proceedings.
19. Even though the writ petition was not competent, after passing of the Award, the writ petition was allowed on 31.01.2000. The order of the Hon'ble Single Judge was challenged in W.A. No.485 of 2001. The Writ Appeal filed by the State was allowed on 07.01.2008.
20. Subsequently, the possession of petitioner's land was handed over to the Tamil Nadu Housing Board by Land Acquisition Officer on 27.03.2008. The stand of the respondents is that the land now vests with the Tamil Nadu Housing Board. The SLP filed by the petitioner was dismissed on 04.03.2011.
21. The positive stand taken in the reply is that Sholinganallur Phase-3 Scheme was implemented by developing 678 LIG plots, 234 MIG plots and 620 HIG plots. Furthermore, in Land Bank Area-I, II & III, 904 LIG flats were constructed and allotted to the public. It is the assertion of the respondents, that the compensation for the land was paid to Thiru K.Duraisingam on proof of ownership. Similarly, for the land registered in the name of R.Gangadharan, the compensation was paid to him and possession taken over on 27.03.2008.
22. The petitioner purchased the land subsequent to passing of award. It is also stated in the counter, that the Tamil Nadu Housing Board had proposed schemes in Sholinganallur Phase-I & II Schemes as under:
"Phase-I : (a) 392 LIG flats scheme approved and work order issued and construction to be commenced.
(b) The Scheme of 415 HIG Flats were approved and planning permission is awaited from the C.M.D.A. (c) For the Scheme of 182 HIG Flats type design under scrutiny by C.M.D.A. Phase-II : (a) Construction of 117 HIG (MSB) flats scheme approved and work order issued and construction to be commenced. (b) new schemes about 15.00 Acres going to be developed under Multi-Storied Buildings."
23. The stand, therefore, is that the acquired land is required for the purposes of the Housing Board. The existence of the committee to consider reconveyance of land is denied in the counter. With regard to allegations of discrimination, the stand taken is that the land of petitioner cannot be equated or compared with the land, which was released from acquisition.
24. Thus, the writ petition is opposed, on the ground of locus standi to maintain this writ, having not been filed by the original owner, as also on the ground that the acquired land is required for implementation of the Scheme by the Housing Board.
25. Learned counsel for the petitioner in support of his contention, that the petitioner is entitled to exemption from acquisition / reconveyance of land, has referred to G.O.Ms.No.254 dated 06.10.2003, vide which the proposal of the Managing Director, Tamil Nadu Housing Board for constitution of committee was approved to achieve the following objects:
"i. Among the undeveloped properties in possession with TNHB at various locations, the Board must identify properties with good potentials for proper development and retain only such properties. In case of purchase of land through land acquisition. The Board must decide the schemes and extent needed and continue land Acquisition proceedings only for such schemes.
ii. Properties not required by the Board or found unfit for any future development should be disposed of under section 72 of Tamil Nadu Housing Board Act, through public auction with preference to the land owners.
iii. Undeveloped properties locked, in long pending litigation due to Enhance compensation and land Acquisition proceedings, it not required by the Board for future development, may be released to the land owners on collection off administrative and legal expenses incurred by the Board through out of court settlement on case of case basis and on merit. Board's commercial and Office Buildings given on lease may be disposed by public auction."
26. The contention of learned counsel for petitioner is that it was obligatory on the part of the committee to consider the representation made by petitioner for exemption of land from acquisition and for reconveyance.
27. The reliance by petitioner has been placed on the judgment of this Court in W.P.No.15430 of 1993 (K.Doraisingam vs. The State of Tamil Nadu and others) filed by petitioner to challenge the acquisition of land, wherein the writ petition of petitioner was allowed.
28. However, it is not disputed, that the writ appeal against the writ petition was allowed. It has also not been disputed, that the SLP filed by petitioner was dismissed.
29. Learned counsel for the petitioner has also placed strong reliance on the judgment of the Hon'ble Division Bench of this Court in W.A.Nos.252 to 255 of 2011 (Tamil Nadu Housing Board vs. Uma Maheswari Ramasamy and others), wherein, the Hon'ble Division Bench, on the facts and circumstances of that particular case was pleased to hold that the action of the State in giving different treatment to the land owners was highly arbitrary, capricious, discriminatory and violative of Article 14 of the Constitution of India.
30. The contention of learned counsel for the petitioner, therefore, is that his case is squarely covered by the Hon'ble Division Bench judgment of this Court, and thus, the petitioner is entitled to reconveyance of land.
31. Learned counsel appearing on behalf of the respondents on the other hand, opposed this writ petition, on the plea, that the writ petition is not maintainable on behalf of the petitioner, as he admittedly is not the original owner. The writ petition is also challenged on the ground, that the land is required for implementation of the scheme, therefore, it is not open to this Court to direct reconveyance of land to petitioner, specially when there is no similarity between the land, which was exempted from acquisition and that of the petitioner.
32. On consideration, I find force in the stand taken by the respondents. The Hon'ble Supreme Court in the case of Tamil Nadu Housing Board vs. L.Chandrasekaran and others, decided on 29.01.2010 (Civil Appeal Nos.3148-3149 of 2002), has been pleased to lay down as under:
"16. A glance at the impugned order shows that the Division Bench did not at all advert to the factual matrix of the case and the reasons incorporated in the Government's decision not to reconvey the acquired land to the respondents. The Division Bench also did not examine the correctness or otherwise of the order passed by the learned Single Judge and allowed the appeals preferred by the respondents simply by relying upon order dated 18.2.2000 passed in Writ Appeal No.2430/1999 and that too without even making an endeavour to find out whether the two cases were similar. In our view, the direction given by the Division Bench to the appellant-Board to reconvey the acquired land to the respondents is per se against the plain language of Section 48-B of the Act in terms of which only the Government can transfer the acquired land if it is satisfied that the same is not required for the purpose for which it was acquired or for any other public purpose. The appellant-Board is not an authority competent to transfer the acquired land to the original owner. Therefore, the Division Bench of the High Court could not have issued a mandamus to the appellant-Board to reconvey the acquired land to the respondents. As a matter of fact, the High Court could not have issued such direction even to the Government because the acquired land had already been transferred to the appellant-Board and the latter had utilized substantial portion thereof for execution of the housing scheme and other public purposes.
17. There is one more reason why the impugned judgment deserves to be set aside. Undisputedly, the land of the respondents forms part of large chunk which was acquired for execution of housing scheme. The report sent by the appellant-Board to the State Government shows that the purpose for which the land was acquired is still subsisting. The respondents had neither pleaded before the High Court nor any material was produced by them to show that the report which formed basis of the Government's decision not to entertain their prayer for reconveyance of the land was vitiated by malafides or that any extraneous or irrelevant factor had influenced the decision making process or that there was violation of the rules of natural justice. Therefore, the Division Bench of the High Court could not have exercised the power of judicial review and indirectly annulled the decision contained in communication dated 18.3.1999.
18. It need no emphasis that in exercise of power under Section 48-B of the Act, the Government can release the acquired land only till the same continues to vest in it and that too if it is satisfied that the acquired land is not needed for the purpose for which it was acquired or for any other public purpose. To put it differently, if the acquired land has already been transferred to other agency, the Government cannot exercise power under Section 48-B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey the land to the original owner if the same can be utilized for any public purpose other than the one for which it was acquired.
19. Before concluding, we may notice the judgment of this Court in Tamil Nadu Housing Board v. Keeravani Ammal (supra). The question considered in that case was whether the Division Bench of the High Court could direct release of the acquired land which had been transferred to the appellant-Board. While setting aside the impugned order, this Court observed:
"It is clearly pleaded by the State and the Tamil Nadu Housing Board that the scheme had not been suspended or abandoned and that the lands acquired are very much needed for the implementation of the scheme and the steps in that regard have already been taken. In the light of this position, it is not open to the Court to assume that the project has been abandoned merely because another piece of land in the adjacent village had been released from acquisition in the light of orders of the Court. It could not be assumed that the whole of the project had been abandoned or has become unworkable. It depends upon the purpose for which the land is acquired. As we see it, we find no impediment in the lands in question being utilised for the purpose of putting up a multi-storied building containing small flats, intended as the public purpose when the acquisition was notified. Therefore, the High Court clearly erred in proceeding as if the scheme stood abandoned. This was an unwarranted assumption on the part of the Court, which has no foundation in the pleadings and the materials produced in the case. The Court should have at least insisted on production of materials to substantiate a claim of abandonment.
We have already noticed that in the writ petition, there are no sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned Single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioners.
We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M. Bhaskaran Pillai (1997) 5 SCC 432 in a similar situation, this Court observed: (SCC p.433, para 4) "The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value."
Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here."
33. Additionally, the Hon'ble Supreme Court in the case of Tamil Nadu Housing Board vs. Keeravani Ammal and others, decided on 15.03.2007 (Appeal (civil) Nos.5928-5929 of 2004), was pleased to lay down as under:
"6. Admittedly, the lands were acquired under the Land Acquisition Act and an Award was passed. According to the State, possession was taken after some delay in view of a number of Writ Petitions that were filed in the High Court and the compensation payable under the Award had been deposited. There is no material on the basis of which we can hold that the proceedings under the Land Acquisition Act had not been completed. In fact, the prayer in the Writ Petition is for the issue of a writ of mandamus directing the State, its officers and the Tamil Nadu Housing Board to re-convey the property to the writ petitioners, the contesting respondents herein though there is an assertion that the writ petitioners are in possession. The learned single judge proceeded on the basis that the claim of the writ petitioners was for re- conveyance of the land under Section 48B of the Land Acquisition Act as inserted in the State of Tamil Nadu. The question therefore is whether the High Court was justified in directing the land to be re-conveyed in view of the specific stand adopted by the Housing Board and the State that the Scheme was very much in operation that necessary plans have been prepared and the project got delayed only because of the judicial intervention. We may also notice that it is the specific case of the appellants that in 1998, a claim for re-conveyance made had already been rejected. The further contention by the State and the Board was that possession of the lands having been made over to the Tamil Nadu Housing Board, Section 48B of the Act could not be invoked or the State directed to re-convey the land to the writ petitioners. The further submission was that Section 48B contemplated re-conveyance of land only to the original owner and not to anyone else and the writ petitioners were not the original owners from whom the land was acquired. In fact, it was contended that the writ petitioners have not established that they were either the representatives or the successors-in-interest of the original owners. It was asserted that, in fact, they were mere purchasers subsequent to the acquisition.
8. We find from the order of the learned single judge dated 2.8.2001, in the Writ Petition, the following statement recorded:
"According to the petitioners the said lands were not put into use by the fourth respondent Board for nearly 20 years. In the above said circumstances, when the petitioners approached the respondents for re-conveyance of the property by virtue of Section 48B of the Land Acquisition Act, it was rejected by the respondent. Again the petitioners made a representation to the respondents dated 18.3.98. Since the said representation of the petitioners has not been disposed of, the present Writ Petition came to be filed seeking for the issuance of a writ of mandamus directing the respondents to re-convey the lands situated in Survey Nos. 237, 238/1, 238/2 and 238/3 of Padi Village, Ambattur Taluk, M.G.R.District."
If the request of the writ petitioners for re-conveyance in terms of Section 48B of the Act stood rejected as apparently conceded by them before learned single judge, one finds it difficult to see how a second direction can be issued even in the absence of a challenge in the writ petition to the order of rejection and without examining the reasons contained therein. That order was also binding on the writ petitioners, so long as it was not got rid of. The order rejecting the request had become final and in a sense, it was not open to the learned single judge to issue the direction to consider an identical representation all over again. The Division Bench went one step further, we regret to say, without a proper consideration of the relevant aspects. The Division Bench apparently, even without giving the Tamil Nadu Housing Board an opportunity of being heard, proceeded at the stage of admission itself to direct re-conveyance of the lands to the writ petitioners, whether it be on the first date of hearing itself or on the subsequent date as contended by learned counsel for the contesting respondents. If the Division Bench felt that there was a case to be looked into, it should have admitted the writ appeal, issued rule nisi to the parties and thereafter heard the matter and disposed it of in the light of the relevant provisions of the Act, the law bearing on the subject and the facts obtaining. Even when the Division Bench got an opportunity to correct itself on being approached by way of review, it did not utilise that opportunity.
11. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala & Ors. Vs. M.Bhaskaran Pillai & Anr. [(1997) 5 S.C.C. 432] in a similar situation, this Court observed:
"The question emerges: whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting higher value."
Section 48B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here."
34. Thus, on perusal of the authoritative pronouncements of the Hon'ble Supreme Court, reproduced above, it is apparent that the State Government has no power under Section 48-B of the Land Acquisition Act to reconvey the land to the petitioner as the acquired land already stands vested in the Tamil Nadu Housing Board. Further still, it is apparent from the stand of the respondents, that the land is still required for public use. Even otherwise, the petitioner has purchased the land after the passing of the award and therefore, he does not have any locus standi to invoke the extraordinary writ jurisdiction of this Hon'ble Court under Article 226 of the Constitution of India, for want of any right under Sections 48-A or 48-B of the Act.
35. In view of the above, it is apparent that the representation made by the petitioner is without any merit and hence, no direction can be issued to the respondents to consider the same.
36. The writ petition is accordingly dismissed.
37. No costs.
20.06.2012 Index: Yes Internet: Yes ar To
1. The State of Tamil Nadu, Rep. by its Secretary to Government, Housing and Urban Development Department Fort St.George, Chennai-600 009.
2. The Managing Director, Tamil Nadu Housing Board, Anna Salai, Nandanam, Chennai
3. The Special Tahsildar Land Acquisition, Tamil Nadu Housing Board Scheme, Aringnar Special Shopping Complex, Thirumangalam, Chennai.
VINOD K. SHARMA,J.
ar Pre-Delivery Order in W.P.No.25961 of 2011 20.06.2012