Madras High Court
The Indira Nagar House Building Welfare ... vs State Of Tamilnadu on 23 January, 2014
Author: S.Manikumar
Bench: S.Manikumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 23.01.2014
CORAM:
THE HONOURABLE MR. JUSTICE S.MANIKUMAR
W.P.No.33881 of 2013
and
M.P.No.1 of 2013
The Indira Nagar House Building Welfare Society,
Rep. by its Secretary, P.S.Jayanthi ... Petitioner
vs.
1. State of Tamilnadu, rep. by the Secretary,
Housing and Urban Development,
Secretariat, Chennai.
2. The Managing Director,
Tamilnadu Housing Board,
Nandanam, Chennai.
3. The Executive Engineer,
Tamilnadu Housing Board,
Salem Housing Unit, Salem.
4. The District Collector,
Salem District, Salem.
5. The District Revenue Officer,
Salem District, Salem.
6. The Special Tahsildar (Land Acquisition),
Neighbourhood Scheme, Salem.
7. The Tahsildar,
Salem Taluk,
Salem. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India to issue a Writ of mandamus, directing the first respondent to issue withdrawal notification as required for the change of patta in the name of the members of petitioner association for the land in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District.
For Petitioner : Mr.K.Muthuramalingam
For Respondents : Mr.K.V.Dhanapalan (For R1, 4 to 7)
Addnl. Government Pleader.
Mr.Satish (for R2)
for Mr.R.V.Babu, TNHB
ORDER
Indira Nagar House Building Welfare Society, represented by its Secretary, Ms.P.S.Jayanthi, has sought for a writ of mandamus, directing the Government, 1st respondent to issue a withdrawal notification for effecting change of patta, in the name of the members of the petitioner's association, for the land in S.No.94/3, Ayyamperumal Patty Village, Salem Taluk & District.
2. Short facts deduced from the supporting affidavit are as follows:
Indira Nagar House Building Welfare Society, is a registered Association bearing Regn. No.157 of 1984, having 33 members, who are government employees, in the subordinate services of the State and Central Government. In the land bearing S.No.94/3, Ayyamperumal Patty Village, Salem Taluk & District, a layout has been approved vide L.P./R.Sc.63/81 dated 22.05.1981, by the Director of Town and Country Planning, Chennai on the proposals submitted by the original owners of the land.
3. Pursuant to the same, between 12.06.1991 and 27.08.1991, members of the petitioner's association have purchased plots, under various registered sale deeds. The petitioner association has further contended that the Secretary to the Government, Housing and Urban Development, Chennai, the 1st respondent issued a notification under Section 4(1) of the Land Acquisition Act, vide G.O.Ms.No.755, Housing and Urban Development dated 04.09.1981, to acquire the abovesaid lands. Challenging the same, W.P.No.5023 of 1986 has been filed.
4. Material on record discloses that the challenge in that writ petition, was for a writ of certiorarified mandamus, calling for the records of the respondent therein, comprised in Section 4(1) notification passed in G.O.Ms.No.755, Housing and Urban Development Department dated 04.09.1981 published in Tamilnadu Government Gazette on 23.09.1981 and the consequential Section 6 notification issued under the Act, issued in G.O.Ms.No.608, Housing and Urban Development Department dated 03.08.1984 and published in Government Gazette on 22.08.1984, and to quash the entire acquisition proceedings, in respect of the lands covered in S.No.94/3, Ayyamperumal Patty Village, Salem Taluk & District. In W.P.No.5023 of 1986, the petitioner association has also sought for a consequential direction to the respondents therein, not to acquire the said land. On the facts and circumstances, pleaded by the writ petitioner, in W.P.No.5023 of 1986 and following the decision of this Court in Saroja Sethu Vs. State of Tamilnadu reported in 1993 WLR 240, a learned Single Judge of this Court vide order dated 18.03.1996, has allowed, the writ petition, and quashed the notifications stated supra.
5. Material on record further discloses that being aggrieved by the abovesaid order, the State has preferred an appeal with a delay of 1060 days, in filing the appeal. Vide order dated 25.06.2007 in CMP No.10962 of 2000 in W.A.SR.No.33846 of 1999, the Honb'le First Bench, has dismissed the delay excuse petition. Special Leave Petition preferred by the State, against the order refusing to condone the delay, with I.A.No.1 (C/Delay in filing SLP), has also been dismissed by the Supreme Court on 09.07.2009, the order reads as follows.
"The Special Leave Petition is dismissed on the ground of delay. Question of law is left open."
6. After the dismissal of the Special Leave Petition, in the year 2009, stated supra, the Secretary, Indira Nagar House Building Welfare Society, has made a representation dated 10.01.2010, to the District Revenue Officer, Salem District, Salem, to issue necessary pattas to Mrs.P.S.jeyanthi and 40 others by making necessary sub division. As the said representation remained unanswered for some time, W.P.No.11496 of 2012 has been filed by the Indira Nagar House Building Welfare Society, for a mandamus directing the respondents therein, to effect mutation in the revenue records to the members of the petitioner's association, in respect of Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District. The said writ petition has been disposed of on 23.04.2012, giving directions to the Tahsildar, Salem District, the 7th respondent therein, to pass orders on the representation. Pursuant to the said directions, the Executive Engineer and administrative officer, Salem vide letter No.A1/7337/79 (W.P.No.5023/86) dated 18.01.2013, has sought for a legal opinion from the learned counsel for the Housing Board, Chennai.
7. The Tahsildar, Salem at paragraph No.2 of his Proceedings in R.C.No.1816/13 (B1) dated 08.04.2013, has stated as follows:
"nryk; tl;lk;. ma;ak;bgUkhk;gl;o fpuhkk; g[y vz;/94-3?y; rl;lj;jpw;F cl;gl;L gl;lh khw;wk; bra;a ghu;it 2?d;go brd;id cau;ePjp kd;wk; ghprPyid bra;a cj;jputpl;Ls;sJ/ mjd;go g[yj;jzpf;if bra;jjpy; ma;ak;bgUkhk;gl;o fpuhkk; giHa g[y vz;/94-3 vd;gJ g[jpa khefu epy msitgo thu;L?F. gpshf;?12 efu g[y vz;/13-8?d; gug;g[ 1/4400/0 rJukPl;lu; braw; bghwpahsu; kw;Wk; epu;thf mYtyu; jkpH;ehL tPl;L trjp thhpak; vd;w bgahpy; fpuhk kw;Wk; efu fzf;Ffspy; jhf;fy; bra;ag;gl;Ls;sJ/ "
8. Material on record further discloses that alleging disobedience of the orders made in W.P.No.11496/12 dated 23.04.2012, a contempt application No.754/13 has been filed by the writ petitioner. Thereafter, proceedings in Roc.No.1816/13 (B1) dated 08.04.2013, has been issued by the Tahsildar, Salem stating that after full inspection, it has been noticed that mutation has been effected, in respect of the properties in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District, in favour of Housing Board. In the abovesaid proceedings the Tahsildar, Salem has further submitted that eight persons, who have sought for sub division and issuance of separate pattas, have given their written statements.
9. Though, earlier, the Tahsildar, vide proceedings in Roc No.1816/2013/B1 dated 27.03.2013, has stated that a withdrawal notification has to be approved and published by the Government Gazette and only after the completion of the abovesaid procedure, he could effect transfer of patta, in the name of the writ petitioner association, as per the judgment of this Court in W.P.No.11496 of 2012 dated 23.04.2012, in the subsequent proceedings in R.C.No.1816/2013/B1 dated 08.04.2013, the Tahsildar, Salem District, has stated that only after issuance of a No Objection Certificate by the Tamil Nadu Housing Board, individual pattas would be issued and accordingly, rejected the request of the writ petitioner association.
10. Material on record further discloses that when another representation dated 18.06.2013, has been made, by the petitioner's association, to effect change of patta, to and in favour of the petitioner's association, the Executive Engineer and Administrative Officer, Salem Housing Unit, has sent a reply, stating that on the abovesaid aspect, legal opinion has been sought for and only after obtaining the same, suitable action could be taken. He has further observed that proposals, have to be sent by the District Collector, Salem for cancellation of the earlier Government orders and therefore, instructed the petitioner association to approach the Special Tahsildar (land Acquisition), Salem District.
11. In the abovesaid circumstances, the petitioner has made a representation dated 24.07.2013, to the Public Information Officer, as to whether there was any reply from the Government, to the proposals sent by the Tahsildar, vide letter in R.C.No.40/97 (W.P.5023/86) dated 11.05.2010 and 17.06.2010. Responding to the above question and others, the Public Information Officer, Salem, Housing Unit, Tamilnadu Housing Board, Salem vide letter No.PIO/2094/2013 dated 12.08.2013, has stated that no reply from the Government has been obtained. In these circumstances, the petitioner has sought for the mandamus, stated supra.
12. On the above averments and material on record, the respondents were put on notice. No counter affidavit has been filed.
13. Though, Mr.K.Muthuramalingam, learned counsel for the petitioner submitted that possession of the lands in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District, still continues with the members of the association, who have purchased the lands under various registration deeds between 12.06.1981 to 27.08.1981, no material documents have been filed. Nevertheless, Mr.Sathish, learned counsel representing the Tamil Nadu Housing Board, categorically submitted that possession has not been taken from the landowners. His submission is placed on record.
14. Indisputeably, the notification, issued under Section 4(1) in G.O.Ms.No.755, Housing and Urban Development Department dated 04.09.1981 and published in Tamilnadu Government Gazette, dated 23.09.1981, and the Section 6 declaration issued in G.O.Ms.No.608, Housing and Urban Development Department dated 03.08.1984 and published in Government Gazette dated 22.08.1984 have been quashed, vide order dated 18.03.1996 in W.P.No.5023 of 1986. Steps taken by the Government to reverse the abovesaid order have been rejected in SLP (C).../2009 CC.No.7575 of 2009 dated 09.07.2009. The Land Acquisition proceedings taken by the Government, have been held against the Government. Finality has been reached in the year 2009.
15. As stated supra, though vide proceedings in R.C.No.1816/13/B1 dated 27.03.2013, the Tahsildar, Salem has sent a reply to the Association that after issuance of the withdrawal notification and publication in the Government Gazette, mutation of revenue records, in the name of the writ petitioner could be considered, quite contrary to the same, in the subsequent proceedings in R.C.No.1816/13/B1 dated 08.04.2013, he has directed the writ petitioner, and eight other claimants, who have sought for issuance of separate pattas, to obtain No Objection Certificates from the Housing Board.
16. Though, Mr.K.Muthuramalingam, learned counsel for the petitioner submitted that no award has been passed after the filing of W.P.No.5023 of 1986, no materials have been placed before this Court.
17. Though, Mr.K.V.Dhanapalan, learned Additional Government Pleader submitted that he has been instructed to state that an award has been passed, no materials have been placed, before this Court. Even after the perusal of the proceedings of the Tahsildar, Salem District in R.C.No.1816/13/B1 dated 27.03.2013 and R.C.No.1816/13/B1 dated 08.04.2013, it could not be deduced that an award has been passed by the competent authority under the Land Acquisition Act, 1894 and payments have been made or deposited in any Court. The Tahsildar, Salem District, the 7th respondent has merely stated that only a withdrawal notification has to be issued by the Government.
18. At this juncture, a representation has been made by the learned counsel for the Tamil Nadu Housing Board that in respect of the property in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District, an award has been passed in favour of one Mr.Subramani, on 19.09.1986. Even taking for granted that an award has been passed under Section 11 of the Land Acquisition Act, 1894, the said award has no force, in the eye of law, as notifications issued under Section 4(1) and 6 of the Land Acquisition Act, 1894, have been set aside, vide order dated 18.03.1996 in W.P.No.5023 of 1986, and when the proceedings have reached finality in 2009 itself.
19. As per Section 16 of the Land Acquisition Act, 1894, when the Collector makes an award under Section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances. It is the specific case of the Housing Board, that possession has not been taken. Section 16 of the Act reads as follows:
Power to take possession.When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government, free from all encumbrances.
20. On the aspect of vesting, this Court deems it fit to consider few decisions.
(i) In F. & V. Merchants Union v. Improvement Trust, Delhi reported in AIR 1957 SC 344, the Supreme Court explained the word, "vest" as follows:
"The word "Vest" has not got a fixed connotation, meaning in all cases that the property is owned by the persons or the authority in whom it vests. It may vest in title or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation."
The Supreme Court, in the above reported judgment, at Paragraph 19, further explained that, "19. That the word vest is a word of variable import is shown by provisions of Indian statutes also. For example, Section 56 of the Provincial Insolvency Act (5 of 1920) empowers the court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and further provides that such property shall thereupon vest in such receiver. The property vests in the receiver for the purpose of administering the estate of the insolvent for the payment of his debts after realising his assets. The property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. On the other hand, Sections 16 and 17 of the Land Acquisition Act (Act 1 of 1894), provide that the property so acquired, upon the happening of certain events, shall vest absolutely in the Government free from all encumbrances. In the cases contemplated by Sections 16 and 17 the property acquired becomes the property of Government without any conditions or limitations either as to title or possession. The legislature has made it clear that the vesting of the property is not for any limited purpose or limited duration. It would thus appear that the word vest has not got a fixed connotation, meaning in all cases that the property is owned by the person or the authority in whom it vests. It may vest in title, or it may vest in possession, or it may vest in a limited sense, as indicated in the context in which it may have been used in a particular piece of legislation. The provisions of the Improvement Act, particularly Sections 45 to 49 and 54 and 54-A when they speak of a certain building or street or square or other land vesting in a municipality or other local body or in a trust, do not necessarily mean that ownership has passed to any of them."
(ii) The word "vest" used in Andra Pradesh (Andra Area) Inam (Abolition and Conversion) into Ryotiwari Act, 1956, (37 of 1956), came up for consideration before the Supreme in Vatticherukuru Village Panchayat v. Nori Venkatarama Deekshithulu reported in 1991 Supp (II) SCC 228. After extracting the dictionary meaning of the word 'vest', 'vesting', the Supreme Court held that, the word "vest" bears variable colour, taking its content from the context, in which it came to be used. At paragraph 10 of the judgment, the Supreme Court held that, "10. The word vest clothes varied colours from the context and situation in which the word came to be used in a statute or rule. Chambers Mid-Century Dictionary at p. 1230 defines vesting in the legal sense to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right. In Blacks Law Dictionary, (5th edn. at p. 1401) the meaning of the word vest is given as : to give an immediate, fixed right of present or future enjoyment; to accrue to; to be fixed; to take effect; to clothe with possession; to deliver full possession of land or of an estate; to give seisin; to enfeoff. In Strouds Judicial Dictionary, (4th edn., Vol. 5 at p. 2938), the word vested was defined in several senses. At p. 2940 in item 12 it is stated thus as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statute, see Port of London Authority v. Canvey Island Commissioners in which it was held that the statutory vesting was to construct the sea wall against inundation or damages etc. and did not acquire fee simple. Item 4 at p. 2939, the word vest, in the absence of a context, is usually taken to mean vest in interest rather than vest in possession. In item 8 to vest, generally means to give the property in. Thus the word vest bears variable colour taking its content from the context in which it came to be used. Take for instance the land acquired under the Land Acquisition Act. By operation of Sections 16 and 17 thereof the property so acquired shall vest absolutely in the government free from all encumbrances. Thereby, absolute right, title and interest is vested in the government without any limitation divesting the pre-existing rights of its owner."
(iii) The word 'Vest' came up for consideration in M. Ismail Faruqui (Dr) v. Union of India reported in (1994) 6 SCC 360. The Constitutional Bench of the Apex Court, with reference to Section 3 of the Acquisition of Certain Areas at Ayodhya Act, 1993, at Paragraph 21, held as follows:
"21. Section 3 provides for acquisition of rights in relation to the area defined in Section 2(a). It says that on and from the commencement of this Act the right, title and interest in relation to the area shall, by virtue of this Act, stand transferred to, and vest in, the Central Government. It is well-settled that the meaning of vest takes colour from the context in which it is used and it is not necessarily the same in every provision or in every context. In Maharaj Singh v. State of U.P., reported in 1977 (1) SCC 155 , it was held: (SCR p.1081 : SCC pp.164-65, para 16) Is such a construction of vesting in two different senses in the same section, sound? Yes. It is, because vesting is a word of slippery import and has many meanings. The context controls the text and the purpose and scheme project the particular semantic shade or nuance of meaning. That is why even definition clauses allow themselves to be modified by contextual compulsions. The meaning of vest in Section 3 and in Section 6 is of significance in the context of the constitutional validity of the statute. It can vary in different parts of the statute or even the same section, depending on the context of its use."
21. When the declarations made under the Land Acquisition Act, 1894 have been quashed, there cannot be any vesting of any title, right or interest, with the Government, in relation to the property under acquisition. Even taking it for granted that the Government have acquired any right, title or interest in relation to the property, pursuant to the declarations stated supra, such right or title or interest, as the case may be, is extinguished, when the declarations conferring any such right are quashed by this Court. Thereafter, it is not open to the respondents to contend that they have any subsisting right over the property.
22. Having regard to the submission of Mr.Satish, learned counsel representing the Tamilnadu Housing Board, that possession has not been taken, and when the declarations have been quashed by this Court, the question of vesting of any right or title or interest over the property in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District, with the Government does not arise. The Government or the Housing Board, has no legal right over the property. Consequent to the quashing of the declarations, the rights of the landowners to the property, under acquisition stands automatically restored. The Government or the requisition body cannot have any lien over the property, when the constitutional Court declares the acquisition proceedings, as untenable.
23. When the acquisition proceedings initiated under Section 4(1) of the Act, and the consequential Section 6 declaration have been quashed by this Court, vide order dated 18.03.1996 in W.P.No.5023 of 1986, which has also reached finality in 2009, it is the humble opinion of this Court, that the question of withdrawing the previous notifications, which had already been quashed by this Court, does not arise at all. Orders issued by the authorities can be withdrawn, if they continue to exist. They are already quashed by this Court. What is there to withdraw, by the Government, is unexplained by the respondents. There is a categorical statement of the learned counsel for the Housing Board, that possession of the land has not been taken over by the Government. The Managing Director, Chennai and the Executive Engineer, Salem respondents 2 and 3 representing, the Housing Board, have no legal right to contend that they have any right or interest over the property in Survey No.94/3 Ayyamperumal Patty Village, Salem Taluk & District, and the directions of the Tahsildar, Salem District, insisting that the owners of the land should obtain a "No Objection Certificate", from the Housing Board, who has no right over the property, would be against the judgment of this Court, in W.P.No.5023 of 1986 dated 18.03.1996.
24. In the opinion of this Court, the Tahsildar, Salem District, has totally brushed aside the orders of the Constitutional Court and appears to be waiting for an administrative order, to be passed, declaring a dead notification, as withdrawn. Virtually, the respondents are sitting over the judgment of this Court in W.P.No.5023 of 1986 dated 18.03.1996 and waiting for an administrative order. At any rate, an executive order, cannot over weigh the judicial decision. Therefore, there cannot be an order contrary to the decision in W.P.No.5023 of 1986 dated 18.03.1996. The action of the Tahsildar, Salem District, or the other respondents, for the matter, claiming lien over the property, would even attract the provisions of the Contempt of Court Act, 1971.
25. In the light of the statutory provisions and the order passed by this Court in W.P.No.5023 of 1986, this Court is of the view that the respondents themselves ought to have taken steps to effect mutation of records and issued pattas to the claimants. On the facts and circumstances of this case, there shall be a direction to respondents, to take immediate steps, to effect mutation of revenue records in the name of Indira Nagar House Building Welfare Society, Salem and also the individuals, who have sought for S.MANIKUMAR, J ars issuance of separate patta. The said exercise has to be completed within a period of 30 days from the date of receipt of a copy of this order. The writ petition is ordered accordingly. No costs. Consequently, the connected Miscellaneous Petition is closed.
23.01.2014 Index : Yes Internet: yes ars To
1. The Secretary, State of Tamilnadu, Housing and Urban Development, Secretariat, Chennai.
2. The Managing Director, Tamilnadu Housing Board, Nandanam, Chennai.
3. The Executive Engineer, Tamilnadu Housing Board, Salem Housing Unit, Salem.
4. The District Collector, Salem District, Salem.
5. The District Revenue Officer, Salem District, Salem.
6. The Special Tahsildar (Land Acquisition), Neighbourhood Scheme, Salem.
7. The Tahsildar, Salem Taluk, Salem.
W.P.No.33881 of 2013