Madras High Court
S.Krishnan vs The Government Of Tamil Nadu on 19 March, 2010
Author: K.Chandru
Bench: K.Chandru
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 19.03.2010
CORAM:
THE HON'BLE MR.JUSTICE K.CHANDRU
W.P.Nos.34690 and 34691 of 2005
and W.P.M.P.Nos.37606 and 37608 of 2005
1.S.Krishnan
2.N.Kathirvel Murugan
3.R.Ranganathan
4.D.Babu
5.K.Ranganathan
6.S.Pushpa
7.R.Vijaya Raman
8.C.Raman
9.M.Muthukumar
10.M.Devi
11.S.Alamelu ... Petitioners in
W.P.No.34690/2005
1.R.Selvam
2.S.Murthy
3.E.John Raj
4.J.Srinivasan
5.S.Munusamy
6.N.Saroja
7.Hamsa
8.C.Mohana Sundaram ... Petitioners in
W.P.No.34691/2005
Versus
1.The Government of Tamil Nadu
Rep.by its Secretary
Housing and Urban Development Department
Chennai 600 009.
2.The Special Tahsildar (L.A.)
Tamil Nadu Housing Board Schemes
Chennai 600 101.
3.The Executive Engineer and
Administrative Officer
Besant Nagar Division
Tamil Nadu Housing Board
48, Dr.Muthulakshmi Salai,
Sastri Nagar, Chennai 600 020. ... Respondents in both WPs'
PRAYER IN W.P.NO.34690/2005: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus, calling for the records of the respondents relating to Letter No.8626/LA.I(1)/2005-4 dated 01.08.2005 on the file of the 1st respondent and quash the same and directing the respondents to reconsider issuance of reconveyance order under Section 48-B of Land Acquisition Act in the light of the observations of the Division Bench of this Court and the Apex Court relating to the lands of the petitioners herein in Survey Nos.617/1B2, 613/3 & 617/1B4, 618/5 & 613/3B, 613/3A3, 613/3C, 613/3E, 613/3D, 613/3B and 613/3 of Sholinganallur Village, Tambaram Taluk, Kanchipuram District.
PRAYER IN W.P.NO.34691/2005: Writ Petition filed under Article 226 of the Constitution of India, praying for the issuance of writ of certiorarified mandamus, calling for the records of the respondents relating to Letter No.12853/LA.I(1)/2005-4 dated 01.08.2005 on the file of the 1st respondent and quash the same and directing the respondents to reconsider issuance of reconveyance order under Section 48-B of Land Acquisition Act in the light of the observations of the Division Bench of this Court and the Apex Court relating to the lands of the petitioners herein in Survey Nos.416/4, 416/6, 617/4B1B, 613/6B, 614/1B, 618/2, 612/B1, 612/B2, 612/B3, 416/2A and 416/2B of Sholinganallur Village, Tambaram Taluk, Kanchipuram District.
For petitioners : Mr.Kandan Duraisamy
for Mr.Muthumani Doraisami
For Respondent-1 : Mr.N.Senthil Kumar
Additional Government Pleader
For Respondents 2&3 : Mr.D.Veerasekaran
COMMON ORDER
Heard both sides.
2.These matters came to be posted under the order dated 17.03.2010 of the Honourable Chief Justice.
3.The petitioners in both the writ petitions are in occupation of the lands in question. The writ petition in W.P.No.34690 of 2005 was filed by one S.Krishnan and 10 others. They have filed the writ petition seeking to challenge the order dated 01.08.2005 passed by the first respondent-State Government refusing to part with the lands acquired in various survey numbers in Sholinganallur Village, Tambaram Taluk, Kanchipuram District.
4.The writ petition in W.P.No.34691 of 2005 was filed by one R.Selvam and 7 others for the very same relief.
5.Both the writ petitions were admitted on 27.10.2005. Pending the writ petitions, interim order was granted on 27.10.2005 for a period of eight weeks. Subsequently, there is no endorsement in the Court bundle that it was further extended. In any event, the matters were directed to be posted before the Division Bench. Accordingly, when the matter came up before the Division Bench on 27.02.2006, one of the learned Judge who presided over the Division Bench stated that the matter may be posted before some other Bench. This was on the view that subsequent to the judgment in PRITHVI TRUST PRIVATE LIMITED VS. STATE OF TAMIL NADU reported in 2005 (3) CTC 145, it may not be proper for the Court to pass any order on an application of this nature and therefore, the matter was directed to be posted before some other Bench. Subsequently, by the orders of the Honourable Chief Justice, the matters came to be listed before this Court after grouping it together with other connected writ petitions.
6.On notice from this Court, on behalf of the Tamil Nadu Housing Board, separate counter affidavit dated 16.02.2006 was filed in both the writ petitions. The Special Tahsildar also has filed another counter affidavit dated 06.09.2007. Reliance was placed upon the judgment of the Supreme Court reported in 2007 (2) CTC 447.
7.In the counter affidavit filed by the Tamil Nadu Housing Board, a preliminary objection was taken namely, invocation of Section 48-B of the Land Acquisition Act was not available to the petitioners, since the lands were vested with the Tamil Nadu Housing Board and acquired for the purpose of formation of Sholinganallur Neighbourhood Housing Scheme. It was also stated that the petitioners are in possession of lands was unauthorised and they are liable to be evicted. It was further submitted that the Tamil Nadu Housing Board Neighbourhood Scheme was framed in respect of lands in Sholinganallur Village in the year 1990. An award was passed in the year 1997 and the lands were handed over to the Tamil Nadu Housing Board on 16.08.2004. Therefore, the petitioners claim that they have put up construction and residing in the Tamil Nadu Housing Board lands, was unauthorised. In para 18, it was contended that single writ petition was not maintainable. But however, action for eviction will be taken after giving individual notices. Similar stand was taken in respect of the second writ petition.
8.It is seen from the records that this is the third round of litigation instituted by the petitioners. The petitioners, in the earlier writ petition in W.P.No.11386 of 2005 claimed that their application under Section 48-B of the Land Acquisition Act, pending with the Government, must be disposed of. This Court by an order dated 11.04.2005 disposed of the writ petition and gave a direction to the Government to consider their representation. Subsequently, a second writ petition in W.P.No.16288 of 2005 was filed with different set of petitioners. In that case, an interim stay against dispossession was granted. But however, it was made clear that such an order will be in force only if they are not dispossessed earlier. Pursuant to the earlier direction given by this Court, the State Government, by order dated 01.08.2005 rejected the requests of the petitioners. It was stated that the lands were acquired in respect of Sholinganallur Village Phase-I Scheme covering an extent of 47.36 acres and after following due procedure, an Award in No.1/97 was passed on 23.04.1997 and possession was taken over by the Tamil Nadu Housing Board on 16.08.2004. It was also stated that the lands are essentially required for the formation of the Scheme and the Tamil Nadu Housing Board was taken appropriate action to finalise the scheme. Therefore, the requests of the petitioners were rejected.
9.Mr.Kandan Duraisami, learned counsel for the petitioners contended that the petitioners have already made pucca construction in the lands and if at this stage, they are sent out, it will cause immense hardship to the petitioners. But in the present case, admittedly the petitioners were not the original owners of the lands in question and invocation of Section 48-B as rightly contended by the Tamil Nadu Housing Board is not maintainable. Section 48-B is available only to the original owners and not to any subsequent purchasers who might have come into possession of the lands. Whether the petitioners are the purchasers of lands or occupiers of the lands is not a question for consideration. It is suffice to state that invocation of Section 48-B is inappropriate. Even otherwise, in the two orders passed by this Court, the respondents have considered the issue in consultation with the requisitioning body and passed an order negativing their request. Therefore, the short question that arises for consideration is whether the petitioners claim can be considered in the light of the order passed by the first respondent.
10.Though several proceedings had taken place in this writ petition, it is unnecessary to go into the details of the same. The short question that arises for consideration is whether the petitioners are entitled for return of the land, especially when the lands were acquired under the Land Acquisition Act and entrusted to the requisitioning body. Though the petitioners placed strong reliance upon a judgment of the Division Bench of this Court in R.Shanmugam and others vs. The State of Tamil Nadu and others reported in 2006 (4) CTC 290, this Court is not inclined to accept the stand of the petitioners. If at all the petitioners have any right to seek return of the land, it can be done only by the exercise of power under Section 48-B of the Land Acquisition Act, 1894.
11.The Supreme Court in Tamil Nadu Housing Board vs. Keeravani Ammal and Others reported in 2007 (2) CTC 447 in paragraph 11 had observed as follows:-
"...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."
12.It was brought to the notice of this Court that in the latest judgment in Tamil Nadu Housing Board vS. L.Chandrasekaran and Others in Civil Appeal Nos.3148-3149 of 2002 (MANU/SC/0069/2010) dated 29.01.2010, the Supreme Court dealt with the scope of Section 48-B and has considered all the cases arising out of reconveyance. In paragraphs 18 and 19, it was observed as follows:-
"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 re-convey the same to the original owner. In any case, the Government cannot be compelled to re-convey 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.
(Emphasis added)
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 MANU/SC/0731/1997 : (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."
13.Though the learned counsel for the petitioners had cited some cases regarding re-conveyance, this Court is not inclined to accept the case of the petitioners. Even otherwise, once an acquisition took place, even the State cannot withdraw from the acquisition after the purpose of the acquisition is completed. Citing the cases of others cannot improve the case of the petitioner. The Supreme Court in Shanti Sports Club & Another vs. Union of India & others reported in 2009 AIR SCW 6953 dealing with the plea of discrimination and violation of Article 14, in paragraphs 50 and 51 observed as follows:-
"50. The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government's decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:-
"We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world".
(Emphasis added)
51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589.
14.In the light of the same, these writ petitions stand dismissed. No costs. Consequent, connected miscellaneous petitions are closed.
19.03.2010 Index : Yes Internet : Yes TK K.CHANDRU, J.
TK To
1.The Secretary Government of Tamil Nadu Housing and Urban Development Department Chennai 600 009.
2.The Special Tahsildar (L.A.) Tamil Nadu Housing Board Schemes Chennai 600 101.
3.The Executive Engineer and Administrative Officer Besant Nagar Division Tamil Nadu Housing Board 48, Dr.Muthulakshmi Salai, Sastri Nagar, Chennai 600 020.
W.P.Nos.34690 & 34691 of 2005 19.03.2010