Madras High Court
P.Arivudainambi vs The Managing Director on 28 April, 2006
Bench: P.Sathasivam, J.A.K.Sampathkumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 28/04/2006
Coram
The Hon'ble Mr. Justice P.SATHASIVAM
and
The Hon'ble Mr. Justice J.A.K.SAMPATHKUMAR
Writ Petition No.39279 of 2005
and
Writ Petition Nos.11907/06 & 11908/06
and
WPMP Nos.42101/05, 13508 & 13509 of 2006
W.P. No.39279/05:-
P.Arivudainambi ... Petitioner
-vs-
1. The Managing Director,
Tamilnadu Housing Board,
Anna Salai, Chennai-600 035.
2. State of Tamilnadu rep. by
its Secretary to Government,
Housing and Urban Land Development
Department, Fort St. George,
Chennai 600 009. ... Respondents
W.P. Nos.11907 & 11908/06:-
Dr.Vasanthi Veerasekaran ... Petr. in WP.11907/06
Veerasekaran ... Petr. in WP.11908/06
vs.
The Secretary to Government,
Housing & Urban Development
Department,
Fort St. George, Chennai-600 009. ... Respt. in both WPs.
W.P.No.39279 of 2005:- Petition under Article 226 of the Constitution of India
for the issuance of a writ of certiorarified mandamus to call for the records
relating to the 2nd respondent's letter No.41629/ UD3(2)/2003/13, dated
26.5.05, quash the same, and consequently direct the 2nd respondent to pass an
order of allotment of vacant house sites / plot in favour of the petitioner in
any one of the housing project promoted by the 1st respondent.
W.P. Nos.11907 & 11908/06:- Petitions under Article 226 of the Constitution
of India for the issuance of writ of mandamus, directing the respondent to
implement the order passed by this Court, dated 12.12.20 03, in W.P.M.P.
No.28883 of 2003 in W.P. No.3372 of 2003 and W.P.M. P. No.28882 of 2003 in
W.P. No.36980 of 2002, by allotting alternate sites to the petitioners as a
special category of displaced persons, as directed in the said order.
!Mr.P.Arivudainambi, petitioner in
WP.39279 of 2005/party-in-person.
For Petrs. in WPs.11907 & 11908/2006 : Mr.A.Jenasenan
^For State and Housing Board : Mr.R.Muthukumarasamy,
Addl. Advocate General.
:COMMON ORDER
Since the issue in these Petitions is one and the same, they are being disposed of by this Common Order.
2. Petitioner in W.P. No.39279 of 2005 is one P.Arivudainambi, Advocate, practising in this Court. He challenges the order of the second respondent, viz., Secretary to Government, Housing and Urban Land Development Department, Fort St. George, Chennai-600 009, dated 26.05.2 005, in and by which, the Government rejected the request of the petitioner without taking into consideration the direction of this Court in WPMP No.25732 of 2003 in W.P. No.15974 of 2002, dated 12.12.2003.
The other two Writ Petitions, viz., W.P. Nos.11907 & 11908 of 2006, have been filed by one Dr.Vasanthi Veerasekaran and D.Veerasekaran respectively, praying for the issuance of Writ of Mandamus, directing the respondent, viz., Secretary to Government, Housing & Urban Development Department, Fort St. George, Chennai-600 009, to implement the orders passed by this Court, dated 12.12.2003 in W.P.M.P. No.28883 of 2003 in W.P. No.3372 of 2003 and W.P.M.P. No.28882 of 2003 in W.P. No.36980 of 2002, by allotting alternate sites to the petitioners under the special category of 'displaced persons' as directed in the said orders.
3. Common facts, in brief, are as follows:-
A. In the case of the petitioner in W.P. No.39279 of 2005, according to him, his only housing plot admeasuring an extent of 5700 sq. ft. situate in Survey No.300/13 of Velachery village had been acquired way back on 15.10.1999. When he challenged the same by filing writ petition in W.P. No.16929 of 1999, the Government gave an undertaking before the Court on 15.10.1999 that his possession would not be disturbed without following the due process of law. However, it is the grievance of the petitioner that contrary to the said undertaking, the petitioner was dispossessed forcibly for the execution of the project work. After taking the possession forcibly, the State Government resorted to acquisition proceedings and passed award in Award No.1 of 20 03, dated 10.01.2003. The petitioner's land had been acquired by the second respondent for the purpose of implementing M.R.T.S. Railway project. The project has been jointly implemented by the second respondent and the Government of India and the entire cost of the project was shared by both State and Central Government on the ratio of 67:3 3. The petitioner, having no other housing land, filed W.P.M.P. No.25732 of 2003 in W.P. No.15947 of 2002. The petitioner sought for a direction to the Government to allot equal proportion of the vacant land anywhere within the Corporation/City Limit. After hearing both sides, considering the grievance of the petitioner, learned single Judge passed an order on 12.12.2003, permitting the petitioner to make a representation for allotment of alternate site, with a positive direction that, if any such representation is made, the State Government and the Tamil Nadu Housing Board shall consider the request for allotment of land under the special category of displaced persons by the acquisition of lands for the Railways as has been held by the Supreme Court in Hansraj H. Jain vs. State of Maharashtra (1993 AIR SCW 2923 ). After the said order, the petitioner made a representation to the Government, enclosing copy of the order referred above. By order dated 26.05.2005, the second respondent passed the impugned order, rejecting the request of the petitioner. In the said order, the Government, after finding, the lands were already vested with the Metropolitan Transport Project (Railways) for Mass Rapid Transit System, therefore, there is no justification for allotment of land to the petitioner in any scheme area when the lands were not acquired either by Tamil Nadu Housing Board or Chennai Metropolitan Development Authority; declined to accede to the request of the petitioner, hence, the petitioner filed the present Writ Petition, viz., W.P. No.39279 of 2005.
B. In the case of the petitioners in W.P. Nos.11907 & 11908 of 2006 , their lands were also forcibly taken by the respondent. Similar direction was given in their favour by order dated 12.12.2003 in WPMP Nos.28883 of 2003 in W.P. No.3372 of 2003 and 28882 of 2003 in W.P. No.36980 of 2002. Pursuant to the said direction, the petitioners made representation to the Government on 18.04.2005 for allotment of housing site developed by the Tamil Nadu Housing Board for the equivalent extent. Since no order has been passed till this date by the State Government, the petitioners have filed the present Writ Petitions viz., W.P. Nos.11907 and 11908 of 2006 for appropriate direction for compliance of the order dated 12.12.2003.
4. Heard Mr.Arivudainambi, party-in-person in W.P. No.39279 of 2005 ; Mr.A.Jenasenan, for petitioners in W.P. Nos.11907 and 11908 of 2006 ; and Mr.R.Muthukumarasamy, learned Additional Advocate General for the State as well as the Tamil Nadu Housing Board.
5. In view of the common order dated 12.12.2003, made in W.P.M.P. No.28883 of 2003 in WP.3372 of 2003, WPMP No.28882 of 2003 in WP.36980 of 2002 and WPMP No.25732 of 2003 in WP.15974 of 2002 and of the fact that the said order has become final as no appeal has been filed by the Government or the Housing Board; we are of the view that it is unnecessary for us to refer all the factual matrix as stated in the affidavits filed in support of the above Writ Petitions. However, it is useful to refer to the discussion and the ultimate direction issued by the learned Judge in the order dated 12.12.2003. In paragraph Numbers-1 to 4, the learned Judge refers to the case of the petitioners as well as the stand taken by the Government and the Housing Board. After considering the claims of both the parties, in the penultimate paragraph, the learned Judge issued a positi ve direction to the Government. The observation and direction in paragraph Nos.5, 6 and 7 are relevant and they are extracted below:-
" 5. The learned counsel for the petitioner while relying upon the pronouncement of the Supreme Court reported in AIR 1986 SC 2025, AIR 1 988 SC 2181, AIR 1991 SC 90 and AIR SCW 1993 @ 2923, persuasively contended that there could be direction to the State Government to allot lands from any one of the Housing schemes in the city. There is force and substance in this contention.
6. In the circumstances, the present applications taken out by the petitioners do deserve further consideration and the petitioners request for housing site deserves to be considered by the State by way of rehabilitation.
7. Hence, it is made clear that in the event of the petitioners applying to the State Government and Tamil Nadu Housing Board for allotment of house sites in any one of the housing projects promoted by the Tamil Nadu Housing Board, their request shall be considered for allotment of lands, as a special category of displaced persons by the acquisition of lands for the railways as has been held by the Supreme Court in HANSRAJ H. JAIN VS. STATE OF MAHARASHTRA reported in 1993 AIR SCW 2923. "
6. We have already referred to the fact that this order has become final. Though it is stated that the petitioners/land owners were awarded compensation and that the said amount has been deposited, the fact remains, even without resorting to acquisition proceedings, possession of the lands was forcibly taken from the petitioners. It is also not in dispute that, in order to implement the project, namely, M.R.T.S. Scheme, possession of the lands was taken forcibly and the construction work was started without awaiting for the completion of the acquisition proceedings. That was the reason for the learned Judge to pass the directions in the order dated 12.12.2003. In fact, the learned Judge heavily relied on the supreme Court decision reported in 1 993 AIR SCW 2923 (cited supra) while passing the positive direction to the Government. As rightly observed by the learned Judge in the order dated 12.12.2003, the petitioners are entitled to alternate site under the Special Category of displaced persons due to the acquisition of their lands for the Railways. Unfortunately, in W.P. No.39279 of 2005, the second respondent, in spite of the reasoned positive direction dated 12.12.2003 of the learned Judge of this Court, rejected the request of the petitioner. Likewise, in the other two cases, though the order was passed even as early as on 12.12.2003 and representations were made on 18.04.2005, no order has been passed by the Government till this date.
7. In view of the peculiar factual position, viz., that the land of the petitioners were taken possession forcibly even before initiation of the acquisition proceedings; and of the stand taken by the petitioners that they lost their respective housing plots; and also taking note of the positive direction of this Court, dated 12.12.2003, to provide equivalent alternate site under the special category of displaced persons; we are of the view that the rejection order dated 26.05 .2005 passed by the Government in respect of the petitioner in W.P. No.39279 of 2005 is liable to be quashed. As far as the petitioners in W.P. Nos.11907 of 11908 of 2006 are concerned, they are also entitled to similar allotment as directed in the order dated 12.12.2003.
8. In these circumstances, we issue the following directions:-
(i) The Secretary to Government, Housing and Urban Land Development Department, Fort St. George, Chennai-9, is directed to allot alternate land to the petitioners, approximate in extent to the acquired land, within the Corporation/City Limits, within a period of eight weeks from the date of receipt of copy of this order.
(ii) the petitioners are liable to pay the cost of the land as fixed by the Tamil Nadu Housing Board.
9. Writ Petitions are allowed with the above directions. No costs. Connected Miscellaneous Petitions stand closed.
To
1. The Managing Director, Tamilnadu Housing Board, Anna Salai, Chennai-600 035.
2. The Secretary to Government, Housing and Urban Land Development Department, Fort St. George, Chennai 600 009.