Madras High Court
The Tamil Nadu Housing Board vs M.Kirubakaran on 16 July, 2009
Author: D.Murugesan
Bench: D.Murugesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16.07.2009
CORAM
THE HONOURABLE MR. JUSTICE D.MURUGESAN
AND
THE HONOURABLE MR.JUSTICE K.VENKATARAMAN
W.A.No.1522 of 2007
The Tamil Nadu Housing Board
rep.by its Member Secretary
Chennai 600 006 .. Appellant
-Vs-
01. M.Kirubakaran
02. M.Meera
03. M.Selvi
04. M.Premavathi
05. M.Geetha
06. M.Bharathi
07. M.Ramakrishnan
08. M.Rajalakshmi
09. M.Shanthi
10. M.Vijayalakshmi
11. Vijayalakshmi Venkataramani
12. The Government of Tamil Nadu
rep.by its Secretary
Housing & Urban Development Department
Fort St.George
Chennai 600 009
13. M/s Ramcons (India) Properties Pvt.Ltd.,
rep.by its Managing Director K.Ramanujam
No.143, Kodambakkam, Nungambakkam
Chennai 600 034
(R13 impleaded as party respondent vide
order of Court dt. 20.4.09 made in M.P.No.1/09) .. Respondents
Appeal filed under Clause 15 of the Letters Patent against the order dated 30.08.2007 made in W.P.No.87 of 2006.
For Appellant :: Mr.P.S.Raman
Additional Advocate General
assisted by Mr.D.Veerasekaran
For Respondents :: Mr.C.Kanagaraj for R1 to R8
Mr.K.Muthuramalingam for
R9 to R11
Mr.J.Raja Kalifullah
Government Pleader for R12
Mr.A.Thiyagarajan
Senior Counsel for
Mr.S.Rameshkumar for R13
JUDGMENT
(Judgment of the Court was delivered by D.MURUGESAN, J.) An extent of 96.92 acres of land was notified for acquisition under Section 4(1) of the Land Acquisition Act vide G.O.Ms.No.1096, Housing & Urban Development Department dated 17.7.78 for the formation of Besant Nagar Extension Phase-II Scheme. The proposed land was conveniently divided into five blocks. After the conduct of Section 5-A enquiry, Section 6 declaration was made and ultimately an award was passed. The land belonging to the respondents 1 to 11 in an extent of 0.77 acres registered in the name of one Thiru K.Munusamy was also notified and ultimately an award was passed in respect of the said land also. The possession of the land was also taken and was handed over to the Tamil Nadu Housing Board on 30.10.86 for the purpose of the proposed housing scheme. There is no dispute that the acquisition proceedings have become final.
2. We are concerned only with an extent of 0.77 acres in Survey No.87/1 belonging to the respondents 1 to 11. It appears that some of the lands acquired under the same scheme were re-conveyed on the applications being filed under Section 48-B of the Act. However, when a similar application was made by the respondents 1 to 11, the same was rejected by the order dated 13.12.2005. The said order was put in issue in the writ petition and the writ petition came to be disposed of after quashing the impugned order and remitting the matter back to the Government to consider the application filed by the respondents 1 to 11 and to pass orders after giving opportunity to them. That order came to be passed on the specific grievance of the respondents that except the land of the respondents, the other lands were re-conveyed to the respective land owners.
3. Questioning the said order, the present appeal is filed at the instance of the Tamil Nadu Housing Board.
4. We have heard Mr.P.S.Raman, learned Additional Advocate General assisted by Mr.D.Veerasekaran, learned counsel for the appellant-Housing Board, Mr.C.Kanagaraj, learned counsel for the respondents 1 to 8, Mr.K.Muthuramalingam, learned counsel for the respondents 9 to 11, Mr.J.Raja Kalifulla, learned Government Pleader for the respondent no.12 and Mr.A.Thiyagarajan, learned senior counsel for the impleaded respondent no.13.
5. The writ appeal raises the following two issues:
(i) In an application under Section 48-B, whether the Government is bound to re-convey the unutilized land to the land owner as a matter of right or not?
(ii) Whether the exemption granted in favour of some of the land owners would automatically enure the other land owners as well to claim such benefit?
6. Point No.(i): As far as the right of a land owner to seek for re-conveyance of the unutilized land as a matter of right, we may usefully refer to the Division Bench judgment of this Court in R.Shanmugam and others v. The State of Tamil Nadu rep.by its Secretary, Housing & Urban Development Department, Chennai and ohters, 2006 (4) CTC 290. That was also a case where the acquisition was for the proposed construction of housing units by the Tamil Nadu Housing Board. The land remained unutilized for quite some years and an application under Section 48-B was made. While considering the right of a land owner, this Court, having regard to the introduction of Section 16-B by the Tamil Nadu Amendment Act 16 of 1997 empowering the Government to re-possess the land from the Tamil Nadu Housing Board in the event of the land having remained unutilized, held that such a power could be exercised by the Government to re-possess the land from the Tamil Nadu Housing Board and on such re-possession, the land shall vest in the Government free from all encumbrances. Once the land vested in the Government, it has to be dealt with by the Government to explore the possibility of using the land for any public purpose at the first instance. In the event the Government is of the view that the land is not required for any other public purpose, thereafter, it has to be sold in public auction. Only if the Government could not do so, the claim of the owner for re-conveyance could be considered. However, such consideration cannot be made in an arbitrary manner, but on acceptable grounds. In view of the said law, the claim of the owners for re-conveyance, though not automatic, should be considered and could be rejected on reasonable grounds.
7. Point No.(ii): The grievance of the respondents 1 to 11 is that some of the lands acquired for the very same scheme have been re-conveyed, but the same benefit has not been given to them In this context, it is to be noticed that after the acquisition of the land in question, the Tamil Nadu Housing Board started to implement the scheme and prepared a layout and the said plan was also approved by the Chennai Metropolitan Development Authority in their letter dated 6.8.2004. Necessary gift deed was also sent to the Corporation of Chennai for its approval on 14.2.2005. The scheme suggested for construction of 40 HIG flats, 20 HIG flats, 16 HIG flats and 32 HIG flats in four pockets and the same were allotted to the public. Under these circumstances only, the request of the respondents 1 to 11 for re-conveyance was not considered by the Government and the same was communicated in the executive order dated 13.12.2005. Insofar as the grant of exemption to certain lands and the failure to extend such benefit to the land belonging to the respondents 1 to 11, we may usefully refer to the judgment of the Supreme Court in Anand Buttons Ltd., etc v. State of Haryana and others, 2005 (1) CTC 450 and the Supreme Court in paragraph-13 of the judgment has observed as follows:-
"13. It is trite law that not only land but also structure on land can be acquired under the Act. As to whether in a given set of circumstances certain land should be exempted from acquisition only for the reason that some construction had been carried out, is a matter of policy, and not of law. If after considering all the circumstances, the State Government has taken the view that exemption of the lands of the appellants would render askew the development scheme of the industrial estate, it is not possible for the High Court or this Court to interfere with the satisfaction of the concerned authorities. We see no ground on which the appellants could have maintained that their lands should be exempted from acquisition. Even if three of the parties had been wrongly exempted from acquisition, that gives no right to the appellants to seek similar relief."
In fact, the Supreme Court in State of Kerala and others v. M.Bhaskaran Pillai and another, 1997 (5) SCC 432 has observed as follows:
"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 utilized for the public purpose envisaged in the Directive Principles of the Constitution."
8. In view of the categorical pronouncement of the Supreme Court and coupled with the fact that the lands were developed for implementation of the scheme as such, we do not find any merit in the direction for remitting the matter to the authorities for re-consideration solely on the ground that some other land owners have got back their land and the respondents 1 to 11 alone are denied such benefit. In view of our finding, no useful purpose would be served in remitting the matter for consideration by the Government solely on the ground that some of the lands have been exempted and were re-conveyed to the land owners and such a benefit has not been extended to the respondents 1 to 11.
9. In view of the above, the writ appeal is allowed and the order passed in the writ petition is set aside. Consequently, M.P.No.1 of 2007 is closed. No costs.
ss To
1. The Secretary to Government of Tamil Nadu Housing & Urban Development Department Fort St.George Chennai 600 009
2. The Member Secretary Tamil Nadu Housing Board Chennai 600 006