Tamil
Nadu Housing Board Vs. Keeravani Ammal & Ors [2007] Insc 289 (15 March 2007)
C.K. THAKKER & P.K. BALASUBRAMANYAN
[with C.A. No. 5932 of 2004, C.A. No. 5938 of 2004, C.A.
No. 5933 of 2004 and C.A. No. 5934 of 2004] P.K. BALASUBRAMANYAN, J.
1. Forty-three writ petitioners, the contesting respondents in these
appeals, approached the High Court of Madras with W.P. No. 1109 of 2000 praying
for the issue of a writ of mandamus directing the State of Tamil Nadu, its
officers and the Tamil Nadu Housing Board to re-convey the lands comprised in
Survey Nos. 237, 238/1, 238/2 and 238/3 in all 2.43 acres, in Padi village
presently in Ambattur Taluk and for passing such further orders as deemed by
the court to be fit and proper. The Writ Petition was filed through a power of
attorney. It was stated that the properties belonged to one Maniappa Naicker
and it was inherited by his four sons and their successors. It was asserted
that the writ petitioners were the absolute owners of the property as legal
heirs and are in lawful possession and enjoyment of the said property.
The writ petitioners were in joint possession and they were the joint owners
of the property. The land was sought to be acquired for housing purposes. It
was conceded that a notification under Section 4(1) of the Land Acquisition Act
was published on 12.7.1975 followed by a declaration under Section 6 of that
Act on 29.11.1978, followed up by an Award on 7.10.1992. It was stated that the
petitioners reliably understood that the appropriate authorities had passed
orders for dropping the Scheme for which the acquisition was made. Thus, the
valuable lands of the petitioners were kept idle and it caused great hardship
to them. For 21 years no progress had been made. If the lands that were
acquired were not being used for the purpose for which it was intended to be utilised, the writ petitioners could very well put the land to their own use.
The piece of land was a low lying area and a large amount has been spent by the
writ petitioners recently for filling up and raising the level of the land. A
representation was made to the Secretary to the Government in the Revenue
Department for taking steps under Section 48 of the Land Acquisition Act,
de-notifying or excluding the lands from acquisition.
But unfortunately, the request of the writ petitioners has not been
considered favourably. The lands had not been taken possession of by the
respondents. The writ petitioners had earlier filed W.P. No. 19162 of 1999
before the High Court praying for the issue of a writ of mandamus directing the
respondents therein not to interfere with the peaceful possession of the writ
petitioners. But the said Writ Petition was dismissed as not pressed with
liberty given to the petitioners to file a fresh Writ Petition incorporating a
proper prayer. Hence the present Writ Petition was being filed. We have already
adverted to the prayer that was made.
2. The respondents in the Writ Petition submitted that earlier, an
application had been made by the writ petitioners under Section 48B of the Land
Acquisition Act as amended in the State of Madras, but the said request had
been rejected by the Government. It is significant that there is no challenge
to such a rejection in the Writ Petition and no prayer for a writ of certiorari
to quash such an order. It was also contended that the Scheme was very much
alive and the lands are intended to be utilised for the purpose for which the
acquisition was made. The delay in putting it to use was because of various
litigations that had been initiated.
The possession of the lands had been taken and made over to the Tamil Nadu
Housing Board. The writ petitioners were not entitled to any relief. The
competence of the writ petitioners to maintain the Writ Petition was also
questioned.
3. The learned single judge proceeded on the basis that the Writ Petition
was filed for the issue of a writ of mandamus directing the respondents therein
to re-convey the lands involved in the Writ Petition in terms of Section 48B of
the Act as inserted in the State of Tamil Nadu. The court proceeded to state
that by way of earlier order dated 2.7.1999, a notification in respect of other
lands acquired for the purpose of the Scheme had been quashed and re-conveyance
ordered and since there was no further development in respect of the lands
which were taken possession of by the Tamil Nadu Housing Board, there should
not be any impediment in the way of the respondents in disposing of the
representation of the writ petitioners dated 18.3.1998 seeking re-conveyance of
the lands under Section 48B of the Land Acquisition Act.
The learned Judge did not advert to the fact that a request made earlier in
that behalf by the writ petitioners, stood rejected and there was no challenge
to that rejection. The learned single judge ended up by directing the State of Tamil
Nadu to pass appropriate orders on the representation given on behalf of the
writ petitioners within three months from the date of receipt of a copy of his
judgment.
4. The writ petitioners went up in appeal against the decision of the
learned single judge. The Division Bench even without issuing notice to the
Tamil Nadu Housing Board to which the property had been transferred by the
State according to the State and the Board, proceeded to direct the State of Tamil
Nadu and its officers to re-convey the concerned lands to the writ
petitioners appellants. The Tamil Nadu Housing Board sought to challenge this
order in this Court by way of Petition for Special Leave to Appeal (Civil) No.
2813 of 2002. The Petition for Special Leave to Appeal was dismissed as
withdrawn in the light of the statement of the learned counsel for the Tamil
Nadu Housing Board that the Board intended to file a petition for Review in the
High Court. Thereafter, the Board filed a review petition in the High Court
essentially contending that Section 48B had no application; that it had not
been heard or notice issued to it before the allowing of the writ appeal and
that the order in the writ appeal deserves to be reviewed. The Division Bench,
without properly adverting to the aspects that arose for decision, simply
dismissed the review petition and also closed a contempt of court case filed by
the writ petitioners by granting further time to the Government to comply with
the directions contained in the order of the Division Bench dated 7.12.2001.
The Tamil Nadu Housing Board has come up with Civil Appeal Nos. 5928-5929 of
2004 and Civil Appeal No. 5932 of 2004 challenging the orders on the review
petition, original judgment and in the contempt of court case. The State of
Tamil Nadu has filed the three appeals C.A. Nos. 5934, 5938 and 5933 of 2004
challenging the orders of the Division Bench that are the subject of challenge
by the Tamil Nadu Housing Board in its appeals.
5. Learned counsel for the contesting respondents relying on the decision in
Kumaran Silks 555] raised a contention that the appeals by the Tamil Nadu
Housing Board being appeals against the orders in review petition were not
maintainable since the Tamil Nadu Housing Board had withdrawn the earlier
Petition for Special Leave to Appeal filed by it against the original order
reserving only liberty in itself to seek a review in the High Court. On the
facts and in the circumstances of the case on hand, however, in our considered
opinion, the withdrawal of earlier Petition for Special Leave to Appeal by the
Housing Board cannot stand in the way of our examining the correctness of the
decisions rendered by the High Court in view of the fact that the State of
Tamil Nadu had not earlier challenged the original order of the Division Bench
before this Court and now alone it seeks to challenge the original order, the
order on the review petition it had filed and the order on the contempt of
court case in the appeals it has filed before this Court. The principle
recognised in Kumaran Silks (Supra) has no application to those appeals.
Learned counsel for the contesting respondents pointed out that there was
delay in filing the Petitions for Special Leave to Appeal leading to those
appeals. But obviously, the delay was condoned and leave granted and we now
have the three appeals before us for final hearing and disposal. In these
appeals, we have necessarily to examine the correctness and propriety of the
directions issued by the High Court.
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.
7. The allegations in the writ petition show that the prayer made by the
writ petitioners to the Government was for de-notifying the lands under Section
48 of the Act. We think it proper to extract that allegation:
"I further state that I have given a representation to the Secretary to
Government Revenue Department, Chennai - 600 009 and Secretary to the
Government, Housing and Urban Development Dept., Fort St. George, Chennai 600
009, requesting them to take necessary steps by notifying under Section 48 of
the Land Acquisition Act de-notifying or excluding the lands. But
unfortunately, as far requisitions of the petitioners has not been considered
favourably."
Section 48 of the Act reads as under:
"Sec.48. Completion of acquisition not compulsory, but compensation to
be awarded when not completed. (1) Except in the case provided for in Section
36, the Government shall be at liberty to withdraw from the acquisition of any
land which possession has not been taken.
2. Whenever the Government withdraws from any such acquisition, the
Collector shall determine the amount of compensation due for the damage
suffered by the owner in consequence of the notice or of any proceedings
thereunder, and shall pay such amount to the person interested, together with
all costs reasonably incurred by him in the prosecution of the proceedings
under this Act relating to the said land.
3. The provision of Part III of this Act shall apply, so far as may be, to
the determination of the compensation payable under this section."
On the facts pleaded it is doubtful whether the Government can withdraw from
the acquisition, since the case of the State and the Housing Board is that
possession has been taken and plans finalised to fulfil the purpose for which
the acquisition was made. There is no plea in the writ petition that a request
for re- conveyance was made in terms of Section 48B of the Act as amended in
the State of Tamil Nadu. The said provision reads:
"48-B. Transfer of land to original owner in certain cases- Where the
Government are satisfied that the land vested in the Government under this Act
is not required for the purpose for which it was acquired, or for any other
public purpose, the Government may transfer such land to the original owner who
is willing to repay the amount paid to him under this Act for the acquisition
of such land inclusive of the amount referred to in sub-section (1-A) and (2)
of Section 23, if any, paid under this Act."
In the grounds in the writ petition it is only asserted that the writ
petitioners are in possession in spite of the acquisition. There is no ground
based on Section 48B of the Act though the prayer, as noticed earlier is for
the issue of a writ of mandamus to reconvey the property. It is proper to
notice that no foundation had been laid for seeking such a relief. There is no
plea of demand, no plea of refusal and no plea of a duty in the State to re-
convey.
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.
9. 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 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.
10. 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.
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 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.
12. We are thus of the view that the writ petitioners, the contesting
respondents, have not made out any case for interference by the Court or for
grant of any relief to them. It is therefore not necessary for us to go into
the further contention raised on the scope of Section 48B of the Act, whether
the writ petitioners have established any claim to the lands, whether the re-
conveyance can only be to the original owners and not to others and whether if
possession has already been made over to the Housing Board, the State could
exercise its power under that provision. We leave open those questions for the
High Court to consider as and when the occasion arises on it being approached
in the context of Section 48B of the Act. Suffice it to say that the decision
of the High Court in the Writ Petition in question is totally unsustainable and
deserves to be set aside.
13. We therefore allow the appeals filed by the State of Tamil Nadu and set
aside all the orders passed in the Writ Petition and in the writ appeal and in
the contempt of court case. We dismiss the Writ Petition filed by the writ
petitioners. In view of the above position, there is no need to pass any
further order in the appeals filed by the Tamil Nadu Housing Board. The above
decision will govern the Tamil Nadu Housing Board also. The State of Tamil Nadu
would be entitled to its costs from the writ petitioners in its appeals and the
parties would suffer their respective costs in the appeals filed by the Tamil
Nadu Housing Board.
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