IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 1.4.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.42699 of 2002 J.Kalyani .. Petitioner Vs. 1. The State of Tamilnadu rep. by the Commissioner and Secretary to Government Housing and Urban Development Department Fort St.George, Chennai – 600 009. 2. The Special Tahsildar (L.A.) M.M.R.D.Scheme Gugan Building, Saidapet Chennai – 600 015. .. Respondents Prayer: Petition under Article 226 of the Constitution of India for issue of writ of Certiorarified Mandamus to call for the records of the first respondent dated 24.4.2002 in its proceedings in letter No.5245/L.A1(1)/ 2001-3, to quash the same and consequently direct the first respondent to reconvey under Section 48-B of the Land Acquisition Act, 1894 the land of the petitioner, to the petitioner herself in Survey No.313/6B, measuring 8 cents in Keelkattalai Village, Madipakkam Post II, Tambaram Taluk, Kancheepuram District. For Petitioner : Mr.V.Subramanian for M/s.McGan Law Firm For Respondents: Mr.M.Dhandapani Special Government Pleader ORDER The petitioner was an erstwhile owner of the land in Survey No.313/6B to the extent of 8 Cents in Keelkattalai Village, Madipakkam Post II, Tambaram Taluk, Kancheepuram District. The said lands were acquired as part of a larger extent of land for the purpose of laying a 200 feet road, otherwise known as Bye-Pass Road. It is the case of the petitioner that out of the 50 Cents of land acquired from her, 42 Cents of land has been utilised and the balance 8 Cents remain unutilized. Earlier, the petitioner filed W.P.No.9484 https://hcservices.ecourts.gov.in/hcservices/ of 1999 and this Court, by an order dated 12.12.2000, directed the petitioner to make appropriate representation to the first respondent. Therefore, she made a representation dated 21.2.2001 seeking reconveyance of the land. 2. On receipt of petitioner's representation, the first respondent/State consulted the Tamil Nadu Housing Board and after getting their report dated 30.11.2001, passed the impugned order dated 24.4.2002. In the impugned order, the State Government refused to part with the land and held that the request for reconveyance cannot be considered. They had stated that the land which is acquired is adjacent to the Outer Ring Road and therefore, the lands which are adjacent to the lands have also been acquired and award has been passed. The Government has intention to integrate all the acquired lands and to make an approach road and the lands are very much required. It is against this order, the present writ petition has been filed. 3. Pending the writ petition, this Court declined to grant any interim relief. Subsequently, when the matter came on 16.9.2003, this Court held that the petitioner claims disposession of land and therefore, status-quo can be maintained. 4. On notice from this Court, the respondents have filed written instructions. The Executive Engineer and Administrative Officer, Besant Nagar Division stated that after following due procedure, an award was passed in Award No.2 of 1993, dated 30.9.1993. It is also stated that the land has been taken over by the Housing Board from the Land Acquisition Officer on 7.7.1994 and the compensation of a sum of Rs.8,499/- was ordered to be paid to the petitioner. 5. In the light of the stand taken by the respondents, the said land is required for further expansion. The argument of the petitioner that the land being unutilized should be reconveyed to the petitioner cannot be accepted. The Supreme Court in Tamil Nadu Housing Board v. Keeravani Ammal, 2007 [2] CTC 447 had observed in paragraph [11] that Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule and such a provision has to be strictly construed and strict compliance with its terms is insisted upon. 6. Very recently, in Tamil Nadu Housing Board v. L.Chandrasekaran and others, 2010 [1] SCALE 701, the Supreme Court, after dealing with the scope of Section 48-B of the Act, in paragraphs [18] and [19] held 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 https://hcservices.ecourts.gov.in/hcservices/ Section 48-B of the Act and reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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." 7. The counsel for the petitioner contended that right from the acquisition proceedings she is in possession of the land and even this Court has ordered status-quo and therefore, it can be proved that the land was not put to use. When once a valid acquisition has taken place and there is no further challenge to the award passed by the authority, by virtue of Section 16 of the Land Acquisition Act, the said land vests with the State free from all encumbrances. The Act does not contemplate any physical possession, as held by the Supreme Court in Tamil Nadu Housing Board v. A.Viswam (Dead) by LRs., JT 1996 (2) SC 549 : [1996] 8 SCC 259. In that case, after considering the judgment in Balwant Narayan Bhagde v. M.D.Bhagwat, [1976] 1 SCC 700, the Supreme Court observed that while taking possession of a large area of land a pragmatic and realistic approach had to be taken. The Supreme Court then examined the context under which the judgment in Balwant Narayan Bhagde case had been rendered and held as under: https://hcservices.ecourts.gov.in/hcservices/ "It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the LAO in the presence of witnesses signed by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land." 8. The said judgment came to be quoted with approval and followed by the Supreme Court in Sita Ram Bhandar Society, New Delhi v. Lt.Governor, Government of NCT Delhi and others, JT 2009 (12) 325 : [2009] 10 SCC 501. In paragraph [9], it was observed as follows: "It would, thus, be seen from a cumulative reading of the aforesaid judgments, that while taking possession of a large area of land with a large number of owners, it would be impossible for the Collector or the revenue official to enter each bigha or biswa and to take possession thereof and that a pragmatic approach has to be adopted by the Court. It is also clear that one of the methods of taking possession and handing it over to the beneficiary Department is the recording of a panchnama which can in itself constitute evidence of the fact that possession had been taken and the land had vested absolutely in the Government." 9. Therefore, the argument that she is in physical possession does not help the case of the petitioner, especially when the Executive Engineer and Administrative Officer has stated that the Land Acquisition Officer has given delivery of the land in Survey No.313/6B to the Housing Board. In the light of the above, there is no case made out. This writ petition stands dismissed. No costs. Consequently, W.M.P.No.62957 of 2002 is closed. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. sasi To: 1. The Commissioner and Secretary to Government State of Tamilnadu Housing and Urban Development Department Fort St.George, Chennai – 600 009. https://hcservices.ecourts.gov.in/hcservices/ 2. The Special Tahsildar (L.A.) M.M.R.D.Scheme Gugan Building, Saidapet Chennai – 600 015. + 1 CC TO M/S.Meganlaw Firm, Advocate SR 22014 W.P.No.42699 of 2002 SSK (CO) RH (15.4.10) https://hcservices.ecourts.gov.in/hcservices/