IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 2.08.2006 CORAM THE HONOURABLE MR.A.P.SHAH, CHIEF JUSTICE AND THE HONOURABLE MR.JUSTICE D.MURUGESAN W.A.Nos.443 to 445 and 485 to 487 of 2006 And W.A.M.P.Nos. 1002 and 1003 of 2006 R. Shanmugam rep by his power agent K.V. Jayaraman .. Appellant in WA 443/2006 Ammasi Kutty .. Appellant in WA 444/2006 1. M. Duraisamy 2. M. Mani .. Appellants in WA 445/2006 1. M. Manimekalai 2. S. Maruthachalam Appellants 1 & 2 rep by their Power agent K.V. Jayaraman .. Appellants in WA 485/2006 1. Perichiappa Gounder 2. Kumarasamy 3. Maruchamy Gounder 4. A. Natarajan 5. Ramasamy Gounder 6. Marathal 7. Ganesh 8. Radhamani .. Appellants in WA 486/2006 1. Sellappa Gounder 2. G. Karunanidhi .. Appellants in WA 487/2006 -Vs- 1. The State of Tamil Nadu rep. by its Secretary to Government Housing and Urban Development Department Fort St. George, Chennai 600 009 https://hcservices.ecourts.gov.in/hcservices/ 2. The Tamil Nadu Housing Board represented by its Chairman/ Managing Director No.331, Anna Salai, Nandanam Chennai-35. 3. The Special Tahsildar Land Acquisition Housing Scheme Unit-II Coimbatore-18. .. Respondents in all W.As. Memorandum of Grounds of Writ Appeals filed under Clause 15 of the Letters Patent, against the order of the learned Judge dated 23.12.2005 passed in W.P.No.37583of 2004,20237 of 2005,24968 of 2005, 37578of 2004,37580 of 2004 and 20176 of 2005 respectively. presented under Article 226 of the Constitution of India to issue writ of Certiorarified Mandamus calling for the records relating to the proceedings of the first respondent in Letter No. 9230/LA III-2/2002-15, dated 24.8.2004 4413/LA III-2/2005-3 dated 3.5.2005 15869/LA III-2/2002-4 dated 16.7.2004 8443/LA III-2/2004-2 dated 24.8.2004 37215/LA III-2/2001-13 dated 24.8.2004 4577/LA III-2/2005-3 dated 3.5.2005 respectively quash the same and consequently direct the first respondent to re convey the land to the Petitioner. i. an extent of 0.34.5 hectares in S.F.No.838/2B situated in Kalapatti Village Coimbatore North Taluk, Coimbatore District. ii. an extent of 1.15.0 and 0.12.0 acres respectively in S.F.No.820/2 and 824/3, situated in Kalapatti village, Coimbatore North Taluk, Coimbatore District. iii. an extent of 0.54.5 in Survey No.945/3, situated at Kalapatti village, Coimbatore North Taluk, Coimbatore District. iv. an extent of 0.13.0 hecrates ibn S.F.No.839/2A, 0.08.0 hectares in S.F.No.849/1A 0.12.0 hectares in S.F.No.849/2A 0.74.0 hectares in S.F.No.838/3 and 0.78.0 hectares in Survey No. 838/4 situated in Kalapatti Village, Coimbatore North Taluk, Coimbatore District. https://hcservices.ecourts.gov.in/hcservices/ V. An extent of 0.74.0 in S.F.No.838/5 an extent of 0.21.0, 0.30.0, 0.19.5, 0.32.0, 0.18.0, 0.25.5. in S.F.No.849/1B, 2B,1C, 2C, 1D, 2D, respectively an extent of 0.01.0, 0.09.5, 0.22.0, 0.13.5, 0.15.0 in S.F.No.850/2C, 2D, 2E, 2F, 2G, respectively the lands in S.F.No.850/3 and an extent of 0.76.0 hectares of land in S.No.839/2C situated in Kalapatti Village, Coimbatore North Taluk, Coimbatore District and VI. an extent of 0.84 acres 0.84 acres and 0.84 acres respectively in S.F.Nos.841/1, 841/1A and 841/1B, situated in Kalapatti Village, Coimbatore North Taluk, Coimbatore District respectively. For Appellants :: Mr.K.Chandru in all Appeals Senior counsel for Mr.R.N.Amarnath For 2nd and 3rd Respondents :: Mr.R. Vidhuthalai in all appeals Advocate General For Mr.D.Veerasekaran TNHB For respondents 1 .. Mr.J.Rajakalifullah in all appeals Govt. Pleader JUDGMENT D.MURUGESAN, J. These Writ Appeals raise the following points for our consideration. 1. Whether the Government have right to repossess the land acquired and transferred to the Tamil Nadu Housing Board that remains unutilized by the Board for a long number of years in terms of Section 16-B of the Land Acquisition Act 1894? 2. Whether the erstwhile land owners have vested right to seek for re-conveyance of unutilised land under Section 48-B on expressing their willingness to repay the amount that was paid to them under the Act for acquisition of land, inclusive of the amount referred to in Sub-section (1-A) and (2) of Section 23, if any, paid under this Act, and the Government is obligated to accept the request as such? 2. The following are the few facts that led to the controversy before us. The Tamil Nadu Housing Board (hereinafter referred shortly as "TNHB") forwarded a proposal to the Government for acquiring an https://hcservices.ecourts.gov.in/hcservices/ extent of 1997.02 acres of patta land for the Kalapatti Neighbourhood Scheme, Coimbatore. Notifications under Section 4(1) of the Land Acquisition Act (hereinafter referred to as "the Central Act), were issued on various dates during the year 1991 in respect of 821.33 acres of land in different survey numbers. An extent of 1175.69 acres of land was not notified even as on today. After enquiry under section 5-A, Section 6 declarations were made and awards were also passed in respect of 662.96 acres of land. An extent of 105.61 acres of land was taken over by the Government and handed over to "Board" and an extent of 21.47 acres of land alone was utilized for Housing Scheme. As large extent of lands were unutilized by the Housing Board, the owners of the land approached the Government under Section 48-B of the Land Acquisition Act (hereinafter referred to as "The State Amendment Act") seeking for re-conveyance of the unutilized lands. Their common claim was that in the event, the lands acquired for construction of houses by the Board remain unutilized for quite long number of years, the Government shall have the power to take back the lands from the Board and re-convey the unutilised lands to the land owners. By the orders impugned in the Writ Petitions, their claim was rejected on the ground that awards were passed, compensation amounts were paid and the lands were still required for Housing Scheme. On a challenge to the orders of the Government more or less on the same ground, the learned Judge while dismissing the Writ Petitions, has held that there cannot be two vesting of the same land, one in the Government and another in Housing Board. The learned Judge has further held that in view of the specific provisions of Section 17-A, the claim for forfeiture of the land by the Government under Section 16-B of the Act is unsustainable. 3. We have heard the respective learned senior counsel on either side. Before embarking upon the issue, it is necessary to trace the history of TNHB Act and the object for which the Housing Board was constituted. For improvement of the City of Madras, the Board of Trustees was constituted under the Madras City Improvement Trust Act, 1950 and the Board of Trustees was in-charge of Housing, Land Development and general improvement of the City. Every project proposed by the Board must get sanction of the Government before it is executed. Basically, the powers of the Board are limited and only to formulate the project for land Development, Housing and General improvement within the City and there was no independent power entrusted with the Board for execution of other Housing Projects of the Government not framed under the said Act. For the purpose of implementing the Scheme by the Board of Trustees, the Government in exercise of power of Eminent Domain, acquired the land under the provisions of ”The Central Act”. Section 16 of the Central Act empowers the Collector to take possession of the land in respect of which award is passed under Section 11 of the Act. Once possession is taken, the land shall vest in the Government free from all encumbrances. Under Section 17 of the Central Act, in case of urgency and if the appropriate Government so directs, the collector, though no award is made, may on the expiration of 15 days from the publication of the notice mentioned under Section 9, take possession of the land needed for public purpose and such land shall thereupon vest absolutely in the Government free from all encumbrances. https://hcservices.ecourts.gov.in/hcservices/ 4. In order to enable the Government to hand over possession of the lands so acquired to the Board, Section 17-A of the Madras City Improvement Act was introduced by the State Amendment Act to the Central Act which reads as follows: 17-A Transfer of land to Board:- In every case referred to in Section 16 or 17, the Collector shall, upon payment of the cost of acquisition, make over charge of the land to the Board; and the land shall thereupon vest in the Board, subject to the liability of the Board to pay any further costs which may be incurred on account of its acquisition” 5. By the said provision, lands handed over to the Board shall vest in the Board. By the enactment of TNHB Act and by virtue of the specific provisions of Section 162 of the Act, the Madras City Improvement Trust Act, 1950, was repealed and therefore, the provision of Section 17-A of the Madras City Improvement Trust Act also stood deleted after TNHB Act was enacted. 6. As both the Central and State Government felt that the minimum need of Housing Programme should not be restricted only for the Cities and must also be extended to other areas as well, constitution of a statutory authority having State wide jurisdiction for execution of Housing Project was seriously considered. On the above backdrop, the Tamil Nadu State Housing Board Act, 1961 (Act 17/1961)(hereinafter referred to "the TNHB Act), was enacted with the object basically to provide for execution of housing and improvement schemes and for establishment of State Housing Board. Section 12 to 15 of Chapter III relates to transfer of assets and liabilities of the City Improvement Trust to the Board. The Board is constituted under Section 4 of the Act. Chapter VII of the Act relates to Housing or Improvement Scheme. Section 35 of the Act relate to the power of the Board to undertake Housing or Improvement Scheme and incur expenditure. Under Sub-section (1) of Section 35, the Board may undertake works for the training and execution of such housing or improvement schemes. Further, under Sub-Section (2) of Section 35, the Government may transfer to the Board the execution of any housing or improvement scheme not provided under the Act and on such transfer, the Board shall thereupon undertake the execution of such schemes, as if, it has been provided for by the Act. Under Sub- Section (3) of Section 35, the Board may on such terms and conditions as may be agreed upon, take over for execution of any housing or improvement scheme undertaken by a local authority and the Board shall execute such scheme as if it has been provided for by the Act. https://hcservices.ecourts.gov.in/hcservices/ 7. In addition to the above, under Section 36, when the Government considers it expedient or necessary for the purpose of clearance or improvement of any slum area, transfer any land in such area belonging to or vested in them or acquired under the provisions of the Madras Slum Improvement Acquisition of Land Act, 1954 and they may do so on such terms and conditions as they may think fit to impose and direct the Board to undertake the clearance or improvement of that area and to frame and execute such housing or improvement scheme, as if, it has been provided for by the Act. A housing or improvement scheme may be framed by the Board on its own motion or at the instance of the Government or a local authority under Section 37 of the Act. A housing or improvement Scheme framed by the Board under Section 37 of the Act may provide the following: a) the acquisition by purchase, exchange, or otherwise of any property necessary for or affected by the execution of the scheme; b) the laying or relaying out of any land comprised in the scheme; c) the closure or demolition of dwellings or portions of dwellings unfit for human habitation; d) the sale, lease or exchange of any property comprised in the scheme; e) the construction and alteration of road, streets back lanes, bridges, culverts and causeways; f) the draining, water supply and lighting of the streets included in the scheme; g) the provision of open parks, playing fields and open spaces for the benefit of any area comprised in the scheme or any adjoining area and the enlargement of existing parks, playing field, open spaces and approaches; h) the provision of schools, parks, swimming pools, restaurants, shops markets, fuel depots, laundries hair dressing saloons and other amenities in the scheme and i) any other matter for, which, in the opinion of the Government, it is expedient to make provision with a view to provide house accommodation and to the improvement of any area comprised in the scheme, or of any adjoining area or the general efficiency of the scheme. 8. The power of the Board for framing a Housing Accommodation Scheme is contemplated under Section 41 of the Act. Under Section 44 of the Act, whenever the Board is of the opinion that it is expedient to control and provide for the future expansion or development of a city, town or village, it may frame an expansion scheme. The expansion scheme so framed may be in respect of an area which has wholly within or wholly outside the limits of the city, town or village. Under Section 47 of the Act, whenever the Board is of the opinion that it is expedient to provide building sites in any area, the Board may frame a land development scheme. Such scheme shall specify the proposed lay out of the area to be developed and the purposes for which the particular portions https://hcservices.ecourts.gov.in/hcservices/ thereof are to be utilized. The Board may provide for roads, streets, open spaces drainage, water supply and street lighting and other amenities for the scheme area. 9. In addition to the above, in terms of Section 66, the Board has further duties, such as, to plan and coordinate all housing activities in the State and to ensure expeditious and efficient implementation of housing or improvement schemes in the State and to provide technical advice and scrutinize all projects under housing and improvement scheme sponsored by Central or State Government. 10. A conjoint reading of the above provisions and the scheme of "the TNHB Act" shows that the primary duty of the Board is to frame a housing or improvement scheme in an area either within the City or town or village and execute the Scheme. Framing of a housing or improvement scheme and its execution is not only restricted to the scheme framed by the Board but also extended to the execution of work under a scheme either by the State or the local authority. The Board has no power to directly acquire the land for execution of the schemes, as it is the sovereign power of the State Government or Central Government as the case may be, in their realm of Eminent Domain, to acquire the land under the provisions of the Central Act. When once a scheme is framed by the Board, a proposal is forwarded to the State Government as to the requirement of the lands in a specified extent and on acceptance of the proposal by the Government, the lands are acquired by the State and are handed over to the Board. Inasmuch as the Madras City Improvement Trust Act, 1950 was repealed under Section 162 of the Tamil Nadu Housing Board Act, a provision was made to bring the Housing and Improvement Scheme as one of the public purposes and for applicability of the provisions of the Land Acquisition Act, a provision is made under Section 70 of the TNHB Act which reads as under: Any land or any interest therein required by the Board for any of the purposes of this Act may be Acquired under the provisions of the Land Acquisition Act,1894(Central Act of 1894) 11. Much reliance was placed on the provisions of Section 72 of the Act to sustain the plea that the land handed over to TNHB shall vest with the Board and it has absolute power to dispose of the land. The said Section reads as under: Power to dispose of land: (1) The Board may retain or may lease, sell exchange or otherwise dispose of any land vested in or acquired by it under this Act, (2) whenever the Board decides to lease or sell any land acquired by it under this Act from any person, it a) shall give notice advertisement in one of the leading local newspaper in the State and b) shall offer to the said person, or his heirs https://hcservices.ecourts.gov.in/hcservices/ executors or administrators, a prior right to take on lease or to purchase such land for an amount or at a rate to be fixed by the Board, if the Board considers that such an offer can be made without reference detriment to the carrying out of the purposes of this Act. c) If any case two or more persons claim to have the prior right referred to in clause (b) of Sub-section(2) preference shall be given to the person who agrees to pay the highest amount or rate for the land, not being less than the amount or rate fixed by the Board under that clause. 12. An incidental question therefore arises as to whether the land handed over to TNHB shall absolutely vest in TNHB, and on such vesting, the Government would be disentitled from taking back the possession of the unutilised land from the Board. The Central Act was enacted with the object to empower the Government to acquire the land only for public purpose and for determining the amount of compensation to be made for such acquisition. Planning for development, improvement and housing by the Board is also a public purpose. At the request of the Board, the State Government acquires the land by issuance of 4(1) Notification and after the award proceedings are over under Section 11 and possession is taken by the Collector, the land shall absolutely vest in the Government free from all encumbrances under Section 16 and only after such vesting, the lands are handed over to the Board as contemplated under Section 70 of the "Housing Board Act". 13. Before we dwell upon the purport and meaning of the word “vest” employed in Section 16 of the Central Act, it would be relevant to refer the use of the word ”vest” in certain other enactments. Section 61 of the Tamil Nadu District Municipalities Act contemplates vesting of public streets and appurtenances in the Municipal Council. In terms of that Section, all public streets in municipality, with the pavements, stones and other materials thereof, and all works, materials and other things provided for such streets, all sewers, drains, drainage works, tunnels and culverts shall vest in Council. Section 203 of the Madras City Municipal Corporation Act contemplates a similar provision of vesting public streets and appurtenances in Corporation. In fact other City Municipal Corporation Acts viz., Tiruchi, Madurai, Coimbatore and Salem have similar provisions for vesting public streets and appurtenances in their respective Corporations. Section 126 of the Tamil Nadu Panchayats Act,1994 contemplates a similar provision of vesting of public roads in Panchayat Union Councils. 14. The word “vest” has no fixed connotation, meaning in all cases that the property is owned by the persons or the authority in whom it vests. It may vest in title, or in possession, or it may vest in a limited sense, as indicated in the context in which it is used in a particular statute. It has variable import depending upon the use in a given statute and the word ”vest” used in different https://hcservices.ecourts.gov.in/hcservices/ statutes, should be construed in the context of the provision of particular statute. Insofar as the word “vest” used in the law relating to local bodies like Corporation, Municipalities, Panchayats, it should be construed to mean conferring the power on the Corporation or the council as the case may be, only for the purpose of executing any improvement scheme which it has undertaken for maintenance and in order to maintain such public streets and appurtenances and not with a view to clothing it with complete title. In fact, when the provisions of the City Municipal Corporation Acts, District Municipalities Act and Town Panchayat Act speak of the word “vesting” of the streets, appurtenances in Corporation or Municipality as the case may be, it does not necessarily mean that ownership of the land has passed on to any of them. Section 56 of the Provincial Insolvency Act ( 5 of 1920) empowers the Court at the time of the making of the order of adjudication or thereafter to appoint a receiver for the property of the insolvent and to further provide that “such property shall thereupon vest in such receiver”. The word “vest” employed therein is only for the purpose of the receiver to administer the estate of insolvent for payment of the debts after realizing, and the property of the insolvent vests in the receiver not for all purposes but only for the purpose of the Insolvency Act and the receiver has no interest of his own in the property. Referring to the provisions of Section 134 of the Lunacy Act,1890 in the case of In re Brown, it has been laid down by Lindley, L.J., that the word “vested” in that section included the right to obtain and deal with, without being actual owner of, the lunatic’s personal estate. 15. With the above understanding of the word "vesting", let us now consider the word “vest” used in Section 16 of the Tamil Nadu Amendment Act. Power to take possession: When the Collector has made an award under Section 11, he may take possession of the land which shall thereupon vest absolutely in the Government free from all encumbrances" The word ”vest” used in Section 16 must include vesting of land in Government, not only in regard to title but also possession. It is well accepted principle of interpretation that if the plain language of the provision is clear and unambiguous, it would be only proper for the Courts to interpret and give plain grammatical meaning to such provision. In our opinion, the word “vest” used in Section 16 means and includes not only conferring mere right to possess the land acquired by the Government but also confer title on it. This is more so in view of the specific provisions of Section 16 of the Central Act, which provides that once possession of the land is taken by the Collector, the same shall absolutely vest in the Government free from all encumbrances. https://hcservices.ecourts.gov.in/hcservices/ 16. Coming to the word “vest” employed in Section 72 of Housing Board Act, again the said word must be construed in the context it is used. The object of the Act is only to enable the Board to frame a Housing or Improvement Scheme and execute such scheme. In the above context, the word “vesting” may relate to title or possession or some limited purpose of disposing of the same as contemplated under Section 72. As the Board has also the power to sell or dispose of the plots/flats as the case may be, the word "vesting" employed in Section 72 shall be construed to mean and include only the purpose of discharging its functions under the scheme. Such power of vesting cannot be equated to the power of vesting of the land in Government under Section 16 of the Central Act, where the lands acquired shall vest absolutely in Government free from all encumbrances. 17. This leads us to the further question as to the exercise of the power under Section 16-B by the Government to forfeit the land vis-a-vis the power of the TNHB to exercise the power to sell, mortgage etc., under Section 72 of the TNHB Act. In this context, it would be relevant to refer to the circumstances under which the provision of Section 16-B was introduced and the object behind it. Attention of the Government was drawn to the fact that the lands acquired by Government on behalf of several requisitioning bodies and handed over to them are transferred to others without prior permission of the Government. With a view to avoid the requisitioning bodies from transferring the