IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11-4-2008 CORAM THE HON'BLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.2964 of 2008 & M.P.No.1 of 2008 and W.P.No.2965 of 2008 & M.P.No.1 of 2008 M. Sangameswaran ... Petitioner in W.P.2964/2008 M. Varadaraj ... Petitioner in W.P.2965/2008 Vs. 1. Government of Tamil Nadu, rep.by its Secretary, Housing and Urban Development Department, Fort St.George, Chennai - 600 009. 2. Chairman and Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai. ... Respondents in both petitions Prayer in W.P.No.2964/2008: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records relating to the letter No.26645/Ni.A.3(2), dated 13.12.2006 and signed on 28.12.2007 and issued by the Secretary to Government of Tamil Nadu, Housing and Urban Development Department, Fort St.George, Chennai- 600 009, the first respondent herein and quash the same and direct the respondents to re-convey and re-transfer the lands comprised in S.Nos.151/1B (0.07.0 H), 151/1D (0.41.0 H), 151/3B (0.01.0 H) and 151/3C (0.00.5 H) at No.13, Vilankurichi Village, Coimbatore North Taluk, Coimbatore District under section 48B of the Land Acquisition Act, 1894, as amended therein in favour of the petitioner and within such time as may be prescribed by this Court. Prayer in W.P.No.2965/2008: This writ petition is filed under Article 226 of Constitution of India, praying this Court to issue a writ of certiorarified mandamus calling for the records relating to the letter No.26644/Ni.A.3(2), dated 14.12.2006 and signed on 28.12.2007 and issued by the Secretary to Government of Tamil Nadu, https://hcservices.ecourts.gov.in/hcservices/ Housing and Urban Development Department, Fort St.George, Chennai- 600 009, the first respondent herein and quash the same and direct the respondents to re-convey and re-transfer the lands comprised in S.Nos.151/1B (0.07.0 H), 151/1C (0.49.0 H), 151/3B (0.01.0 H) totally in an extent of Hectares 0.57.0 ares at No.13, Vilankurichi Village, Coimbatore North Taluk, Coimbatore District, under section 48B of the Land Acquisition Act, 1894, as amended therein in favour of the petitioner and within such time as may be prescribed by this Court. For Petitioner : Mr.N.Damodaran in both petition For 1st Respondent : Mr.M.R.Jothimanian Government Advocate in both petition For 2nd Respondent : Mr.R.Girirajan, Standing Counsel for TNHB in both petition O R D E R By consent of both parties, the writ petitions are taken up for final disposal. 2. Prayer in the writ petitions are to quash the orders dated 13.12.2006 and 14.12.2006 respectively, passed by the first respondent and direct the respondents to reconvey and retransfer their respective lands at Vilankurichi Village, Coimbatore North Taluk, Coimbatore District, under section 48B of the Land Acquisition Act, 1894 as amended, in favour of the petitioners concerned. 3. The case of the petitioners is that they were the owners of the lands comprised in S.Nos.151/1B (0.07.0 H), 151/1D (0.41.0 H), 151/3B (0.01.0 H), 151/3C (0.00.5 H) and S.Nos.151/1B (0.07.0 H), 151/1C (0.49.0 H), 151/3B (0.01.0 H) respectively, at No.13, Vilankurichi Village, Coimbatore North Taluk, Coimbatore District, and they got the said properties through registered family partition deed dated 12.6.1981. The said lands along with other lands belonging to other parties were acquired by the first respondent at the instance of the second respondent for Ganapathy Neighbourhood Scheme and notification was also issued under the provisions of the Land Acquisition Act, 1894, as amended. The Special Tahsildar (LA), Housing Scheme, Coimbatore, passed an award, pursuant to which petitioners also received compensation amount for the said acquired lands in January, 2000. https://hcservices.ecourts.gov.in/hcservices/ 4. Number of other land owners of the very same neighbourhood Scheme challenged the land acquisition proceedings before this Court and insofar as they were concerned, the acquisitions were quashed and with regard to some of the adjacent lands situated in the very same scheme, first respondent issued necessary notification for withdrawal of the proceedings. According to the petitioners, because of that development, the second respondent is not in a position to utilise the said lands as it was not feasible for the Board to implement the scheme and the second respondent also not utilised the lands acquired from the petitioners and kept the same idle. Therefore, the petitioners applied for restoration of the above said lands to them by submitting representation on 13.9.2004 stating that they are willing to return back the compensation amount received from the respondents. Since no action was taken, petitioner sent a further representation by registered post to the Divisional Revenue Officer, Coimbatore, on 9.9.2004 and also to the first respondent herein and sought for reconveyance of the above said lands in their favour. Though the first respondent acknowledged the same on 14.9.2006, no order was passed and the petitioner filed W.P.No.3059 of 2007 praying for early disposal of their representations. This Court by order dated 9.2.2007 directed the first respondent to dispose of the representations of the petitioners dated 9.9.2006 within three months and the petitioners were also permitted to raise additional grounds. Pursuant to the said order, petitioner raised additional grounds in the form of representation dated 19.3.2007, stating that the surrounding owners of the said lands have already got approval from the competent authority and they sold the plots to various third parties and most of the purchasers of the plots put up pucca construction after getting building plan approval from the local authority. 5. According to the petitioners, as per section 16B of the Land Acquisition Act, 1894, the first respondent has got power to forfeit the land if it is satisfied that the subject matter of the acquisition for public purpose stands unutilised, which shall thereafter vest with the Government or Revenue Department free from all encumbrances, under section 48B the first respondent has got power to reconvey the land. The lands acquired from the petitioners having not been utilised and the petitioners having given their consent to return the compensation amount already received, they claimed that they have got right for reconveyance. However, the first respondent passed the impugned order dated 13.12.2007 and rejected the request of the petitioners by stating that the lands for which the reconveyance is sought for, situate in the center of the Scheme and it can be utilised for approach road and therefore as per the second respondent, the said lands are in need for its combined Housing Scheme and therefore the request of the petitioners for reconveyance is not feasible of compliance. https://hcservices.ecourts.gov.in/hcservices/ 6. The said order is challenged in this writ petition on the ground that relevant facts were not considered by the first respondent and on total non-application of mind the impugned order is passed. The lands having been not utilised from the year 2000, the said lands vests with the first respondent under section 16-B of the Land Acquisition (Tamil Nadu Amendment) Act, 1996 and the adjacent land having been either dropped from acquisition proceeding or the acquisition proceeding having been set aside by this Court, the subject matter of lands cannot be utilised for the neighbourhood scheme and therefore no purpose would be served in retaining the lands acquired from the petitioners by the respondents. 7. The learned counsel for the petitioners argued that the lands acquired from the petitioners having not been utilised by the second respondent under section 16-B, as amended by Tamil Nadu Act, 16 of 1997, the right of the Housing Board gets forfeited and the same vest with the Government and therefore under Section 48B of the Land Acquisition Act, 1894, the first respondent is obliged to consider the request of the petitioners, without getting any instruction from the second respondent, who has no right over the said acquired lands of the petitioners. The reason stated in the impugned order is that the Housing Board has objected for reconveyance on the ground that the said lands may be required to the Housing Board after acquiring the adjacent lands and after providing road facility/approach road. The said reason is the only reason stated in the impugned order and the same is unsustainable, as the right of the Housing Board gets forfeited due to non- utilisation of the said land for various reasons. 8. The learned counsel for the respondents on instructions submitted that the petitioners have no vested right to seek reconveyance and the application submitted by the petitioners under section 48-B of the Land Acquisition Act having been considered by the first respondent and negatived the request, the discretion exercised by the Government cannot be questioned. 9. I have considered the rival submissions made by the learned counsel for the petitioner as well as respondents. 10. The point in issue is whether the petitioner has got any right to claim reconveyance of the already acquired lands in the light of Section 16-B of the Land Acquisition Act, as amended by Tamil Nadu Act, 16 of 1997 and as per section 48B of the Land Acquisition Act, 1894. 11. A Division Bench of this Court in the decision reported in 2006 (4) CTC 290 (R.Shanmugam v. The State of Tamil Nadu) considered similar issued and held that in view of section 16-B of https://hcservices.ecourts.gov.in/hcservices/ the Act, the land not being utilised by the Housing Board, its right can be forfeited by the Government as penalty and to consider the request of the land owner for reconveyance, once the land vests with the Government. In paragraph 21 it is held that Section 16-B of the Land Acquisition Act can be invoked against the Tamil Nadu Housing Board in view of the repealing of Section 17-A of the Tamil Nadu Housing Board Act, which reads thus, "21. Section 17-A of the Tamil Nadu Amendment Act which was later repealed, contemplates payment of cost of acquisition by the Board constituted under City Improvement Trust Act. However, there is no such provision for payment of cost of acquisition by Housing Board to the Government as the entire cost of acquisition is borne by the Government. The provisions of Section 16-B must also be considered in this context. The lands are acquired under the Central Act only on the proposal of Housing Board. On acquisition, the land vest in Government under Section 16 of the Act and thereafter it is transferred to Housing Board only for the limited purpose of implementation of the Scheme. In the event, the State Government is satisfied that the land acquired and transferred to the Housing Board is not utilized for housing or improvement scheme for the purpose for which it was acquired, in exercise of the provisions of Section 16-B, it shall forfeit the land as penalty and thereafter the land shall vest with the Government in Revenue Department free from all encumbrances." It is further held that even though the land owners do not have any vested and absolute right to seek for automatic reconveyance of the land acquired from them, they have an element of right to consider their claim for reconveyance. The Division Bench in paragraph 38 of the judgment held thus, "38. For rejecting the request of the land owners, the Government has given two reasons viz., (1) the land owners have been awarded compensation and possession of the land has been given to the Housing Board, and (2) the land is still required for Housing Scheme. Insofar as the first reason, we are of the opinion that the same cannot be held https://hcservices.ecourts.gov.in/hcservices/ good in view of the specific provisions of Section 48-B enabling the land owners to make the application for re-conveyance. Mere fact that they have received compensation does not prevent them from making a request to the Government invoking Section 48-B of the Act for re-conveyance of the unutilised lands. Insofar as the second reason, it must be kept in mind that though the proposal was made by the Housing Board to the Government for acquiring an extent of 1997.02 acres of patta land, ultimately, the Government could pass award only in respect of 662.96 acres and even out of the said extent of the land, only an extent of 105.61 acres was taken possession and handed over to the Housing Board. But the Board could utilise only an extent of 21.47 acres of land for Housing Scheme. In view of the above undisputed facts, we are of the considered view that the Government have not applied their mind to the above aspects while they came to the conclusion that the land is still required for Housing Scheme." Ultimately the Division Bench set aside the rejection order and remitted the matter back to the State Government for reconsideration of the application made by the appellants therein for reconveyance under section 48B of the Act on merits and in accordance with law in a period of three months. 12. Here in this case, the only reason stated by the first respondent to reject the request for reconveyance is the objection raised by the second respondent. The Government has not considered as to whether the Tamil Nadu Housing Board's right over the property can be forfeited due to non-utilisation of the lands under section 16-B of the Act. The first respondent is therefore required to consider the issue under Section 16-B and thereafter it is bound to consider the request of the petitioners independently. As held by the Division Bench, even though the petitioners have no vested right to seek reconveyance, they have got a right to consider their request for reconveyance under section 48-B read with Section 16-B of the Land Acquisition Act, 1894, on merits. 13. In view of my above findings, the impugned order is set aside with direction to the first respondent to consider the request of the petitioners as per their representation dated 9.9.2006 followed with reminder dated 19.3.2007 and pass orders thereon on merits and in accordance with Section 48-B read with https://hcservices.ecourts.gov.in/hcservices/ Section 16-B of the Land Acquisition Act, 1894, within three months from the date of receipt of copy of this order. The writ petitions are ordered on the above terms. No costs. Connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vr To 1. The Secretary, Housing and Urban Development Department, Fort St.George, Chennai - 600 009. 2. The Chairman and Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai. +1cc to Mr.N.Damodaran, Advocate Sr 20708 +1cc to Mr.R.Girirajan, Advocate Sr 20949 +1cc to Govt. Pleader Sr 21049 GB (CO) km/17.4. W.P.No.2964 & 2965 of 2008 https://hcservices.ecourts.gov.in/hcservices/