IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.04.2009 CORAM: THE HON'BLE MR.JUSTICE P.JYOTHIMANI AND THE HON'BLE MRS.JUSTICE ARUNA JAGADEESAN WRIT APPEAL NO.1428 of 2008 A.N.Muthusamy .. Appellant vs. 1. The State of Tamilnadu rep. By the Secretary to Government Housing Department Fort St.George, Chennai 9. 2. Tamil Nadu Housing Board Nandanam, Chennai rep. By its Chairman. 3. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai 600 035. .. Respondents Writ Appeal is filed under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.456 of 2004 dated 29.10.2008, filed under Article 226 of the Constitution of India, calling for the records in proceedings bearing Letter No.LAI (1)/21279/91, dated 30.10.2003 on the file of the 3rd respondent and to quash the same and direct the 2nd and 3rd respondents to allot a plot to the petitioner under "Owners Category" as per the directions of this Honourable Court in WP.3743 of 1983 dated 31.01.1991 from the land acquired from the petitioner and not utilised for the scheme for which it was acquired and remaining vacant till date. For appellant : Mr.P.Valliappan For respondents: Mr.R.Thirugnanam, Spl.Govt.Pleader for R.1 Mr.K.Chelladurai for R.2 & R.3 https://hcservices.ecourts.gov.in/hcservices/ JUDGEMENT P.JYOTHIMANI,J. The above appeal is against the order of the learned Judge dated 29.10.2008 passed in W.P.No.456 of 2004, by which the learned Judge dismissed the writ petition filed by the petitioner challenging the impugned proceedings of the Tamil Nadu Housing Board dated 30.10.2003, by which the Tamil Nadu Housing Board has rejected the claim of the writ petitioner/appellant, for allotment of a plot in the land acquired from him on the basis that there was no Scheme to that effect, however, considering the request of the appellant, accepted to allot a flat of his choice anywhere in the Madras City for residential purpose. 2. It is stated that 17 cents of land, which was purchased by the appellant on 21.12.1981 was acquired from his vendors under the provisions of the Land Acquisition Act by issuance of Section 4(1) notification on 26.03.1975 and Section 6 declaration on 23.03.1978. It was after the Section 6 declaration but before the award came to be passed on 30.03.1983, the appellant purchased the property on 21.12.1981 from his vendors, against whom the land acquisition proceedings were initiated. It is also not in dispute that after the Section 6 declaration the appellant participated in the proceedings under Section 9-A of the Act and ultimately, an award was passed on 30.03.1983, in favour of the appellant, and he received the compensation in respect of the property. The appellant relies upon the earlier writ petition filed by him in W.P.No.3743 of 1983 challenging the acquisition proceedings, wherein this Court, while dismissing the writ petition by order dated 31.01.1991, issued certain directions, as follows: "... Hence, there are no merits in the writ petition and is hereby dismissed. However, it is seen from the counter affidavit that the respondents have state4d that as and when the acquisition proceedings are over, the claim made by the petitioner for allotment of suitable plot under owner category, will be considered. Accordingly, there will be a direction that as and when such an application is made by the petitioner for allotment of suitable plot under owner category, the same will be considered on merits in accordance with law. " 3. After the dismissal of the said writ petition, the appellant had made representations, which were not considered, resulting in the appellant filing another writ petition, viz., W.P.No.17931 of 1991, which was disposed of by this Court by order dated 08.01.1992, with direction to the Tamil Nadu Housing Board to consider the claim of https://hcservices.ecourts.gov.in/hcservices/ the petitioner in his representation dated 01.10.1991, which was made as per the direction given by this Court in the earlier writ petition. 4. It is the case of the appellant that thereafter, he made several representations, but the Housing Board has not passed any orders. In the meantime, it appears that the appellant has filed W.A.No.1478 of 1992 against the original order passed in W.P.No.3743 of 1983 and the appeal came to be dismissed by a Division Bench of this Court in the judgment dated 27.10.1992. While dismissing the above said writ appeal, the Division Bench has held that no prejudice is caused to the appellant, since a direction has already been given by a learned Judge that the appellant should be considered for allotment of suitable plot under the "owner category". The following is the operative portion:- " I am to state that as per the existing allotment procedure, there is no provision to allot a plot house to an ex-land owner. However, the Board has considered your request and approved to allot a flat of your choice any where in the city available for your residential purpose subject to payment of cost."" 5. Thereafter, on many representations made by the petitioner, the Housing Board has passed the order dated 30.10.2003, which is impugned in the writ petition. In the said order, the Housing Board has stated that while acquiring the lands there was no Scheme provided for allotment of plot in the same property to the erstwhile owners. However, as stated above, the Tamil Nadu Housing Board, the respondent herein, has informed the appellant that he may be allotted a flat of his choice in the city of Madras for his residential purpose. The learned Judge having found that there was no Scheme at the time of acquisition for providing plot to the erstwhile owners and also having concluded that the appellant himself has not resorted to section 48B of the Land Acquisition Act for reconveyance, dismissed the writ petition. 6. The learned counsel for the Tamil Nadu Housing Board has now stated that apart from the fact that there was no Scheme contemplated at the time of acquisition of land for providing land to the erstwhile owners, 17 cents of land, which was acquired and which is the subject matter of dispute in this proceedings, has already been allotted to third parties after obtaining approval of lay out from the competent authorities and therefore, the petitioner's right under section 48B cannot also be considered. 7. The law is well settled that when there is acquisition of property under a Scheme, unless the Scheme provides for allotment of land to the erstwhile owner in the same area in which the property was acquired, there is no possibility for considering the claim made https://hcservices.ecourts.gov.in/hcservices/ by the erstwhile owner that property in same area should be allotted to him. In any event, it is not the case of the appellant himself that the acquisition was on the basis of a Scheme. Further, it is not possible to accept the contention of the learned counsel for the appellant that in spite of his purchase in the year 1981, the appellant has suffered enormous loss. It is not as if the appellant has not been granted compensation as per the Land Acquisition Act after the acquisition was made. 8. In such view of the matter, there is no reason to interfere with the order of the learned Single Judge. However, as submitted by the learned counsel for the appellant, it is seen in the impugned order of the Housing Board itself that the Housing Board is always willing to allot a flat of the choice of the appellant for his residential purpose. It is therefore made clear that the Housing Board shall consider the claim of the appellant in the allotment of a flat/plot to the petitioner of his choice as per the existing cost and Rules of the Board and pass appropriate orders. With the above clarification, the writ appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kh To 1. The Secretary to Government State of Tamilnadu Housing Department Fort St.George, Chennai 9. 2. The Chairman Tamil Nadu Housing Board Nandanam, Chennai. 3. The Managing Director Tamil Nadu Housing Board Nandanam, Chennai 600 035. 1 cc To Mr.K.Chelladurai, Advocate, SR.14926. 1 cc To Mr.P.Valliappan, Advocate, SR.14902. 1 cc To The Government Pleader, SR.15390. WRIT APPEAL NO.1428 of 2008 BVN(CO) RVL 29.04.2009 https://hcservices.ecourts.gov.in/hcservices/