IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 31.01.2011 CORAM: THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE M.M.SUNDRESH W.A.NOS.2877 & 2878 OF 2003 AND W.A.M.P.NOS.4534 & 4535 OF 2003 AND W.P.NOS.13832 TO 13834 OF 1999 W.A.NOS.2877 & 2878 OF 2003 P.Vijay Agarwal .. Appellant/Petitioner (in W.A.No.2877/2003) P.Gopal Agarwal .. Appellant (in W.A.No.2878/2003) Versus 1.The State of Tamilnadu Rep.by Secretary to Government Housing and Urban Development Department Fort St.George, Chennai – 600 009. 2.Tamilnadu Housing Board Rep.by its Chairman and Managing Director Anna Salai, Chennai – 600 035. .. Respondents (in both W.As.) Writ Appeal filed under Clause 15 of Letters Patent against the order dated 02.09.2003 in W.M.P.Nos.19916 and 19918 of 1999 in W.P.Nos.13832 and 13834 of 1999 respectively. W.M.P.Nos.19916 to 19918/99 in W.P.13832 to 13834/99: Presented under Art.226 of the Constitution of India to issues a Writ of temporary injunction restraining the respondents, their men, agents from in any way interfering with my peaceful possession of the lands in S.Nos.84/6AIAIC measuring 17 cents (ii)S.No.84/6/A1A1D measuring 39 cents (iii) S.No.84/6AIAIC measuring 17 cents. situated at Lattice Bridge Road, First Cross Street, Madras 41. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.S.Ramesh For Respondent-1 : Mr.A.Arumugham Special Government Pleader For Respondent-2 : Mr.D.Veerasekaran W.P.NOS.13832 TO 13834 OF 1999 P.Vijay Agarwal .. Petitioner (in W.P.No.13832/1999) S.Rajesh Kumar Jain .. Petitioner (in W.A.No.13833/1999) P.Gopal Agarwal .. Petitioner (in W.A.No.13834/1999) Versus 1.The State of Tamilnadu Rep.by Secretary to Government Housing and Urban Development Department Fort St.George, Chennai – 600 009. 2.Tamilnadu Housing Board Rep.by its Chairman and Managing Director Anna Salai, Chennai – 600 035. .. Respondents (in all W.Ps.) Petition filed Under Article 226 of the Constitution of India praying to issue a Writ of Certiorarified Mandamus, calling for the records of the first respondent made in his Letter No.4306/N.A.2(1)/ 99-3 dated 15.06.1999, quash the same and direct the respondents to reconvey the lands to the petitioners situated in S.Nos.86/6/A1A1C and 86/6/A1A1D measuring 17 and 39 cents respectively in Lattice Bridge Road, Thiruvanmiyur, Madras – 41. For Petitioners : Mr.S.Ramesh For Respondent-1 : Mr.A.Arumugham Special Government Pleader For Respondent-2 : Mr.D.Veerasekaran C O M M O N J U D G M E N T (JUDGMENT OF THE COURT WAS DELIVERED BY M.M.SUNDRESH, J) In view of the common issues involved in all the Writ Petitions and Writ Appeals, a common order is passed. https://hcservices.ecourts.gov.in/hcservices/ 2.An extent of 0.17 acres of land in Survey No.84/6A1A1C and another extent of 0.39 acres of land in Survey No.84/6A1A1D in Thiruvanmiyur Village have been acquired by the Government by passing a notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred as "the Act") vide G.O.Ms.No.1096, Housing and Urban Development Department, dated 17.07.1978. The petitioners have purchased the above lands by registered sale deeds on 02.06.1978. Thereafter, a declaration was passed under Section 6 of the Act on 08.08.1981 which was followed by a notice dated 11.08.1986 issued under Sections 9(3) and 10 of the Act. An award was passed by the Land Acquisition Officer on 23.09.1986. 3.The Writ Petitions have been filed by the petitioners in W.P.Nos.2054 and 2058 of 1987, challenging the acquisition proceedings. The petitioners subsequently withdrew the Writ Petitions in order to pursue the remedy seeking deletion of the lands. In the meanwhile, the possession was said to have been taken from the petitioners on 30.10.1986. 4.A show cause notice dated 23.09.1998 was issued by the second respondent under Section 84(2) and 81(1) of the Tamilnadu Housing Board Act, seeking to evict the petitioners on the ground that they are encroachers. The petitioners gave a reply to the said show cause notice on 15.10.1998. The petitioners also filed a Writ Petition in W.P.No.502 of 1999 seeking a Writ Declaration, to declare the proceedings of the first respondent no longer required for the purpose for which the lands have been acquired and for a consequential direction to reconvey the lands to the petitioners. The said Writ Petition was disposed of by an order dated 15.02.1999, giving liberty to the petitioners to approach the Government. 5.The petitioners gave a representation on 12.03.1999 to the respondents seeking to exercise the power under Section 48-B of the Act. However, by the proceedings dated 15.06.1999, the request of the petitioners was rejected on the ground that the possession has already been taken over by the respondent No.1 as early as on 30.10.1986 and the acquired lands are required for the Housing Scheme. Challenging the above said orders passed by the respondent No.1, the petitioners have filed the present Writ Petitions. 6.When the interim applications came up for hearing, the learned single Judge by order dated 02.09.2003 was pleased to dismiss the said applications. Challenging the same, the petitioners filed the Writ Appeals in W.A.Nos.2877 and 2878 of 2003. In view of the pendency of the Writ Appeals, the Writ Petitions were also directed to be posted along with the same. By consent of the parties, the Writ Petitions themselves have been taken up for hearing. 7.The learned counsel appearing for the petitioners submitted that the order impugned will have to be set aside inasmuch https://hcservices.ecourts.gov.in/hcservices/ as the basis for rejection of request for deletion of lands has not been clearly spelt out. It is further submitted that the fairness and reasonableness would require specific reasons ought to have been disclosed in the orders impugned regarding the purpose for which the lands are sought to be utilised. According to the learned counsel, the acquired lands have been surrounded by private lands and lands which were originally covered by a notification have been excluded. It is further submitted that the first respondent ought to have exercised the power under Section 16-B of the Act, thereafter, exercised the power under Section 48-B by reconveying the lands back to the petitioners. 8.The learned counsel for the petitioners has relied upon the judgment of this Court in R.SHANMUGAM vs. THE STATE OF TAMILNADU [2006 (4) CTC 290] and submitted that while exercising the power under Section 48-B of the Act, the first respondent will have to give proper reasons supported by materials. Hence, inasmuch as the first respondent has applied his mind while passing the order impugned, the same will have to be set aside with a direction to the first respondent to consider the case of the petitioners on merits and in accordance with law. Therefore, it is submitted by the learned counsel for the petitioners that the Writ Petitions will have to be allowed. 9.Per contra, Mr.D.Veerasekaran, learned counsel appearing for the second respondent submitted that the order impugned has not been passed in exercise of power under Section 48-B of the Act. The lands have been handed over and transferred by the first respondent in favour of the second respondent. The title got vested with the second respondent. In view of the unauthorised occupation of the petitioners, the second respondent had already initiated proceedings under Section 84(1) of the Tamilnadu Housing Board Act. Therefore, considering the above said factual position, the first respondent did not proceed under Section 48-B of the Act since to consider the representation of the petitioners on merit there is no vesting of the lands with the first respondent as they belong to the second respondent. Hence, it is submitted that when the lands belong to the second respondent, the first respondent cannot exercise the power under section 48-B of the Act. In support of the said contention, the learned counsel has made reliance upon the judgment of the Honourable Supreme Court in TAMIL NADU HOUSING BOARD vs. L.CHANDRASEKARAN [(2010) 2 SCC 786]. Hence, the learned counsel submitted that the Writ Petitions will have to be dismissed. 10.A perusal of the order impugned passed by the learned single Judge in W.P.No.502 of 1999, dated 15.02.1999, would clearly exemplify the fact that the petitioners were merely given liberty to approach the respondents. The learned single Judge has also observed that even in a case where the lands have been transferred in favour of the second respondent, the first respondent can exercise the power https://hcservices.ecourts.gov.in/hcservices/ under Section 16-B of the Act provided the conditions stipulated therein are complied with. Therefore, it is very clear that when the lands are vested with the second respondent, the power available under Section 48-B of the Act cannot be exercised by the first respondent. That is the reason why the first respondent has sought for the particulars from the second respondent. The second respondent by its letter has clearly informed the first respondent that the lands are very much required for the completion of the Scheme. Even in the counter affidavit filed by the second respondent the same has been reiterated. Therefore, taking into circumstances of the above said statement given by the second respondent, the first respondent has informed the petitioners that in view of the possession having been taken and the lands are required by the second respondent, the application made by the petitioners cannot be considered. Scope of Sections 16-B and 48-B of the Act: 11.Section 16-B of the Act gives power to the first respondent to forfeit the lands provided there is a satisfaction that the lands are not used for any public purpose. The said provision is a punitive in nature. Therefore, in order to come to the conclusion that the lands are to be forfeited, the first respondent will have to satisfy that the lands acquired and transferred to the second respondent have not been utilised for the said purpose or any other public purpose. 12.Similarly, Section 48-B of the Act mandates the vesting of the lands with the first respondent. Therefore until and unless the lands are vested with the first respondent, the power under Section 48-B cannot be exercised. Further, such a power can only be exercised by the first respondent after being satisfied that the lands are not either required for the purpose for which they even required or any other purposes. Section 48-B of the Act has to be construed strictly with a literal interpretation. The said Section is an exception to the other provisions. The Honourable Apex Court in T.N.HOUSING BOARD vs. KEERAVANI AMMAL AND OTHERS [(2007) 9 SCC 255] has construed Section 48-B as follows: "16.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." 13.Admittedly in the present case on hand, the lands have been transferred by the first respondent to the second respondent. That is the reason why the second respondent was directed to give his response to the representation made by the petitioners. Action was https://hcservices.ecourts.gov.in/hcservices/ also taken by the second respondent against the petitioners under the Tamilnadu Housing Board Act. The second respondent has informed the first respondent that the Scheme is very much in force and the lands are required for the completion of the Scheme. In this connection, it is useful to refer the judgment of the Honourable Apex Court in TAMIL NADU HOUSING BOARD vs. L.CHANDRASEKARAN [(2010) 2 SCC 786], wherein it has been held as follows: "28.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 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 utilised for any public purpose other than the one for which it was acquired." 14.Therefore, in view of the law laid down by the Honourable Apex Court and on a proper construction of Section 48-B of the Act, we are of the view that the Writ Petitions and Writ Appeals will have to be dismissed inasmuch as it is the Housing Board which is the owner of the property and not the first respondent. 15.As observed earlier, Sections 16-B and 48-B of the Act operate in different fields. Only if the first respondent, after being satisfied that the lands have not been utilised for the purpose for which they have been acquired or for any other public purpose, the power under Section 16-B can be exercised and that too after affording an opportunity to the requisitioning body. After exercising the power under Section 16-B and after forfeiting the property from the requisitioning body, the said property would vest with the first respondent. Thereafter only the power under Section 48-B can be exercised. 16.In the present case on hand, the first respondent on facts came to the conclusion that the public purpose for which the lands have been acquired is very much subsisting and therefore no action has been taken under Section 48-B of the Act. Hence, when there is no taken under Section 16-B of the Act, there is no question of exercising the power by the first respondent under Section 48-B of the Act, inasmuch as the property does not vest with it. When the property is not vested with the first respondent, the power under Section 48-B of the Act cannot be exercised as per the ratio laid down by the Honourable Apex Court. https://hcservices.ecourts.gov.in/hcservices/ 17.In so far as the judgment relied upon by the learned counsel for the petitioner in R.SHANMUGAM vs. THE STATE OF TAMILNADU [2006 (4) CTC 290] is concerned, the same has no application to the facts on hand. As observed above, the first respondent has not exercised the power under Section 48-B of the Act. The first respondent has called for the remarks from the second respondent before passing the order impugned. The satisfaction of the first respondent being subjective in nature, the same cannot be questioned on the ground of non-application of mind. As observed in the very same judgment the petitioners do not have any vested or absolute right to seek for automatic reconveyance of the lands. Further the ratio laid down therein will have to be seen in the light of the subsequent decision of the Honourable Apex Court in TAMIL NADU HOUSING BOARD vs. L.CHANDRASEKARAN [(2010) 2 SCC 786] which dealt with the scope of Section 48-B of the Act. Therefore, we do not find that the said judgment has any application to the present case on hand. 18.Considering the above said factual and legal position, the Writ Petitions and Writ Appeals are deserved to be dismissed. Accordingly, they are dismissed. No costs. Consequently, connected miscellaneous petitions are closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar sri To 1.The Secretary Government of Tamilnadu Housing and Urban Development Department Fort St.George, Chennai – 600 009. 2.The Chairman and Managing Director Tamilnadu Housing Board Anna Salai, Chennai – 600 035. 1 cc To Mr.S.Ramesh, Advocate, SR.7053 1 cc To The Government Pleader, SR.7010 W.A.Nos.2877 & 2878 of 2003 & W.P.Nos.13832 to 13834 of 1999 TEJ(CO) PMK.21.2.2011 https://hcservices.ecourts.gov.in/hcservices/