IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2008 C O R A M: THE HONOURABLE Mr.A.K.GANGULY, CHIEF JUSTICE and THE HONOURABLE Mr.JUSTICE F.M.IBRAHIM KALIFULLA W.A.Nos.562 to 564 of 2008 and M.P.Nos.1+1+1 of 2008 W.A.No.562 of 2008 1. Malarkodi 2. Aappili 3. Jeeva 4. Malliga 5. Latchumi 6. Mariyayee 7. Kaliammal .. Appellants/Petitioners -Vs- 1. The Secretary to the Government of Tamilnadu, Adi Dravida and Tribal Welfare Department, Fort St. George, Chennai – 600 009. 2. The District Collector, Namakkal District. 3. The District Revenue Officer, Namakkal, Namakkal Town. 4. The Special Tahsildar, Adi Dravida Welfare, Namakkal. 5. L.Balasubramaniam (Impleaded as 5th respondent vide order dated 14.07.2008 passed in M.P.No.2 of 2008 in W.A.No.562 of 2008) .. Respondents/Respondents Writ Appeal No.562 of 2008 filed against the order of this Court in W.P.No.25559 of 2007, dated 30.04.2008, calling for the records of the First Respondent pertaining to G.O.Ms (3pa) No.14, dated 12.4.2007 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ W.A.No.563 of 2008 1. Janma 2. Palaniammal 3. Singari 4. Pappathi, W/o.Varadarajan 5. Pappathi, W/o.Shanmugham 6. Periakkal 7. Logambal 8. Savithri 9. Vanitha 10. Chittiraiselvi 11. Saraswathi 12. Kala 13. Kuppayyee 14. Savithri 15. Tamilselvi 16. Jegadambal 17. Vanitha 18. Rukmani 19. Anuradha 20. Poongodi 21. Chitra .. Appellants/Petitioners -Vs- 1. The Secretary to the Government of Tamilnadu, Adi Dravida and Tribal Welfare Department, Fort St. George, Chennai – 600 009. 2. The District Collector, Namakkal District. 3. The District Revenue Officer, Namakkal, Namakkal Town. 4. The Special Tahsildar, Adi Dravida Welfare, Namakkal. 5. S.Singaravelu 6. Kamaladevi 7. Vennila 8. Uma 9. Indirani 10. Valarmathi 11. Deviammal 12. Rajammal 13. Vijaya 14. Maheswari 15. Indirani https://hcservices.ecourts.gov.in/hcservices/ 16. Devi 17. Mariyayi 18. Mekala 19. Baby 20. Tamilselvi 21. Ramayee 22. Gandhimathi 23. Nithya 24. Uma 25. Parvathi 26. Nisha 27. Easwari 28. Sakunthala 29. Karuthamani 30. Kanniammal 31. Annagodi 32. Lakshmi 33. Umadevi 34. Sumathi 35. Radha 36. Mariyayee 37. Saratha 38. Vijaya 39. Kanthamani 40. Vijayakumari 41. Sharmila 42. Chandrika 43. Vijaya 44. Easwari 45. Sarasu 46. K.Rani 47. R.Papathi 48. R.Padmavathi 49. P.Kathayee 50. Bharathi 51. Palaniammal 52. Samboornam 53. Yasodai 54. Latha .. Respondents/Respondents Writ Appeal No.563 of 2008 filed against the order of this Court in W.P.No.23587 of 2007, dated 30.04.2008, calling for the records of the First Respondent pertaining to G.O.Ms (3pa) No.14, dated 12.4.2007 and quash the same. -------------------------- https://hcservices.ecourts.gov.in/hcservices/ W.A.No.564 of 2008 S.Rani .. Appellant/Petitioner -Vs- 1. The Secretary to the Government of Tamilnadu, Adi Dravida and Tribal Welfare Department, Fort St. George, Chennai – 600 009. 2. The District Collector, Namakkal District. 3. The District Revenue Officer, Namakkal, Namakkal Town. 4. The Special Tahsildar, Adi Dravida Welfare, Namakkal. 5. L.Balasubramaniam 6. S.Singaravelu .. Respondents/Respondents Writ Appeal No.564 of 2008 filed against the order of this Court in W.P.No.21595 of 2007, dated 30.04.2008, calling for the records of the First Respondent pertaining to G.O.Ms (3pa) No.14, dated 12.4.2007 and quash the same. ----------------------------- For Petitioners in all the WAs : Mr.V.Ragavachari for Mr.P.Valliappan For Respondents 1 to 4 in all the WAs. : Mr.Raja Kalifulla Government Pleader For impleading party & Respondent 5 in W.A.No.564/2008 : Mr.R.Krishnamurthy, Senior Counsel for Mr.S.M.Loganathan - - - - - - C O M M O N J U D G M E N T THE HON’BLE THE CHIEF JUSTICE The appellants are aggrieved against the common order passed by a learned Single Judge of this Court dated 30.04.2008, in W.P.Nos.21595, 23587 and 25559 of 2007 and the connected miscellaneous petitions. https://hcservices.ecourts.gov.in/hcservices/ 2. The issue concerns the land acquisition proceedings in respect of the property situated in Survey Nos.134/2, 137/1A and 137/1B of Pothanur village, Namakkal District. The parties involved are three different groups and for the sake of convenience, the parties are herein after referred to as under: (i) The appellants in all the three appeals will herein after be referred to as the beneficiaries. (ii) The respondents 1 to 4 in all the three appeals can be conveniently referred to as acquisition authorities. (iii) The respondents 5 to 54 in W.A.No.563 of 2008 and the 6th respondent in W.A.564 of 2008 who got themselves impleaded as party respondents by filing separate applications are herein after referred to as rival claimants to the beneficiaries. 3. The beneficiaries preferred the writ petitions challenging G.O.Ms.(3Pa) No.14, dated 12.04.2007, in and by which, the State Government issued directions to the District Collector, Namakkal to re-convey the acquired lands in S.Nos.134/2, 137/1A and 137/1B to an extent of 2.29 acres to the erstwhile land owners and in its place acquire an extent of 4.03 acres in S.Nos.201/2, 201/4 and 154/1A situated in Edayar West and Veernampalayam villages also belonging to the erstwhile land owners for the purpose of issuing free house site pattas to about 180 persons. The impugned G.O. also states that since the compensation amount of Rs.3,17,851/- in respect of the acquired land to the extent of 2.29 acres having already been deposited with the Sub Court, Namakkal and continuing to remain in deposit, there was no need to seek for repayment of the compensation by the erstwhile land owners. 4. The grievance of the beneficiaries who are stated to be 61 in number can be stated as under: In 1989 proceedings were stated to have been initiated under Section 4(1) and Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the “Act”) for acquiring an extent of 2.29 acres in Survey Nos.134/2, 137/1A and 137/1B in Pothanur village, Paramathi Velur Taluk of Namakkal District for the purpose of granting free house site pattas to the land less Adi Dravidars. The acquisition proceedings resulted in Award No.6/92-93 dated 07.12.1992. Since the erstwhile land owners objected to the acquisition, the compensation amount of Rs.3,17,851/- was deposited in the Sub Court, Namakkal under Sections 30 and 31(2) of the Act on 25.01.1993. The erstwhile land owners preferred W.P.No.9795 of 1991 challenging the acquisition which was dismissed by this Court on 15.06.1999. Pursuant to the dismissal of the writ petition, the acquired lands were taken possession of by the Tahsildar, Paramathi Velur on 15.12.1999. Subsequently on 30.04.2003, assignment pattas https://hcservices.ecourts.gov.in/hcservices/ under the provisions of Board Standing Orders / Revenue Standing Orders came to be issued in favour of the 61 beneficiaries. It is stated that there were complaints apparently at the instance of the rival claimants, who are rival to the beneficiaries, alleging that the assignment pattas granted in their favour should be cancelled. 5. As a sequel to the above referred to complaints, it is stated that the Tahsildar, Paramathi Velur was directed to verify the genuineness of the beneficiaries and based on the enquiry conducted by him in R.O.C. No.7710/2003 dated 20.11.2003, it was reported that most of the beneficiaries were ineligible. Based on the said report, the Acquisition Officer namely the District Adi Dravidar and Tribal Welfare Officer, Nammakkal passed orders in R.O.C.(D1) 35860/99, dated 15.12.2003, cancelling all the 61 house site pattas and instructions were also issued to submit the list of revised beneficiaries after holding a fresh enquiry. 6. According to the acquisition authorities, after the issuance of the assignment pattas dated 30.04.2003, though physical possession of the respective plots in an extent of 2 cents each was not identified and handed over to each of the beneficiaries, all the 61 beneficiaries entered the acquired lands and occupied various plots on their own by putting up thatched structures. Be that as it may, while on the one hand the rival claimants to the beneficiaries were agitating for the cancellation of the assignment pattas dated 30.04.2003, the erstwhile land owners is stated to have moved the acquisition authorities under Section 48-B of the Land Acquisition Act seeking for re-conveying of the lands inter alia contending that there was lack of sufficient income for his family and that they are prepared to surrender certain other lands to an extent of 4.03 acres in S.No.201/2, 201/4 and 154/1A at Edayar West and Veernampalayam villages situated near Pothanur village by accepting compensation amount of Rs.3,17,851/- which had already been fixed and deposited. 7. It is in the above stated background, the impugned G.O. Ms. (3Pa) No.14, dated 12.04.2007 came to be issued by the State Government, which provides for re-conveying of the acquired lands in S.Nos.134/2, 137/1A and 137/1B in Pothanur village to an extent of 2.29 acres to the erstwhile land owners and simultaneously with a direction to acquire an extent of 4.03 acres at Edayar West and Veernampalayam villages in S.Nos.201/2, 201/4 and 154/1A for the very same compensation amount of Rs.3,17,851/- for the purpose of issuing free house site pattas for Adi Dravidars. 8. Aggrieved by the issuance of the above referred to G.O., the beneficiaries came forward with the above three writ petitions in W.P.Nos.21595, 23587 and 25559 of 2007. By a common order dated https://hcservices.ecourts.gov.in/hcservices/ 30.04.2008, impugned in these writ appeals, the learned Single Judge has upheld the impugned G.O. holding that actual possession was not handed over to the beneficiaries and that the pattas granted to them were also subsequently cancelled. It was also held that as on date the possession held by the beneficiaries will have to be construed as one of encroachment. The learned Single Judge further held that since the beneficiaries will get alternative site for their housing purpose, their interest is also fully protected and that they have no right to object to the exchange of lands which has resulted in the passing of the impugned G.O. 9. Assailing the order of the learned Single Judge, Mr.V.Ragavachari, learned counsel appearing for the appellants contended that the impugned G.O. is not sustainable in law, in as much as Section 48-B of the Land Acquisition Act does not cover a situation as is mentioned in the order impugned. The learned counsel further contended that when the Award has become final and conclusive and in pursuance of the Award, the Acquisition Authority having taken over possession of the acquired lands, the property vested with the State in the year 1999 and under such circumstances, there was no scope for invoking Section 48 of the Act to drop the acquisition proceedings. It was further contended that the State Government’s attempt for re-conveying the lands in the guise of exchange of lands in favour of the erstwhile land owners could not have been passed and the same would not fall within the four corners of the prescription contained in Section 48-B of the Land Acquisition Act. As far as the cancellation of the assignment pattas dated 30.04.2003, by proceedings dated 15.12.2003, the learned counsel contended that in the first place the passing of such an order was behind the back of the appellants and therefore the same will not bind them. The learned counsel also contended that once the assignment pattas have been issued in pursuance to the land acquisition proceedings which is governed by Board Standing Order / Revenue Standing Order 90, the same would be governed by all other consequential stipulations and prescriptions contained in various sub-clauses to the said Standing Order 90. According to the learned counsel, the said prescription contemplates sufficient notice and opportunity to be afforded to the beneficiaries before any cancellation is resorted to at the instance of the Acquisition Authority. It was therefore contended that the cancellation proceedings dated 15.12.2003, without notice to the beneficiaries cannot be relied upon. 10. The learned counsel appearing for the appellants would further contend that in the absence of compliance of such stipulations contained in the Board Standing Order, the so called cancellation of pattas alleged to have been made by an order dated 15.12.2003 is illegal and any action based on such illegal order including the passing of the impugned G.O. dated 12.04.2007, cannot be sustained. https://hcservices.ecourts.gov.in/hcservices/ 11. It was lastly contended by the learned counsel that all the beneficiaries namely 61 in number were all granted pattas on the Independence Day i.e. on 15.08.2003, by the District Collector in a public function, that as an Annexure to the patta, the plan was attached disclosing the various plots meant for allotment for the 61 beneficiaries and that after the issuance of such pattas to the beneficiaries, they were also put in possession. It was therefore contended that after having been put in possession, the beneficiaries set up their own abode by way of constructions with thatched roof, for which necessary property tax assessment were also made by the Municipal authorities, wherein the beneficiaries have set up their families and living from then onwards. The learned counsel further contended that the impugned order of the State Government in G.O.Ms(3Pa) No.14, dated 12.04.2007, in attempting to dislodge the appellants from their family abode, to which they were validly put in possession, cannot be sustained and therefore the order of the learned single judge calls for interference and consequently the impugned order in G.O.Ms(3Pa) No.14, dated 12.04.2007 is also liable to be set aside. The learned counsel relied upon (i) AIR 2007 SC 1691 (ii) 1998 4 SCC 387 (para 19 & 24) (iii) 1994 4 SCC 370 (para 5 & 6) (iv) AIR 2005 (Mds) 226 (para 25 & 26) (v) 2007 2 SCC 230 (para 29 to 31) (vi) 2001 8 SCC 443 (at page 455) in support of his submissions. 12. As against the above submissions, Mr.Raja Kalifulla, learned Government Pleader in his submissions contended that there were complaints as regards the genuineness of 61 beneficiaries and when such complaints were enquired into, it came to light that several of them were in possession of their own lands and that certain other beneficiaries were found to be ineligible by virtue of their place of residence etc., and therefore assignment pattas granted in their favour on 30.04.2003, came to be cancelled by an order dated 15.12.2003. 13. The learned Government Pleader further contended that apart from the 61 beneficiaries there were rival claimants, which were in the order of nearly 120 in number and therefore the Acquisition Authorities and the State Government thought it fit to accede to the claim of the erstwhile land owners, when they came forward to surrender larger extent of 4.03 acres as against the acquired land to an extent of 2.29 acres and thereby the State Government and the Acquisition Authorities would be in a position https://hcservices.ecourts.gov.in/hcservices/ to accommodate all the 181 persons. According to the Government Pleader, such a step taken by the State Government while issuing the impugned Government Order dated 12.04.2007, being a policy decision of the State, the learned Single Judge was perfectly justified in refusing to interfere with the impugned G.O. The learned Government Pleader also contended that the decision of the State to give up the smaller extent of 2.29 acres which was already acquired, in order to accommodate more number of landless Adi Dravidras by accepting larger extent of 4.03 acres offered by erstwhile land owners without any additional compensation being paid, would satisfy the prescription contained in Section 48-B, as such a step was taken by way of exchange of land in the larger interest of meeting the demand of more number of landless Adi Dravidars. It was further contended that the proposed acquisition of 4.03 acres were also within the vicinity of the already acquired lands and therefore no prejudice would be caused to the beneficiaries. 14. It was also contended by the learned Government Pleader that even though assignment pattas were issued on 30.04.2003, none of the beneficiaries were validly put in possession by assigning the respective plots based on any field Survey made and therefore the possession claimed by the beneficiaries cannot be recognized in law. In support of his submissions he relied upon (i) 2000 8 SCC 262 (para 16 – 20), (ii) 1998 6 SCC 536 & (iii) 1995 3 Supp SCC 538. 15. Mr.R.Krishnamurthy, learned senior counsel appearing for the erstwhile land owners in his submissions referred to Appendix IV prescribed under sub-para 31(B) of the Standing Order 90 of the Revenue Standing Orders and contended that in para 5 of the said Appendix if any practical difficulties exist in the actual assignment of house sites, the same should be referred to the State Government for orders by the Board of Revenue. The learned senior counsel by referring to Annexure-II of Appendix IV contended that the State Government retain its power to cancel the grant and therefore in exercise of its executive powers prescribed under Article 162 of the Constitution of India, the State Government thought it fit to pass the impugned G.O. in the interest of providing house site pattas for more number of landless poor viz., 181 persons as against the 61 beneficiaries, the Court should not interfere with such an action of the State. The learned Senior Counsel relied upon (i) 1992 WLR Vol 9 (2) (ii) 2003 (6) SCC 545 (Para 43) (iii) 2007 (10) SCC 635 (para 16 & 17) (iv) 2000 (7) SCC 529 (para 25) (v) 2001 (1) SCC 610 (para 37) in support of his submissions. https://hcservices.ecourts.gov.in/hcservices/ 16. Having heard the learned counsel for the respective parties and on perusal of the material papers, we find that the following questions arise for consideration in these appeals. (i) Whether the order impugned in the writ petitions dated 12.04.2007, directing the acquisition authorities for re-conveyance of the acquired lands is sustainable either under Section 48-B or Section 48 of the Land Acquisition Act, 1894 ? (ii) Whether the claim of the acquisition authorities in relying upon the proceedings dated 15.12.2003, in and by which, the authorities stated to have cancelled the assignment pattas issued in favour of the beneficiaries is valid and whether any reliance can be placed upon the said proceedings to sustain the impugned order dated 12.04.2007 ? (iii) Whether it can be held that de hors Board Standing Orders / Revenue Standing Orders 90 and 31(B) and relevant Annexure II of Appendix IV, there is any power vested in the acquisition authorities to cancel the allotment already made to the beneficiaries by granting assignment pattas dated 30.04.2003 ? (iv) Whether by way of exercise of executive powers under Article 162 of the Constitution of India, the acquisition made under the provisions of the Land Acquisition Act, 1894 which has culminated into an Award in Award No.6/92-93 can be set at naught by an executive order? QUESTION No.1:- 17. Section 48 of the Act gives liberty to the Government to withdraw from acquisition any land of which possession has not been taken. This is of course subject to Section 36 of the Act. Here we are not concerned with the situation contemplated under Section 36. 18. Sub Section (2) of Section 48 provides whenever the Government withdraws from acquisition, the Collector shall determine the amount of compensation due for the damages suffered by the owner in consequence of the notice or any proceedings thereunder, and shall pay such amount to the person interested, together with costs. Sub Section (3) of Section 48 provides that insofar as Part III of the said Act is concerned the same will apply for the determination of the compensation payable under the said section. 19. It has not been argued by any of the parties that Section 48 of the said Act applies in the present case inasmuch as it is common ground that the Government has taken possession of the land, and sub Section (1) of Section 48 makes it clear that Section 48 will apply only in a case where possession has not been taken by the Government. https://hcservices.ecourts.gov.in/hcservices/ 20. The case of the acquisition authority is that there is a State Amendment made to Section 48 of the said Act and the same is known as "The Land Acquisition (Tamil Nadu Amendment) Act, 1996" and after Section 48-A of the Act, Section 48-B has come by way of the Tamil Nadu State Amendment which is set out below:- "48-B. Transfer of land to original owner in certain cases - Where the Government are satisfied that the land vest in the government under this Act is not required for the purpose for which it was acquired, or for any other public purpose, the Government may transfer such land to the original owner who is willing to repay the amount paid to him under this Act for the acquisition of such land inclusive of the amount referred to in sub Section (1-A) and (2) of Section 23, if any, paid under this Act." 21. A perusal of the aforesaid section would show that the government can act under the said section even in a case where Government has taken possession of the land and the land is vested in the Government. But, the said section prescribes some conditions precedent before the Government can transfer the land to the original owner and there are some conditions subsequent to that exercise also. 22. The conditions precedent are that the Government must be satisfied that the land vested in the Government under this Act is (a) not required for the purpose for which it was acquired; or (b) not required for any other public purpose. The conditions subsequent is that the Government can transfer such land to the original owner who is (a) willing to repay the amount paid to him under the Act for such acquisition; and (b) this amount would include also the amount referred to in sub Section (1-A) and (2) of Section 23 of the said Act, if any paid. 23. Now, if we look at the impugned order dated 12.04.2007 it will appear that the said order does not contain any reference to Section 48 or Section 48-B. But, in paragraph – 5 of the said order it has been stated as follows:- "The Namakkal District Collector has recommended to the Government for acquisition of 4.03 acres of land for distribution of free house site pattas to 180 beneficiaries and for return of land measuring 2.29 acres to the land owner in view of the fact that the land owner had agreed to give 4.03 acre land to the government in lieu of the land of 2.29 acres acquired by the Government, that the demand made by the land owner's heirs being just, in the present circumstances chances of issuing free house site patta for more beneficiaries being bright, in the event of getting https://hcservices.ecourts.gov.in/hcservices/ more land, it is possible to wipe out the difference of opening between the beneficiaries, as the heirs of the land owner agree to accept the compensation amount offered for 2.29 acres (based on the market value in prevalence) as compensation for the substitute land measuring 4.03 acres. So also the recommendation made by the Director, Adidravidar Welfare Department, to the Government." 24. From paragraph – 6 of the impugned order it appears that upon consideration of the said recommendation by the Namakkal District Collector and the recommendation by the Director, Adidravidar Welfare Department, Government issued orders to the District Collector, on the basis of the reasons set out in paragraph – 5 above, to take speedy steps for return of property measuring 2.29 acres to erstwhile land owner which was acquired and taken possession of by the Government in 1999. 25. Both in paragraph – 5, which has been set out above, and in paragraph – 6 of the impugned order, which has been passed on the basis of the so-called reasons in paragraph – 5, the Court has searched in vain for any recital to the effect that the purpose for which the land was acquired and vested in the Government, does not any longer exist or that there is no existence of any public purpose for acquisition of the said land. Rather any person of ordinary prudence on a plain reading of paragraph – 5, on which paragraph – 6 is based, would come to the conclusion that the public purpose for which the land was acquired namely., acquisition of the land for distribution of free house site pattas on that land to Adidravidars still survives. The learned Government Pleader