IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.03.2008 C O R A M : THE HONOURABLE MR.JUSTICE P.D.DINAKARAN and THE HONOURABLE MR.JUSTICE R.REGUPATHI W.P.No.10475 of 2007 The Administrator General and Official Trustee of Tamil Nadu, High Court, Chennai. ... Petitioner -vs- 1. The State of Tamil Nadu, rep. by its Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai. 2. The Chairman and Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai. 3. The Special Tahsildar Land Acquisition (VIII) Tamil Nadu Housing Board Scheme, Nandanam, Chennai. ... Respondents PRAYER: Petition filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus Calling for the records relating to the order of the 1st respondent in Letter No.26304/LA2.2/2006-6 dt 11.9.2006 and to quash the same and consequently to direct the respondents to re convey the lands at T.S.No.2930/1,2, 2931 and 2932/1 measuring an extent of 103 grounds and 0796 sq.ft. at Perambur, Purasawalkam taluk, chennai district to the petitioner. For Petitioner :: Mr.R.Gandhi, Senior Counsel for Mr.K. Ravichandra Babu For Respondents :: Mr.G.Masilamani, Advocate General assisted by Mr.K.Chelladurai and Mr.Girirajan for second respondent Mr.Raja Kalifulla Government Pleader for respondents 1 and 3 https://hcservices.ecourts.gov.in/hcservices/ O R D E R (Made by P.D.DINAKARAN, J.) The petitioner is the statutory authority under the provisions of Administrators General Act, 1913 (Act 3 of 1913), which is now repealed by Amendment Act of 1963, viz. Administrators General Act, 1963 (45 of 1963), administering the property of C.Kandasamy Naidu Trust, as per the order of Probate dated 5.10.1948 made in O.P.No.278 of 1948 on the file of this Court probating the Will dated 21.5.1948. It is, therefore, obvious that after the order of probate dated 5.10.1948, referred to above, all property both movable and immovable of the trust vests with the Administrator General and Official Trustee (in brevity 'AGOT'). 2. The lands belonging to the Trust of an extent of 103 grounds 0796 sq.ft situated in Survey Nos.2930/1, 2930/2, 2931 and 2932/1 of Purasawalkam Village of Madras District were proposed to be acquired by the respondent/Housing Board for a public purpose, viz. Housing scheme by the respondent/Board, for which, a notice under Section 4(1) of the Land Acquisition Act was issued on 30.10.1985, an enquiry under Section 5A of the Land Acquisition Act was conducted on 29.1.1986, and a declaration under Section 6 of the Land Acquisition Act came to be passed on 22.12.1986 in G.O.Ms.No.1873, Housing and Urban Development Department. 3. In view of the order of probate granted by this Court on 5.10.1948 in O.P.No.278 of 1948, referred to above, the AGOT, having administrative control over the trust property, raised objections and requested the respondents to exempt the aforesaid land from the acquisition proceedings on the specific ground that the impugned lands, which are vested with the AGOT, a statutory body, are also to be used for a public charitable purpose, and in the alternative, the AGOT prayed for payment of fair market value if the land is otherwise required. However, due consideration was not given to the objections raised by the AGOT, on whom the property vests as per the order of Probate dated 5.10.1948 made in O.P.No.278 of 1948. 4. That apart, the objections raised by the AGOT to the award proceedings, the request for higher compensation at the market value, and the request to refer the matter under Section 18 of the Land Acquisition Act to the Civil Court for determination of the amount of compensation made by representation dated 19.1.1989, followed by a reminder dated 14.9.1993, were also not at all considered by the respondents. On the other hand, the AGOT, on whom the impugned lands vest by operation of law, as per the order of probate dated 5.10.1948 made in O.P.No.278 of 1948, referred to above, was treated merely as an interested person and was informed that the compensation awarded for the impugned land was remitted with the City Civil Court, Madras / Reserve Bank of India, Madras, as though the AGOT has no right to receive the said amount, which is contrary to the spirit and substance of the order of probate https://hcservices.ecourts.gov.in/hcservices/ dated 5.10.1948 made in O.P.No.278 of 1948, referred to above. 5.1. In the meanwhile, an Application No.2453 of 1995 in O.P.No.278 of 1948 was filed by the AGOT to permit the Official Trustee to sell the remaining lands measuring an extent of 287 grounds 2208 sq.ft. situated at Medawalkam. 5.2. The AGOT thereafter filed an additional report in the form of a scheme proposing to establish (i) a General-cum-Super Speciality Hospital, (ii) Higher Secondary School, (iii) Community Hall, (iv) Shopping Complex and (v) Residential Flats. An endorsement was, however, made by the AGOT in the Application No.2453 of 1995 in O.P.No.278 of 1948 seeking permission to withdraw the above proposal for the time being as the abovesaid scheme would not be workable in the long run of the Trust and moreover, it would be difficult to mobilise funds for the above scheme. 5.3. At that juncture, it was also brought to the notice of the concerned Division Bench of this Court in Application No.2543 of 1995 in O.P.No.278 of 1948 that the impugned lands of over 103 grounds have already been acquired by the Housing Board, but no compensation was paid to the Trust till date. Therefore, the Division Bench concerned, exercising the power under Section 25 of the Administrators General Act, 1963, passed the following order on 29.07.2005 in Application No.2453 of 1995 in O.P.No.278 of 1948:- (i) The Official Trustee is permitted to take appropriate steps to get 103 grounds referred to above re-conveyed to the Trust by initiating appropriate proceedings against the Tamil Nadu Housing Board; and (ii) The Official Trustee is directed to furnish a list of all immovable and landed properties that belong to the Trust lying idle in the city or elsewhere. 6.1. Pursuant to the above said order dated 29.7.2005 made in Application No.2453 of 1995 in O.P.No.278 of 1948, the AGOT made a representation dated 12.8.2005 to the Secretary, Housing and Urban Development Department, seeking to re-convey the lands. 6.2. As no orders were passed, the AGOT filed W.P.No.37212 of 2005 seeking issuance of Writ of Mandamus directing the respondents to consider and pass orders on the representation dated 12.8.2005 either by deleting or re-conveying the land by exercising the power under Section 48-B of the Land Acquisition Act. 6.3. Thereafter, the said W.P.No.37212 of 2005 was disposed of by an order dated 18.11.2005 directing the State Government to pass orders on the representation dated 12.8.2005 made by the AGOT within a period of four weeks from 18.11.2005. https://hcservices.ecourts.gov.in/hcservices/ 6.4. On receipt of the order dated 18.11.2005 made in W.P.No.37212 of 2005, the Government by proceedings dated 11.9.2006, which is impugned herein, rejected the request of the AGOT for re-conveyance of land and the relevant portion of the impugned proceedings dated 11.9.2006 reads thus:- "2. In this connection, I am to state that an extent of 125 grounds 2282 sq.ft. Of land of Purasawalkam village, was acquired for implementing Housing Scheme vide Award NO.2/88, dated 22-12-1988 and out of the 125 grounds 2282 sq.ft., the petitioner's land measuring to an extent of 103 grounds 0796 sq.ft. was taken over by Tamil Nadu Housing Board on 28-10-99 and the possession of the above said land is with Tamil Nadu Housing Board. The above lands belong to Kandaswamy Naidu Estate and the issue vested with the Official Trustee and the Administrator General/High Court, Madras, in his capacity as Executor/Trustee of the will dated 21.5.1948 probated on 5.10.1948 in O.P.No.278/48. But he has not produced any documentary evidence to prove their title over the land. The Pachiappa's Trust has also not produced any documentary evidence to prove their interest over the lands under reference. The registered holders of the land did not appear for the award enquiry. In the circumstances, the ownership could not be determined. Hence, the entire compensation amount of Rs.45,46,024.10 was deposited in the City Civil Court, Madras, under Section 30 and 31(2) of the Land Acquisition Act. 3. In the circumstances stated above, your request for reconveyance of land measuring an extent of 103 grounds 0796 sq.ft. in S.No.2930/1, 2, 2931 and 2932/1 of Purasawalkam Village, Chennai District u/s 48 B of the Land Acquisition Act is not feasible of compliance. Accordingly, your request is rejected." (emphasis supplied) 6.5. Hence, the present writ petition for issue of the a writ of Certiorarified Mandamus to call for the records relating to the order of the first respondent dated 11.9.2006, to quash the same and to direct the respondents to re-convey the lands to the AGOT. 7. Mr.R.Gandhi, learned Senior Counsel for the AGOT, submits that: i. the impugned lands admittedly belong to the Kandaswamy Naidu Trust as evident from the impugned order dated 11.9.2006 itself; ii. by virtue of the order of Probate dated 5.10.1948 made in O.P.No.278 of 1948 on the file https://hcservices.ecourts.gov.in/hcservices/ of this Court probating the Will dated 21.5.1948, all the properties – both movable and immovable of the deceased, whether exempted or otherwise vest with the AGOT by operation of law under the provisions of the Administrators General Act, 1913, which stands repealed by the Administrators General Act, 1963 and therefore, the question of proving ownership and title does not arise; iii. the non-consideration of the request of the AGOT for exemption as well as in the alternative, for payment of fair market value or to refer the matter under Section 18 of the Act to the Civil Court for determination of the amount of compensation is arbitrary, unreasonable, perverse and violates the principles of natural justice; iv. as compensation awarded has admittedly not been paid till date to AGOT, on whom the impugned land vests, the AGOT is entitled to seek for re- conveyance of the impugned land; and v. in any event, even in the impugned proceedings dated 11.9.2006, the Government has not arrived at any subjective satisfaction as to whether or not land acquired is required for the purpose it was acquired or for any other public purpose; the rejection of the request of the AGOT for re- conveyance only on the ground that the AGOT had not proved its title, is not sustainable in law, particularly when the AGOT, a statutory authority, on whom the impugned land vests, have, on more than one occasion, made it clear that they propose to use the lands for public purpose and hence, the impugned order dated 11.9.2006 is liable to be quashed. 8. Mr.Raja Kalifulla, learned Government Pleader appearing for respondents 1 and 3 fairly submits that the reasons that weighed the respondents in the impugned proceedings dated 11.9.2006 are not justifiable, in view of the fact that the impugned lands are vested with AGOT by virtue of the order of probate dated 5.10.1948 made in O.P.No.278 of 1948 on the file of this Court probating the Will dated 21.5.1948, as per the ratio laid down by the Division Bench of this Court in P.ALWAR CHETTY v. P.CHIDAMBARA MUDALI & 6 OTHERS, 1915 Vol.XXXVIII Indian Law Reports 1134. 9. Mr.G.Masilamani, learned Advocate General appearing for the second respondent contends that the issue of validity of the acquisition proceedings cannot be gone into by in the present writ petition because of laches on the part of the AGOT in approaching this Court; and in any event, he fairly submits that the Housing Board, being a requisitioning body, cannot also justify the reasons stated in the impugned proceedings dated 11.9.2006, which https://hcservices.ecourts.gov.in/hcservices/ weighed the Government while rejecting the request of the AGOT for re-conveyance. 10. We have given careful consideration to the rival submissions advanced by all sides. 11.1. A reference to Section 48-B of the Land Acquisition Act, which reads as under, would be apposite: "Section: 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." (emphasis supplied) 11.2. It is well settled in law that under Section 48-B of the Land Acquisition Act, the Government has to consider the withdrawal of the acquisition only on merits. The Court cannot compel the Government to withdraw the acquisition proceedings or to restore the possession to the owner of the land. Whether the unused land acquired was required or not for the purpose it was acquired also could not be decided by the Court. Of course, it is only well within the subjective satisfaction of the Government to decide whether the land in question is required or not for the purpose it was acquired or for any other public purpose. If this itself is not satisfactorily decided by the Government and the request was rejected on extraneous reasons, this Court, by exercising the power of judicial review conferred under Article 226 of the Constitution of India can go into the matter to test the veracity of such rejection of the request for re-conveyance. 12.1. It is not in dispute that, in the instant case, this Court exercising the power under Section 25 of the Administrators- General Act is competent to give general or special directions. Section 25 of the Administrators-General Act, 1963 is extracted hereunder: "Section 25. Power of High Court to give directions regarding administration of estate. The High Court may, on application made to it by the Administrator- General or any person interested in the assets or in the due administration thereof, give to the Administrator-General of the State any general or special directions as to any estate in his charge or in regard to the administration of any such estate." (emphasis supplied) https://hcservices.ecourts.gov.in/hcservices/ 12.2. A Division Bench of this Court in P.ALWAR CHETTY v. P.CHIDAMBARA MUDALI & 6 OTHERS, 1915 Vol.XXXVIII Indian Law Reports 1134, while dealing with the consequence of an order of probate under the Administrators General Act, 1913, held that: "A grant of Letters of Administration under Section 20 of the Administrator-General's Act to the Administrator General in respect of the estate of a deceased Hindu vests the estate in the Administrator General and enables him to dispose of immovable property without the consent of the Court." 12.3. At this juncture, it is apt to refer, the intention and history of the will and the probate obtained by the AGOT: One C.Kandaswami Naidu executed a Will dated 21.5.1948 appointing the Official Trustee of Madras as the Executor and trustee of the Will. Besides bequeathing some of his properties in favour of his daughters and others, he endowed the rest of his properties to charities. For that purpose, he bequeathed the properties to the trustees of Pachaiyappa's Charities subject to certain conditions mentioned in the Will. According to him, the properties, movables and immovables should be taken possession by the Official Trustee as Executor and Trustee of the Will and realise and invest them in proper Government Securities or in fixed deposits in any Scheduled Bank and the Executor shall have full power to sell and dispose of the properties and convert them into cash, if necessary and in the opinion of the Executor the immovable properties are yielding better income than the Government Securities or fixed deposits, then, the immovable properties need not be sold by them. Accordingly, the AGOT is administering the Estate of C.Kandasamy Naidu as the sole Executor appointed under the Will dated 21.5.1948 and as per the Letters of Administration granted to the Official Trustee by order of this Court dated 5.10.1948 in the above O.P.No.278 of 1948. 12.4. As per the order of Probate dated 5.10.1948 made in O.P.No.278 of 1948 on the file of this Court probating the Will dated 21.5.1948, the title and ownership of the impugned lands vests with the AGOT. Once the property vests with AGOT, this Court, by exercising the power conferred under Section 25 of the Administrators-General Act, 1963, is empowered to give any general or special directions to any estate in his charge or in regard to the administration of any such estate. 12.5. Accordingly, exercising such power under Section 25 of the Administrators-General Act, this Court, by order dated 23.11.2005 made in Application No.2453 of 1995 in O.P.No.278 of 1948, directed the AGOT as under: "... 12. As the Estate of C.Kandaswami Naidu is a Charitable Trust and the surplus income, after making all expenditure towards commission, taxes, legacy, is to be paid to the beneficiary Pachaiyappa's Trust for utilising the same https://hcservices.ecourts.gov.in/hcservices/ towards education, we felt that if the said lands are made use for the students in the field of education and technology, the cherished desire of the testator will be achieved and the deserving poor and downtrodden students will be uplifted by getting technological studies. Apart from giving education to the deserving students, the expenditure for imparting such education would be borne by starting self equipped Bio- Technology and Information Technology production based projects. It is needless to say that if the deserving poor and downtrodden students are given education in technological fields like, Bio-technology and Information technology, they will be benefited. 13. Accordingly, as suggested by this Court, the Official Trustee seeks permission of this Court to approach the experts in the field of Bio-Technology and Information Technology to obtain opinion and technical know-how to start relevant job-oriented institutions in the said fields and to submit the same before the Court for suitable orders. 14. Taking into consideration the need of the time to start the institutions in Bio- Technology and Information Technology for the poor and downtrodden as well as socially and economically weaker sections and the desire expressed by the Official Trustee to commence such institutions in the lands in question, the Official Trustee is permitted to approach the Experts in the fields of Bio-Technology and Information Technology to obtain opinion and technical know-how to start relevant job- oriented institutions in the fields of Bio- Technology and Information Technology and submit a report within a period of four weeks. 15. That apart, the Official Trustee has also expressed the desire to offer medical aid to the poor and downtrodden people. In this regard, the Official Trustee is directed to contact Sree Chitra Tirunal Institute for Medical Sciences and Technology, Trivandrum for the expert opinion to provide medical aid to the poor and downtrodden people." 12.6. Thereafter, AGOT and the Government have jointly agreed to float a non profit making company under Section 25 of the Companies Act for providing health care services, for setting up of I.T. Companies and for other charitable activities, making use of the remaining lands of an extent of 287 grounds 2208 sq.ft., along with the impugned lands of an extent of 103 grounds https://hcservices.ecourts.gov.in/hcservices/ 0796 sq.ft., as per the order of this Court dated 28.1.2008 in A.No.2453 of 1995 in O.P.No.278 of 1948, which is still pending for general and special directions under Section 25 of the Administrators General Act, as to the administration of the Estate of C.Kandaswamy Naidu Trust. 12.7. The question of selling the remaining lands or the impugned lands, either by the petitioner AGOT or at the instance of any third party including the Government, therefore, is totally ruled out. The AGOT has, accordingly, decided not to sell any piece of the remaining lands of an extent of 287 grounds 2208 sq.ft., along with the impugned lands of an extent of 103 grounds 0796 sq.ft. and to use the entire lands only for the public and charitable purpose. 13. Of course, Mr.G.Masilamani, learned Advocate General appearing for the second respondent contends that the AGOT has committed laches for not challenging either the acquisition proceedings or award proceedings all these years. But, in our considered opinion, there is no need to go into the validity of the acquisition or award proceedings in the present writ petition, as what is challenged herein is the proceedings dated 11.9.2006 rejecting the request for re-conveyance of the impugned lands to the AGOT, but not either acquisition or award proceedings with respect to the impugned lands. 14. Admittedly, as per the decision of the Division Bench of this Court in P.ALWAR CHETTY v. P.CHIDAMBARA MUDALI & 6 OTHERS, referred supra, the impugned lands vest with the AGOT. On the other hand, the impugned proceedings dated 11.9.2006 rejecting the request for re-conveyance of the impugned lands revolves on the following reasons that weighed the Government, viz., (i) the land was acquired for implementing Housing Scheme vide award No.2 of 1988, dated 22.12.1988; (ii) the land was taken over by the Tamil Nadu Housing Board on 28.10.1999 and the possession of the abovesaid land is with the Tamil Nadu Housing Board; (iii) The above lands belong to Kandaswamy Naidu Estate and the issue vested with the Official Trustee and the Administrator General/High Court, Madras, in his capacity as Executor/Trustee of the will dated 21.5.1948 probated on 5.10.1948 in O.P.No.278/48; (iv) But, AGOT has not produced any documentary evidence to prove their title over the land; (v) The Pachiappa's Trust has also not produced any documentary evidence to prove their interest over the lands under reference; (vi) The registered holders of the land did not appear for the award enquiry and in the circumstances, the ownership could not be determined; and (vii) the entire compensation amount of Rs.45,46,024.10 was deposited in the City Civil Court, Madras, under Section 30 and 31(2) of the Land Acquisition Act. In our considered opinion, all these reasons that weighed the Government for rejecting the request for re- conveyance by the impugned order dated 11.9.2006, are extraneous to the issue under consideration, inasmuch as the same are contrary to the ratio laid down by this Court in P.ALWAR CHETTY v. P.CHIDAMBARA MUDALI & 6 OTHERS, referred supra. Of course, both the learned Advocate General appearing for the second https://hcservices.ecourts.gov.in/hcservices/ respondent and the learned Government Pleader appearing for the Government are not in a position to justify the above-mentioned reasons that weighed the Government in the impugned order dated 11.9.2006. 15.1. Section 48-B of the Land Acquisition Act empowers the Government to transfer the lands which vest with the Government under the Land Acquisition Act pursuant to the acquisition proceedings and the consequential award proceedings, if the Government satisfies that the said lands are not required for the purpose for which it was acquired or for any other purpose. What is mandate for the transfer of the lands vested with the Government to the original owner is a subjective satisfaction by the Government that the said lands required or not for the purpose for which it was acquired or for any other purpose. That apart, Section 48-B of the Land Acquisition Act also imposes one another condition, which is also mandate, viz., the original owner should be willing to repay the amount paid to him under the Land Acquisition 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 the Land Acquisition Act. 15.2. If Section 48-B of the Land Acquisition Act is dissected, there are two limbs. The first limb is that there should be a subjective satisfaction by the Government to transfer the lands vested with the Government, acquired under the Act, are not required for the purpose for which it was acquired or for any other purpose. The second limb is that the owner of the land should be willing to repay the amount paid to him under the Act. 15.3. Under the scheme of the Land Acquisition Act, there is no bar for the owner of the land to seek re-conveyance, requiring the Government to exercise the