IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:25.03.2010 CORAM: THE HON’BLE MR. JUSTICE K.CHANDRU W.P.Nos.4659, 4967, 6394, 6477 and 6996 of 2006 and W.P.M.P.No.5032 of 2006 in W.P.No.4659 of 2006 RATHINAMMAL PETITIONER in W.P.No.4659 of 2006 M.RAMASAMY PETITIONER in W.P.No.4967 OF 2006 1. R. BHAGAVATHI 2 R. MURUGANANDHAM PETITIONERS in W.P.No.6394 OF 2006 1. D. SATHIYAKUMAR 2 R. VELENDIRAN 3 M. BOOPATHY 4 M. SETHUPATHI PETITIONERS in W.P.No.6477 OF 2006 1 V.VENKATACHALAM 2 V.NARAYANASAMY PETITIONERS in W.P.No.6996 OF 2006 Vs 1 THE MANAGING DIRECTOR TAMILNADU HOUSING BOARD 493 ANNA SALAI NANDANAM CHENNAI 600 035. 2 THE COMMISSIONER AND SECRETARY HOUSING AND URBAN DEVELOPMENT DEPARTMENT SECRETARIAT CHENNAI -600 009. ..RESPONDENTS in all Prayer : Petition No.4659 of 2006 under Article 226 of the Constitution of India praying for a Writ of certiorarified mandmaus https://hcservices.ecourts.gov.in/hcservices/ to call for the records of the 2nd respondent herein pertaining to his proceedings Letter No. 32889 / 4 (2) /05-1 dated 06.- 01-2006 quash the same and to direct the respondents herein to reconvey the land to an extent of 0.32 acres survey ZNo. 232/A of Kurumpoanjchavadi village Ariyalur perambalur District to the petitioner herein under section 48B of the Land Acquisition Act. Petition No.4967 of 2006 under Article 226 of the Constitution of India praying for a Writ of mandmaus to to direct the respondents herein to reconvey the land to an extent of 0.19 acres in survey No.222 / 2 AND 1.98 acres in survey No.222 / 5 of Kurumpanjchavadi village Ariyalur Perambalur District to the petitioner herein under section 48 B of the Land Acquisition Act. Petition No.6394 of 2006 under Article 226 of the Constitution of India praying for a Writ of certiorarified mandmaus to call for the records of the 2nd respondent herein pertaining to his proceedings Letter No. 33938 / LA4(2) / 05-2 dated 30.01.2006 quash the sme and to direct the respondents herein to reconvey the land to an extent of 1.80 acres Survey No. 231/3 and 2.83 acres in Survey No. 228/3 respectively of Kurumpanjchavadi Village Ariyalur Perambalur District to the petitioners herein under Section 48 B of the Land Acquisition Act. Petition No.6477 of 2006 under Article 226 of the Constitution of India praying for a Writ of mandmaus to direct the respondents herein to reconvey the land to an extent of 1.55 acres Survey No.232/2 of kurumpanchavadi village Ariyalur Perambalur District to the petitiners herein. Petition No.6996 of 2006 under Article 226 of the Constitution of India praying for a Writ of certiorarified mandmaus to direct the respondents herein to reconvey the land to an extent of 0.93 acres in survey No.232 / 3 AND 0.67 acres in survey No.232 / 4 of Kurumpanjchavadi Village Ariyalur Perambalur District to the petitioners herein under section 48 B of the Land Acquisition Act. For Petitioners :: Mr.G.Purusothaman For Respondents :: Mr.M.Dhandapani, SGP (R2) Mr.D.Veerasekaran (R1) O R D E R In all these writ petitions the petitioners are residents of Ariyalur. Their lands were acquired on behalf of the Housing Board for the purpose of providing Neighborhood Housing Scheme. https://hcservices.ecourts.gov.in/hcservices/ 2. Though the petitioners earlier challenged the acquisition proceedings, they were not successful and the acquisition proceedings have come to an end. Thereafter, the petitioners started making representations on the ground that notwithstanding the 4(1) notification issued during October 1980 and 5-A enquiry during 1981 and after making Section 6 declaration, the houses have not come up in the plot taken over by them and in some cases instead of building the houses, they are selling the developed lands whereas the land owners got very little compensation, but the Housing Board is making super profit on such acquisition. The petitioners moved this Court on an earlier occasion seeking for a direction to the respondents to consider their representations in re-conveying the lands. Their representations were considered by the first respondent State and rejected by a speaking order. In that order, they have stated that the award has been passed in the year 1984 and the lands which were acquired were already handed over to the Housing Board and the lay out plan for the area has been approved by the Director of Town and Country Planning. It is further stated that already 50 houses were constructed and were allotted to the public. The Housing Board has also refused to part with the land on the ground that the lands are required for completing the full scheme. It is against the separate orders passed by the State, the petitioners have moved this court on various dates. 3. Pending the writ petitions, in W.P.No.4659 of 2006 there was an interim injunction restraining the respondents from interfering with the possession of the petitioner in the property in question. 4. On notice from this Court, the respondent Housing Board has filed a counter affidavit in each of the writ petitions. In the counter affidavits it was stated that apart from the earlier stand taken in the impugned orders, it was specifically averred that the lands in question have been put to use by the Board and if any re- conveyance is done, the comprehensive scheme will be destroyed. They have also got approved lay out for the remaining part of the scheme and there is a considerable demand for the Housing Board in Ariyalur. 5. Mr.G.Purushothaman, learned counsel for the petitioners stated that apart from the general arguments advanced on behalf of other petitioners, in respect of the petitioner in W.P.No.4659 of 2006, he has stated that even till date, he is in possession of the land to the extent of 10 cents and that was why prima-facie this https://hcservices.ecourts.gov.in/hcservices/ Court has granted interim injunction. 6. Controverting the stand taken by the petitioner, Mr.M.Dhandapani, learned Special Government Pleader submitted that it is only by virtue of the interim order he is in possession of the land, but once the acquisition proceedings is completed, then Section 16 of the Land Acquisition Act gives power to the Collector to take possession which will absolutely vests with the Government free from all encumbrances. In the present case, the possession of the petitioner is not in terms of the Acquisitioning fact but by virtue of the interim passed by this Court. He also submitted that so far as acquisition proceedings are concerned, the matter has reached finality and the issue could be decided within the short campus of Section 48 B. 7. Mr.G.Purushothaman, learned counsel stated that the land in question is yet to be handed over to the Housing Board and therefore it is not correct to state that it is on the strength of the interim order the petitioner is holding on to the land. 8. The question in the present case regarding possession is not based upon the petitioner holding the physical possession. The question is to be looked into from the angle of the Land Acquisition Act and the finality to the acquisition proceedings have been reached by the orders of the Court. It is immaterial that in each case the requisitioning authority should take over physical possession. On the other hand the Supreme Court vide its Judgment in Tamil Nadu Housing Board vs. A.Viswam reported in 1996 (8)SCC 259 had taken a view that if the land delivery receipt is handed over by the revenue officials to the Housing Board, it is the sufficient proof of possession in terms of the provisions of the Act. The said Judgment is now subsequently been referred to by the Supreme Court vide its Judgment Sita Ram Bhandar Society, New Delhi vs. Lt.Governor of NCT, Delhi and others reported in JT 2009(12) SC 324 and the ratio in Viswam's case has also been found acceptance. 9. It must be noted that the scope of Section 48 B came to be considered by the Supreme Court in Tamil Nadu Housing Board v. Keeravani Ammal and Ors reported in 2007 (2) CTC 447, wherein in paragraph 11 it had observed as follows:- "...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." https://hcservices.ecourts.gov.in/hcservices/ 10. It was brought to the notice of this Court, in its latest judgment in Tamil Nadu Housing Board v. L.Chandrasekaran and Ors in Civil Appeal Nos.3148-3149 of 2002 (MANU/SC/0069/2010) dated 29.01.2010, the Supreme Court dealt with the scope of Section 48-B and has considered all the cases arising out of reconveyance. In paragraphs 18 and 19, it was observed as follows:- "18. 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 re-convey the same to the original owner. In any case, the Government cannot be compelled to re-convey the land to the original owner if the same can be utilized for any public purpose other than the one for which it was acquired. (Emphasis added) 19. Before concluding, we may notice the judgment of this Court in Tamil Nadu Housing Board v. Keeravani Ammal (supra). The question considered in that case was whether the Division Bench of the High Court could direct release of the acquired land which had been transferred to the appellant-Board. While setting aside the impugned order, this Court observed: It is clearly pleaded by the State and the Tamil Nadu Housing Board that the scheme had not been suspended or abandoned and that the lands acquired are very much needed for the implementation of the scheme and the steps in that regard have already been taken. In the light of this position, it is not open to the Court to assume that the project has been abandoned merely because another piece of land in the adjacent village had been released from acquisition in the light of orders of the Court. It could not be assumed that the whole of the project had been abandoned or has become unworkable. It depends upon the purpose for which the land is acquired. As we see it, we find no impediment in the lands in question being utilised for the purpose of putting up a multi-storied building containing small flats, intended as the public purpose when the acquisition was notified. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the High Court clearly erred in proceeding as if the scheme stood abandoned. This was an unwarranted assumption on the part of the Court, which has no foundation in the pleadings and the materials produced in the case. The Court should have at least insisted on production of materials to substantiate a claim of abandonment. We have already noticed that in the writ petition, there are no sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned Single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioners. We may also notice that once a piece of land has been duly acquired under the Land Acquisition Act, the land becomes the property of the State. The State can dispose of the property thereafter or convey it to anyone, if the land is not needed for the purpose for which it was acquired, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M.Bhaskaran Pillai MANU/SC/0731/1997 : (1997) 5 SCC 432 in a similar situation, this Court observed : (SCC p.433, para 4) The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance https://hcservices.ecourts.gov.in/hcservices/ with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value. 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. 11. Therefore, the contention that this Court can give direction on the basis of the earlier order passed cannot be countenanced. The fact that some other land owners have been granted relief and on that score the petitioner's land should be exempted also cannot be accepted. Similar question came up for consideration before the Supreme Court in Shanti Sports Club & Another vs. Union of India & others reported in 2009 AIR SCW 6953 and the Supreme Court in paragraphs 50 and 51 has observed as follows:- "50. The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete https://hcservices.ecourts.gov.in/hcservices/ evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government's decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. https://hcservices.ecourts.gov.in/hcservices/ He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:- "We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law – indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in https://hcservices.ecourts.gov.in/hcservices/ accordance with law – but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner's case is similar to the other person's case. But then why examine another person's case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person's case, which other person is not before the case nor is his case. In our considered opinion, such a course – barring exceptional situations – would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world". (Emphasis added) 51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad https://hcservices.ecourts.gov.in/hcservices/ CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589. 12. In the light of the above legal precedent and the factual matrix, the relief cannot be granted by this Court. The writ petitions stand dismissed. No costs. Consequently, connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar rg To 1 THE MANAGING DIRECTOR TAMILNADU HOUSING BOARD 493 ANNA SALAI NANDANAM CHENNAI 600 035. 2 THE