1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 08.12.2011 CORAM THE HONOURABLE MR. JUSTICE V. RAMASUBRAMANIAN W.P.(MD)No.13761 of 2011 Somasundaram Muthuramakrishnan, : Petitioner Rep.by his Power Agent A.Sankaranarayanan vs. 1.The State of Tamil Nadu, Represented by its Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-600 009. 2.The Tamil Nadu Housing Board, Represented by its Chairman, Anna Salai, Nandanam, Chennai-600 035. 3.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Ellis Nagar, Madurai. 4.The District Collector, Madurai. : Respondents Writ Petition filed under Article 226 of the Constitution of India, praying for the issue of a Writ of Mandamus, directing the first respondent to re-convey an extent of 37.5 cents in old S.No.4/4 and the present S.No.4/4B2 of Ponmeni Village, Madurai Town without insisting for the refund of the amount and the developmental charges and consequently to hand over the vacant possession of the lands after removing the encroachments within a time to be stipulated by this Court. For Petitioner : Mr.A.Sivaji For Respondents-1&4 : Mr.R.Karthikeyan, Additional Government Pleader. O R D E R The petitioner has come up with the above writ petition, seeking a direction to the first respondent to reconvey the land acquired by the respondents about 30 years ago. https://hcservices.ecourts.gov.in/hcservices/ 2 2. I have heard Mr.A.Sivaji, learned counsel for the petitioner. Mr.R.Karthikeyan, learned Additional Government Pleader takes notice for respondents 1 and 4. 3. The land of an extent of about 75 cents in Survey No.4/4, Ponmeni Village, was acquired by the Government of Tamil Nadu in pursuance of a notification issued under Section 4(1) of the Land Acquisition Act, 1894 issued in G.O.Ms.No.310, dated 17.2.1979. The declaration under Section 6 of the Act was issued on 24.9.1980. The proceedings for acquisition were challenged unsuccessfully before this Court in W.P.No.6462 of 1983 which was dismissed on 30.7.1991. It appears that some of the lands covered by the notification were later excluded by the Government in G.O.Ms.No.711, dated 11.4.1983. But the same cannot now go to the rescue of the petitioner, since it was a point available to be canvassed, at the time when his writ petition W.P.No.6462 of 1983 was dismissed on 30.7.1991. 4. According to the petitioner, the sisters of the writ petitioner got their land re-conveyed, after returning the land cost, under Section 48-B. Therefore, after making several representations to the respondents under Section 48-B, the petitioner has come up with the above writ petition. 5. Section 48-B is a special provision inserted by way of a State Amendment to the Land Acquisition Act, 1894. Though this Court was consistently taking a view that by the said provision, a right had been conferred upon the owners who lost their lands, the very validity of the said provision was doubted by the Supreme Court in two decisions viz., (i) Tamil Nadu Housing Board vs. Keeravani Ammal {2007 (9) SCC 255} and (ii) Tamil Nadu Housing Board vs. L.Chandrasekaran {2010 (2) SCC 786}. In Tamil Nadu Housing Board vs. Keeravani Ammal {2007 (9) SCC 255}, the Supreme Court pointed out 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. This too can be done only for the market value that may be fetched for the property on the date of conveyance. The Supreme Court highlighted that the doctrine of public trust would disable the State from giving back the property for anything less than the market value. The Court also pointed out that Section 48-B is an exception to the general rule and that therefore, it has to be strictly construed and strict compliance with its terms is required. Reiterating the same principles, the Supreme Court held in Tamil Nadu Housing Board vs. L.Chandrasekaran {2010 (2) SCC 786}, that a release direction can be given only by the State Government if it is satisfied (i) that the land is not required for the purpose for which it was acquired or for any other public purpose and (ii) that the land continues to vest in the State Government. Once the land is transferred to the Housing Board, a substantial portion whereof was used for housing scheme and public purposes, the Court cannot issue a Mandamus to reconvey the acquired land to the respondents. 6. In view of the above, the writ petition cannot be entertained. The fact that some of the lands have been re-conveyed to the sisters of the petitioner, cannot be a ground to direct the respondents to re-convey the land of the petitioner. All lands https://hcservices.ecourts.gov.in/hcservices/ 3 acquired for a Neighbourhood Scheme, cannot be placed on an equal pedestal. The very sine qua non for invoking Section 48-B of the fact is that the land should be unutilised. Therefore, there can be no comparison between one land and another land. 7. Mr.A.Sivaji, learned counsel for the petitioner submitted that there are encroachments in the land and some third party is now putting up constructions. Therefore, he contended that when the Housing Board has lost possession of an unutilised land to a third party, they would have no right to oppose the request under Section 48-B. 8. But as pointed out by the Supreme Court, Section 48-B confers a doubtful right. The encroachment by third parties, is a matter to be taken note of by the Housing Board. That cannot enlarge the right of the petitioner under Section 48-B. 9. In view of the above, the writ petition is dismissed. However, there will be no order as to costs. Sd/- Assistant Registrar(T&P) /True Copy/ Sub Assistant Registrar To 1.The Secretary to Government, State of Tamil Nadu, Housing and Urban Development Department, 4th St. George, Chennai-600 009. 2.The Chairman, Tamil Nadu Housing Board, Anna Salai, Nandanam, Chennai-600 035. 3.The Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Ellis Nagar,Madurai. 4.The District Collector,Madurai. +1cc to Mr.A.Sivaji, Advocate Sr.No.42958 svn ssk/19.12.2011 /6c-3p/- Order in W.P.(MD)No.13761 of 2011 08.12.2011 https://hcservices.ecourts.gov.in/hcservices/