IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 04.08.2009 PRESENT THE HONOURABLE MR. JUSTICE S. NAGAMUTHU W.P.Nos.45821 to 45828 of 2006 1.Dharmalingam 2.Dhanikasalam 3.Loganathan ..Petitioners in W.P.No.45821 of 2006 1.K.Dhanalakshmi 2.P.Damodaran 3.Shenbagavalli 4.Dilli Ammal 5.Kasthuri ..Petitioners in W.P.No.45822 of 2006 1.D.Vasudevan 2.Vasantha ..Petitioners in W.P.No.45823 of 2006 1.Naresh Kumar S.Metha 2.I.Shanmuga Durai Nadar ..Petitioners in W.P.No.45824 of 2006 1.Nagambal 2.E.Palani 3.Kanniammal 4.Amirthavalli 5.E.Rajendran 6.Dhanalakshmi ..Petitioners in W.P.No.45825 of 2006 1.Chandrammal 2.Ravi Kumar 3.Jayakumar 4.Radhika ..Petitioners in W.P.No.45826 of 2006 1.Vasudevan 2.Arasu 3.Bhopalan 4.V.Kalpana 5.V.Madhavi ..Petitioners in W.P.No.45827 of 2006 https://hcservices.ecourts.gov.in/hcservices/ 1.Chandrammal 2.Ravi Kumar 3.Jayakumar 4.Radhika ..Petitioners in W.P.No.45828 of 2006 Vs. 1. The Government of Tamil Nadu, rep. by The Secretary to Government, Housing and Urban Development Department, Fort St. George, Chennai-5. 2. The Special Deputy Collector, (Land Acquisition) CMDA, Thalamuthu Natarajan Maligai, Egmore, Chennai-8. 3. The Chennai Metropolitan Development Authority, rep. By its Member / Secretary, Thalamuthu Natarajan Maligai, Egmore, Chennai-8. 4. The Madras Gunny Merchants' Association, rep. By its President K.Ilayaperumal, No.17/7, Robinson Park Colony IM.M.M.A. Building), Chennai 600 021. 4th Respondent impleaded as per Court orders, dated 04.12.2008 in M.P.Nos.1 of 2008 in W.P.Nos.45821 to 45828 of 2006 ..Respondents in all the Writ Petitions Prayer in W.P.No.45821 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 80 cents comprised in S.No.751, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45822 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the https://hcservices.ecourts.gov.in/hcservices/ entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about Acres 1.11 cents comprised in S.No.753/2, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45823 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 9.5 cents comprised in S.No.740/1B, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45824 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 25 cents comprised in S.No.750/1B, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45825 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 78 cents comprised in S.No.747/1, 71 cents in S.No.747/2 and 76 cents in S.No.748 totalling in all Acres 2.25 cents, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. https://hcservices.ecourts.gov.in/hcservices/ Prayer in W.P.No.45826 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 66 cents comprised in S.No.740/2 and Acres 1.29 cents comprised in S.No.743 totalling in all Acres 1.95 cents, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45827 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 62 cents comprised in S.No.744, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. Prayer in W.P.No.45828 of 2006:- Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarfified Mandamus, calling for the entire records relating to the impugned order of the 1st respondent in Letter No.22014/UD/3(1)2006-3, dated 23.10.2006 and quash the same as illegal and direct the respondents to re-convey the petitioner's lands in Madhavaram Village, Ambattur Taluk, Chengalput District admeasuring an extent of about 10 cents comprised in S.No.752/2 and 10 cents comprised in S.No.752/3 totalling in all 20 cents, acquired in pursuance of the notification in G.O.Ms.No.306, Housing and Urban Development Department dated 27.03.1985 to the petitioners. For petitioners in Writ Petition Nos.45821 to 45824 of 2006 : Mr.A.Vijay Narayanan, SC for Mr.R.Syed Mustafa For Petitioners in Writ Petition Nos.45825 to 45828 of 2006 : Mr.K.M.Vijayan, SC for R.Syed Mustafa https://hcservices.ecourts.gov.in/hcservices/ For petitioners in Writ Petition Nos.45821 to 45824 of 2006 : Mr.A.Vijay Narayanan, SC for Mr.R.Syed Mustafa For Respondents 1 and 2 in all the Writ Petitions : Mr.N.Senthilkumar, AGP for RR1 & 2 For Respondents in all the writ Petitions : Mr.P.S.Raman, Addl. Advocate General Assisted by Mr.I.Paranthaman, AGP for R3 : Mr.R.Muthukumaraswamy, SC for Mr.S.Selvanandam for R4 COMMON ORDER The lands belonging to the petitioners comprised in various survey numbers at Madhavaram village, Ambattur Taluk, Chengalput District were acquired by the Tamil Nadu Government for the purpose of organising a truck and bus terminal by the Chennai Metropolitan Development Authority, Chennai (formerly Madras Metropolitan Development Authority and hereinafter referred to as "the CMDA"). Notification under Section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act") was issued by the Government in G.O.Ms.No.306, Housing and Urban Development Department, dated 27.03.1985 and Declaration under Section 6 of the Act was made in G.O.Ms.No.196, Housing and Urban Development Department, dated 07.02.1986. The land acquisition proceedings were challenged in W.P.No.547 of 1986 and the same was allowed by a learned Single Judge of this Court on 21.06.1996. The Writ Appeal Nos.785 to 789 of 1996 preferred against the said order by the Government were allowed on 09.07.2002. According to the respondents, possession was taken and thus the lands have vested with the Government. Out of the total extent of 80.92 Acres of land acquired by the Government, 64.80 Acres of land was utilised for the purpose for which it was acquired. The remaining area of 16.12 Acres of land was not utilised. Out of the same, the very acquisition in respect of 5.06 Acres of land is under challenge before this Court in Writ Petition and therefore, the said area could not be utilised. The remaining area of 11.06 Acres of land is still kept unutilized for the purpose for which it was acquired. Seeking reconveyance of the said land, the petitioners who are the erstwhile owners of the same made representation on 02.07.2006 to the Government. The same was not considered by the Government. Therefore, they filed W.P.Nos.22370 to 22377 of 2006 before this Court praying for appropriate direction. By a common order , dated 14.07.2006, this Court directed the Government to dispose of the said representation and pass orders on merits and in accordance with law within a period of eight weeks https://hcservices.ecourts.gov.in/hcservices/ from the date of receipt of copy of the order. However, this Court did not express any opinion regarding the merits of the claim made by the petitioners. On 26.09.2006, the petitioners made yet another representation. Finally, the 1st respondent under Letter No.22014/UD3(1)/2006-3, dated 23.10.2006 rejected the claim of the petitioners on the ground that the lands had already been taken possession by the CMDA and it had been proposed to allot the land to The Madras Gunny Bag Merchants' Association (hereinafter referred to as "the 4th respondent Association"). Challenging the said order, the petitioners have come forward with these writ petitions. 2. Since common grounds have been raised, all these writ petitions were heard together and they are disposed of by means of this common order. 3. The main contentions of the petitioners are as follows:- (i) Since the land in question, though acquired in the year 1986, has not been utilised for the purpose for which it was acquired, under Section 16B of the Act, the 1st respondent is obliged to pass an order forfeiting the land as penalty and in turn to reconvey the same under Section 48B of the Act to the petitioners. (ii) The CMDA has got no power to transfer the land either to an individual or to a Body, other than for a public purpose that too without the sanction of the Government as required under Section 16A of the Act. (iii) The purpose for which the land in question has been allotted to the 4th respondent Association viz., for the purpose of doing their business, cannot be termed as a public purpose and therefore, even with the sanction of the Government under Section 16A of the Act, the land cannot be allotted to the 4th respondent Association. (iv) Since there is no approved plan under The Tamil Nadu Town and Country Planning Act, 1971, for constructing either shops or factories for the members of the 4th respondent Association, the proposed allotment cannot be stated to be for a public purpose and thus, the same is without jurisdiction. 4. In the counter affidavit filed by the Government and the CMDA it is contended as follows:- (i) If once the land has been acquired and vested with the Government, it is the property of the Government and the same can be utilised by the Government either for the public purpose for which it was acquired or for any other public purpose. https://hcservices.ecourts.gov.in/hcservices/ (ii) The members of the 4th respondent Association had made representation to allot suitable place for them to run their business since they are running their business in the city in a congested area causing health hazards to the general public in that area. Considering the said request and on the recommendation of the Corporation of Chennai, they were allotted the land in question for running their business. (iii) The purpose for which the land is now allotted by the CMDA is not against the public purpose. The object of the acquisition is in no way defeated by the allotment made to the members of the 4th respondent Association. The Corporation of Chennai in letter No. Z.O.II. C.No.All O.II/A1/1041/2005, dated 17.09.2005 has informed that Gunny Bag Shops are located in a thickly populated residential area in the Chennai City which is causing inconvenience and health hazards to the residents of the locality and the residents also very often complained about the nuisance caused by the Gunny Bag Shops. Therefore, the Corporation of Chennai requested to provide a suitable alternative site for relocating the Gunny Bag Merchants. The Gunny Bag Merchants also had requested to provide them alternative site to run their business. In these circumstances, being for a public purpose, the CMDA has prepared a lay- out to accommodate the Gunny Bag Merchants. (iv) The Government duly considered the request of the petitioners, for reconveyance and rejected the same since the possession of the land in question is neither with the Government nor the land is no more required for public purpose. 5. The Madras Gunny Merchants' Association , which is one of the respondents in these writ petitions has not filed any separate counter. 6. I have heard Mr.Vijay Narayanan, learned senior counsel for the petitioners in W.P.Nos.45821 to 45824 of 2006; Mr.K.M.Vijayan, learned senior counsel for the petitioners in W.P.Nos.45825 to 45828 of 2006; Mr.P.S.Raman, learned Additional Advocate General appearing for the Government as well as the CMDA and Mr.R.Muthukumaraswamy, leaned senior counsel appearing for the 4th respondent Association and I have also perused the records carefully. 7. Admittedly, a total extent of 80.92 Acres of land was acquired under the provisions of the Land Acquisition Act, 1894 for the purpose of organising a truck and bus terminal by the CMDA. It https://hcservices.ecourts.gov.in/hcservices/ is also seen from the records that on such acquisition , the possession of the land had been taken and handed over to the CMDA and that the CMDA has utilised an extent of 64.80 Acres of land for the purpose for which it was acquired. Before the acquisition of the said land, a lay-out plan for truck and bus terminal complex at Madhavaram was prepared and the same was approved. The area, which now remains unutilised, which is the subject matter of these writ petitions, has been shown in the said plan as "For Future Development". But, in the said plan, the purpose for which the said land would be utilised in future has not been specifically indicated. Admittedly, the said land has not been utilised from 1986 onwards though the possession of the land continues to be with the CMDA. 8. The request of the petitioners under Section 48B of the Act was rejected by the Government on two grounds viz., (1) the possession of the land has already been handed over to the CMDA and (2) the land is to be used for a public purpose viz., for allotting to the members of the 4th respondent Association. 9. There can be no controversy that if the Government is satisfied that the land acquired under the provisions of the Act for a public purpose has not been used for the said purpose for which it was acquired, it may, by an order, forfeit the land as penalty and thereafter the land shall vest in the Government in Revenue Department free from all encumbrances as provided in Section 16B of the Act. But, in the case on hand, the Government has not so far passed any order under Section 16-B of the Act thereby forfeiting the land as penalty. Under Section 48-B of the Act, if only, the land stands vested in the Government under the Act and if the same is not required for the purpose for which they were acquired, or for any other public purpose, the Government , using its discretion, may reconvey such land to the original owner. But, in the case on hand, indisputably, as of now, the land stands vested with the CMDA and not with the Government. 10. In this back ground, of course, without exercising its power under Section 16-B of the Act, it may not be possible for the Government to reconvey the lands under Section 48-B of the Act to the erstwhile owners. But, when a request is made by the erstwhile owners of the land in question for reconveyance on the ground that the land has not been utilised for any public purpose for a long time, it is absolutely necessary for the Government to consider such request in terms of Section 16-B of the Act so as to examine as to whether the land in question should be forfeited. Though there is an element of discretion with the Government under Section 16-B of the Act to pass such an order of forfeiture, it is needless to say, such discretion should be exercised judiciously. Refusal to examine the case in terms of Section 16-B of the Act, when a request is made by the erstwhile owners of the lands, would amount to https://hcservices.ecourts.gov.in/hcservices/ arbitrariness. Similar lis arose for consideration before a Division Bench of this Court in Shanmugam.R v. The State of Tamil Nadu (2006 (4) CTC 290). That was a case where a request was made by the erstwhile owners of the lands to the Government to reconvey the same under Section 48-B of the Act on the ground that the lands had not been utilised for the purpose for which they were acquired. The Government, as has been done in the instant case, rejected the said request on two grounds viz., (1) the land owners have already been awarded compensation and the possession of the land had also been given to the Housing Board and (2) the land was still required for housing scheme. While considering the first reason stated in the order rejecting the request of the erstwhile owners, the Division Bench held as follows: "Insofar the first reason, we are of the opinion that the same cannot be held good in view of the specific provision of Section 48-B enabling the land owners to make the application for reconveyance. Mere fact that they have received the compensation does not prevent them from making a request to the Government invoking Section 48-B of the Act for reconveyance of the unutilised lands. ...." "...... In our opinion. merely because possession is taken and the lands are handed over to the Housing Board, the power of the State Government to forfeit the land under section 16-B of the Act, is not curtailed. The said power is independent and exclusive. In the event , the lands are unutilised by the Board for quite long number of years, the State Government has the power to forfeit the lands by way of penalty. Of course, the fact that Section 17-A was repealed was not brought to the notice of the learned Single Judge and consequently, the learned Single Judge has held that there is vesting of land in Housing Board under Section 17-A. In view of Section 162 of the Tamil Nadu Housing Board Act, 1961, the City Improvement Trust Act, 1950 was repealed and consequently, Section 17-A was also repealed. In the circumstances, there cannot be any vesting of the land on the Housing Board under Section 17-A as well as the Government under Section 16 of the Central Act simultaneously." 11. The Division Bench ultimately held that the first reason for rejection viz., the land was still in the possession of the Housing Board, cannot be countenanced. Applying the said ratio laid down to the facts of the present case, I am of the view that the first reason stated in the impugned order cannot be sustained. The Government ought to have examined the request of the petitioners in terms of Section 16-B of the Act as to whether an order is required to be https://hcservices.ecourts.gov.in/hcservices/ passed to forfeit the lands in question. The refusal to examine the same would offend the constitutional right of the petitioners and also Article 14 of the Constitution of India. 12. While examining the case for the purpose of Section 16-B of the Act, the basic requirement is satisfaction of the Government that the land has not been utilised by the authority for the purpose for which it was acquired and handed over. Such satisfaction is to be arrived at on the basis of the materials available. But, in the instant case, according to the counsel counsel, the Government has not considered, the request of the petitioners by having relevant consideration in terms of section 16-B of the Act. Therefore, according to the petitioner, the impugned order is liable to be set aside with a direction to the Government to exercise its power under Section 16-B of the Act to forfeit the land and then to pass an order under Section 48-B of the Act. 13. The learned senior counsel for the petitioners would bring to the notice of this Court, the difference in language employed in Sections 16-B and 48-B of the Act . To appreciate the said argument, it is worthwhile to extract the provisions of Sections 16-B and 48-B of the Act hereunder: Section 16-B. Land to be forfeited in certain cases.- Where the Government are satisfied that the land acquired under this Act for any public purpose as referred to in sub-section (1) of Section 4 is not used for the purpose for which it was acquired, they may, by an order, forfeit the land as penalty and the land shall vest in the Government in Revenue Department free from al encumbrances: Provided that no order under this section, shall be made unless the person or authority aggrieved has had a reasonable opportunity of being heard." (emphasis supplied) 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) https://hcservices.ecourts.gov.in/hcservices/ 14. A close reading of Section 16-B of the Act would show that the consideration of the Government under the said provision is whether the acquired land has been used for the very same public purpose for which it was acquired; whereas under Section 48-B of the Act, the consideration is whether the acquired land is required, not only for the purpose for which it was acquired, but for any other public purpose also. Thus the distinction between these two provisions is very obvious. In a given case, the Government may be satisfied that the land is required for any other public purpose other than the purpose for which it was acquired. In such a situation, the Government, may, decline to use its discretion under Section 48-B of the Act to reconvey the land to the erstwhile owner. But, under Section 16-B of the Act, if the Government is satisfied that the land has not been used for the purpose for which it was acquired, de hors the fact as to whether the land is required for any other purpose or not, the Government is obliged to exercise its power under Section 16-B of the Act and to pass an appropriate order forfeiting the land. 15. The learned Additional Advocate General would contend that the language in Section 16B of the Act , more particularly, the word "may" would indicate that it is not obligatory on the part of the Government to forfeit the land in all situations where the land has not been used for the purpose for which it was acquired. An element of discretion is involved. Therefore, according to him, the petitioners cannot compel the Government to use its discretion under Section 16-B of the Act to forfeit the land. 16. Though the expression used in Section 16-B of the Act is “may”, in the context in which it has been used and going by the purpose of the introduction of Section 16-B by Tamil Nadu Amendment Act, it has to be held that it conveys the meaning of the expression 'shall". It has been well settled in a catena of judgements of the Hon'ble Supreme Court that the expression "may" employed in a provision does not indicate discretion invariably in