IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 24-3-2010 CORAM THE HONOURABLE MR.JUSTICE N.PAUL VASANTHAKUMAR W.P.No.35678 of 2007 M.P.Nos.1 & 2 of 2007 G.R.Concrete Blocks Private Ltd., rep.by its Managing Partner S.Gopalraju ... Petitioner Vs 1. The State of Tamil Nadu, rep. by the Deputy Secretary to Government, Industries (MIG.II) Department, Fort St.George, Chennai – 9. 2. The Chairman & Managing Director, SIPCOT, 19 A.R.L.Pathy Road, Egmore, Chennai – 8. 3. The Special Tahsildar, (Land Acquisition), SIPCOT, Gummudipoondi. 4. The Revenue Divisional Officer, Ponnery, Tiruvallur District. ... Respondents PRAYER : This writ petition is filed under Article 226 of the Constitution of India with a prayer to issue a writ of Certiorarified mandamus calling for the records of the first respondent relating to his letter dated 5.10.2007 n No.16853/MIG.II/2005-1 and the proceedings of the second respondent herein dated 25.10.2007 in Na.Ka.N.A.No.48-B/2006, quash the same and consequently direct the first respondent herein to reconvey the lands of an extent of 3.32 acres in survey No.139/1, 2 and 4 of Pappankuppan Village to the petitioner. https://hcservices.ecourts.gov.in/hcservices/ For petitioner : Mrs.A.L.Gandhimathi For Respondents 1,3&4 : Mr.R.Neelakandan, Government Advocate For 2nd Respondent : Mr.M.Devarajan O R D E R This writ petition is filed to quash the order passed by the first respondent in proceedings dated 5.10.2007 and the consequential order passed by the second respondent dated 25.10.2007. In the order dated 5.10.2007 the first respondent declined the request of the petitioner seeking reconveyance of the land under section 48B of the Land Acquisition Act, 1894, acquired for SIPCOT. The 2nd respondent by order dated 25.10.2007 directed the 4th respondent to remove the encroachment put up by the petitioner in the said land. 2. The case of the petitioner is that the lands to an extent of 3.31 acres in S.No.139/1, 2 and 4 of Pappankuppan Village, Gummudipoondi Taluk belonged to the family of one S.Gopalraj, who is the Managing Partner of the petitioner Private Limited Company. The said land was enjoyed by the family of the Managing Partner and his brother and according to the petitioner, the entire land was used for the Company, which is involved in the manufacture of concrete, pech block and fly ash set blocks. 3. The third respondent proposed to acquire the lands to an extent of 18.50.0 hectares for the expansion scheme of Gummudipoondi Industrial Complex, which includes an extent of 7.32 acres, owned by the petitioner and others. Notification under section 4(1) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') was published on 25.6.1997 in G.O.Ms.No.178. Notice under section 5A of the Act was issued to the land owners and they submitted objections contending that the said lands are required for their own industrial use and they are running industry in the said place and requested to drop the acquisition proceedings. The said objection was overruled and declaration under section 6 of the Act was also made. According to the petitioner, paper possession was also taken by the District administration. 4. It is further alleged in the affidavit that the second respondent thereafter requested the Government to issue necessary orders for withdrawal of the land acquisition proceedings and drop the proposal. On 20.7.2004 the petitioner submitted a representation to the first respondent stating that though their land was acquired on 25.6.1997, the compensation deposited for the said land was not withdrawn and the lands have not been put to use for the purpose for which it was acquired, and the said lands are still in their possession where the petitioner is running concrete manufacturing unit, and requested to reconvey the lands acquired under Section 48-B of the Act, so as to enable the petitioner to run https://hcservices.ecourts.gov.in/hcservices/ their own industrial unit in the said land. It is also stated in the affidavit that the land acquisition proceedings were challenged by the petitioner in W.P.No.15893 of 1998 and during pendency of the said writ petition interim stay of dispossession was obtained. After dismissal of the writ petition, petitioner filed W.A.Nos.2196 and 2197 of 1999 and pending disposal of the writ appeals also interim stay of dispossession was ordered and finally by order dated 5.3.2004 the writ appeals were disposed of. 5. It is further stated in the affidavit in support of the writ petition that on receipt of the representation seeking reconveyance, the Sub-Collector, Ponneri called upon the petitioner to appear for enquiry and no order having been passed, petitioner filed W.P.Nos.27806 and 26063 of 2005 and sought for a direction to consider the application seeking reconveyance and the said writ petitions were disposed of on 9.8.2005 directing the first respondent to consider the application for reconveyance and pass orders. It is also stated in the affidavit that during pendency of the representation seeking reconveyance, the respondents were directed not to interfere with possession of the petitioner till the disposal of the representation seeking reconveyance. In spite of that, the second respondent tried to interfere with the possession and therefore the petitioner filed complaint before the police on 13.2.2006. Ultimately the request for reconveyance was rejected by the impugned order dated 5.10.2007 by stating that the award in the land acquisition proceedings were passed by the Land Acquisition Officer on 16.6.2000 and possession of the entire land was handed over to SIPCOT on 29.12.2000 except the land encroached by the petitioner; that the Certificate of Incorporation of the Company was issued only on 25.11.1997, which is well after the date of 4(1) notification i.e., on 2.7.1997; that the Land Acquisition Officer in his award dated 16.6.2000 stated that there was an asbestos sheet covered building of an area of 20' x 16' (320 sq.ft.) and casurina trees of two years old and all these have been done after the publication of Sec.4(1) notification; and therefore the request of the Company is rejected. 6. Pursuant to the rejection of the request of the petitioner for reconveyance under Section 48-B of the Act, the second respondent by the consequential order, requested the third respondent to evict the petitioner from the encroached portion of the land, which has already been acquired. The said orders are challenged by the petitioner in this writ petition on the ground that the petitioner is running an industry in the said land and the acquired lands have not been put to use till date, for the purpose for which it was acquired, and the lands having not been vested with the SIPCOT, petitioner is entitled to get reconveyance of the land under section 48-B. https://hcservices.ecourts.gov.in/hcservices/ 7. The second respondent has filed counter affidavit by stating that the first respondent issued G.O.Ms.No.227 Industries Department dated 25.9.1995 for according administrative sanction for acquiring 18.54.0 hectares (45.79 acres) of patta land in Pappankuppan Village, Gummudipoondi Taluk. Section 4(1) notification was issued and the same was published in the Tamil Nadu Government Gazette on 2.7.1997 in relation to the land of the petitioner. Enquiry under Section 5A was conducted on 15.9.1997 and 17.9.1997 and the authorised representative of the Managing Partner viz., the son attended the enquiry. Thereafter declaration under Section 6 of the Act was issued and the same was published in the Tamil Nadu Government Gazette on 23.7.1998. The writ petition in W.P.No.15893 of 1998 filed by the petitioner challenging the acquisition proceedings having been dismissed, award came to be passed on 16.6.2000 and thereafter on 29.12.2000 third respondent handed over possession of the entire land, to an extent of 3.31 acres, to SIPCOT. Since there was a shed in a portion of the land, that particular land's possession was not handed over to the SIPCOT and the third respondent requested the regular Tahsildar, Gummudipoondi to evict the said portion of the land and issued a notice on 29.12.2000 under section 47 of the Act. The writ appeal filed by the petitioner was also dismissed. The second respondent, after taking possession, had applied for approval of the revised lay out including the acquired lands, before the Director of Town and Country Planning on 6.12.2005 and 25.1.2008. When these application were pending before the Planning Authority, the petitioner had approached the first respondent for reconveyance. 8. It is further stated in the counter affidavit that the petitioner obtained stay and the same was in force till 5.3.2004 and thereafter he filed the writ petition in W.P.No.26063 of 2005 and obtained an order on 16.8.2005 for considering his representation seeking reconveyance of the land. The first respondent called for remarks from the second respondent and after considering the same, the request of the petitioner was rejected. With regard to the submission that the land is not required for the second respondent, it is stated that there is a demand from the Industries for allotment of lands for industrial use, and therefore expansion of existing complexes around Chennai is required. It is also stated in the counter affidavit that once an award is passed, the land acquired will vest with the Government free from any encumbrance under section 16 of the Act. The possession was also handed over to the second respondent on 29.12.2000 and the alleged occupation by the petitioner subsequent to the said period is illegal. As the second respondent is taking effective steps to get the lay out approval, petitioner is not justified in seeking reconveyance, particularly when the land is vested with the second respondent. 9. Heard the learned Counsel for the petitioner, the learned Counsel for the second respondent as well as the learned Government https://hcservices.ecourts.gov.in/hcservices/ Advocate appearing for the respondents 1, 3 and 4. 10. The acquisition of the subject matter of the land of the petitioner has become final as the challenge made by the petitioner in W.P.No.15893 of 1998 was dismissed and the writ appeal filed against the said order was also dismissed. It is the admitted fact that the award was passed by the third respondent on 16.6.2000. According to the report furnished by the second respondent on 9.1.2007 and 2.3.2007, copy of which are found from page Nos.123 to 129 of the typed set of papers filed by the petitioner, possession of the land was given by the Land Acquisition Officer to the second respondent on 29.12.2000, except 0.01 acre. From the perusal of the above reports it is clear that the second respondent has opposed the reconveyance request of the petitioner and recommended to reject the same. As the land of the petitioner vested with the second respondent as early as on 29.12.2000, the application filed by the petitioner seeking reconveyance of the acquired land under Section 48-B of the Land Acquisition Act, 1894 from the first respondent, is maintainable or not is the issue to be decided in this writ petition. 11. The land acquisition proceeding was initiated at the instance of the second respondent, who was also put in possession of the subject matter of the land, as stated supra. Once possession is handed over to the second respondent, which is the requisitioning body under Section 16-B of the Act, unless and until the land is forfeited for non-use by the Government, the Government will not get any power of reconveyance of the land under section 48-B of the Land Acquisition Act, 1894. In this case, the Government considered the reports furnished by the second respondent on 9.1.2007 and 2.3.2007 with regard to the demand made by he petitioner and passed an order rejecting the request of the petitioner. 12. Similar issue was considered by the Supreme Court in an unreported judgment made in Civil Appeal Nos.3148-3149 of 2002 dated 29.1.2010 (Tamil Nadu Housing Board v. L.Chandrasekaran) with regard to the scope of Section 48-B of the Land Acquisition Act, 1894 and the power of the Government to reconvey the land already acquired. A Division Bench of this Court (consisting of EDRJ & NPVJ) considered similar issue in the decision reported in 2010 CIJ 486 (The Managing Director, T.N. Housing Board v. S.Gajendran) and dismissed the claim made by the erstwhile land owner praying for reconveyance of the land under Section 48-B of the Act. In paragraphs 8 to 14 it is held as follows: "8. It is not in dispute that the Housing Board was given possession after finalising the acquisition proceedings in the year 1985. Till date the Housing Board is not divested of the said land by the Government due to any reason, much less, not utilising the said land for the purpose https://hcservices.ecourts.gov.in/hcservices/ for which it was acquired. It is the specific case of the appellant Housing Board that the entire land acquired for the Housing Scheme was utilised and layout was also prepared and approved as early as in the year 1988 and lands are used for the purpose for which it was acquired, except the school site. Admittedly the first respondent has not questioned the land acquisition proceedings and as such acquisition of his land has become final. It is also not the case of the first respondent that possession of the land was not handed over to the appellant as early as in the year 1985. 9. On the above said admitted facts, it is evident that the first respondent's land acquired in the year 1982 is vested with the appellant from the year 1985. Section 16-B of the Land Acquisition (Tamil Nadu Amendment) Act, 1996, clearly states that if the possession is handed over to the requisitioning body and if the land is not utilised, it is open to the Government by an order forfeiting the lands as penalty and thereafter the land vests in the Government in Revenue Department, free from all encumbrances. Section 16-B reads as follows: "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 all 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." 10. It is not the case of the first respondent that the second respondent Government forfeited the land from the Tamil Nadu Housing Board due to the alleged non-utilisation of the land. In such circumstances, the first respondent cannot approach the Government for re-conveyance of the land under section 48-B of the Land https://hcservices.ecourts.gov.in/hcservices/ Acquisition Act, 1894. Re-conveyance of the land under Section 48-B can be considered by the Government only if the land is in possession of the Government and once possession is handed over to the requisitioning body viz., the Tamil Nadu Housing Board, the Government loses its right to consider re-conveyance request made, if any, by the erstwhile land owners. Section 48-B of the Act reads as follows: "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." 11. A Division Bench of this Court in the decision reported in 2006 (4) CTC 290 (R. Shanmugam v. The State of Tamil Nadu), considered the issue as to whether the Government has got power under Section 48-B of the Act to re-convey the land after handing over possession to the Tamil Nadu Housing Board, without divesting the same under section 16-B of the Land Acquisition Act from the Tamil Nadu Housing Board. In paragraphs 21 and 36 of the said Judgment the Division Bench held as follows: "21. .................... The lands are acquired under the Central Act only on the proposal of Housing Board. On acquisition, the land vest in Government under Section 16 of the Act and thereafter it is transferred to Housing Board only for the limited purpose of implementation of the Scheme. In the event, the State Government is satisfied that the land acquired and transferred to the Housing Board is not utilized for housing or improvement scheme for the purpose for which it was acquired, in exercise of the provisions of Section 16-B, it shall forfeit https://hcservices.ecourts.gov.in/hcservices/ the land as penalty and thereafter the land shall vest with the Government in Revenue Department free from all encumbrances. 36. ...... we hold that the Government in exercise of the power under Section 16-B of the Act can forfeit the land from the Tamil Nadu Housing Board as penalty and on such forfeiture, the land shall vest in the Government in Revenue Department free from all encumbrances. Once such vesting takes place, the Government shall consider the request, if any, received from the land owners expressing their willingness for re- conveyance and may accept or reject. Such exercise of power is discretionary and the owners have no right to seek for automatic re-conveyance of land. The Tamil Nadu Housing Board has no power under Section 72 of the Act to dispose of unutilized land and such power shall only vest with the Government under Section 16-B of the Land Acquisition Act." The same view is again reiterated in the Division Bench decision reported in 2010 (1) CWC 261 (The Managing Director, Tamil Nadu Housing Board v. I.Ravichandran @ Ravi Sam and others). Thus, it is evident that unless and until possession given to the Housing Board is divested in exercise of powers under Section 16-B, the Government cannot re-convey the land to the original owner under Section 48-B of the Act. It is not the case of the first respondent that the land is divested from the Tamil Nadu Housing Board for considering his request for re-conveyance under Section 48-B. Hence the application filed by the first respondent for re-conveyance is not maintainable. 12. The contention of the appellant that the first respondent has no enforceable right for seeking direction to re-convey the land by the second respondent is also well founded. Writ of mandamus cannot be issued merely because a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for mandamus. The said position is well settled by in series of decisions. (a) In the decision reported in (1996) 9 SCC https://hcservices.ecourts.gov.in/hcservices/ 309 (State of U.P. And others v. Harish Chandra and others) in paragraph 10, the Apex Court held as follows: "10. ....... Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition. ......." (b) In the decision reported in (2004) 2 SCC 150 (Union of India v. S.B.Vohra) the Supreme Court considered the said issue and held that 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so. (c) In the decision reported in (2008) 2 SCC 280 (Oriental Bank of Commerce v. Sunder Lal Jain) in paragraphs 11 and 12 the Supreme Court held thus, "11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.—Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. * * * Note 192.—Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty https://hcservices.ecourts.gov.in/hcservices/ presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. * * * Note 196.—Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned—an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. * * * Note 206.— … The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” 12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop.Society Ltd. v. https://hcservices.ecourts.gov.in/hcservices/ Sipahi Singh after referring to the earlier decisions in Lekhraj Sathramdas Lalvani v. N.M. Shah, Rai Shivendra Bahadur (Dr.) v. Nalanda College and Umakant Saran (Dr.) v. State of Bihar this Court observed as follows in para 15 of the Reports (SCC): (Sipahi Singh case, SCC pp.152-53) “15. … There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a failure on the part of that officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. … In the instant case, it has not been shown by Respondent 1 that there is any statute or rule having the force of law which casts a duty on Respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already