IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16-2-2010 CORAM THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE N. PAUL VASANTHAKUMAR W.A.No.991 of 2007 W.A.M.P.No.241 of 2007 The Managing Director, Tamil Nadu Housing Board, 331, Anna Salai, Nandanam, Chennai – 600 035. ... Appellant/Respondent No.2 Vs. 1. S. Gajendran 2. The Secretary to the Government, Housing and Urban Development Department, Fort St. George, Chennai – 600 009. ... Respondents/petitioner & 1st Respondent This writ appeal is preferred under Clause 15 of the Letters Patent against the order of the learned single Judge made in W.P.No.15247 of 2005 dated 29.4.2005. Writ petition filed under Article 226 of the constitution of India, to issue a writ of mandamus, directing the respondents to reconvey the petitioners land situated in Survey 327/2B part of Nolambur Village, Ambattur Taluk, Measuring an extent of 1.06 Acres to the petitioner herein. For Appellant : Mr.D.Veerasekaran For 1st Respondent : Mr.V.Ajay Kumar For 2nd Respondent : Mr.G.Desingu Spl. Government Pleader J U D G M E N T This writ appeal is directed against the order made in W.P.No.15247 of 2005 dated 29.4.2005 wherein the learned single Judge allowed the writ petition filed by the first respondent seeking https://hcservices.ecourts.gov.in/hcservices/ reconveyance of the land situated in S.No.327/2B (Part) of Nolambur Village, Ambattur Taluk, measuring an extent of 1.06 acres. 2. The Tamil Nadu Housing Board filed this appeal contending that the order of the Division Bench made in W.A.No.2430 of 1999, which was relied on by the learned single Judge has no bearing on the facts of this case, and the writ petition was allowed at the admission stage, without issuing any notice or opportunity to the appellant, and the subject matter of the land is developed by the Tamil Nadu Housing Board after getting possession in the year 1985 and approval of layout. The entire land approved and the lay out for MMDA/PRSP/LO 72/88 was used except the school site. 3. The case of the first respondent before the learned single Judge was that 1.06 acres of land in S.No.327/2B (Part) of Nolambur village, Ambattur Taluk was acquired by the Government in the year 1982 by issuing notification under Section 4(1) of the Land Acquisition Act, 1894, followed with declaration under Section 6 of the Act, and after completion of the entire acquisition proceedings, award was also passed in Award No.7/85. It is contended in the affidavit that the respondents viz., State Government acquired vast extent of land in that area and the lands having not been utilised for the purpose for which it was acquired, the first respondent is bound to re-convey the land to the original owner under Section 48-B of the Land Acquisition Act, 1894, inserted in the Land Acquisition (Tamil Nadu Amendment) Act, 1996, and consequently the first respondent submitted a representation for re-conveyance of the land on 11.10.2003 followed by reminders dated 19.3.2004 and 6.11.2004 and no order having been passed, he has chosen to file the above writ petition seeking direction to re-convey the said land. It is also averred in the affidavit that adjacent areas were re-conveyed to the respective land owners. 4. The learned Counsel appearing for the appellant/Tamil Nadu Housing Board reiterated the contentions raised in the grounds of appeal and contended that the land is admittedly vested with the Tamil Nadu Housing Board after finalising the acquisition proceedings in the year 1985 and it is utilised for construction of the houses by approving the layout and therefore the second respondent cannot forfeit and re-convey on any account, the land acquired from the first respondent, as possession is given to the appellant in the year 1985. 5. The learned counsel for the first respondent on the other hand submitted that the learned single Judge followed the earlier Division Bench decision of this Court and the said judgment having become final, the appellant cannot take a different stand insofar as the lands acquired from the first respondent is concerned. https://hcservices.ecourts.gov.in/hcservices/ 6. We have considered the rival submissions made by the learned counsel for the appellant as well as first respondent. 7. The writ petition filed by the first respondent was allowed by the learned single Judge, admittedly without issuing notice to the appellant, who was the second respondent in the writ petition. The grievance raised by the learned counsel for the appellant is to be countenanced in view of the judgment of the Supreme Court reported in (2004) 13 SCC 781 (State of Uttaranchal v. Rajendra Singh) wherein the Supreme Court set aside the order of the High Court on the ground that the writ petition was disposed of after issuing notice, but without giving opportunity to file counter affidavit. Though the writ petition was disposed of by following the earlier judgment, which was claimed as covered by the earlier judgment of the High Court, in paragraph 2 the Supreme Court held thus, "2. The only grievance of the appellants in this case is that the High Court had disposed of the writ petition immediately after having issued notice to the respondent-appellants in the writ petition. Learned counsel appearing on behalf of the respondent cannot dispute what is clear from the record. Having issued notice and granted time to the respondent to file a counter-affidavit, the High Court proceeded with the matter and held that the case of the writ petitioners was covered by the earlier judgment of the High Court and directed the respondent to grant relief to the writ petitioners accordingly. Such a procedure was unwarranted. The matter must be disposed of after giving the respondents an opportunity of filing their counter-affidavits as directed by the High Court." 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 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. https://hcservices.ecourts.gov.in/hcservices/ 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 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." https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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.” https://hcservices.ecourts.gov.in/hcservices/ 12. These very principles have been adopted in our country. In Bihar Eastern Gangetic Fishermen Coop.Society Ltd. v. 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 indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that Respondent 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same.” Therefore, in order that a writ of mandamus may be issued, there must be a legal right with the party asking for the writ to compel the performance of some statutory duty cast upon the authorities. ......." https://hcservices.ecourts.gov.in/hcservices/ 13. Insofar as the finding given by the learned single Judge that the case is covered by the Judgment of the Division Bench made in W.A.No.2430 of 1999 dated 18.2.2000 is concerned, the entire bundle was called for and a perusal of the same revealed that the said judgment was reviewed in Review Application No.83 of 2000 and by order dated 18.4.2001 the Division Bench held that the said order will not be a precedent and other cases are to be dealt with on the facts and circumstance of the cases concerned. Further, one of such judgment passed by the Division Bench of this Court following the above referred W.A.No.2430 of 1999, in W.A.Nos.796 and 1135 of 1999 was challenged by the appellant/Tamil Nadu Housing Board before the Honourable Supreme Court in Civil Appeal Nos.3148 and 3149 of 2002 (Tamil Nadu Housing Board v. L. Chandrasekaran) and by judgment dated 29.1.2010, the Honourable Supreme Court set aside the said judgment of the Division Bench. In paragraphs 16 to 20 the Supreme Court held thus, "16. A glance at the impugned order shows that the Division Bench did not at all advert to the factual matrix of the case and the reasons incorporated in the Government's decision not to reconvey the acquired land to the respondents. The Division Bench also did not examine the correctness or otherwise of the order passed by the learned single Judge and allowed the appeals preferred by the respondents simply by relying upon order dated 18.2.2000 passed in Writ Appeal No.2430/1999 and that too without even making an endeavour to find out whether the two cases were similar. In our view, the direction given by the Division Bench to the appellant- Board to reconvey the acquired land to the respondents is per se against the plain language of Section 48-B of the Act in terms of which only the Government can transfer the acquired land if it is satisfied that the same is not required for the purpose for which it was acquired or for any other public purpose. The appellant-Board is not an authority competent to transfer the acquired land to the original owner. Therefore, the Division Bench of the High Court could not have issued a mandamus to the appellant-Board to reconvey the acquired land to the respondents. As a matter of fact, the High Court could not have issued such direction even to the Government because the acquired land had already been transferred to the appellant-Board and the latter had utilized substantial portion thereof for execution of the housing scheme and other public purposes. 17. There is one more reason why the impugned judgment deserves to be set aside. Undisputedly, the land of the respondents forms part of large chunk which was acquired for execution of housing scheme. The report sent by the appellant-Board to the State Government shows that the purpose for which the land was acquired is still subsisting. The respondents had neither https://hcservices.ecourts.gov.in/hcservices/ pleaded before the High Court nor any material was produced by them to show that the report which formed basis of the Government's decision not to entertain their prayer for reconveyance of the land was vitiated by mala fides or that any extraneous or irrelevant factor had influenced the decision making process or that there was violation of the rules of natural justice. Therefore, the Division Bench of the High Court could not have exercised the power of judicial review and indirectly annulled the decision contained in communication dated 18.3.1999. 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 reconvey the same to the original owner. In any case, the Government cannot be compelled to reconvey 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. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 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