IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 06.02.2008 Coram : THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN Writ Appeal No.1170 of 2007 1. Tamilnadu Housing Board, represented by its Managing Director, Anna Salai, Nandanam, Chennai 600 035. 2. Executive Engineer & Administrative Officer, Madurai Housing Unit, Tamil Nadu Housing Board, Maderai 625 010. Appellants vs. 1. Jaya Gurumurthy 2. The State of Tamilnadu, represented by its Secretary, Housing and Urban Development Department, Fort St. Georg, Chennai 600 009. 3. The District Collector of Madurai District, Collectorate, Madurai. 4. Special Tahsildar, Land Acquisition (South), Ellis Nagar Scheme, Madurai 625 020. Respondents Writ Appeal filed under clause 15 of the Letters Patent against the order of the learned single Judge dated 10.04.2006 made in writ petition No.2589 of 2006 this petition presented to this Court under Article 226 of the Constitution of India to issue a Writ of Mandamus, directing the respondents to deliver the possession of 5 1/2 cents of House Site taken in pursuance of Section 4(1) Notification dated 07.03.1979 and Section 6 Notification dated 25.03.1982 without any encroachment in plot No.21 in S.No.6.1B/9 at Ponmeni Village, Madurai Taluk, Madurai District along with the original sale deed thereof to the petitioner https://hcservices.ecourts.gov.in/hcservices/ For appellants : Mr.K.Chelladurai For Respondents : Mr.N.Mani Narayanan (R1) Mr.A.Edwin Prabhakar,(R2 to 5) Government Advocate JUDGMENT (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) This is an appeal filed by the Tamil Nadu Housing Board questioning the correctness of the order passed by the learned single Judge dated 10.04.2006 made in writ petition No.2589 of 2006 directing the Government and the Housing Board, respondents 1 and 2 respectively in the writ petition, to take appropriate action to evict the encroachers and deliver possession of the land in an extent of 0.06 cents comprised in survey No.6 1B/9 at Ponmeni village, Madurai Taluk, Madurai District to the writ petitioner, within three months from the date of receipt of the copy of the order. 2. That order came to be passed in the following circumstances : The first respondent's land in an extent of 0.06 cents in R.S. No.6, 1B/9, Ponmeni village, Madurai Taluk, Madurai District had been acquired by the Government for the Ellis Nagar Nieghbourhood scheme among other lands under the provisions of the Land Acquisition Act. 3. The first respondent's mother filed writ petition No.8055 of 1982 challenging the declaration under section 6 of the Land Acquisition Act before this Court and obtained a favourable order quashing the declaration by order dated 07.04.1983. Subsequently, she filed another writ petition in W.P. No.3109 of 1986 challenging the 4 (1) notification and the same was quashed by this Court. The Government and the Housing Board, after taking possession of the lands left it to be encroached upon by certain persons. When the entire acquisition proceedings has been quashed by this Court, the Government as well as the Housing Board are duty bound to redeliver the land after clearing encroachments. The learned single Judge by her order impugned in this appeal, has directed the respondents in the writ petition to redeliver possession of the land in question to the first respondent/writ petitioner. The correctness of the said order is questioned in this writ appeal. 4. The learned Standing Counsel for the Housing Board contended that the acquiring body did not hand over the subject land to the Housing Board. When the land was not handed over to the Housing Board, learned single Judge was wrong in directing the Housing Board to redeliver possession of the land to the respondent. In order to establish his case, the counsel produced transfer charge certificate issued by the Special Deputy Surveyor (L.A.) and Head Surveyor, Special Division, Ellis Nagar Scheme, Madurai dated 22.11.1982 wherein the details of handing over of various survey numbers have been given. So far as the first respondent's land in survey No.6.1B/9 in an extent https://hcservices.ecourts.gov.in/hcservices/ of 0.06 cents is concerned, the charge certificate categorically states that as the land was covered by the writ petition before the High Court, possession of the land has not been handed over to the Housing Board. On that basis, the Housing Board contended that the direction given by the learned single Judge directing the Housing Board to re-handover the vacant land within the stipulated period without any basis. When possession itself has not been handed over to the Housing Board, directing the Housing Board to re-handover possession to the first respondent/writ petitioner is nothing but a direction to perform the impossibility. 5. The Special Tahsildar, Southern Neighbourhood scheme has filed a solemn counter affidavit wherein in paragraph (g), it is stated that the 4th respondent had not taken possession of the land in question. Further, it is averred that the mother of the first respondent/writ petitioner filed a writ petition seeking for an order of mandamus in writ petition No.3109 of 1986 to forbear the 4th respondent herein and his employees and agents from interfering with her possession and enjoyment of the land in question and that writ petition was allowed by the High Court by its order dated 04.09.1997. The prayer in the writ petition makes it manifestly clear that the land was and is under the possession and enjoyment of the land owner, and was never taken possession by the 4th respondent. As per the Land Acquisition Act, the property under acquisition vests with the Government only after passing award under section 11 of the Act. Though in respect of the property in question, award has been passed, possession has not been taken under section 16 of the Land Acquisition Act. Even prior to taking possession under section 16 of the Act, the first respondent's mother filed a writ petition and obtained an order of injunction preserving her possession over the property. Ultimately, the writ petition had also been allowed and subsequently the writ petition challenging the 4(1) notification also came to be allowed. When possession had not been taken, there is no obligation on the part of the Government to redeliver possession of the property which is under the possession of the land owner. 6. Mr.Mani Narayanan, learned counsel for the first respondent/writ petitioner placed reliance on two documents to sustain the order of the learned single Judge, one letter dated 17.01.2005 from the Executive Engineer and Administrative Officer of the Housing Board and the other by the Collector of Madurai dated 11.10.2005. As per the letters, it is contended that it is obvious that possession has been taken by the Housing Board. Even the title deeds are with the Government and hence, the order of the learned single Judge directing the Housing Board as well as the Government to handover possession of the property cannot be complained of, either by the Housing Board or by the Government. 7. Heard the learned counsel on either side and perused the materials available on record, particularly, the two letters on which reliance has been placed by the learned counsel for the first respondent to contend that possession has been taken from her. https://hcservices.ecourts.gov.in/hcservices/ 8. First, let us consider the statutory provision. Section 11 of the Land Acquisition Act, 1894 read as under : 11. Enquiry and award by Collector .—(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given under Section 9 to the measurements made under Section 8, and into the value of the land at the date of the publication of the notification under Section 4, sub-section (1), and into the respective interests of the persons claiming the compensation and shall make an award under his hand of— ( i ) the true area of the land; ( ii ) the compensation which in his opinion should be allowed for the land; and ( iii ) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose claims, he has information, whether or not they have respectively appeared before him: Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of such officer as the appropriate Government may authorise in this behalf: Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such approval in such class of cases as the appropriate Government may specify in this behalf. (2) Notwithstanding anything contained in sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such agreement. (3) The determination of compensation for any land under sub-section (2) shall not in any way affect the determination of compensation in respect of other lands in the same locality or elsewhere in accordance with the other provisions of this Act. (4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under sub-section (2) shall be liable to registration under that Act. https://hcservices.ecourts.gov.in/hcservices/ Section 16 of the Act read as under : 16. Power to take possession : When the Collector has made an award under section 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free from all encumbrances. As per the provision only after passing an award under section 11 of the Act, the Collector is empowered to take possession of the land, which was subject matter of the acquisition, under section 16 of the Land Acquisition Act. In this case, the award came to be passed on 25.03.1982. But the first respondent filed writ petition No.8055 of 1982 and obtained an order of interim injunction on 01.10.1982 preserving her possession over the land. In the affidavit it was averred that the first respondent was in possession. Hence, possession of the land has not been taken from the first respondent/writ petitioner. Subsequently, not only the writ petition challenging the declaration under section 6 of the Act was allowed on 07.04.1983, but also the writ petition challenging the 4(1) notification was also allowed on 04.09.1997. It is obvious from the prayer and the solemn affidavit filed in support of W.P. No.3109 of 1986 that possession of the subject land was only with the first respondent. 9. Now let us consider the two letters. The first letter is one written by the Executive Engineer and Administrative Officer, Madurai Housing Unit dated 17.01.2005. From the letter is obvious that the District Collector forwarded a petition received by him from one Gurumurthy. While disposing of the said petition, the Executive Engineer referred to about the acquisition proceedings initiated in relation to the land in question and informed him as the land was the subject matter of writ proceedings, it was not handed over to the Housing Board and further informed the said Gurumurthy to approach the Special Tahsildar (L.A.) South Neighbourhood Scheme. The other letter is dated 11.10.2005 from the District Collector, Madurai to the Government Secretary of Housing and Development. From this letter it is evident that the District Collector informed the Secretary to Government that one Jaya Gurumurthy has sent a petition to the effect that the writ petition filed challenging the acquisition proceedings has been allowed by the Court and that she may be furnished with no objection certificate and the title deed in respect of the subject property may be returned to her, and the same may be granted. 10. On the entire reading of the letter, we are of the view that the letter cannot be regarded as one which acknowledged receipt of title deed either from the first respondent or from the first https://hcservices.ecourts.gov.in/hcservices/ respondent's mother. By referring to the statement made by the first respondent in her letter, the Collector has requested the Government to issue no objection certificate and return the original title deed to the first respondent. Likewise, the other letter of the Executive Engineer, Madurai dated 17.01.2005 referred by the learned counsel for the first respondent to contend that possession in respect of the subject land has been taken by the Government, cannot be regarded as one indicating that possession has been taken by the Government. In the first paragraph of the letter only the land acquisition proceedings initiated for acquiring the first respondent's land by issuance of 4(1) of the Act has been referred to. The same cannot be understood that the possession of the land has been taken by the Housing Board. 11. Whatever be the position, now that the proceedings initiated against the first respondent's land has been held to be invalid by this Court in more than one writ petition and that neither the Government nor the Housing Board has taken possession of the property, which is apparent from the filing of the writ petition No.3109 of 1986, we are of the view that the order of the learned single Judge directing the Government and the Housing Board to redeliver the possession is not legally sustainable. Accordingly, the order of the learned single Judge is set aside. The writ petition is allowed. However, the Housing Board, the appellants herein and the Government, are hereby directed to issue a letter or certificate to the effect that the first respondent's land in survey No.6 1B/9, Ponmeni village, Madurai Taluk, Madurai District has not been acquired by the Government. No costs. The connected miscellaneous petition is closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar mf To 1. The Managing Director, Tamilnadu Housing Board, Anna Salai, Nandanam, Chennai 600 035. 2. The Executive Engineer & Administrative Officer, Madurai Housing Unit, Tamil Nadu Housing Board, Maderai 625 010. https://hcservices.ecourts.gov.in/hcservices/ 3. The Secretary, State of Tamilnadu, Housing and Urban Development Department, Fort St. George, Chennai 600 009. 4. The District Collector of Madurai District, Collectorate, Madurai. 5. Special Tahsildar, Land Acquisition (South), Ellis Nagar Scheme, Madurai 625 020. 1 cc To Mr.N.Mani Narayanan, Advocate, SR.6063. 1 cc To Mr.K.Chelladurai, Advocate, SR.5972. 1 cc To The Government Pleader, SR.5921. W.A. No.1170 of 2007 AKR(CO) RVL 15.02.2008 https://hcservices.ecourts.gov.in/hcservices/