IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.06.2010 CORAM: THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.No.38658 of 2003 Padmalakshmi Ammal ... Petitioner Vs 1.The State of Tamilnadu, Rep. By the Secretary to Government, Ministry of Housing, Fort St.George, Madras -9. 2.Tamilnadu Housing Board, Rep. By its Managing Director, 331, Anna Salai, Nandanam, Madras – 35. ...Respondents PRAYER:-Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of mandamus, directing the first respondent to pass necessary orders under Section 48-B of the Land Acquisition Act retransferring the unutilised lands acquired for the purpose of "Sites and Services Scheme" of the second respondent from the petitioner of an extent of 0.15.76 hectares (7.06 grounds) in S.No.107/2, Block -21, Arumbakkam Village, Madras to the petitioner on receipt of the compensation amount paid in respect thereof. For Petitioner : Mr.P.R.Raman For Respondents : Mrs.C.K.Vishnupriya,A.G.P. For R1 Mr.A.Vijayakumar (TNHB) for R2 O R D E R The petitioner has come forward to file the present writ petition, seeking for a direction to the first respondent to pass necessary orders under Section 48-B of the Land Acquisition Act retransferring the unutilised lands acquired for the purpose of "Sites and Services Scheme" of the second respondent from the petitioner of an extent of 0.15.76 hectares in S.No.107/2, Block No.21, Arumbakkam Village to the petitioner on receipt of the compensation amount paid in respect thereof. https://hcservices.ecourts.gov.in/hcservices/ 2. The writ petition was admitted on 31.12.2003 and notice was ordered to the respondents. On behalf of the second respondent, a counter affidavit dated 08.11.2008 was filed. 3. The petitioner claimed that she was the owner of the property in S.No.107/2. The said land was acquired under the Land Acquisition Act for the purpose of 'Sites and Service Scheme' of the TamilNadu Housing Board. The petitioner was paid a compensation of Rs.69,060/-. It was stated that from the date of 4(1) notification in the year 1977 till 1996 though 19 years have been completed and that the land was put to use, the neighboring lands were kept vacant and therefore, she seeks for return of the land. The petitioner sent a representation on 10.03.1999 to the second respondent. The second respondent by a letter dated 22.10.1999 informed the petitioner that the compensation claimed by the petitioner before the City Civil Court in LAOP No.116 of 1987 was ordered. Since she had got higher compensation and that since the lands have already been acquired, the question of return of the land does not arise. 4. Thereafter, the petitioner filed a writ petition being W.P.No.6487 of 2000. This Court by an order dated 11.04.2000 held that there is no merit in the writ petition. It is open to the petitioner to seek for an appropriate application under Section 16-B to the Government. The petitioner accordingly sent an application under Section 16-B to the State Government dated 25.04.2000. On receipt of the said representation, the State Government by an order dated 20.09.2000 rejected her case and held that the land which was originally entrusted to the TNHB where a portion of which was given to CMDA and it has been used for approach road. The balance land of 0.15.76 hec was under encroachment and it was yet to be handed over to the Housing Board and the District Collector was asked to remove the encroachment. In no circumstances, the petitioner will be returned the land only on the ground that it was put to use by the Housing Board. 5. The petitioner once again challenged the said order of the State Government in W.P.No.10782 of 2001. This Court by an order dated 08.06.2001 rejected the petitioner's request and refused to interfere with the order of the State Government. Thereafter, a writ appeal was filed in W.A.No.1324 of 2001. The Writ appeal came to be disposed of on 10.09.2001. In the operative portion, in paragraphs 3 and 4, it was observed as follows: "3.Since the substance of the case set up by the petitioner/appellant has been demolished in the above backdrop of facts we are of the opinion that the learned single Judge was right in non suiting the appellant by dismissing the writ petition. We find no infirmity in the order of the learned https://hcservices.ecourts.gov.in/hcservices/ single Judge and accordingly, dismiss this writ appeal. No costs. 4.However, we make it clear that the first respondent has a duty to see that the encroachers are evicted without any further delay. Accordingly we direct the first respondent, for whom notice has been taken by the learned Government Pleader, to take appropriate action to evict the encroachers of land in question as expeditiously as possible at any rate not later than six months from the date of receipt of copy of this judgment, failing with the appellant will be at liberty to approach this court again for appropriate relief, if so advised." 6. Thanks to the observation of the Division Bench. The petitioner sent a legal notice dated 01.04.2002 and once again came before this Court. It is now stated by the petitioner that despite the order passed by the Division Bench, the slum dwellers have not been evicted and the land is not put to use and therefore, she is entitled to seek for return of the land. 7. In the counter affidavit filed by the second respondent, after referring to the order of the Division Bench, in paragraphs 9 to 11, it was averred as follows:- "9. The Land Acquisition Officer of the Tamil Nadu Housing Board scheme have taken steps to remove the encroachment for the land in S.No.107/2A etc. Even otherwise the petitioner has no legal right to claim the land under Section 48-B of the Land Acquisition Act, in view of the settled law by the Hon'ble Supreme Court in many cases more particularly in Tamil Nadu Housing Board vs.Keeravani Ammal and others reported in 2007 (9) Sec.255. 10.With regard to the averments in paragraph 20 of the affidavit, I respectfully state that originally Tamil Nadu Housing Board has proposed Land Acquisition proposal for Sites and Services Scheme and as per the award No.1/79 dated 20.06.79. The layout was also prepared and approved by the CMDA vide No.CMDA/W/SS No.16/81 and Lands taken over and developed and allotted to the public as commercial purpose except land encroached and covered by huts. Action has been taken by Land Acquisition Officer to remove the existing encroachment in the said land. The said land is very much required for the purposes of the scheme and to cater to the needs of the general public. 11.With regard to averments in paragraphs 21 of the affidavit, I respectfully state that the Government and the Housing Board are taking earnest steps and https://hcservices.ecourts.gov.in/hcservices/ efforts to remove the encroachment and to utilise the land for the scheme. Further the contention of the petitioner in this para is against the law settled by the Hon'ble Supreme Court in Land Acquisition cases." 8. Though reliance was placed upon a judgment of the Division Bench of this Court in R.Shanmugam v. State of Tamil Nadu reported in 2006 (4) CTC 290, this Court is not inclined to entertain the writ petition. The Supreme Court in Tamil Nadu Housing Board v. Keeravani Ammal and Ors reported in 2007 (2) CTC 447 in paragraph 11 had observed as follows:- "...Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here." 9. It was brought to the notice of this Court, in its latest judgment in Tamil Nadu Housing Board v. L.Chandrasekaran and Ors in Civil Appeal Nos.3148-3149 of 2002 (MANU/SC/0069/2010) dated 29.01.2010, the Supreme Court dealt with the scope of Section 48- B and has considered all the cases arising out of reconveyance. In paragraphs 18 and 19, it was observed as follows:- "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 re- convey the same to the original owner. In any case, the Government cannot be compelled to re-convey 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. (Emphasis added) 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 sufficient allegations justifying interference by the Court. Mere claim of possession by the writ petitioners is not a foundation on which the relief now granted could have been rested either by the learned Single Judge or by the Division Bench of the High Court. On the materials, no right to relief has been established by the writ petitioners. We may also notice 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, only for the market value that may be fetched for the property as on the date of conveyance. The doctrine of public trust would disable the State from giving back the property for anything less than the market value. In State of Kerala v. M.Bhaskaran Pillai MANU/SC/0731/1997 : (1997) 5 SCC 432 in a similar situation, this Court observed : (SCC p.433, para 4) The question emerges whether the Government can assign the land to the erstwhile owners? It is settled law that if the land is acquired for a public purpose, after the public purpose was achieved, the rest of the https://hcservices.ecourts.gov.in/hcservices/ land could be used for any other public purpose. In case there is no other public purpose for which the land is needed, then instead of disposal by way of sale to the erstwhile owner, the land should be put to public auction and the amount fetched in the public auction can be better utilised for the public purpose envisaged in the Directive Principles of the Constitution. In the present case, what we find is that the executive order is not in consonance with the provision of the Act and is, therefore, invalid. Under these circumstances, the Division Bench is well justified in declaring the executive order as invalid. Whatever assignment is made, should be for a public purpose. Otherwise, the land of the Government should be sold only through the public auctions so that the public also gets benefited by getting a higher value. Section 48-B introduced into the Act in the State of Tamil Nadu is an exception to this rule. Such a provision has to be strictly construed and strict compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here. 10. Hence there is no scope to interfere with the impugned order. In the light of the above, the writ petition stands dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. svki To 1.The Secretary to Government, The State of Tamilnadu, Ministry of Housing, Fort St.George, Madras -9. https://hcservices.ecourts.gov.in/hcservices/ 2.The Managing Director, Tamilnadu Housing Board, 331, Anna Salai, Nandanam, Madras – 35. 1 CC TO Mr.A. Vijayakumar, Advocate, Sr. 40604 1 cc to Mr.P.R. Raman, Advocate, R. 40407 W.P.No.38658 of 2003 KK (CO) kk 16/6 https://hcservices.ecourts.gov.in/hcservices/