IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 08.06.2010 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NOs.27732 and 27733 of 2008 Arcot Ranipet Electricity Workers Housing and Welfare Society, rep. By its Secretary, D.Natarajan, Arcot .. Petitioner in W.P.No.27732 of 2008 Arcot Teachers Housing and Welfare Society rep. By its Secretary, E.Sadagoppan, Ranipet, Vellore. .. Petitioner in W.P.No.27733 of 2008 Vs. 1.The State of Tamil Nadu, rep. By Secretary to Government, Housing and Urban Development, Fort St. George, Chennai-600 009. 2.Special Tahsildar (LA) 7B1, R.D.O.'s Compound TNHB, Ranipet, Vellore. 3.The Tamil Nadu Housing Board, rep. By its Chairperson, TNHB Complex, Nandanam, Chennai-35. .. Respondents in both petitions Both writ petitions are preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to quash the order passed by the first respondent dated 25.2.2008 culminating in letter No.6109/LA2(1)/07- https://hcservices.ecourts.gov.in/hcservices/ 9, or any other order or direction more specifically in the nature of a writ directing the respondents to reconvey the petitioners land in survey No.196 (part), Arcot village, Arcot Taluk without any delay and demand and to pay compensation at the prevailing market rate prevailing today along with solatium, interest on solatium, additional compensation and such other charges as may be permissible under the Land Acquisition Act, 1891 in the event of non allotment of plots to the members of the petitioners association without any demand for any fees/charges in lieu of the petitioners lands. For Petitioner : Mr.T.Mohan For Respondents : Mr.N.Senthilkumar, AGP for RR1 and 2 Mr.A.Vijayakumar for R3 COMMON ORDER In the first writ petition, the petitioner is one Arcot Ranipet Electricity Workers Housing and Welfare Society represented by its Secretary. In the second writ petition, the petitioner is one Arcot Teachers' Housing and Welfare Society represented by its Secretary. On both writ petitions, the challenge is to the impugned order passed by the first respondent, dated 25.2.2008 and after setting aside the same, seeks for a direction to respondents to re- convey the petitioners' land in Survey No.196 Part, Arcot village, Arcot Taluk and also to pay the compensation at the prevailing market rate with solatium, interest and additional compensation as permissible under the Land Acquisition Act, 1891 in the event of non allotment of plot to members of the petitioners' associations without any demand for fees or charge in lieu of the petitioners' lands. 2.When the matter came up on 21.11.2008, notice was taken up by the learned counsel for the respondents. 3.It is noted that the two associations are only registered under the Tamil Nadu Societies Registration Act, 1975 and they have no power to acquire any land for the purpose of putting layout and to sell it to their members. If at all, the association can own lands in the name of the Association. But it can never have an object for purchasing certain lands and distributing to its members. It is not as if they are registered Cooperative Housing Societies registered under the Tamil Nadu Cooperative Societies Act. In any event, the petitioners' association which claimed to have purchased certain lands in S.No.196 Part in Arcot Town, challenged the acquisition proceedings in G.O.Ms.702, Housing Department, dated 31.8.1984 by filing W.P.Nos.6904 and 6909 of https://hcservices.ecourts.gov.in/hcservices/ 1986. Both writ petitions were dismissed stating that since the lands were acquired for the Tamil Nadu Housing Board, it cannot be deleted from the acquisition proceedings. It was also stated that the members of the petitioners association can apply for developed house sites at the time of allotment. 4.The two associations filed W.A.Nos.17 and 18 of 1998 before the division bench. The division bench confirmed the order of the learned single Judge and dismissed the writ appeals with the following observations: "Accordingly, while dismissing the above writ appeals, it is made clear that after completion of the acquisition proceedings, and at the time of allotment, first preference will be given to the members of the petitioners association/society. With this observation, we dismiss both the Writ Appeals." 5.Thereafter, the petitioners made representations stating that though lands were owned by members of the petitioners' association, they were successfully prevented from constructing houses in the plots. Since they found in the newspaper that the lands unutilizsed by the TNHB will be returned to them, they sought for return of lands. The associations were informed by the second respondent that lands were required and included in the integrated housing scheme and that already the Board by letter dated 15.5.2001 rejected their request. It was also stated that at the time of selling developed plots, the earlier observation of the division bench be kept in mind. The same was the reply given by the State Government by letter dated 1.1.2004. However, the petitioner instead of challenging the order filed two clarification applications before the division bench, i.e. WAMP Nos.3182 and 3183 of 2004. In the clarification applications, they sought for a direction to respondent to allot plots under the bulk allotment system within a reasonable time and no cost of lands can be collected from the petitioners, but only development charges or in the absence, to return lands to the petitioners. However, the two applications were dismissed on 24.9.2004. 6.The petitioners association once again filed W.P.Nos.35195 and 35196 of 2004 seeking for a direction to allot plots to the members of the association under bulk allotment system and also to direct re-conveyance of lands to the petitioners and for payment for compensation. Both writ petitions were disposed of by a common order dated 2.12.2004. In paragraphs 3 and 4, the following observations were made by this Court: "3.Immaterial of the prayer sought for in the writ petitions, Mr.Mohan, learned counsel appearing https://hcservices.ecourts.gov.in/hcservices/ for the petitioners seeks liberty to file necessary application under Section 48B of the Land Acquisition Act before the first respondent so that the Petitioners-Associations can seek the relief before him. 4.Without going into the merits of the case, I permit the petitioners-Associations to file necessary application under Section 48B of the Land Acquisition Act before the first respondent within a period of two weeks from the date of receipt of a copy of this order. On receipt of such application, the first respondent is directed to pass orders on the same, on merits and in accordance with law within a period of twelve weeks thereafter." 7.Taking advantage of the observations, the petitioners sent representations, dated 13.12.2004 and 14.12.2004 seeking for re- conveyance of lands. It is pursuant to the observation made by this court, the State Government negatived the request of the petitioners association by an identical order dated 27.9.2005. In paragraph 3 of the order, it was stated as follows: "3.The Tamilnadu Housing Board has stated that the Arcot Phase II scheme has been developed with an extent of 79.03 acres of land and layout has been approved with 1081 plots and of this 541 plots have been sold out and the remaining plots are in the process of sales. I am to point out in this connection that award was also passed in Award No.2/88, dated 29.6.88 and the lands were duly taken possession by Tamilnadu Housing Board. Now the Tamil Nadu Housing Board is the absolute owner of the land. These lands are essentially required for the formation of the Housing Scheme at Arcot village, Vellore district. The Tamilnadu Housing Board is taking action to finalise the scheme. Hence, the land in question is required for formation of the above scheme by Tamilnadu Housing Board." 8.Once again, the two associations challenged the said order in W.P.Nos.21247 and 21248 of 2006 before this court. This court disposed of both writ petitions by a common order dated 13.8.2007. In paragraph 4, it was ordered as follows: "4.In the impugned order, it is stated that the Petitioners' land are essentially required for formation of housing scheme at Vellore, whereas in the counter dated 2.7.2007, in paragraph 9, it is stated that the Government has not yet completed the policy decision for reconveyance of the lands to the Petitioner. The said contention in the https://hcservices.ecourts.gov.in/hcservices/ impugned order and the counter are contrary to each other. Hence, it is not difficult to hold that the impugned order has been passed without application of mind, the same is liable to be quashed and accordingly, it is quashed, the matter is remanded back to the Respondents for fresh consideration and the Respondents are directed to consider and pass orders, afresh in the application for re- conveyance, on merits and in accordance with law, within a period of eighteen weeks from the date of receipt of a copy of this order." 9.It is pursuant to the said order, the present impugned order, dated 25.2.2008 came to be passed. In paragraphs 3 and 4, it was stated as follows: "3.Your request has been examined in consultation with the Tamil Nadu Housing Board in details. In this connection, I am to state that the Tamil Nadu Housing Board has acquired the above said land after completing the Land Acquisition formalities and the entire Award amont was also paid by Tamil Nadu Housing Board to the Land Acquisition Officer towards the disbursement of Award amount to the land owners. Hence the question of non-receipt of Award amount does not arise. Moreover, out of 1081 plots developed in Arcot Phase-II Scheme, only 296 plots remained unsold including the Government Discretionary Quota and also good demand is expected for Arcot Phase-III Scheme. The layout has also been got approved from the Chief Engineer/Tamil Nadu Housing Board and forwarded to the Commissioner, Arcot Municipality for onward transmission to the Director of Town and Country Planning, Chennai for final approval. Hence it is informed that these lands are essentially required by Tamil Nadu Housing Board for implementing the comprehensive Housing Scheme. 4.In view of the reasons stated in Para-3 above, I am directed to state that your request for reconveyance of lands in S.Nos.191/2 and 196 measuring to an extent of 5.90 acres in Arcot Town, Vellore District is not feasible of compliance by the Government. Hence, your request is hereby rejected." It is this order which is under challenge in these writ petitions. https://hcservices.ecourts.gov.in/hcservices/ 10.On notice from this court, the third respondent has filed a counter affidavit, dated 31.3.2010. In paragraphs 20 to 23,27 and 28, it was averred as follows: "20....it is submitted that the plots in Phase-II Scheme were already sold out by the Tamil Nadu Housing Board. Further, for formulating comprehensive compact Housing Scheme for Public, Arcot Phase-III Scheme is to be implemented shortly. 21.... it is submitted that the reconveyance of land is not possible since the Tamil Nadu Housing Board is taking action to implement housing scheme at Phase-III Arcot shortly. 22...The lands had been acquired after completing the land acquisition formalities and the entire Award amount was paid to the Land Acquisition Officer by the 3rd Respondent. 23.....The Tamil Nadu Housing Board will implement the Housing Scheme after assessing the demand from the General Public and new scheme Phase-III Arcot will be formulated soon. 27....it is submitted that the compensation for these lands were already paid to the Land Acquisition Officer (Special Tahsildar (Land Acquisition)), Ranipet and the petitioners have to approach the Land Acquisition Officer and get the compensation. 28....it is submitted that the Tamil Nadu Housing Board is implementing the scheme for the benefits of the General Public. The Teachers Association members can also avail the benefit as per allotment rules in force." 11.Though two reply affidavits were filed by the petitioners association, dated 8.4.2010, the same is not relevant for the purpose of deciding this matter. It is seen from the above narration of facts that the petitioners association have filed series of cases and failed to challenge the acquisition proceedings. Their only attempt is to fall back on the enabling power under Section 48B of the Land Acquisition Act. 12.The issues raised here are no longer res integra and it has been answered by the Supreme Court in more than one judgment. 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 https://hcservices.ecourts.gov.in/hcservices/ compliance with its terms insisted upon. Whether such a provision can be challenged for its validity, we are not called upon to decide here." 13.The Supreme Court in its latest decision 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, 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 14.Therefore, in the light of the stand taken by the respondents and in view of the legal position laid down by the Supreme Court, both writ petitions are misconceived and bereft of merits. Accordingly, both writ petitions will stand dismissed. No costs. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar. vvk To 1.The Secretary to Government, The State of Tamil Nadu, Housing and Urban Development, Fort St. George, Chennai-600 009. https://hcservices.ecourts.gov.in/hcservices/ 2.Special Tahsildar (LA) 7B1, R.D.O.'s Compound TNHB, Ranipet, Vellore. 3.The Chairperson, The Tamil Nadu Housing Board, TNHB Complex, Nandanam, Chennai-35. 1 cc to Mr.J. Mohan, Advocate, SR.40262 1 cc to Mr.A. Vijayakumar, Advocate, Sr. 40603 1 cc to the Government Pleader, SR. 41079 W.P.NOS.27732 AND 27733 OF 2008 SGL (CO) kk 15/6 https://hcservices.ecourts.gov.in/hcservices/