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CASE NO.: Appeal (civil)  5928-5929 of 2004

PETITIONER: TAMIL NADU HOUSING BOARD

RESPONDENT: KEERAVANI AMMAL & ORS

DATE OF JUDGMENT: 15/03/2007

BENCH: C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT: J U D G M E N T  [with C.A. No. 5932 of 2004, C.A. No. 5938 of 2004, C.A.  No. 5933 of 2004 and C.A. No. 5934 of 2004]

P.K. BALASUBRAMANYAN, J.

1.              Forty-three writ petitioners, the contesting  respondents in these appeals, approached the High Court  of Madras with W.P. No. 1109 of 2000 praying for the  issue of a writ of mandamus directing the State of Tamil  Nadu, its officers and the Tamil Nadu Housing Board to  re-convey the lands comprised in Survey Nos. 237,  238/1, 238/2 and 238/3 in all 2.43 acres, in Padi village  presently in Ambattur Taluk and for passing such further  orders as deemed by the court to be fit and proper.  The  Writ Petition was filed through a power of attorney.  It  was stated that the properties belonged to one Maniappa  Naicker and it was inherited by his four sons and their  successors.  It was asserted that the writ petitioners were  the absolute owners of the property as legal heirs and are  in lawful possession and enjoyment of the said property.   The writ petitioners were in joint possession and they  were the joint owners of the property.   The land was  sought to be acquired for housing purposes.  It was  conceded that a notification under Section 4(1) of the  Land Acquisition Act was published on 12.7.1975  followed by a declaration under Section 6 of that Act on  29.11.1978, followed up by an Award on 7.10.1992.  It  was stated that the petitioners reliably understood that  the appropriate authorities had passed orders for  dropping the Scheme for which the acquisition was  made.  Thus, the valuable lands of the petitioners were  kept idle and it caused great hardship to them.  For 21  years no progress had been made.  If the lands that were  acquired were not being used for the purpose for which it  was intended to be utilised, the writ petitioners could  very well put the land to their own use.  The piece of land  was a low lying area and a large amount has been spent  by the writ petitioners recently for filling up and raising  the level of the land.  A representation was made to the  Secretary to the Government in the Revenue Department  for taking steps under Section 48 of the Land Acquisition  Act, de-notifying or excluding the lands from acquisition.   But unfortunately, the request of the writ petitioners has  not been considered favourably.  The lands had not been  taken possession of by the respondents.  The writ  petitioners had earlier filed W.P. No. 19162 of 1999  before the High Court praying for the issue of a writ of

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mandamus directing the respondents therein not to  interfere with the peaceful possession of the writ  petitioners.  But the said Writ Petition was dismissed as  not pressed with liberty given to the petitioners to file a  fresh Writ Petition incorporating a proper prayer.  Hence  the present Writ Petition was being filed.  We have  already adverted to the prayer that was made.  

2.               The respondents in the Writ Petition  submitted that earlier, an application had been made by  the writ petitioners under Section 48B of the Land  Acquisition Act as amended in the State of Madras, but  the said request had been rejected by the Government.  It  is significant that there is no challenge to such a  rejection in the Writ Petition and no prayer for a writ of  certiorari to quash such an order.  It was also contended  that the Scheme was very much alive and the lands are  intended to be utilised for the purpose for which the  acquisition was made.  The delay in putting it to use was  because of various litigations that had been initiated.   The possession of the lands had been taken and made  over to the Tamil Nadu Housing Board.  The writ  petitioners were not entitled to any relief.  The  competence of the writ petitioners to maintain the Writ  Petition was also questioned.   

3.              The learned single judge proceeded on the  basis that the Writ Petition was filed for the issue of a  writ of mandamus directing the respondents therein to  re-convey the lands involved in the Writ Petition in terms  of Section 48B of the Act as inserted in the State of Tamil  Nadu.   The court proceeded to state that by way of  earlier order dated 2.7.1999, a notification in respect of  other lands acquired for the purpose of the Scheme had  been quashed and re-conveyance ordered and since there  was no further development in respect of the lands which  were taken possession of by the Tamil Nadu Housing  Board, there should not be any impediment in the way of  the respondents in disposing of the representation of the  writ petitioners dated 18.3.1998 seeking re-conveyance of  the lands under Section 48B of the Land Acquisition Act.   The learned Judge did not advert to the fact that a  request made earlier in that behalf by the writ  petitioners, stood rejected and there was no challenge to  that rejection.  The learned single judge ended up by  directing the State of Tamil Nadu to pass appropriate  orders on the representation given on behalf of the writ  petitioners within three months from the date of receipt  of a copy of his judgment.  

4.              The writ petitioners went up in appeal against  the decision of the learned single judge.  The Division  Bench even without issuing notice to the Tamil Nadu  Housing Board to which the property had been  transferred by the State according to the State and the  Board, proceeded to direct the State of Tamil Nadu and  its officers to re-convey the concerned lands to the writ  petitioners \026 appellants.   The Tamil Nadu Housing Board  sought to challenge this order in this Court by way of  Petition for Special Leave to Appeal (Civil) No. 2813 of  2002.  The Petition for Special Leave to Appeal was  dismissed as withdrawn in the light of the statement of  the learned counsel for the Tamil Nadu Housing Board  that the Board intended to file a petition for Review in the  High Court.  Thereafter, the Board filed a review petition

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in the High Court essentially contending that Section  48B had no application; that it had not been heard or  notice issued to it before the allowing of the writ appeal  and that the order in the writ appeal deserves to be  reviewed.  The Division Bench, without properly  adverting to the aspects that arose for decision, simply  dismissed the review petition and also closed a contempt  of court case filed by the writ petitioners by granting  further time to the Government to comply with the  directions contained in the order of the Division Bench  dated 7.12.2001.   The Tamil Nadu Housing Board has  come up with Civil Appeal Nos. 5928-5929 of 2004 and  Civil Appeal No. 5932 of 2004 challenging the orders on  the review petition, original judgment and in the  contempt of court case.  The State of Tamil Nadu has  filed the three appeals C.A. Nos. 5934, 5938 and 5933 of  2004 challenging the orders of the Division Bench that  are the subject of challenge by the Tamil Nadu Housing  Board in its appeals.  

5.              Learned counsel for the contesting  respondents relying on the decision in Kumaran Silks  Trade (P) Ltd. Vs. Devendra & Ors. [(2006) 8 S.C.C.  555] raised a contention that the appeals by the Tamil  Nadu Housing Board being appeals against the orders in  review petition were not maintainable since the Tamil  Nadu Housing Board had withdrawn the earlier Petition  for Special Leave to Appeal filed by it against the original  order reserving only liberty in itself to seek a review in  the High Court.  On the facts and in the circumstances of  the case on hand, however, in our considered opinion,  the withdrawal of earlier Petition for Special Leave to  Appeal by the Housing Board  cannot stand in the way  of our examining the correctness of the decisions  rendered by the High Court in view of the fact that the  State of Tamil Nadu had not earlier challenged the  original order of the Division Bench before this Court and  now alone it seeks to challenge the original order, the  order on the review petition it had filed and the order on  the contempt of court case in the appeals it has filed  before this Court.  The principle recognised in Kumaran  Silks (Supra) has no application to those appeals.   Learned counsel for the contesting respondents pointed  out that there was delay in filing the Petitions for Special  Leave to Appeal leading to those appeals.  But obviously,  the delay was condoned and leave granted and we now  have the three appeals before us for final hearing and  disposal.  In these appeals, we have necessarily to  examine the correctness and propriety of the directions  issued by the High Court.  

6.              Admittedly, the lands were acquired under the  Land Acquisition Act and an Award was passed.   According to the State, possession was taken after some  delay in view of a number of Writ Petitions that were filed  in the High Court and the compensation payable under  the Award had been deposited.  There is no material on  the basis of which we can hold that the proceedings  under the Land Acquisition Act had not been completed.   In fact, the prayer in the Writ Petition is for the issue of a  writ of mandamus directing the State, its officers and the  Tamil Nadu Housing Board to re-convey the property to  the writ petitioners, the contesting respondents herein  though there is an assertion that the writ petitioners are  in possession. The learned single judge proceeded on the

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basis that the claim of the writ petitioners was for re- conveyance of the land under Section 48B of the Land  Acquisition Act as inserted in the State of Tamil Nadu.   The question therefore is whether the High Court was  justified in directing the land to be re-conveyed in view of  the specific stand adopted by the Housing Board and the  State that the Scheme was very much in operation that  necessary plans have been prepared and the project got  delayed only because of the judicial intervention.  We  may also notice that it is the specific case of the  appellants that in 1998, a claim for re-conveyance made  had already been rejected.  The further contention by the  State and the Board was that possession of the lands  having been made over to the Tamil Nadu Housing  Board, Section 48B of the Act could not be invoked or the  State directed to re-convey the land to the writ  petitioners.  The further submission was that Section  48B contemplated re-conveyance of land only to the  original owner and not to anyone else and the writ  petitioners were not the original owners from whom the  land was acquired.  In fact, it was contended that the  writ petitioners have not established that they were either  the representatives or the successors-in-interest of the  original owners.  It was asserted that, in fact, they were  mere purchasers subsequent to the acquisition.  

7.              The allegations in the writ petition show that  the prayer made by the writ petitioners to the  Government was for de-notifying the lands under Section  48 of the Act.  We think it proper to extract that  allegation: "I further state that I have given a  representation to the Secretary to  Government Revenue Department,  Chennai - 600 009 and Secretary to the  Government, Housing and Urban  Development Dept., Fort St. George,  Chennai \026 600 009, requesting them to  take necessary steps by notifying under  Section 48 of the Land Acquisition Act  de-notifying or excluding the lands.   But  unfortunately, as far requisitions of the  petitioners has not been considered  favourably."

Section 48 of the Act reads as under: "Sec.48.  Completion of acquisition not  compulsory, but compensation to be  awarded when not completed. \026 (1)  Except in the case provided for in Section  36, the Government shall be at liberty to  withdraw from the acquisition of any land  which possession has not been taken.

2.      Whenever the Government  withdraws from any such  acquisition, the Collector shall  determine the amount of  compensation due for the damage  suffered by the owner in  consequence of the notice or of any  proceedings thereunder, and shall  pay such amount to the person  interested, together with all costs

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reasonably incurred by him in the  prosecution of the proceedings  under this Act relating to the said  land.

3.      The provision of Part III of this Act  shall apply, so far as may be, to the  determination of the compensation  payable under this section."

On the facts pleaded it is doubtful whether the  Government can withdraw from the acquisition, since the  case of the State and the Housing Board is that  possession has been taken and plans finalised to fulfil  the purpose for which the acquisition was made.  There  is no plea in the writ petition that a request for re- conveyance was made in terms of Section 48B of the Act  as amended in the State of Tamil Nadu.  The said  provision reads:                 "48-B.  Transfer of land to original  owner in certain cases-  Where the  Government are satisfied that the land  vested 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."

In the grounds in the writ petition it is only asserted that  the writ petitioners are in possession in spite of the  acquisition.  There is no ground based on Section 48B of  the Act though the prayer, as noticed earlier is for the  issue of a writ of mandamus to reconvey the property.   It  is proper to notice that no foundation had been laid for  seeking such a relief.  There is no plea of demand, no  plea of refusal and no plea of a duty in the State to re- convey.

8.              We find from the order of the learned single  judge dated 2.8.2001, in the Writ Petition, the following  statement recorded:

"According to the petitioners the said  lands were not put into use by the fourth  respondent Board for nearly 20 years.  In  the above said circumstances, when the  petitioners approached the respondents  for re-conveyance of the property by  virtue of Section 48B of the Land  Acquisition Act, it was rejected by the  respondent.  Again the petitioners made a  representation to the respondents dated  18.3.98. Since the said representation of  the petitioners has not been disposed of,  the present Writ Petition came to be filed  seeking for the issuance of a writ of  mandamus directing the respondents to

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re-convey the lands situated in Survey  Nos. 237, 238/1, 238/2 and 238/3 of  Padi Village, Ambattur Taluk, M.G.R.  District."

If the request of the writ petitioners for re-conveyance in  terms of Section 48B of the Act stood rejected as  apparently conceded by them before learned single judge,  one finds it difficult to see how a second direction can be  issued even in the absence of a challenge in the writ  petition to the order of rejection and without examining  the reasons contained therein.  That order was also  binding on the writ petitioners, so long as it was not got  rid of.  The order rejecting the request had become final  and in a sense, it was not open to the learned single  judge to issue the direction to consider an identical  representation all over again.  The Division Bench went  one step further, we regret to say, without a proper  consideration of the relevant aspects.  The Division  Bench apparently, even without giving the Tamil Nadu  Housing Board an opportunity of being heard, proceeded  at the stage of admission itself to direct re-conveyance of  the lands to the writ petitioners, whether it be on the first  date of hearing itself or on the subsequent date as  contended by learned counsel for the contesting  respondents.  If the Division Bench felt that there was a  case to be looked into, it should have admitted the writ  appeal, issued rule nisi to the parties and thereafter  heard the matter and disposed it of in the light of the  relevant provisions of the Act, the law bearing on the  subject and the facts obtaining.  Even when the Division  Bench got an opportunity to correct itself on being  approached by way of review, it did not utilise that  opportunity.  

9.              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  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.   

10.             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

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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.    

11.             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 & Ors. Vs. M.  Bhaskaran Pillai & Anr. [(1997) 5 S.C.C. 432] in a  similar situation, this Court observed:

"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 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 higher value."

Section 48B 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.

12.             We are thus of the view that the writ  petitioners, the contesting respondents, have not made  out any case for interference by the Court or for grant of  any relief to them.  It is therefore not necessary for us to  go into the further contention raised on the scope of  Section 48B of the Act, whether the writ petitioners have  established any claim to the lands, whether the re- conveyance can only be to the original owners and not to  others and whether if possession has already been made  over to the Housing Board, the State could exercise its  power under that provision.  We leave open those  questions for the High Court to consider as and when the  occasion arises on it being approached in the context of  Section 48B  of the Act.  Suffice it to say that the decision  of the High Court in the Writ Petition in question is

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totally unsustainable and deserves to be set aside.   

13.             We therefore allow the appeals filed by the  State of Tamil Nadu and set aside all the orders passed in  the Writ Petition and in the writ appeal and in the  contempt of court case.  We dismiss the Writ Petition  filed by the writ petitioners.  In view of the above  position, there is no need to pass any further order in the  appeals filed by the Tamil Nadu Housing Board.  The  above decision will govern the Tamil Nadu Housing Board  also.  The State of Tamil Nadu would be entitled to its  costs from the writ petitioners in its appeals and the  parties would suffer their respective costs in the appeals  filed by the Tamil Nadu Housing Board.