NON-REPORTABLE  

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 3148-3149 OF 2002

Tamil Nadu Housing Board … Appellant

Versus

L. Chandrasekaran and others … Respondents

J  U  D  G  M  E  N  T

G.S. Singhvi,  J.

1. These appeals by the Tamil Nadu Housing Board (for short, ‘the  

Board’)  are  directed  against  judgment  dated  1.8.2001  passed  by  the  

Division Bench of Madras High Court in Writ Appeal Nos.796 and 1135  

of 1999 whereby the appellant-Board has been directed to reconvey the  

acquired land on which no construction has been made to the respondents  

on their depositing the amount of compensation together with interest at  

the rate of 9%.   

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2. The land of the respondents falling in Survey Nos.340, 341 and  

343,  Mogappair  Village,  Sedapet  Taluk  formed  part  of  513.52  acres  

acquired by the Government of Tamil Nadu for Ambattur Neighborhood  

Scheme.  Notification under Section 4(1) of the Land Acquisition Act,  

1894  (for  short,  ‘the  Act’)  was  issued  on  23.10.1975  and  declaration  

under  Section  6  was  issued  on  2.11.1978.   After  finalization  of  the  

acquisition proceedings, the respondents were paid compensation in lieu  

of their land.     

3. Some  of  the  land  owners  including  A.S.  Naidu  challenged  the  

acquisition proceedings by filing writ petitions under Article 226 of the  

Constitution of India.   The High Court quashed the declaration issued  

under Section 6 leaving the preliminary notification intact.  Dissatisfied  

with  the  High  Court’s  order,  A.S.  Naidu  and  others  filed  S.L.P.  (C)  

Nos.11353-11355 of  1988.   During the  pendency of  the  special  leave  

petitions,  the  Act  was  amended  by the  Tamil  Nadu Land Acquisition  

(Amendment)  Act No.16 of 1997 in terms of  which declaration under  

Section 6 was required to be published within 3 years from the date of  

preliminary  notification.    This  Court  took  notice  of  the  amendment  

made by the State legislature and held that in view of the High Court’s  

order, such publication cannot now be made and proceeded to quash the  

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acquisition  with  liberty  to  the  State  Government  to  issue  fresh  

preliminary notification.   

4. L.  Chandrasekaran  (respondent  in  Civil  Appeal  No.3148/2002)  

who had not challenged the acquisition proceedings filed a writ petition  

sometime in the year 1997 for issue of a direction to the appellant-Board  

to certify that the acquired land was no longer needed for the purpose for  

which  it  was  acquired.   The  learned  Single  Judge  allowed  the  writ  

petition  and  held  that  the  petitioner  is  entitled  to  get  no  objection  

certificate.  Writ Appeal No.9/1998 preferred by the appellant-Board was  

disposed of by the Division Bench along with Writ Appeal Nos.676/1997  

and 8/1998.  The Division Bench observed that the order passed in A.S.  

Naidu’s case was in respect of the petitioner of that case only and held  

that  the  writ  petitioners  are  entitled  to  make  representation  for  

reconveyance of the acquired land in accordance with Section 48-B of the  

Act.  Paragraphs 3, 7 to 9 and 11 of judgment dated 22.9.1998 of the  

Division Bench, which have bearing on the decision of  these appeals,  

read as under:-

“3. Few land owners preferred writ petitions challenging  the acquisition and a Division Bench of the court quashed  the declaration u/s.6(1) of the Act on 8.1.1988 in respect of  the those writ petitioners inter alia holding that Rule 3(b) of  the  Tamil  Nadu  Land  Acquisition  Rules  having  not  been  complied with and the second provision of Section 6(1) of  the  Act  having  not  been  complied  with  in  issuing  the  declaration  u/s.6  of  the  Act.   One of  the  Writ  Petitioners  

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alone  moved  the  Supreme Court  as  the  declaration  under  Section  6  of  the  Act  alone  had  been  quashed  and  the  notification issued under Section 4(1) of the Act has been  retained as per the judgment of the Division Bench.  The  Hon’ble Supreme Court finding that no declaration could be  issued as on the date of the order as the period stipulated  under  Section  6  of  the  Act  having  elapsed  allowed  the  special leave petition and quashed the acquisition in respect  of that petitioner alone. Notification under Section 4(1) of  the Act was also quashed.

7. At this stage, learned counsel for the appellant pointed  but that the object of the acquisition was rehabilitation of the  roofless persons by providing roof, but the land has been left  vacant, even though, there was no stay order by this Court  for  almost  20 years  and the  Housing Board  has  taken  no  steps to construct a house on the plots.  The erstwhile owners  have  also  a  right  for  having  accommodation.   The  Government has powers under Section 48-B of the Act to re- convey the land to the original owners in certain cases.  It  has been done.  Section 48-B of the Act (inserted by Act 16  of 1997) runs thus:

“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.”

8. The  only  prayer  made  at  this  stage  by  the  learned  senior counsel for the appellants in W.A. No.676 of 1997 is  that the appellant may be permitted to make a representation  to  the  state  under  Section  48-B of  the  Act  and  the  State  Government  may  consider  the  appellants  case  objectively  without  being  prejudiced  by  the  delay  or  any  other  consideration or observation made in the judgment, afresh in  terms of section 48-B of the Act.

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9. We have no doubt that if the appellants apply to the  State for relief under Section 48-B of the Act, the State in  due discharge of it’s official duty will consider the case of  each  of  the  petitioners/appellants  on  merits  in  accordance  with  law  within  three  months  from  today  and  pass  appropriate speaking orders.  Till the final order is passed on  such representation, status quo is ordered to be maintained  so that third parties interest may not intervene.

11. The  petitioners  in  the  respective  writ  petitions  are  directed to make the representation to the State  within 15  days by registered post acknowledgement due under Section  48-B of the Act.  If no such representation is made within 15  days, it shall be deemed that they had given up their right to  seek for reconveyance of the property under Section 48-B of  the Act.”

5. In furtherance of direction given by the Division Bench of the High  

Court, L. Chandrasekaran submitted representation dated 17.2.1999 to the  

Secretary, Housing and Urban Development Department, Chennai with  

the request that the land may be reconveyed to him in terms of Section  

48-B of the Act.  The  State Government forwarded the representation to  

the appellant-Board for its comments.  The latter sent report mentioning  

therein that the land was proposed to be utilized for allotment of housing  

plots to economically weaker section of the people and for construction  

of  multi-storey  flats  for  higher  income  group.   After  considering  the  

report,  the  State  Government  rejected  the  representation  of  Shri  L.  

Chandrasekaran,  who was  informed about  the  same  by  the  Secretary,  

Housing and Urban Development  Department,  Chennai  vide his  letter  

dated 18.3.1999.

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6. Upon  receipt  of  the  afore-mentioned  communication,  L.  

Chandrasekaran  filed  Writ  Petition  No.5030/1999  and prayed  that  the  

State Government may be directed to release his land because the same  

had  not  been  utilized  for  the  purpose  enumerated  in  the  notification  

issued under Section 4 of the Act.   Kamalammal  (respondent  in Civil  

Appeal  No.3149/2002)  also  filed  Writ  Petition  No.5343/1999  with  

similar prayer.   

7. The  learned  Single  Judge  dismissed  both  the  writ  petitions  by  

separate orders dated 26.3.1999 and 1.4.1999.  He held that in terms of  

Section  48-B  of  the  Act,  the  Government  is  empowered  to  decide  

whether the acquired land is no longer required for the purpose for which  

it was acquired or for any other public purpose and the decision taken in  

that  regard  cannot  be  nullified  by  the  Court  unless  it  is  shown to  be  

totally arbitrary or malafide.  The learned Single Judge further held that  

the decision taken by the Government in the light of the report submitted  

by the appellant-Board cannot be termed as arbitrary so as to warrant  

interference under Article 226 of the Constitution.   

8. Both, L. Chandrasekaran and Kamalammal challenged the orders  

of the learned Single Judge in Writ Appeal Nos.796 and 1135 of 1999.  

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The Division Bench did not find any illegality in the decision taken by  

the Government or error in the orders passed by the learned Single Judge,  

but  allowed  the  writ  appeals  by  simply  relying  upon  order  dated  

18.2.2000  passed  in  Writ  Appeal  No.2430/1999  and  directed  the  

appellant-Board to reconvey the land to the respondents subject to their  

depositing the amount of compensation together with interest.

9. Shri  A.K.  Ganguly,  learned  senior  counsel  appearing  for  the  

appellant-Board assailed the impugned order and argued that the Division  

Bench of the High Court committed serious error by issuing a mandamus  

for  release  of  the  acquired  land  ignoring  that  the  same  had  been  

transferred to the appellant-Board and the latter had utilized the same for  

housing purposes.  Shri Ganguly referred to the contents of letter dated  

18.3.1999  vide  which  the  Government  rejected  the  representation  of  

L. Chandrasekaran to show that the acquired land is needed for housing  

purposes and argued that the Division Bench was not justified in directing  

the  appellant-Board  to  reconvey  the  same  to  the  respondents  without  

realizing that in terms of Section 48-B the acquired land can be released  

by the Government only if it is satisfied that the same is not required for  

the purpose of acquisition or for any other public purpose. Learned senior  

counsel further argued that the respondents cannot take advantage of the  

quashing of acquisition proceedings in the case of A.S. Naidu and others  

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because  while  disposing  of  Writ  Appeal  Nos.676/1997,  8/1998  and  

9/1998, the Division Bench had made it clear that benefit of the order  

passed by this Court was available only to the petitioner of that case.  Shri  

Ganguly  then  submitted  that  the  theory  of  deemed  quashing  of  the  

acquisition  proceedings  in  its  entirety  cannot  be  applied  in  this  case  

because substantial portion of the acquired land has already been utilized  

for construction of houses and flats.   

10. Shri  Narendra  Kumar,  learned  counsel  appearing  for  the  legal  

representative of L. Chandrasekaran submitted that this Court should not  

interfere with the impugned order because special leave petitions filed in  

similar cases have already been dismissed.   In support of this argument,  

learned  counsel  produced  xerox  copies  of  the  orders  passed  by  the  

Division Bench of the High Court and this Court.  He further submitted  

that  some portions of the acquired land have already been released in  

favour of the land owners in furtherance of orders passed by the High  

Court and argued that the decision of the Government not to reconvey the  

land  of  the  respondents  on  the  pretext  that  the  same  is  required  for  

housing purposes  was  wholly  arbitrary  and the Division Bench of  the  

High Court did not commit any error by issuing a mandamus for release  

thereof in accordance with Section 48-B of the Act.  Learned counsel also  

referred to orders dated 18.2.2000 passed by the Division Bench of the  

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High Court in Writ Appeal No.2430 of 1999 – The Managing Director,  

Tamil  Nadu  Housing  Board  v.  P.  Hariraman  and  others  and  dated  

1.3.2000 in  Writ  Appeal  No.2160 of  1999 –  The Managing  Director,  

Tamil Nadu Housing Board v. C. Elumalai and others and argued that  

after having accepted and acted upon those orders, the appellant-Board  

cannot  legitimately  challenge  the  orders  passed  by  the  High  Court  in  

favour of the respondents. In the end, Shri Narendra Kumar argued that  

once the acquisition proceedings have been quashed by this Court, the  

appellant-Board  has  no  right  to  retain  the  acquired  land  and  the  

Government  should  have  suo  moto released  the  same  without  even  

requiring the land-owners to file applications under Section 48-B of the  

Act.

11. We  have  given  serious  thought  to  the  respective  

arguments/submissions  and  perused  the  records.   We  have  also  gone  

through xerox copies of the prayer clause of the writ petition filed by A.S.  

Naidu and orders passed by the High Court and this Court produced by  

the learned counsel for the parties during the course of hearing.

12. The first issue which requires consideration is whether the order  

passed by this Court in A.S. Naidu’s case has the effect of nullifying the  

acquisition in its entirety.  In this context, it is apposite to mention that  

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neither the appellant-Board nor the respondents have placed before the  

Court copies of the writ petitions in which the acquisition proceedings  

were challenged, order(s) passed by the High Court and the special leave  

petitions which were disposed of by this Court on 21.8.1990 and without  

going through those documents, it is not possible to record a finding that  

while disposing of the special leave petitions preferred by A.S. Naidu and  

others, this Court had quashed the entire acquisition proceedings.  So far  

as A.S. Naidu is concerned, he did not even make a prayer before the  

High Court for quashing the preliminary notification issued under Section  

4(1) of the Act.  This is evident from the prayer made by him in Writ  

Petition No. 7499/1983, which reads as under:

“For the reasons stated in the accompanying affidavit, it is  most  respectfully  prayed  that  this  Hon’ble  Court  may  be  pleased to issue a writ of certiorari or any other proceeding  or  any  other  appropriate  writ  or  direction  or  order  in  the  nature  of  a  writ  to  call  for  the  records  of  the  First  Respondent  relating  to  G.O.Ms.  No.1502  Housing  and  Urban Development dated 7.11.1978 published in the Tamil  Nadu Government Gazette Extraordinary dated 10.11.78 in  Part  II  Sec.2  on  pages  22  to  26  and  quash  the  said  notification issued under Sec.6 of the Land Acquisition Act,  1894 in so far as it relates to the land in the Petitioners lay  out  approved  by  the  Director  of  Town  Planning  in  LPDM/DTP/2/75 dated 7.3.75 in Survey Nos.254, 257, 258,  260,  268 and 271 in Mogapperi  Village,  No.81, Block V,  Saidapet Taluk, Chingleput District and render Justice.”

13. From the above reproduced prayer clause, it is crystal clear that the  

only relief sought by Shri A.S. Naidu was for quashing the notification  

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issued under Section 6 in so far it related to the land falling in Survey  

Nos.254, 257, 258, 260, 268 and 271 in Mogapperi Village, No.81, Block  

V, Saidapet Taluk and in the absence of a specific prayer having been  

made in that regard, neither the High Court nor this Court could have  

quashed the entire acquisition.  This appears to be the reason why the  

Division  Bench  of  the  High  Court,  while  disposing  of  Writ  Appeal  

Nos.676 of 1997 and 8/9 of 1998 observed that quashing of acquisition  

by this Court was only in relation to the land of the petitioner of that case  

and, at this belated stage, we are not inclined to declare that order dated  

21.8.1990 passed  by  this  Court  had  the  effect  of  nullifying  the  entire  

acquisition and that too by ignoring that the appellant-Board has already  

utilized portion of the acquired land for housing and other purposes.  Any  

such inferential conclusion will have disastrous consequences inasmuch  

as it will result in uprooting those who may have settled in the flats or  

houses constructed by the appellant-Board or who may have built their  

houses on the allotted plots or undertaken other activities.  We may also  

usefully refer to the judgments of this Court in  Shyamnandan Prasad  

and others v. State of Bihar and others (1999) 4 SCC 255, Abhey Ram  

v.  Union  of  India (1997)  5  SCC  421  (paragraph  11),  Delhi  

Administration v. Gurdip Singh Uban and others (1999) 7 SCC 44  

(paragraphs 8, 9 and 11) and  Delhi Administration v. Gurdip Singh  

Uban and others (2000) 7 SCC 296, in which it has been consistently  

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held that quashing of acquisition proceedings at the instance of one or  

two  landowners  does  not  have  the  effect  of  nullifying  the  entire  

acquisition.  Moreover, in the absence of challenge by L. Chandrasekaran  

to the order  passed by the  Division Bench of  the High Court  in Writ  

Appeal  No. 9/1998,  his  legal  representatives  do not  have the  locus  to  

contend that order dated 21.8.1990 passed by this Court in SLP(C) Nos.  

11353-11355/1988 had the effect of nullifying the entire acquisition.

14. We shall  now consider  whether  the  decision taken by the  State  

Government  not  to  transfer  the  acquired  land  to  the  respondents  is  

vitiated by arbitrariness or is discriminatory and violative of Article 14 of  

the  Constitution.   There  is  no  dispute  between  the  parties  that  after  

completion  of  the  acquisition  proceedings,  the  State  Government  had  

transferred the acquired land to the appellant-Board.  However, there is a  

serious contest between them on the issue of utilization of the acquired  

land by the appellant-Board.  The pleadings filed by the parties before the  

High Court are not very helpful for determining the question whether the  

appellant-Board  had  utilized  the  acquired  land  or  substantial  portion  

thereof.  However, a clear picture emerges from the pleadings filed before  

this Court in the form of common additional affidavit dated 11.7.2009 of  

Shri  Darmendar  Pratap  Yadav,  Managing  Director  of  the  appellant-

Board,  counter  affidavit  filed  by  Smt.  C.  Unnamalai,  widow  of  late  

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L.  Chandrasekaran  and  rejoinder  affidavit  of  Shri  Darmendar  Pratap  

Yadav.  For the sake of reference, paragraphs 6 to 10 of the combined  

additional  affidavit,  paragraphs  7  to  12  of  the  counter  affidavit  and  

paragraphs 3, 5 and 7 of the rejoinder affidavit, are reproduced below:-

Combined additional affidavit:

6. The appellant  submits that out of 513.52 acres of land  notified  for  acquisition,  Award  was  passed  for  payment  of  compensation only for lands measuring an extent of 284.74-¾  acres and the lands were taken over which are more fully shown  in  Map`A’  annexed  along  with  this  affidavit  with  RED  Boundary Line.  The appellant further submits that out of the  lands measuring 284.74 acres, lands measuring 271.61 ½  acres  were developed by Housing Board which have been more fully  shown in  GREEN SHADE.  Out  of  the  remaining lands  for  which Award was passed and litigation is pending is measuring  around 2.50½  acres has been marked in BLUE SHADE, while  lands measuring 2.33½  acres have been reconveyed are shown  in PINK SHADE.  Out of the remaining extent of 8.29¼  acres  of land for which award was passed, a small portion is under  encroachment and the rest suffers from technical problem such  as Proper Approach Road etc. and these lands shall be taken up  for  development  after  sorting  out  encroachment  and  accessibility  issues.   These  lands  have  been  shown  in  YELLOW  SHADE  and  the  subject  matter  of  present  SLP  bearing  Survey  Numbers  340,  341  &  343  are  shown  in  ORANGE SHADE in the annexed Sketch `A’.

7. This  appellant  submits  that,  since  very  large  area  was  acquired, it could not be developed at one stretch and the same  was  divided  in  various  blocks  and it  has  been  developed  in  phased manner by dividing the lands into various blocks.  Block  Nos. 5 and 6 consist of various Survey Numbers including S.  No. 340, 341 and 343 which subject matter of this SLP.  It is  further submitted that the said Block 5 and 6 was proposed for  Scheme layout and the Planning Permission was obtained from  MMDA vide  LPS&S No.  17/81  in  the  year  1981,  which  is  enclosed as Sketch `B’ annexed along with this affidavit.

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8. This appellant submits that the lands in issue have been  already developed by the Board as it could be seen in sketch  `B’ and perusal of Sketch `B’ will also reflect on the present  position and location of lands in S. Nos. 340, 341 and 343 with  Green Color Boundary lines.   As far  as  the  lands in  Survey  Number 340 (with ORANGE SHADE) is concerned, already 48  flats have been constructed and allotted to the allottees and a  part of the land in S. No. 340 has been used for formation of  roads which is more fully shown in the Sketch with YELLOW  SHADE.  As regards  the  land  in  Survey  Number 341 (with  ORANGE  SHADE)  is  concerned,  a  part  of  same  has  been  utilized for formation of residential plots and a part has been  allotted  for running a  High School  and road and currently  a  “Girls High School” is being run by the Government of Tamil  Nadu.

9. The appellant submits that as far as the lands in S.No.  343 (with GREEN BOUNDARY LINES) is concerned, a part  of the said land has been reserved as open space reservation  area with GREEN SHADE as per the Planning Permission rules  and has to be handed over to local body for future maintenance.  However, the same could not be handed over due to the present  case.  It is further submitted that a part of land in S. No. 343 has  been earmarked for commercial site as per plan approval and  already  allotted  to  M/s.  Southern  Associates  and  shown  in  BLUE SHADE and the remaining piece of land in S. No. 343  has been used for formation of residential plots, roads and open  space reservation area as could be witnessed in Sketch `B’.

10. The appellant further submits that Tamil Nadu Housing  Board  strictly  adheres  to  CMDA  rules  and  norms  and  also  ensure free space for movement and comfortable living for the  allottees  inside all  their  scheme.  It  is  further  submitted that  when layouts are prepared, generally few pieces of the pieces of  lands here and there may be left out, especially in the corners  which  cannot  be effectively  developed in  individual  plots  or  even  as  OSR.   However,  such  lands  are  subsequently  either  brought to use for public utility purposes such as installation of  street lights, construction of maintenance room etc. or allotted  to  the  adjacent  allottees  as  per  Board Rules.   This  appellant  submits that he respondents are presuming that the lands which  are earmarked for formation of road, commercial site allotted to  M/s.  Southern  Associates  (which  is  lying  vacant)  and  open  

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space reservation area are unutilized but in reality the lands of  the respondents have been completely utilized and lie within the  approved layout as shown in Sketch `B’ annexed along with  this affidavit.

Counter Affidavit:

7. Insofar as para 9 is concerned, the same is disputed and  denied.   The  land  in  Survey  No.  343,  which  is  the  subject  matter of Civil Appeal No. 3148 of 2002 is still lying vacant  and unutilized, as would be evident from the map filed by the  respondent herein as Annexure I.  For the sake of convenience,  the  lands  comprised  in  Survey  No.  343,  Mogappair  Village,  which is subject matter of present appeal, is divided into three  parts `A’, `B’ and `C’ in the map filed as Annexure I.   

8. Annexure I, produced herewith, discloses the location of  Survey No. 343 and the status of the development made in the  area covered in Survey No. 343.  This map has been prepared  based on the map filed by the respondent herein, for the sake of  clarity.  There is no alteration in the contours or other physical  features as projected by the appellant herein.  The boundary line  of lands comprised in Survey No. 343 is coloured in green.  It  will be seen that the same is in odd shape and for sake of clarity  respondent herein has divided into three places by leaving out  the road portion, marked as yellow, as shown by the appellant.

9. Insofar  as  piece  `A’  is  concerned,  about  46  cents  are  lying vacant and there are two buildings which have been built  by the allottees.  Except for these two buildings in plot Nos. 58  and 59, the remaining extent is vacant and the available lands  are about 32 cents.  Insofar as piece `B’ is concerned, an extent  of  about  24  cents  are  lying  vacant.   Insofar  as  piece  `C’  is  concerned,  about  11  cents  are  vacant,  leaving  out  the  road  portion as shown in the map of the appellant herein.

10. The  appellant  herein  has  produced  a  plan  of  1989  prepared by them and has not filed the revised approved plan  obtained by them in 1992.  It is admitted by the appellant that  because  of  development  of  huge  extent  of  lands,  they  have  obtained approval from the Chennai Metropolitan Development  Authority  in  phases.   Insofar  as  the  lands  in  question  are  concerned,  a  revised approval  was  obtained in  1992 and the  map  showing  the  approval  of  the  Chennai  Metropolitan  

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Development Authority is filed herewith as Annexure `II’.  This  map was obtained under Right to Information Act.

11. It  will  be seen that  the lands which the  appellant  now  claims  in  Map  `B’  as  `Open  Space  Reservation’  has  been  shown as  housing plots  in  the  plan as  approved by Chennai  Metropolitan  Development  Authority.  The  Chennai  Metropolitan Development Authority is the authority to grant  planning permission for formation of layout and construction of  flats.  The plan, which is filed herewith as Annexure II is the  approved plan of Chennai Metropolitan Development Authority  in respect of Block No.6, Madras Urban Development Project I,  Sites  and  Services  Programme,  Mogappair  in  file  No.  SS2/3662/92.  It will be seen that the sketch filed by appellant  in Map `B’ and the approved plan filed by the respondent as  Annexure II are one and the same.  The plan copy produced by  the  appellant  herein  pertains  to  Block  Nos.  5  and  6  of  Mogappair East under the Madras Urban Development Project- II, Sites and Services Programme, Mogappair, while the copy  produced  by  the  respondent  herein  also  pertains  to  the  very  same  Block  No.6,  Mogappair  East  under  the  Madras  Urban  Development  Project-II,  Sites  and  Services  Programme,  Mogappair East.  It will be seen from the approved plan issued  by the Chennai Metropolitan Development Authority in 1992,  in  respect  of  the  property  in  question that  not  even a  single  portion of it has been shown as `Open Space Reservation’ land.  The entire area has been shown as housing plots.  Therefore,  even as per the revised approved plan of Chennai Metropolitan  Development  Authority  procured  by  the  appellant  herein  in  1992, the lands in question have been shown as residential plot  and not reserved as `Open Space Reservation’ land.  Therefore,  the  averment  of  the  appellant  herein  as  contained  in  the  affidavit is factually incorrect.

12. It will be seen from the Map `A’ filed by the appellant  that adjacent to the respondents’ land, the lands comprised in  Survey  No.339/1,  were  reconveyed  by  Tamil  Nadu  Housing  Board, based on the orders of the Court to the land owners.  In  the above mentioned lands, a portion of the land was allotted by  Tamil  Nadu  Housing  Board  to  third  parties.   Therefore,  by  virtue of the orders of the court, the lands which were allotted  to third parties and buildings constructed thereon was excluded  and the remaining portions were reconveyed.  Therefore, it is  

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erroneous on the part  of  the appellant  to state  that  the lands  cannot be reconveyed to the respondents herein as admittedly in  the present case, except for two plots in vacant lands marked as  `A’  in  Annexure  I  and  other  lands  are  lying  vacant  and  unutilized.

Rejoinder affidavit :

3. I  submit  that  the  contention  of  the  respondent  in  paragraph 9 of the counter is not correct.  With regard to “A”  marked property, it  is true that Plot No. 58 and 59 has been  allotted and there is little bit of vacant land around the same but  it is not correct to state that the same has not been developed.  The said vacant land has not been put to use due to the above  case and after disposal of the same, it will be put to effective  use.  It is further submitted that due to court cases, the land was  kept  idle  due  to  which  some  bushes  and  thorn  threes  have  grown  and  the  same  is  being  projected  in  a  wrong  manner  through photographs by the respondent.   With regard to “B”  marked  land is  concerned,  the  same has been earmarked for  OSR  and  handed  over  to  local  body.   With  regard  to  “C”  marked land, it is most respectfully submitted that the same has  been earmarked as commercial plot measuring around 2400 sq.  ft.  and was  allotted  to  M/s.  Southern  Associates  vide  order  MMDA Lr.  No.SS2/3909/96  dated  20.3.97  and  in  the  same  portion the adjacent plot which is also commercial  plot CS-6  measuring 1791 sq.ft. has been allotted to Mrs. Manjula vide  order MEE2/57/90 dated 3.5.97 and she has also constructed  shops and running the same.

5. I submit that regarding the averments in paragraphs 10  and 11 are concerned, it is submitted as follows:  Initially, the  lands of the respondent was not shown as open space (OSR) but  thereafter there were alterations and additions based on the site  conditions  and hence the  plans  were  changed and the Board  built flats and put the lands into effective use.  It is submitted  that as Flats were constructed in part of the S. No. 342 which  was  also  originally  earmarked  for  residential  plots,  changes  were made for making effective use of the land and accordingly  OSR lands earmarked in appellants  land which is  now being  misunderstood by the respondent.  It is further submitted that  necessary revised approval for these changes has been sent to  

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appropriate  authority  vie  reference  Plg/7665-A/95  dated  10.2.97.

7. The  appellant  submits  that  the  scheme  has  been  implemented batch by batch, based on the demand from public  and need.  The lands acquired from the respondents could not  be utilized for the scheme as the cases were pending before the  Courts.  The purpose for which the land was acquired is still in  force and that neither the Government nor the Housing Board  had taken any decision to withdraw from the acquisition.

15. A careful reading of the above reproduced extracts of the affidavits  

filed by the parties shows that substantial portion of the acquired land has  

been utilized for implementation of the housing scheme, some portion has  

been transferred to M/s. Southern Associates and some portion is lying  

vacant.  The respondents have not controverted the assertions contained  

in the affidavits of Shri Darmendar Pratap Yadav that the land covered by  

Survey  Nos.340  and  341  has  been  utilized  for  construction  of  flats,  

formation  of  roads  and  residential  plots;  that  some  portion  of  Survey  

No.341 has been utilized for construction of a high school building; that a  

portion of Survey No.343 has been earmarked for commercial  site and  

allotted  to  Messrs  Southern  Associates  and the  remaining  portion  has  

been kept vacant for formation of residential plots, roads and open space.  

It is also revealed from the affidavits that some portion of the acquired  

land  has  been  dealt  with  by  Chennai  Metropolitan  Development  

Authority,  which came into existence after  initiation of the acquisition  

proceedings.  The report of the appellant-Board which led to rejection of  

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the representation made by L. Chandrasekaran shows that sanction has  

already  been  accorded  by  the  Madras  Metropolitan  Development  

Authority for allotment of housing plots to economically weaker section  

of  the  society  and  some  plots  have  already  been  allotted  to  eligible  

persons.   The  appellant-Board  has  also  succeeded  in  getting  sanction  

from  HUDCO  for  construction  of  174  multi-storied  flats  for  higher  

income group on a portion of Survey No.343 and construction of 62 such  

flats has already been completed.  The affidavits of the parties further  

show that there has been lot of litigation in relation to the acquired land  

and some portions of the acquired land have been released to the original  

owners in compliance of the orders passed by the Courts.  However, as  

the  respondents  have  not  placed  before  this  Court  pleadings  of  those  

cases, it is not possible to decide whether there is substantial similarity in  

the claim of the respondents and those whose lands have been released in  

furtherance of the orders passed by the Courts so as to enable us to draw  

an inference that rejection of respondents prayer is arbitrary and violative  

of the doctrine of equality.  The xerox copies of the orders produced by  

learned counsel for the respondents do show that the Division Bench of  

the Madras High Court passed almost identical orders for release of land  

under Section 48-B of the Act. S.L.P. (C) Nos.9343-9344/2000 in which  

the appellant-Board had challenged order dated 1.3.2000 passed by the  

Division  Bench of  the  High Court  in  Writ  Appeal  No.2160/1999 was  

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dismissed  as  withdrawn.  SLP(C)  Nos.10911-10912/2001,  9026-  

9027/2001,  3289/2002,  9524/2002,  9673-9674/2002,  4174-4175/2002,  

3606/2003,  3630/2003,  2670/2003,  3673/2003,  3691/2003,  3790/2003,  

3960/2003 and 4176/2003 were summarily dismissed by passing one or  

two  line  orders  apparently  because  this  Court  felt  satisfied  that  those  

cases were not fit  for exercise of jurisdiction under Article 136 of the  

Constitution.  In our view, none of these orders can be treated as laying  

down law which the co-ordinate and smaller benches of the Court are  

required to follow.

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  

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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 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 malafides 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  

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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  

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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 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 (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  

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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.”

20. In the result, the appeals are allowed.  The impugned judgment is  

set aside and the orders passed by the learned Single Judge in the writ  

petitions filed by the respondents are restored.  The parties are left to bear  

their own costs.

….……………………..J. [ G.S. Singhvi ]

….……………………..J.  [Asok Kumar Ganguly]

New Delhi, January 29, 2010.

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