P. Vijay Agarwal vs The State of Tamilnadu and Tamilnadu Housing Board

M.M. Sundresh, J.—In view of the common issues involved in all the Writ Petitions and Writ Appeals, a common order is passed.

An extent of 0.17 acres of land in Survey No. 84/6A1A1C and another extent of 0.39 acres of land in Survey No. 84/6A1A1D in

Thiruvanmiyur Village have been acquired by the Government by passing a notification u/s 4(1) of the Land Acquisition Act, 1894 (hereinafter

referred as ""the Act"") vide G.O. Ms. No. 1096, Housing and Urban Development Department, dated 17.07.1978. The Petitioners have

purchased the above lands by registered sale deeds on 02.06.1978. Thereafter, a declaration was passed u/s 6 of the Act on 08.08.1981 which

was followed by a notice dated 11.08.1986 issued under Sections 9(3) and 10 of the Act. An award was passed by the Land Acquisition Officer

on 23.09.1986.

The Writ Petitions have been filed by the Petitioners in W.P. Nos. 2054 and 2058 of 1987, challenging the acquisition proceedings. The

Petitioners subsequently withdrew the Writ Petitions in order to pursue the remedy seeking deletion of the lands. In the meanwhile, the possession

was said to have been taken from the Petitioners on 30.10.1986.

A show cause notice dated 23.09.1998 was issued by the second Respondent u/s 84(2) and 81(1) of the Tamilnadu Housing Board Act,

seeking to evict the Petitioners on the ground that they are encroachers. The Petitioners gave a reply to the said show cause notice on 15.10.1998.

The Petitioners also filed a Writ Petition in W.P. No. 502 of 1999 seeking a Writ Declaration, to declare the proceedings of the first Respondent

no longer required for the purpose for which the lands have been acquired and for a consequential direction to reconvey the lands to the

Petitioners. The said Writ Petition was disposed of by an order dated 15.02.1999, giving liberty to the Petitioners to approach the Government.

The Petitioners gave a representation on 12.03.1999 to the Respondents seeking to exercise the power u/s 48-B of the Act. However, by the

proceedings dated 15.06.1999, the request of the Petitioners was rejected on the ground that the possession has already been taken over by the

Respondent No. 1 as early as on 30.10.1986 and the acquired lands are required for the Housing Scheme. Challenging the above said orders

passed by the Respondent No. 1, the Petitioners have filed the present Writ Petitions.

When the interim applications came up for hearing, the learned single Judge by order dated 02.09.2003 was pleased to dismiss the said

applications. Challenging the same, the Petitioners filed the Writ Appeals in W.A. Nos. 2877 and 2878 of 2003. In view of the pendency of the

Writ Appeals, the Writ Petitions were also directed to be posted along with the same. By consent of the parties, the Writ Petitions themselves have

been taken up for hearing.

The learned Counsel appearing for the Petitioners submitted that the order impugned will have to be set aside inasmuch as the basis for rejection

of request for deletion of lands has not been clearly spelt out. It is further submitted that the fairness and reasonableness would require specific

reasons ought to have been disclosed in the orders impugned regarding the purpose for which the lands are sought to be utilised. According to the

learned Counsel, the acquired lands have been surrounded by private lands and lands which were originally covered by a notification have been

excluded. It is further submitted that the first Respondent ought to have exercised the power u/s 16-B of the Act, thereafter, exercised the power

u/s 48-B by reconveying the lands back to the Petitioners.

The learned Counsel for the Petitioners has relied upon the judgment of this Court in R.Shanmugam v. The State of Tamilnadu [2006 (4) CTC

290] and submitted that while exercising the power u/s 48-B of the Act, the first Respondent will have to give proper reasons supported by

materials. Hence, inasmuch as the first Respondent has applied his mind while passing the order impugned, the same will have to be set aside with

a direction to the first Respondent to consider the case of the Petitioners on merits and in accordance with law. Therefore, it is submitted by the

learned Counsel for the Petitioners that the Writ Petitions will have to be allowed.

Per contra, Mr. D. Veerasekaran, learned Counsel appearing for the second Respondent submitted that the order impugned has not been

passed in exercise of power u/s 48-B of the Act. The lands have been handed over and transferred by the first Respondent in favour of the second

Respondent. The title got vested with the second Respondent. In view of the unauthorised occupation of the Petitioners, the second Respondent

had already initiated proceedings u/s 84(1) of the Tamilnadu Housing Board Act. Therefore, considering the above said factual position, the first

Respondent did not proceed u/s 48-B of the Act since to consider the representation of the Petitioners on merit there is no vesting of the lands with

the first Respondent as they belong to the second Respondent. Hence, it is submitted that when the lands belong to the second Respondent, the

first Respondent cannot exercise the power u/s 48-B of the Act. In support of the said contention, the learned Counsel has made reliance upon the

judgment of the Honourable Supreme Court in Tamil Nadu Housing Board Vs. L. Chandrasekaran and Others, . Hence, the learned Counsel

submitted that the Writ Petitions will have to be dismissed.

A perusal of the order impugned passed by the learned single Judge in W.P. No. 502 of 1999, dated 15.02.1999, would clearly exemplify the

fact that the Petitioners were merely given liberty to approach the Respondents. The learned single Judge has also observed that even in a case

where the lands have been transferred in favour of the second Respondent, the first Respondent can exercise the power u/s 16-B of the Act

provided the conditions stipulated therein are complied with. Therefore, it is very clear that when the lands are vested with the second Respondent,

the power available u/s 48B of the Act cannot be exercised by the first Respondent. That is the reason why the first Respondent has sought for the

particulars from the second Respondent. The second Respondent by its letter has clearly informed the first Respondent that the lands are very

much required for the completion of the Scheme. Even in the counter affidavit filed by the second Respondent the same has been reiterated.

Therefore, taking into circumstances of the above said statement given by the second Respondent, the first Respondent has informed the

Petitioners that in view of the possession having been taken and the lands are required by the second Respondent, the application made by the

Petitioners cannot be considered. Scope of Sections 16-B and 48-B of the Act:

Section 16-B of the Act gives power to the first Respondent to forfeit the lands provided there is a satisfaction that the lands are not used for

any public purpose. The said provision is a punitive in nature. Therefore, in order to come to the conclusion that the lands are to be forfeited, the

first Respondent will have to satisfy that the lands acquired and transferred to the second Respondent have not been utilised for the said purpose or

any other public purpose.

Similarly, Section 48-B of the Act mandates the vesting of the lands with the first Respondent. Therefore until and unless the lands are vested

with the first Respondent, the power u/s 48-B cannot be exercised. Further, such a power can only be exercised by the first Respondent after

being satisfied that the lands are not either required for the purpose for which they even required or any other purposes. Section 48-B of the Act

has to be construed strictly with a literal interpretation. The said Section is an exception to the other provisions. The Honourable Apex Court in

Tamil Nadu Housing Board Vs. Keeravani Ammal and Others, has construed Section 48-B 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.

Admittedly in the present case on hand, the lands have been transferred by the first Respondent to the second Respondent. That is the reason

why the second Respondent was directed to give his response to the representation made by the Petitioners. Action was also taken by the second

Respondent against the Petitioners under the Tamilnadu Housing Board Act. The second Respondent has informed the first Respondent that the

Scheme is very much in force and the lands are required for the completion of the Scheme. In this connection, it is useful to refer the judgment of

the Honourable Apex Court in Tamil Nadu Housing Board Vs. L. Chandrasekaran and Others, , wherein it has been held as follows:

It need no emphasis that in exercise of power u/s 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 u/s 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 utilised for any public purpose other than the one for which it was acquired.

Therefore, in view of the law laid down by the Honourable Apex Court and on a proper construction of Section 48-B of the Act, we are of

the view that the Writ Petitions and Writ Appeals will have to be dismissed inasmuch as it is the Housing Board which is the owner of the property

and not the first Respondent.

As observed earlier, Sections 16-B and 48-B of the Act operate in different fields. Only if the first Respondent, after being satisfied that the

lands have not been utilised for the purpose for which they have been acquired or for any other public purpose, the power u/s 16-B can be

exercised and that too after affording an opportunity to the requisitioning body. After exercising the power u/s 16-B and after forfeiting the

property from the requisitioning body, the said property would vest with the first Respondent. Thereafter only the power u/s 48-B can be

exercised.

In the present case on hand, the first Respondent on facts came to the conclusion that the public purpose for which the lands have been

acquired is very much subsisting and therefore no action has been taken u/s 48-B of the Act. Hence, when there is no taken u/s 16-B of the Act,

there is no question of exercising the power by the first Respondent u/s 48-B of the Act, inasmuch as the property does not vest with it. When the

property is not vested with the first Respondent, the power u/s 48-B of the Act cannot be exercised as per the ratio laid down by the Honourable

Apex Court.

In so far as the judgment relied upon by the learned Counsel for the Petitioner in R.Shanmugam v. The State of Tamilnadu [2006 (4) CTC

290] is concerned, the same has no application to the facts on hand. As observed above, the first Respondent has not exercised the power u/s 48-

B of the Act. The first Respondent has called for the remarks from the second Respondent before passing the order impugned. The satisfaction of

the first Respondent being subjective in nature, the same cannot be questioned on the ground of non application of mind. As observed in the very

same judgment the Petitioners do not have any vested or absolute right to seek for automatic reconveyance of the lands. Further the ratio laid

down therein will have to be seen in the light of the subsequent decision of the Honourable Apex Court in Tamil Nadu Housing Board Vs. L.

Chandrasekaran and Others, which dealt with the scope of Section 48-B of the Act. Therefore, we do not find that the said judgment has any

application to the present case on hand.

Considering the above said factual and legal position, the Writ Petitions and Writ Appeals are deserved to be dismissed. Accordingly, they are

dismissed. No costs. Consequently, connected miscellaneous petitions are closed.