WP/37578/2004 of M.MANIMEKALAI Vs THE STATE OF TAMILNADU on 23 December 2005

1. M.Manimekalai2. S.Maruthachalam Petitioners 1 and 2 are represented by their Power Agent K.V.Jayaraman S/o.N.Vellingiri, residing at No.17B Sundaram Layout Ramanathapuram Coimbatore-45. ..Petitioners-Vs.1. The State of Tamil Nadu rep. by its Secretary Housing and Urban Development Fort St. George Chennai-600 009.2. The Tamil Nadu Housing Board rep. by its Managing Director No. 331, Anna Salai Nandanam Chennai-35.3. The Special Tahsildar (Land Acquisition) Housing Scheme Unit-II Coimbatore-641 018. ..Respondents Prayer:- Petition filed under Article 226 of the Constitution ofIndia praying for the issue of a writ of Certiorarified Mandamus tocall for the records relating to the proceedings of the firstrespondent in letter No. 8443/LA III-2/2004-2 dated 24-08-2004,quash the same and consequently direct the first respondent toreconvey the lands, an extent of 0.13.0 hectares in S.F.No. 839/2A.0.08.0 hectares in S.F.No. 849/1A, 0.12.0 hectares in S.F.No.849/2A, 0.74.0 hectares in S.F.No.838/3 and 0.78.0 hectares inSurvey No. 838/4 situated in Kalapatti Village, Coimbatore NorthTaluk, Coimbatore District.

Under the impugned order, the Government has rejected thepetitioner's claim for reconveyance under Section 48-B of the LandAcquisition Act as amended by the State of Tamil Nadu.Mr.R.N.Amarnath, learned counsel appearing for the petitioner wouldattack the order on the following grounds:

"The property acquired and transferred to the HousingBoard remains unutilised for a long number of years andtherefore it must be held that the public purpose forwhich the lands were acquired no longer subsists. If thatis so, the land owners have a right to have the landsreconveyed. When the lands, which were acquired is notused for the purpose for which it was acquired, then theGovernment has a right of forfeiture under Section 16-B ofthe Land Acquisition Act as amended by the State of TamilNadu. Therefore reading Sections 16-B and Section 48-B ofthe Land Acquisition Act (both amended by the State ofTamil Nadu) this Court has to necessarily hold, on thefacts available in the order impugned, that the landowners are entitled to reconveyance."

Mr.R.Muthukumaraswamy, learned Additional Advocate Generalappearing for the respondents would submit that the Government willget jurisdiction to exercise the power under Section 48-B of theLand Acquisition Act only when the land in respect of which, it hasto exercise the power, vests with the Government and secondly itmust be satisfied that the land is not required for the purpose forwhich it was acquired. In this case, according to the learnedAdditional Advocate General and it is an admitted fact, that theland vests with the Housing Board. It is a statutory vesting underSection 17-A of the Land Acquisition Act as amended by the State ofTamil Nadu. Once such vesting is there, then the land so vestedwith the Housing Board is governed by the provisions of the TamilNadu Housing Board Act, which is a self contained Act defining thepowers of the Housing Board to deal with the property so vestingwith them. Learned Additional Advocate General would submit thatunder Section 16-B of the Act, power is available to theGovernment to forfeit when it finds that the land acquired is notused for the purpose for which it was acquired and assuming that theGovernment can exercise that power – which is not available in thiscase – then such an exercise of power will result in the landsvesting in the Revenue Department and not on the land owners.Learned Additional Advocate General brings to my notice a judgmentof the Supreme Court reported in 2004 (5) C.T.C. 506 (GOVERNMENT OFANDHRA PRADESH v. SYED AKBAR) to contend that the Government is atliberty to use the land for any other public purpose other than thepublic purpose for which it was originally acquired.

https://hcservices.ecourts.gov.in/hcservices/2. Having regard to the submissions made by the learned counselfor the petitioner and the learned Additional Advocate General, Iwent through the relevant provisions of law. Before that, I want

to apply my mind to the order challenged in this writ petition. Theorder shows that the lands acquired have been transferred to theHousing Board; there is an approved lay out in D.T. And C.P videproceeding in ref.No.313 of 1999; the lands are in possession of theHousing Board and on account of several litigations filed by theland owners before this court, the Scheme could not be implementedand that in the order, the scheme is going to be implemented.Therefore there is no question of forfeiture. In a case governedby statutory vesting under Section 17-A of the Land Acquisition Act,as amended by the State of Tamil Nadu, it is needless to state thatthere is no vesting with the Government. There cannot be vesting atthe same time on two persons. It is no doubt true that once theland is acquired, the initial vesting is with the Government underSection 16 of the Land Acquisition Act. But once the Housing Boardpays the land price, then under Section 17-A of the Land AcquisitionAct, the land stands transferred to the Housing Board and on suchtransfer the vesting is with the Housing Board. Once the statutoryvesting takes place with the Housing Board, then the Housing Board,which is governed by the provisions of the Tamil Nadu Housing BoardAct, a self contained Act, has to deal with such property only inaccordance with the provisions of the said Act. That Act itselfcontains as to how the property so acquired; transferred and vestingwith them shall be dealt with. Therefore it is clear to my mind thatonce the lands acquired were transferred and vested with the HousingBoard, then the Tamil Nadu Housing Board Act alone would govern thedealing of the property in question and all rights and liabilitiesarising out of that land have to be necessarily tested only with theprovisions of the said Act alone and not under the provisions of anyother Act.

3. Since vesting of the land already with the Housing Board hadtaken place and the condition precedent to exercise the power underSection 48-B of the Land Acquisition Act is that the land mustcontinue to vest with the Government, then in the absence of suchvesting, the Government cannot exercise the power under Section 48-Bof the Land Acquisition Act. Once a statutory vesting takes placeunder Section 17-A of the Land Acquisition Act, the property has tobe dealt with under the provisions of the Tamil Nadu Housing BoardAct and unless there is an enabling provision, either in the LandAcquisition Act itself or in the Tamil Nadu Housing Board Act, thensuch vesting with the Tamil Nadu Housing Board cannot be divestedby an order of court and consequently revesting in the Governmentshall not take place.

4. As far as Section 16-B of the Land Acquisition Act isconcerned, I have again no doubt at all that the argument advancedby the learned counsel for the petitioner do not deserve acceptance.The right to forfeit is exclusively available to the Government andit is they who can exercise that power, if they find that the landacquired is not used for the public purpose for which it wasacquired. The objects and reasons for introducing Section 16-B ofhttps://hcservices.ecourts.gov.in/hcservices/the Land Acquisition Act is seen from the Tamil Nadu Amending Act 16of 1997 and one of the objects reads as follows:-

"Lands are acquired by Government on behalf ofseveral requisitioning bodies. But after acquisitionthe requisitioning bodies transfer the lands to otherswithout the prior permission of Government. With a viewto avoid the requisitioning body from transferring theacquired lands or any part thereof by sales, mortgage,gift, etc. without the prior permission of theGovernment it has become necessary to make a provisionin the Act. In certain cases the requisitioning bodydoes not use the land acquired for them. Similarly, theland is not put to use for the purposes for which it wasoriginally acquired and they may keep the land idle foryears together without utilising the land. To prohibitthis tendency it has been decided to insert a newprovision as Section 16-B in the Act, so as to providethat such land may be forfeited and the land shall vestin the Government in Revenue Department."

Therefore it is clear from the above object that the Governmentwanted to avoid arbitrary exercise of power by the requisitioningbody in dealing with the property transferred to them on their own,without even a reference to the Government. In other words, therewas no control over the requisitioning body in dealing with theproperty so transferred to them after the acquisition. Only to avoidthis mischief, section 16-B was inserted. But that is not the casehere, since admittedly, after vesting with the Housing Board, theycannot deal with the property in any manner as they like, but it issubject to the provisions of the Tamil Nadu Housing Board Actitself. I have already stated that the Tamil Nadu Housing Board Actis a self contained Act and therefore it gives no room at all tofall back upon any other provisions of law in dealing with theproperty vesting with them. The contention of the learnedAdditional Advocate General that the Government can invoke the powerof forfeiture available under section 16-B of the Land AcquisitionAct only when there is no control over the requisitioning body indealing with the property transferred to them, deserves acceptance.The objects and reasons referred to earlier behind introducingsection 16-B of the Land Acquisition Act gives a clear support tothe argument advanced by the learned Additional Advocate General.

5. Learned counsel appearing for the petitioner brought to mynotice an unreported judgment dated 20.7.1999 in W.P.No.4600 of 1999of this court to contend that the land owners have a right to havetheir lands reconveyed, once if it is found that the public purposefor which it was originally acquired is not subsisting any more andthat on the day when the request for retransfer was made, the publicpurpose must be subsisting. Learned counsel also relied upon anunreported judgment dated 16.10.2003 in W.P.No.6308 of 2003 of thiscourt between the same parties wherein a learned Judge of this courthad given a direction to the Government to consider whether anyaction is required to be taken under Section 16-B of the Landhttps://hcservices.ecourts.gov.in/hcservices/Acquisition Act and depending upon the out come of such decision,whether reconveyance as contemplated under Section 48-B of the LandAcquisition Act is called for. With greatest respect to the learned

Judges, who dealt with the two cases relied upon by the learnedcounsel, I find that the impact of Section 17-A of the LandAcquisition Act, as amended by the State of Tamil Nadu, and theprovisions of the Tamil Nadu Housing Board Act had not been takeninto account in disposing of those two cases. Learned counselappearing for the petitioner is not in a position to show anyprovision of law either in the Tamil Nadu Housing Board Act itselfor in the Land Acquisition Act prescribing an outer limit of periodbefore which the land acquired for a public purpose should beutilised for such public purpose, failing which, the entireproceedings would stand reversed in favour of the land owner. Inthe absence of such a provision, it is not possible for this courtto fix a period on it's own stating that, before the expiry of thatperiod if the lands acquired for a public purpose had not beenutilised, then the entire proceedings would stand reversed. If thatis encouraged, then every court would fix, in a given situation, anouter period of it's own leading to several anomalies. There is yetanother judgment relied upon by the learned counsel for thepetitioner reported in 2005(3) C.T.C. 145 (PRITHVI TRUST PRIVATELTD. V. THE STATE OF TAMIL NADU) where a learned Judge of this courthad given liberty to the petitioner therein to make a representationto the Government to exercise the power under Section 16-B of theLand Acquisition Act which empowers to forfeit the lands whichremain vested with the Housing Board but not used for the purpose.Once again I have to state with respect that section 17-A of theLand Acquisition Act and the provisions of the Tamil Nadu HousingBoard Act have not been brought to the notice of the learned Judgewhen the learned Judge was of the opinion as indicated above. Asrightly contended by the learned Additional Advocate General, thepower under Section 16-B of the Land Acquisition Act would beavailable only when there is no statutory vesting in anotherStatutory Authority. In other words, on such acquisition, if theGovernment transfers the property to any other person includingindividuals or other department, to be used for their public purposeand if they do not use it for their public purpose then theGovernment exercising their power of forfeiture can call back thelands to vest with the Revenue Department so that they can use thelands for other public purpose. As already stated by me, once thestatutory vesting takes place with the Housing Board under Section17-A of the Land Acquisition Act, then unless there is an enablingspecific provision either in the Land Acquisition Act or in theTamil Nadu Housing Board Act, for the Government to forfeit thelands if the lands are not used for public purpose, then such apower cannot be exercised at all. My reading of section 16-B of theLand Acquisition Act will not enable the Government to divest theStatutory vesting that had already taken place in favour of theTamil Nadu Housing Board. As referred to earlier, the Tamil NaduHousing Board Act itself contains a provision to sell the propertyvesting with them in open auction (see section 72), if it is of theopinion that the land is not required for the purpose for which itwas acquired and transferred to them. That Statutory powerhttps://hcservices.ecourts.gov.in/hcservices/available to the Housing Board cannot be interfered with byexercising the power available under section 16-B of the LandAcquisition Act. There is no provision in the Tamil Nadu Housing

Board Act which would enable the Government to forfeit the vestingalready done in the Housing Board and recall the lands. There isalso no provision in the Land Acquisition Act to interfere with suchstatutory vesting with the Housing Board. Even otherwise, I findthat a Mandamus cannot be issued to compel the Government toexercise the right of forfeiture when as on date, the petitioner hasno subsisting interest in the land.

6. For all the reasons stated above, I do not find any groundmade out to interfere with the order under challenge andaccordingly, the writ petition is dismissed. No costs. Consequently,the connected W.P.M.P. is closed.

Tr/

Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo:1. The Secretary The State of Tamil Nadu Housing and Urban Development Fort St. George Chennai-600 009.2. The Managing Director The Tamil Nadu Housing Board No. 331, Anna Salai Nandanam Chennai-35.

3. The Special Tahsildar (Land Acquisition) Housing Scheme Unit-II Coimbatore-641 018.

1 cc To The Government Pleader SR.32.

W.P.NO.37578 of 2004& W.P.M.P.No.45080 of 2004

JSK(CO)RVL 05.01.2006