WP/37580/2004 of PERICHIAPPA GOUNDER Vs THE STATE OF TAMILNADU on 23 December 2005

1. Perichiappa Gounder2.Kumarasamy3.Maruchamy Gounder4.A. Natarajan5.Ramasamy Gounder6.Marathal7.Ganesh8.Radha mani..PetitionersVs.1.The State of Tamil Nadurep.by its Secretary,Housing and Urban Development,Fort St. George, Chennai -9.2.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 under Article 226 of the Constitution ofIndia for issuance of the Writ of Certiorarified Mandamuscalling for the records relating to the proceedings of thefirst respondent in letter No.37215/LA III-2/2001-13 dated24.8.2004, quash the same and directing the firstrespondent to reconvey the lands an extent of 0.74.0 inS.F. No.838/5, an extent of 0.21.0, 0.30.0, 0.19.5, 0.32.0,0.18.0, 0.25.5 in S.F. Nos.849/1B,2B,1C, 2C, 1D, 2Drespectively, an extent of 0.01.0, 0.09.5, 0.22.0, 0.13.5,0.15.0 in S.F. Nos.850/2C. 2D, 2E, 2F, 2G respectively, thelands in S.F. No. 850/3 and an extent of 0.76.0 hectares ofland in S.No. 839/2C situated in Kalapatti Village,Coimbatore North Taluk, Coimbatore District.

For Petitioners::Mr.R.N. AmarnathFor Respondents::Mr.R.Muthukumaraswamy,Addl. Advocate General for Mr.D. Veerasekaran for R2 & R3Mrs.Rani Selvam, GA for R1

Under the impugned order, the Government has rejectedthe petitioner's claim for reconveyance under Section 48-Bof the Land Acquisition Act as amended by the State ofTamil Nadu. Mr.R.N.Amarnath, learned counsel appearing forthe petitioner would attack the order on the followinggrounds:

"The property acquired and transferred to theHousing Board remains unutilised for a long numberof years and therefore it must be held that thepublic purpose for which the lands were acquiredno longer subsists. If that is so, the landowners have a right to have the lands reconveyed.When the lands, which were acquired is not usedfor the purpose for which it was acquired, thenthe Government has a right of forfeiture underSection 16-B of the Land Acquisition Act asamended by the State of Tamil Nadu. Thereforereading Sections 16-B and Section 48-B of the LandAcquisition Act (both amended by the State ofTamil Nadu) this Court has to necessarily hold,on the facts available in the order impugned,that the land owners are entitled toreconveyance."

Mr.R.Muthukumaraswamy, learned Additional AdvocateGeneral appearing for the respondents would submit that theGovernment will get jurisdiction to exercise the powerunder Section 48-B of the Land Acquisition Act only whenthe land in respect of which, it has to exercise the power,vests with the Government and secondly it must be satisfiedthat the land is not required for the purpose for which itwas acquired. In this case, according to the learnedAdditional Advocate General and it is an admitted fact,that the land vests with the Housing Board. It is astatutory vesting under Section 17-A of the LandAcquisition Act as amended by the State of Tamil Nadu.Once such vesting is there, then the land so vested withthe Housing Board is governed by the provisions of the

Tamil Nadu Housing Board Act, which is a self contained Actdefining the powers of the Housing Board to deal with theproperty so vesting with them. Learned Additional AdvocateGeneral would submit that under Section 16-B of the Act,power is available to the Government to forfeit when itfinds that the land acquired is not used for the purposefor which it was acquired and assuming that the Governmentcan exercise that power – which is not available in thiscase – then such an exercise of power will result in thelands vesting in the Revenue Department and not on the landowners. Learned Additional Advocate General brings to mynotice a judgment of the Supreme Court reported in 2004 (5)C.T.C. 506 (GOVERNMENT OF ANDHRA PRADESH v. SYED AKBAR) tocontend that the Government is at liberty to use the landfor any other public purpose other than the public purposefor which it was originally acquired.

2. Having regard to the submissions made by thelearned counsel for the petitioner and the learnedAdditional Advocate General, I went through the relevantprovisions of law. Before that, I want to apply my mindto the order challenged in this writ petition. The ordershows that the lands acquired have been transferred to theHousing Board; there is an approved lay out in D.T. And C.Pvide proceeding in ref.No.313 of 1999; the lands are inpossession of the Housing Board and on account of severallitigations filed by the land owners before this court, theScheme could not be implemented and that in the order, thescheme is going to be implemented. Therefore there is noquestion of forfeiture. In a case governed by statutoryvesting under Section 17-A of the Land Acquisition Act, asamended by the State of Tamil Nadu, it is needless to statethat there is no vesting with the Government. There cannotbe vesting at the same time on two persons. It is nodoubt true that once the land is acquired, the initialvesting is with the Government under Section 16 of the LandAcquisition Act. But once the Housing Board pays the landprice, then under Section 17-A of the Land Acquisition Act,the land stands transferred to the Housing Board and onsuch transfer the vesting is with the Housing Board. Oncethe statutory vesting takes place with the Housing Board,then the Housing Board, which is governed by theprovisions of the Tamil Nadu Housing Board Act, a selfcontained Act, has to deal with such property only inaccordance with the provisions of the said Act. That Actitself contains as to how the property so acquired;transferred and vesting with them shall be dealt with.Therefore it is clear to my mind that once the landsacquired were transferred and vested with the Housing Board, then the Tamil Nadu Housing Board Act alone wouldgovern the dealing of the property in question and allrights and liabilities arising out of that land have to benecessarily tested only with the provisions of the said Actalone and not under the provisions of any other Act.

3. Since vesting of the land already with the HousingBoard had taken place and the condition precedent toexercise the power under Section 48-B of the LandAcquisition Act is that the land must continue to vest withthe Government, then in the absence of such vesting, theGovernment cannot exercise the power under Section 48-B ofthe Land Acquisition Act. Once a statutory vesting takesplace under Section 17-A of the Land Acquisition Act, theproperty has to be dealt with under the provisions of theTamil Nadu Housing Board Act and unless there is anenabling provision, either in the Land Acquisition Actitself or in the Tamil Nadu Housing Board Act, then suchvesting with the Tamil Nadu Housing Board cannot bedivested by an order of court and consequently revesting inthe Government shall not take place.

4. As far as Section 16-B of the Land AcquisitionAct is concerned, I have again no doubt at all that theargument advanced by the learned counsel for the petitionerdo not deserve acceptance. The right to forfeit isexclusively available to the Government and it is they whocan exercise that power, if they find that the landacquired is not used for the public purpose for which itwas acquired. The objects and reasons for introducingSection 16-B of the Land Acquisition Act is seen from theTamil Nadu Amending Act 16 of 1997 and one of the objectsreads as follows:- "Lands are acquired by Government on behalfof several requisitioning bodies. But afteracquisition the requisitioning bodies transfer thelands to others without the prior permission ofGovernment. With a view to avoid therequisitioning body from transferring the acquiredlands or any part thereof by sales, mortgage,gift, etc. without the prior permission of theGovernment it has become necessary to make aprovision in the Act. In certain cases therequisitioning body does not use the land acquiredfor them. Similarly, the land is not put to usefor the purposes for which it was originallyacquired and they may keep the land idle for yearstogether 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 provide that such land may be forfeited and theland shall vest in the Government in RevenueDepartment."

Therefore it is clear from the above object that theGovernment wanted to avoid arbitrary exercise of power bythe requisitioning body in dealing with the propertytransferred to them on their own, without even a referenceto the Government. In other words, there was no controlover the requisitioning body in dealing with the propertyso transferred to them after the acquisition. Only to avoidthis mischief, section 16-B was inserted. But that is notthe case here, since admittedly, after vesting with theHousing Board, they cannot deal with the property in anymanner as they like, but it is subject to the provisions ofthe Tamil Nadu Housing Board Act itself. I have alreadystated that the Tamil Nadu Housing Board Act is a selfcontained Act and therefore it gives no room at all to fallback upon any other provisions of law in dealing with theproperty vesting with them. The contention of the learnedAdditional Advocate General that the Government can invokethe power of forfeiture available under section 16-B of theLand Acquisition Act only when there is no control over therequisitioning body in dealing with the propertytransferred to them, deserves acceptance. The objects andreasons referred to earlier behind introducing section 16-Bof the Land Acquisition Act gives a clear support to theargument advanced by the learned Additional AdvocateGeneral.

5. Learned counsel appearing for the petitioner broughtto my notice an unreported judgment dated 20.7.1999 inW.P.No.4600 of 1999 of this court to contend that the landowners have a right to have their lands reconveyed, once ifit is found that the public purpose for which it wasoriginally acquired is not subsisting any more and that onthe day when the request for retransfer was made, thepublic purpose must be subsisting. Learned counsel alsorelied upon an unreported judgment dated 16.10.2003 inW.P.No.6308 of 2003 of this court between the same partieswherein a learned Judge of this court had given a directionto the Government to consider whether any action isrequired to be taken under Section 16-B of the LandAcquisition Act and depending upon the out come of suchdecision, whether reconveyance as contemplated underSection 48-B of the Land Acquisition Act is called for.With greatest respect to the learned Judges, who dealt withthe two cases relied upon by the learned counsel, I findthat the impact of Section 17-A of the Land Acquisition

Act, as amended by the State of Tamil Nadu, and theprovisions of the Tamil Nadu Housing Board Act had not beentaken into account in disposing of those two cases.Learned counsel appearing for the petitioner is not in aposition to show any provision of law either in the TamilNadu Housing Board Act itself or in the Land AcquisitionAct prescribing an outer limit of period before which theland acquired for a public purpose should be utilised forsuch public purpose, failing which, the entire proceedingswould stand reversed in favour of the land owner. In theabsence of such a provision, it is not possible for thiscourt to fix a period on it's own stating that, before theexpiry of that period if the lands acquired for a publicpurpose had not been utilised, then the entire proceedingswould stand reversed. If that is encouraged, then everycourt would fix, in a given situation, an outer period ofit'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 TRUSTPRIVATE LTD. V. THE STATE OF TAMIL NADU) where a learnedJudge of this court had given liberty to the petitionertherein to make a representation to the Government toexercise the power under Section 16-B of the LandAcquisition Act which empowers to forfeit the lands whichremain vested with the Housing Board but not used for thepurpose. Once again I have to state with respect thatsection 17-A of the Land Acquisition Act and the provisionsof the Tamil Nadu Housing Board Act have not been broughtto the notice of the learned Judge when the learned Judgewas of the opinion as indicated above. As rightlycontended by the learned Additional Advocate General, thepower under Section 16-B of the Land Acquisition Act wouldbe available only when there is no statutory vesting inanother Statutory Authority. In other words, on suchacquisition, if the Government transfers the property toany other person including individuals or other department,to be used for their public purpose and if they do not useit for their public purpose then the Government exercisingtheir power of forfeiture can call back the lands to vestwith the Revenue Department so that they can use the landsfor other public purpose. As already stated by me, oncethe statutory vesting takes place with the Housing Boardunder Section 17-A of the Land Acquisition Act, then unlessthere is an enabling specific provision either in the LandAcquisition Act or in the Tamil Nadu Housing Board Act, forthe Government to forfeit the lands if the lands are notused for public purpose, then such a power cannot beexercised at all. My reading of section 16-B of the LandAcquisition Act will not enable the Government to divest the Statutory vesting that had already taken place infavour of the Tamil Nadu Housing Board. As referred toearlier, the Tamil Nadu Housing Board Act itself contains aprovision to sell the property vesting with them in openauction (see section 72), if it is of the opinion that theland is not required for the purpose for which it wasacquired and transferred to them. That Statutory poweravailable to the Housing Board cannot be interfered with byexercising the power available under section 16-B of theLand Acquisition Act. There is no provision in the TamilNadu Housing Board Act which would enable the Government toforfeit the vesting already done in the Housing Board andrecall the lands. There is also no provision in the LandAcquisition Act to interfere with such statutory vestingwith the Housing Board. Even otherwise, I find that aMandamus cannot be issued to compel the Government toexercise the right of forfeiture when as on date, thepetitioner has no subsisting interest in the land.

6. For all the reasons stated above, I do not find anyground made out to interfere with the order under challengeand accordingly, the writ petition is dismissed. No costs.Connected W.P.M.P is closed.Tr/-Sd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1.The Secretary,Housing and Urban Development, Fort St. George, Chennai -9.

The Managing Director,2.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.

+ one cc to Mr. R.N. Amarnath, Advocate sr no. 141+ one cc to Mr. D. Veerasekaran, Advocate sr no. 88+ one cc to the Spl. Govt. Pleader, High Court, Madras srno. 26

W.P. No. 37580 of 2004