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PRITHVI TRUST PRIVATE LTD. versus THE STATE OF TAMIL NADU

High Court of Madras

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Prithvi Trust Private Ltd. v. The State of Tamil Nadu - W.P.No.9576 of 2005 [2005] RD-TN 221 (22 March 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 22/03/2005

CORAM

THE HONOURABLE MR.JUSTICE P.D.DINAKARAN W.P.No.9576 of 2005

Prithvi Trust Private Ltd.,

rep. by its Power of Attorney

Mr.R.Perumal, No.72

Luz Church Road, Mylapore

Chennai - 600 004. .. Petitioner -Vs-

1. The State of Tamil Nadu

rep. by its Secretary to Government

Industries, Labour & Cooperation

(Housing), Fort St.George

Chennai - 600 009.

2. The State of Tamil Nadu

rep. by its Secretary to Government

Housing & Urban Development Department

Fort St.George, Chennai - 600 009.

3. The Commissioner

Land Administration

Chepauk, Chennai - 600 005.

4. The District Collector

Trivellore District

Trivellore.

5. Tamil Nadu Housing Board

rep. by its Managing Director

Nandanam, Chennai. .. Respondents PRAYER: Petition under Article 226 of the Constitution of India for issue of a writ of Certiorarified Mandamus as stated therein. For Petitioner : Mr.R.Natesan

For Respondents: Mr.Suresh Viswanath

Government Advocate

for respondents 1 to 4

Mr.D.Veerasekaran

for 5th respondent

:ORDER



The petitioner seeks a writ of Certiorarified Mandamus to call for the records of the first respondent connected with the land acquisition proceedings in respect of the lands measuring 4.54 Acres in Survey Nos.588/1 and 588/2 in Thirumullaivoyal Vil , Saidapet Taluk which now forms part of Ambattur Taluk, which has remained unutilized after acquisition by notification under Section 4(1) of the Land Acquisition Act, 1894 published in the Fort St.George Gazette Part-II Section I dated 17.7.1963, to qu ash the same and to direct the first respondent to deliver the lands to the petitioner as per the provisions of Section 48-B of the Land Acquisition Act. 2.1. According to the petitioner, their lands measuring 4.54 acres in Survey Nos.588/1 and 588/2 in Thirumullaivoyal Village, Saidapet Taluk, which now forms part of Ambattur Taluk, were acquired by the respondents pursuant to the notification issue der Section 4(1) of the Land Acquisition Act published in the Fort St.George Gazette Part-II Section I dated 17.7.1963 for construction of quarters to workers under Subsidized Industrial Housing Scheme and an award was also passed in Award No.19 of 1963 dated 25.3.1968. 2.2. It is further stated that even though the impugned lands were taken over by the Housing Board on 7.2.1979 for construction of Labour Quarters, the same were not utilized till 1997, which necessitated the petitioner to file W.P.No.10481 of 1997 irect the respondents therein to assign the impugned lands, viz., 4.54 acres in Survey Nos.588/1 and 588/2 to the petitioner, but the said writ petition was dismissed by this Court on the basis of the submission of the Housing Board that the entire compe nsation has been deposited in the name of the petitioner long back. Hence, the petitioner filed W.A.No.904 of 1997, whereunder, the Division Bench of this Court, appreciating the fact that the petitioner has not received compensation till date, permitte d the petitioner to make a further representation to the Government for reconveyance of the impugned lands as the Housing Board has not utilized the same.

2.3. The learned counsel for the petitioner further submits that he also sent a representation to the third respondent on 29.9.2000 praying for reconveyance of the said lands, which were not utilized for the past 42 years, under Section 48-B of the Acquisition Act, explaining that the petitioner/Trust had not received any compensation for the lands for the past 42 years and therefore, sought to withdraw the entire land acquisition proceedings.

2.4. Pursuant to the request made by the petitioner seeking reconveyance of the impugned lands, it is also alleged that the third respondent had also recommended to the Secretary to the Government, Revenue Department to consider the request of the p ioner for reconveyance of land favourably and had also requested the Government to issue orders for the award amount Rs.29,585.47 kept under Revenue Deposit to be remitted in the appropriate account, and based on the said recommendation of the third resp ondent, the petitioner submits that the lands were not utilized by the respondents till date for the purpose for which they were acquired. 2.5. The learned counsel for the petitioner further submits that the lands were taken over at the rates prevailing in the 1960s and even though it is returned now, nothing can compensate for the loss of the utilization of the lands by the petitioner over 4 decades. Hence, the petitioner made a further representation on 5.5.2004.

2.6. Contending that in spite of several representations, the respondents have not considered his request for reconveyance of the impugned lands favourably, the petitioner preferred W.P.No.26850 of 2004, and this Court directed to dispose the repres tion within three months and since no orders were passed on the representation of the petitioner, referred to above, the petitioner has preferred this writ petition. 2.7. The main contention of Mr.R.Natesan, learned counsel for the petitioner is that the non-utilisation of the land acquired for the purpose of construction of labour quarters for a period of 42 years would itself reveal that the 5th respondent doe t have any proposal to utilize the land for the purpose it was acquired. That apart, it is also contended that the non consideration of several representations of the petitioner, in spite of the orders of this Court, is arbitrary and malafide, and that the petitioner who had been dispossessed of their lands by the acquisition proceedings of the first respondent, at the instance of the fifth respondent, even without any scheme or proposal for constructing the labour quarters in the impugned lands, has b een put to irreparable loss and hardship.

3. The learned counsel appearing for the State Government and the Housing Board submitted that since the impugned lands were acquired by valid procedure and possession was taken and handed over to the fifth respondent/Board and the land vests with t ousing Board, the Government cannot pass orders under Section 48-B of the Land Acquisition Act, reconveying the same.

4. I have given careful consideration to the submissions of both sides.

5. This Court, by order made in W.P.No.13552 of 1995 of A.R.Lakshmanan,J. (as His Lordship then was), which was confirmed by the Division Bench; and also in the decision of S.Jagadeesan,J. in W.P.No.4600 of 1999, dated 20.7.1999, held that in a cas ere the respondents have not taken steps even after two decades, the acquisition proceedings itself are liable to be quashed. The relevant portion of the said order dated 20.7.1999 made in W.P.No.4600 of 1999 reads as follows:

"11. Hence it has to be considered whether on the date when the petitioners sought for the transfer the second respondent required the acquired land for the public purpose for which it was acquired or any other public purpose. It may not be open to the requisitioning body to change its mind after a request for the transfer of the land under Section 48-B is made. In that case it will be an after thought and always it may be open to the requisitioning authority to proclaim that the particular land is re quired for any public purpose in future. That is why the criteria for consideration is the date on which the transfer was sought for by the owner of the land, which means on that date the requisitioning body required the land for the public purpose for which it was acquired or for any other public purpose.

12. In this case, I am of the view that the petitioners filed their writ petition challenging the acquisition on the ground that the land is vacant and the second respondent admittedly did not require the land for the purpose for which it was acquired an d subsequently the public purpose had been challenged, i.e, the proposal for construction of the flats by converting the site as a residential one. Hence it is clear that when the petitioners made a request, the second respondent had no proposal for uti lization of the land for a public purpose and as such the petitioners are entitled for the relief under Section 48-B of the Land Acquisition Act.

13. Moreover in paragraph 6 of the counter affidavit at page 6, the second respondent has stated that the Tamil Nadu Housing Board has developed the above land and allotted to the public, whereas in the impugned order it is clearly stated that tenders ha ve been called for the construction of HIG Flats on 7.9.1997 and when the contract about to be entered into on 8.10.1997, the High Court has granted stay and hence nothing to be proceeded with thereafter. The report sent by the Housing Board to the firs t respondent on which basis the impugned order has been passed is to the effect that the Housing Board still requires the land for the construction of the HIG flats which decision has been taken after the filing of the writ petition. But, whereas, in th e counter affidavit it is stated that the land have been already allotted to the public which is totally contradictory to the report mentioned in the impugned order. Hence, the second respondent is not clear as to whether the land has been put to use fo r the public purpose for which it was already acquired or whether the land is required for the proposed public purpose. In view of the contradictory versions of the second respondent, I have a doubt as to whether the second respondent has made up his mi nd to utilise the land for any public purpose at all."

6. Following the said decisions, P.Sathasivam,J., in W.P.No.8283 of 1999, by order dated 30.8.1999, in a similar case where the lands were not utilized for the purpose they were acquired, directed the land owners to return the compensation received hem with 9 simple interest per annum, and set aside the acquisition proceedings; and the said order dated 30.8.1999 was also confirmed by the Division Bench of this Court, by judgment dated 18.2.2000 made in W.A.No.2430 of 1999, and the same had become final.

7. Of course, it is needless to mention that the case of the petitioner, in the instant case, stands in a better footing than those in W.P.No.8283 of 1999, as the award amount still lies with the Government and the same was not received by the petit r and therefore, the question of directing the petitioner to repay the same with interest does not arise. 8.1. By order dated 16.10.2003 made in W.P.Nos.5717 and 5718 of 2003, wherein the properties were acquired and possession of the lands had been taken over by the Housing Board and remains vested with the Housing Board, it is held by P.K.MISRA,J., th he Government cannot straight-away exercise the power under Section 48-B of the Land Acquisition Act in view of Section 16-B of the Land Acquisition Act.

8.2. In this connection it is apt to refer to Section 16-B of the Land Acquisition Act, which reads as follows:

"Section 16-B: Land to be forfeited in certain cases. - Where the Government are satisfied that the land acquired under this Act for any public purpose as referred to in sub-section (1) of Section 4 is not used for the purpose for which it was acquired, they may, by an order, forfeit the land as penalty and the land shall vest in the Government in Revenue Department free from all encumbrances:

Provided that no order under this section, shall be made unless the person or authority aggrieved has had a reasonable opportunity of being heard."

9. In the case of Chandragauda Ramgonda Patil & Anr. v. State of Maharashtra & Ors., 1996 (6) SCC 405, the claim of the petitioner for restitution of the possession of the land acquired pursuant to the resolution of the State Government was rejected e Apex Court held as follows: "..2. We do not think that this Court would be justified in making direction for restitution of the land to the erstwhile owners when the land was taken way back and vested in the Municipality free from all encumbrances. We are not concerned with the va lidity of the notification in either of the writ petitions. It is axiomatic that the land acquired for a public purpose would be utilized for any other public purpose, though use of it was intended for the original public purpose. It is not intended th at any land which remained unutilized, should be restituted to the erstwhile owner to whom adequate compensation was paid according to the market value as on date of the notification. Under these circumstances, the High Court was well justified in refus ing to grant relief in both the writ petitions."

10. It is well settled in law that the Government has to consider the withdrawal of acquisition only on merits, but the Court cannot compel the Government to withdraw the acquisition proceedings or to restore the possession to the owner of the land, held by the Apex Court in S.P.Subramaniachetty v. K.S.R.T.C., AIR 1997 SC 2076.

11. In Northern Indian Glass Industries v. Jaswant Singh & Ors., 2003 (1) SCC 335, it was held that "if the land was not used for the purpose for which it was acquired, it was open to the State Government to take action but that did not confer any r on the respondents to ask for restitution of the land". Paragraphs 10 and 11 of the said judgment read thus: "10. In Chandragauda Ramgonda Patil v. State of Maharashtra, 1996 (6) SCC 405, it is stated that the acquired land remaining unutilized was not intended to be restituted to the erstwhile owner to whom adequate compensation was paid according to the marke t value as on the date of notification. 11. Yet again in C.Padma v. Dy.Secy. to the Govt. of T.N., 1997 (2) SCC 627, it is held that acquired land having vested in the State and the compensation having been paid to the claimant, he was not entitled to restitution of possession on the ground th at either original public purpose has ceased to be in operation or the land could not be used for other purpose."

12. The Apex Court in Govt. of A.P. v. Syed Akbar, 2004 (5) CTC 506, while deciding the question of reassignment of land vested with the Government, which arises from the State of Andhra Pradesh, held that: "15. ... When the land is acquired under the Land Acquisition Act which is vested in the State Government free from all encumbrances, the question of reconveying the land as claimed by the respondent could not be accepted in view of the clear position of law stated in the decisions of this Court aforementioned. Whether the unused remaining land out of the acquired land was sufficient or not for the purpose of construction of Mandal Revenue Office could not be decided by the High Court."

13. Under such circumstances, except to permit the petitioner to make a representation to the Government requesting the Government to exercise the power under Section 16-B of the Land Acquisition Act, which empowers to forfeit the lands which remain ted with the Housing Board, but not used for the purpose it was acquired for the past 42 years, and also to request the Government to pass appropriate orders under Section 48-B of the Land Acquisition Act, which provides for reconveyance and handing ove r of the impugned lands to the land owners; and to direct the Government to pass appropriate orders on the above representation, on merits, within twelve weeks from the date of receipt of the representation, no further orders are required in this writ pe tition.

The writ petition is disposed of with the above directions. No costs. Consequently, W.P.M.P.Nos.10414 and 10415 of 2005 are closed. Index : Yes

Internet : Yes

sasi

To:

1. The State of Tamil Nadu

rep. by its Secretary to Government

Industries, Labour & Cooperation

(Housing), Fort St.George

Chennai - 600 009.

2. The state of Tamil Nadu

rep. by its Secretary to Government

Housing & Urban Development Department

Fort St.George, Chennai - 600 009.

3. The Commissioner

Land Administration

Chepauk, Chennai - 600 005.

4. The District Collector

Trivellore District

Trivellore.

5. Tamil Nadu Housing Board

rep. by its Managing Director

Nandanam, Chennai.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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