IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 25.04.2011 CORAM THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.NO.28138 of 2010 and M.P.Nos.1 and 2 of 2010 1.Rani 2.Kamakshi .. Petitioners Vs. 1.The Government of Tamil Nadu, rep by its Secretary, Department of Housing and Urban Development, Fort St. George, Chennai-600 009. 2.The Chairman & Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-600 035. .. Respondents This writ petition is preferred under Article 226 of the Constitution of India praying for the issue of a writ of certiorarified mandamus to call for the records of the order of the first respondent in letter No.17549/LA.I/(1)/2008-3, dated 30.10.2008 received on 20.01.2009, to quash the same and to direct the respondents to reconvey the property in Survey No.251/2 measuring an extent of 1 acre 38.5 cents at Padikuppam village in favour of the petitioner and execute reconveyance deed and fix terms as decided by the court. For Petitioners : .Ms.G.Gokulavani For Respondents : Ms.C.Devi, GA for R-1 Mr.A.Vijayakumar for R-2 - - - - ORDER
The petitioners have filed the present writ petition seeking to challenge an order of the first respondent, dated 30.10.2008 and seeks to set aside the same and for a further direction to reconvey the lands in Survey No.251/2 measuring to an extent of 1 acre and 38.5 cents at Padikuppam village in favour of the petitioners.
2.When the writ petition came up on 09.12.2010, notice was directed to be issued to the respondents privately. On such notice, the second respondent has filed a counter affidavit, dated 31.3.2011 justifying the impugned order. The petitioners had earlier filed a writ petition in W.P.No.16269 of 2008. The said writ petition came to be disposed of by an order dated 10.7.2007 directing the respondents to consider the petitioners’ representation, dated 25.2.2008 in accordance with law. Pursuant to that direction, the impugned order came to be passed. In the impugned order, it was informed to the petitioners that Section 4(1) notification was issued by G.O.Ms.No.260, Housing and Urban Development Department, dated 23.10.1975. Subsequently, by G.O.No.1078, Housing and Urban Development Department, dated 12.7.1978, an order under Section 6 of the Land Acquisition Act was passed. Thereafter, awards in Award No.1 of 1983, dated 8.11.1983 and Award No.5 of 1984, dated 28.5.1984 in respect of S.Nos.251/1 and 251/2 were made. The lands were taken over by the Tamil Nadu Housing Board. The Tamil Nadu Housing Board had proposed to construct a Hostel for working women and a Home for senior citizens vide its resolution No.5.04, dated 27.06.2008. Hence the Housing Board was consulted and they expressed their intention to retain the land.
3.The petitioners contended that several persons in Padi, Nolambur and Mogappair were given back their lands by reconveyance. Therefore, the petitioners’ case should be considered. When a legal notice was sent to that effect, the Housing Board informed the counsel by a further letter dated 9.1.2009 intimating the reason given by the Government.
4.In the counter affidavit filed by the Executive Engineer, Tamil Nadu Housing Board, Anna Nagar Division, dated 19.3.2011, it was contended that the lands were acquired and possession was taken on 28.5.1984. Though the proposed Inner Circular Corridor Rail Alignment was dropped, due to court cases further steps could not be taken. In any event, the land was suitable for a housing scheme and is essential for framing a scheme. Since the proposal for the Inner Circular Corridor Rail Alignment was dropped, the other schemes are being formulated by the Board.
5.The counsel for the petitioners strenuously contended that in several cases the Board had reconveyed the land, there must be uniformity in such matters. Once the original scheme was dropped, the petitioners are eligible for reconveyance as a matter of right or on the basis of equal treatment given to others.
6.This Court is not inclined to accept the said submission. A request in this regard has to be made only under Section 48-B of the Land Acquisition Act and it can be considered only in the light of the said enabling provision. Even if the scheme is not put to use for the purpose for which acquisition was made, it can be used for any other public purpose. Only when the requisitioning body returns the land to the Government and if the Government was of the opinion that it was not likely to be used for any other public purpose, the question of reconveyance of the land to the original owners will take place.
7.In this context, it is necessary to refer to the judgment of the Supreme Court before and after the introduction of Section 58-B. The Supreme Court in Tamil Nadu Housing Board v. Keeravani Ammal and Ors reported in 2007 (2) CTC 447 in paragraph 11 had observed 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.”
8.The Supreme Court in Tamil Nadu Housing Board v. L.Chandrasekaran and Ors reported in 2010 (2) SCC 786, dealt with the scope of Section 48-B and has considered all the cases arising out of reconveyance. In paragraphs 28 and 29, it was observed as follows:-
“28. 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 re-convey the same to the original owner. In any case, the Government cannot be compelled to re-convey 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. (Emphasis added)
29. 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: (SCC pp.261-62, paras 13-16)
“13.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 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.
14.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.
15.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)
“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 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.”
16.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. ”
9.Further, the similarity shown by the petitioners do not exist. In the matter of reconveyance, the other cases of other land owners cannot be shown as the reason for getting back the land. Unless the ingredients of Section 48-B is satisfied, the question of the court granting any direction will not arise. The two decisions relied on by the petitioners did not take into account the two decisions of the Supreme Court which directly arose under Section 48-B of the Land Acquisition Act.
10.The case cited by the petitioner in Hari Ram Vs. State of Haryana reported in (2010) 3 SCC 621 related to a case of the Government withdrawing from the acquisition selectively. In the present case, there was no withdrawal by the Government. On the other hand, the requestioning body itself had expressed its intention to keep the land for a public purpose.
11.Further, the fact that some lands were reconveyed under orders of the Court by itself will not improve the case of the petitioners. The Supreme Court in Shanti Sports Club & Another vs. Union of India & others reported in 2009 AIR SCW 6953 had held that such an example will not enable any person to get a direction from the Court. It has been held in paragraphs 50 and 51 as follows:-
“50.The plea of discrimination and violation of Article 14 of the Constitution put forward by the appellants is totally devoid of substance because they did not produce any evidence before the High Court and none has been produced before this Court to show that their land is identically placed qua the lands on which Hamdard Public School, St. Xavier School, Scindia Potteries, etc., exist. In the representations made to different functionaries of the Government and DDA, the appellants did claim that other parcels of the land have been de-notified and before the High Court a copy of notification dated 6.9.1996 issued under Section 48(1) was produced, but the said assertion and notification were not sufficient for recording a finding that their case is identical to those whose land had been denotified. The burden to prove the charge of discrimination and violation of Article 14 was on the appellants. It was for them to produce concrete evidence before the Court to show that their case was identical to other persons whose land had been released from acquisition and the reasons given by the Government for refusing to release their land are irrelevant or extraneous. Vague and bald assertions made in the writ petition cannot be made basis for recording a finding that the appellants have been subjected to invidious or hostile discrimination. That apart, we are prima facie of the view that the Government’s decision to withdraw from the acquisition of some parcels of land in favour of some individuals was not in public interest. Such decisions had, to some extent, resulted in defeating the object of planned development of Delhi on which considerable emphasis has been laid by the Full Bench of the High Court and this Court. This being the position, Article 14 cannot be invoked by the appellants for seeking a direction to the respondents to withdraw from the acquisition of the land in question. Article 14 of the Constitution declares that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. The concept of equality enshrined in that Article is a positive concept. The Court can command the State to give equal treatment to similarly situated persons, but cannot issue a mandate that the State should commit illegality or pass wrong order because in another case such an illegality has been committed or wrong order has been passed. If any illegality or irregularity has been committed in favour of an individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court and seek a direction that the same irregularity or illegality be committed in their favour by the State or its agencies/instrumentalities. In other words, Article 14 cannot be invoked for perpetuating irregularities or illegalities. In Chandigarh Administration vs. Jagjit Singh (1995) 1 SCC 745, this Court made a lucid exposition of law on this subject. The facts of that case were that the respondents, who had given the highest bid for 338 sq. yds. plot in Section 31A, Chandigarh defaulted in paying the price in accordance with the terms and conditions of allotment. After giving him opportunity of showing cause, the Estate Officer cancelled the lease of the plot. The appeal and the revision filed by him were dismissed by the Chief Administrator and Chief Commissioner, Chandigarh respectively. Thereafter, the respondent applied for refund of the amount deposited by him. His request was accepted and the entire amount paid by him was refunded. He then filed a petition for review of the order passed by the Chief Commissioner, which was dismissed. However, the Officer concerned entertained the second review and directed that the plot be restored to the respondent. The latter did not avail benefit of this unusual order and started litigation by filing writ petition in the High Court, which was dismissed on March 18, 1991. Thereafter, the respondent again approached the Estate Officer with the request to settle his case in accordance with the policy of the Government to restore the plots to the defaulters by charging forfeiture amount of 5%. His request was rejected by the Estate Officer. He then filed another writ petition before the High Court, which was allowed only on the ground that in another case pertaining to Smt.Prakash Rani, the Administrator had restored the plot despite dismissal of the writ petition filed by her. While reversing the order of the High Court, this Court observed as under:-
“We are of the opinion that the basis or the principle, if it can be called one, on which the writ petition has been allowed by the High Court is unsustainable in law and indefensible in principle. Since we have come across many such instances, we think it necessary to deal with such pleas at a little length. Generally speaking, the mere fact that the respondent-authority has passed a particular order in the case of another person similarly situated can never be the ground for issuing a writ in favour of the petitioner on the plea of discrimination. The order in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order. The extraordinary and discretionary power of the High Court cannot be exercised for such a purpose. Merely because the respondent-authority has passed one illegal/unwarranted order, it does not entitle the High Court to compel the authority to repeat that illegality over again and again. The illegal/unwarranted action must be corrected, if it can be done according to law indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law but even if it cannot be corrected,it is difficult to see how it can be made a basis for its repetition. By refusing to direct the respondent-authority to repeat the illegality, the Court is not condoning the earlier illegal act/order nor can such illegal order constitute the basis for a legitimate complaint of discrimination. Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law. Of course, if in case the order in favour of the other person is found to be a lawful and justified one it can be followed and a similar relief can be given to the petitioner if it is found that the petitioner’s case is similar to the other person’s case. But then why examine another person’s case in his absence rather than examining the case of the petitioner who is present before the Court and seeking the relief. Is it not more appropriate and convenient to examine the entitlement of the petitioner before the Court to the relief asked for in the facts and circumstances of his case than to enquire into the correctness of the order made or action taken in another person’s case, which other person is not before the case nor is his case. In our considered opinion, such a course barring exceptional situations would neither be advisable nor desirable. In other words, the High Court cannot ignore the law and the well-accepted norms governing the writ jurisdiction and say that because in one case a particular order has been passed or a particular action has been taken, the same must be repeated irrespective of the fact whether such an order or action is contrary to law or otherwise. Each case must be decided on its own merits, factual and legal, in accordance with relevant legal principles. The orders and actions of the authorities cannot be equated to the judgments of the Supreme Court and High Courts nor can they be elevated to the level of the precedents, as understood in the judicial world”.
(Emphasis added)
51. Similar is the ratio of the judgments in Narain Das v. Improvement Trust, Amritsar (1973) 2 SCC 265,Gursharan Singh v.New Delhi Municipal Committee (1996) 2 SCC 459, Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan Garg v. State of Rajasthan and others (supra), State of Haryana v. Ram Kumar Mann [(1997) 3 SCC 321], Faridabad CT. Scan Centre v. D.G.Health Services [(1997) 7 SCC 752], Style (Dress land) v. Union Territory, Chandigarh [(1999) 7 SCC 89], State of Bihar v. Kameshwar Prasad Singh (2000) 9 SCC 94, Union of India v. International Trading Co. (2003) 5 SCC 437, Ekta Sakthi Foundation v. Govt. of NCT of Delhi (2006) 10 SCC 337, Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K.Bhalla v. State of M.P. and others (2006) 3 SCC 581, National Institute of Technology v. Chandra Sekhar Chaudhary (2007) 1 SCC 93, Vice Chancellor, M.D.University, Rohtak v. Jahan Singh (2007) 5 SCC 77, State of Kerala and others v. K.Prasad and another (2007) 7 SCC 140, Punjab State Electricity Board and others vs. Gurmail Singh (2008) 7 SCC 245 and Panchi Devi v. State of Rajasthan and others (2009) 2 SCC 589.
12.In the light of the above, the writ petition will stand dismissed. However, there will be no order as to costs. Consequently, connected miscellaneous petitions stand closed.
25.04.2011
Index : Yes
Internet : Yes
vvk
To
1.The Secretary,
The Government of Tamil Nadu,
Department of Housing and Urban Development,
Fort St. George,
Chennai-600 009.
2.The Chairman & Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 035.
K.CHANDRU, J.
vvk
ORDER IN
W.P.NO.28138 of 2010
25.04.2011