IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 20.4.2011 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition No.6060 of 2011 and M.P.Nos.1 and 2 of 2011 1.K.R.Saminathan, 2.Jaya, 3.P.Dhanalakshmi. ... Petitioners vs. 1.The State of Tamil Nadu, by its Commissioner and Secretary, Housing and Urban Development Department, Chennai-9. 2.The District Collector, Coimbatore. 3.The Special Tahsildar, Land Acquisition, Housing Scheme, Coimbatore. 4.The Chairman-cum-Managing Director, Tamil Nadu Housing Board, Nandanam, Chennai-600 035. 5.The Executive Engineer-cum- Administrative Officer, Tamil Nadu Housing Board, Tatabad, Coimbatore-641 012. ... Respondents Writ Petition is filed under Article 226 of the Constitution of India praying to issue a Writ of Certiorari, to call for records on the file of the 5th respondent vide in proc.Sa.Ma.Tho.E/191/Publication/2011 published in Daily Thanthi dated 10.02.2011 and directing the 1st respondent to exclude the lands in S.No.66, S.No.66/1, acres 3.88 cents, Ganapathy Village, Coimbatore by virtue of Section 4(1) of the Land Acquisition Act, 1894, Central Act I of 1894 and G.O.Ms.1274 dated 18.8.1983. For Petitioners : Mr.V.Raghavachari, for Mr.P.Ananda Kumar. For Respondents : Mr.S.Shivashanmugam, Government Advocate, for R1 to R3. Mr.M.Dhandapani, Special Government Pleader, for Mr.A.Vijayakumar, for R4 and R5 ----- O R D E R
Writ Petition is filed praying to issue a Writ of Certiorari, to call for records on the file of the 5th respondent vide in proc.Sa.Ma.Tho.E/191/Publication/2011 published in Daily Thanthi dated 10.02.2011 and directing the 1st respondent to exclude the lands in S.Nos.66, and 66/1 to an extent of 3 Acres and 88 Cents, situate at Ganapathy Village, Coimbatore by virtue of Section 4(1) of the Land Acquisition Act, 1894, Central Act I of 1894 and G.O.Ms.1274 dated 18.8.1983.
2. The Writ Petition has been filed on 2.3.2011 challenging the Paper Publication made by the fifth respondent in the Tamil Vernacular Daily Thanthi dated 10.2.2011 calling for promoting the property acquired, viz., in S.No.66/1 situate at Ganapathy Village, Coimbatore.
3. Sri V.Ragavachari, learned counsel appearing for the petitioners inter alia contended as follows:-
(i) The first petitioner is the brother of the petitioners 2 and 3. The above property has not been acquired in the manner known to law and they are the persons interested in the land. They are in possession of the property. Therefore, they are filing the writ petition challenging the paper publication.
(ii) Learned counsel for the petitioners primarily contended that the property sought to be acquired was for development of Ganapathy Nagar Neighbourhood scheme and the present paper publication is for a different purpose. He referred to various provisions of the Tamil Nadu State Housing Board Act and more particularly, Sections 49 and 56 which reads as follows:-
“49. Preparation, publication and transmission of notice as to housing or improvement schemes and supply of documents to applicants:-
(1) When any housing or improvement scheme has been framed, the Board shall prepare a notice to that effect and specify:
(a) the boundaries of the area comprised in the scheme; and
(b) the place or places at which particulars of the scheme, a map of the area, and details of the land in regard to which it is proposed to recover a betterment fee, may be seen at reasonable hours.
(2) The Board shall:-
(a) cause the said notice to be published weekly for three consecutive weeks in the Fort St. George Gazette, and in two leading daily newspapers in the State, specifying the period up to which the objections will be received; and
(b) send a copy of the notice to the local authority concerned.
(3) The Managing Director shall cause copies of all documents referred to in clause (b) of sub-section (1) to be delivered to any applicant on payment of the fee fixed by the Board.”
“56. Alteration of a housing or improvement scheme after sanction:- Any time after a housing or improvement scheme has been sanctioned by the Board or the Government as the case may be, and before it has been carried into execution, the Board may alter or cancel it:
Provided that-
(a) if any alteration is likely to increase the estimated net cost of executing a scheme by more than ten per cent, of the total cost or if any altered scheme is likely to cost more than ten lakhs of rupees, the alteration shall not be made without the previous sanction of the Government;
(b) x x x
(c) if, owing to any alteration, any land not previously liable under the scheme to the payment of the betterment fee, becomes liable to such payment, the procedure prescribed in the sections 49, 50 and 51 shall, so far as it may be applicable, be followed in regard to such land:
Provided further that no scheme, costing over ten lakhs of rupees, shall be cancelled under this section without the previous sanction of the Government.
Explanation:- For the purpose of this section the word “alteration” shall be deemed to include a combination of two or more schemes framed or proposed to be framed and the expression “altered scheme” shall be deemed to include any scheme so combined.”
He states that without cacelling the earlier scheme and without the previous sanction of the Government the present paper publication is issued. Therefore, the paper publication has to be quashed.
(iii) He also relied upon the decision of the Apex Court in Tamil Nadu Housing Board vs. – L.Chandrasekaran reported in (2010)2 Supreme Court Cases 786 wherein the Apex Court held in paragraphs 26 and 28 as follows:-
“26. A glance at the impugned order shows that the Division Bench did not at all advert to the factual matrix of the case and the reasons incorporated in the Governments decision not to reconvey the acquired land to the respondents. The Division Bench also did not examine the correctness or otherwise of the order passed by the learned Single Judge and allowed the appeals preferred by the respondents simply by relying upon order dated 18.2.2000 passed in Writ Appeal No.2430/1999 and that too without even making an endeavour to find out whether the two cases were similar. In our view, the direction given by the Division Bench to the appellant-Board to reconvey the acquired land to the respondents is per se against the plain language of Section 48-B of the Act in terms of which only the Government can transfer the acquired land if it is satisfied that the same is not required for the purpose for which it was acquired or for any other public purpose. The appellant-Board is not an authority competent to transfer the acquired land to the original owner. Therefore, the Division Bench of the High Court could not have issued a mandamus to the appellant-Board to reconvey the acquired land to the respondents. As a matter of fact, the High Court could not have issued such direction even to the Government because the acquired land had already been transferred to the appellant-Board and the latter had utilized substantial portion thereof for execution of the housing scheme and other public purposes.”
“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 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 utilized for any public purpose other than the one for which it was acquired.”
On the basis of the above decision, the petitioners state that they have made an application for reconveyance of property in terms of Section 48B of the Tamil Nadu Land Acquisition Act, and that is under consideration and till it is disposed, the respondents should be restrained.
(iv) The learned counsel, further, relied upon the decision of this Court in D.Rathinam vs. – The Secretary to Government and three others reported in 2008-1 L.W. 411 and stated that if the land has not been utilised for the purpose for which it is acquired by the Board, the land automatically vests with the Government in terms of Section 16B of the Land Acquisition Act. Therefore, the respondents Board will have no jurisdiction to develop the property.
4. The above plea of the petitioners’ counsel is repelled by Shri M.Dhandapani, learned Special Government Pleader appearing for the respondents 4 and 5 and Sri S.Shivashanmugam, learned Government Advocate appearing for the respondents 1 to 3 who primarily objected to the locus of the petitioners to maintain the writ petition itself. They referred to Division Bench Judgment of this Court in Southern Railways vs. – S.Palaniappan reported in 2005(2) CTC 721 wherein the scope of Section 48B of the Act was considered by the Division Bench of this Court and stated that there cannot be compulsion to reconvey the land which has been acquired.
5. The relief sought for by the petitioners is not for reconveyance of the land, but for setting aside the paper publication issued by respondents 4 and 5. The petitioners having lost the right to the land after it has been acquired by the State, which has been handed over to the respondents 4 and 5, have no jurisdiction or locus to challenge any action that may be taken by the respondents 4 and 5 in respect of the property vested with them.
6. The decisions relied upon by the petitioners’ counsel will have no application insofar as the present case is concerned as the Writ Petition is not filed for recoveyance. It can be considered only if the relief sought for by the petitioners relates to reconveyance of the property. When the scope of the writ Petition itself is different the two decisions relied upon by the petitioners’ counsel are absolutely of no relevance.
7. This Court is not inclined to accept the stand of the learned counsel for the petitioners that the land has been used for a different purpose without modification of the scheme and approval by the Government. That plea cannot be raised by the petitioners at this point of time, having failed to establish petitioners right over the property, particularly in view of the acquisition proceedings, which have concluded long ago. This issue has been considered and petitioners’ plea has been rejected in W.P.No.8682/2011 by order dated 20.4.2011
8. The petitioners have made a representation/application only on 27.2.2011 for reconveyance of the property which has already been acquired in the year 1983 and the award was passed in the year 1987. It is for the authority to decide the claim if it merits consideration. There is no right as on today for the petitioners to seek the indulgence of the Court to interfere with the impugned proceedings of the respondents 4 and 5. When the petitioners have no right over the property, the question of granting any relief as prayed for does not arise.
9. In view of the above, the relief sought for in this Writ Petition has to fail and accordingly, the Writ Petition is dismissed. Consequently, connected miscellaneous petitions are closed. This Court has imposed cost in W.P.No.7682 of 2010 filed by the very same petitioners and hence is not inclined to impose cost in the present case.
ts
To
1.The Commissioner and Secretary,
Housing and Urban Development Department,
Chennai-9.
2.The District Collector,
Coimbatore.
3.The Special Tahsildar,
Land Acquisition,
Housing Scheme,
Coimbatore.
4.The Chairman-cum-Managing Director,
Tamil Nadu Housing Board,
Nandanam,
Chennai-600 035.
5.The Executive Engineer-cum-
Administrative Officer,
Tamil Nadu Housing Board,
Tatabad,
Coimbatore 641 012