Madras High Court
Tamil Nadu Housing Board vs A.Madeshwaran on 19 August, 2021
W.A.No.1643 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.08.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE V.SIVAGNANAM
W.A.No.1643 of 2018 and C.M.P. No.13226 of 2018
1.Tamil Nadu Housing Board,
represented by its Assistant Secretary (Allotment),
493, Anna Salai, Nandanam,
Chennai – 600 035.
2.The Executive Engineer/Administrative Officer,
Tamil Nadu Housing Board,
Salem Division,
Salem – 636 008. ... Appellants
-vs-
1.A.Madeshwaran
2.The Government of Tamil Nadu,
represented by its Secretary,
Housing and Urban Development Department,
Fort St. George,
Chennai-9. ... Respondents
Prayer: Writ Appeal filed under Clause 15 of the Letters Patent Act
against the order dated 15.02.2018 made in W.P. No.2389/2012
passed by the Hon'ble Mr.Justice V.Parthiban.
For Appellants : Dr.R.Gowri
For Respondents : Mr.T.Arunkumar,
Government Advocate for R2
Mr.Sankara Ramasamy for R1
1/10
https://www.mhc.tn.gov.in/judis/
W.A.No.1643 of 2018
JUDGMENT
(Judgment of this Court was delivered by T.RAJA,J.)
This writ appeal has been brought by the Tamil Nadu Housing
Board questioning the correctness of the impugned order dated
15.02.2018 passed in Writ Petition No.2389 of 2012 wherein the
learned Single Judge, accepting the request of the writ petitioner/first
respondent for allotment of plot under ex-land owners category,
allowed the same.
2.Learned counsel appearing for the Housing Board/appellants
submitted that the Tamil Nadu Housing Board has proposed to
implement Housing Neighbourhood Scheme at Kandampatty Village for
which various patta lands were acquired under Land Acquisition Act.
Since the first respondent/writ petitioner's land comes under
S.No.2/15 measuring to an extent of 0.53 acre, included in Award
No.14/86-87 dated 23.09.1986, necessary award amount has been
paid by the Tamil Nadu Housing Board. Since two fields namely
S.Nos.2/10 and 2/15 measuring to the extent of 0.33 cents and 0.53
cents respectively were already taken over by the Tamil Nadu Housing
Board and got approval from the Local Planning Authority, Salem for
formation of Kandampatty East Neighbourhood Scheme and the above
said lands were fully utilised by the Tamil Nadu Housing Board and that
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W.A.No.1643 of 2018
there is no provision in the scheme stating that ex-land owners are
entitled to get allotment of land under ex-land owners category, the
request of the first respondent/writ petitioner for allotment of vacant
Plot No.75 under ex-land owners category was refused by the
appellants and the same was put to challenge by the first respondent/
writ petitioner before the learned Single Judge.
3.The impugned order is assailed on three grounds. Firstly, there
is no provision in the scheme stating that ex-land owners are entitled
to get allotment of land under ex-land owners category. Secondly, a
judgment had already been passed by the Division Bench of this Court
in Writ Appeal No.780 of 1999 dated 29.09.2008 taking a view that in
the absence of any provision of law, the request of the petitioners for
allotment of house site is illegal. Thirdly, when the land owners, at the
time of initiation of the land acquisition proceedings, without even
claiming any compensation, voluntarily asked for allotment of land
from the same land, the case of Salem Neighbourhood Scheme
allotting the same lands under ex-land owners category cannot be
relied upon by the first respondent/writ petitioner. These aspects have
been completely over looked by the learned Single Judge. Therefore,
the impugned order is liable to go.
4.Opposing the above prayer, learned counsel for the first
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W.A.No.1643 of 2018
respondent/writ petitioner submitted that the land in question covered
in S.Nos.2/10 and 2/15, measuring to the extent of 0.33 and 0.53
cents situated in Kandampatty Village, Salem District belongs to the
father of the first respondent and after his death, the first respondent/
writ petitioner had inherited the above property. Since the larger
extent of the land in Kandampatty Village, Salem District became the
subject matter of acquisition proceedings under the Land Acquisition
Act 1894, a notice was issued on 30.07.1980 and a portion of the land
belonging to the first respondent/writ petitioner has become a part of
the acquisition proceedings. After the land was acquired by issuing
4(1) Notification, the first respondent/writ petitioner came to know
that the adjacent land owners were considered for allotment of plots in
the acquired land, which lands were acquired in respect of Salem
Neighbourhood Scheme by the Housing Board. On conclusion of the
acquisition proceedings, an award was passed and compensation was
determined, but, the first respondent/writ petitioner, without receiving
any compensation, has made a request for allotment of land under
ex-land owners category. Therefore, he gave a representation to the
second appellant stating that he was entitled to get allotment of plot
No.75 in Survey No.2/15 which was measuring about 1300 sq.ft.
under ex-land owners category and also gave an undertaking to pay
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W.A.No.1643 of 2018
the costs as fixed by the Board.
5.With regard to the first contention made by the learned
counsel for the appellants that there is no provision in the scheme
stating that ex-land owners are entitled to get allotment of land under
ex-land owners category, learned counsel for the first respondent
submitted that when the appellants, while acquiring the land in respect
of Salem Neighbourhood Scheme, has accepted the request for
allotment of alternative land under ex-land owners category, they
cannot refuse similar and identical request of the writ petitioner to
their whims and fancies, since the request of the first respondent/writ
petitioner and the purpose of the introduction of the Salem
Neighbourhood Scheme by the appellants are one and the same.
Therefore, the learned Single Judge, finding fault with the double stand
taken by the appellants, rightly quashing the order passed by the
board, directed the appellants to consider the request of the first
respondent/writ petitioner to allot the Plot No.75 in S.No.2/15.
6.Replying to the second contention that there was a judgment
of the Division Bench of this Court holding that in the absence of any
provision of law, the request of the petitioners for allotment of house
site is illegal, learned counsel for the first respondent/writ petitioner
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W.A.No.1643 of 2018
submitted that the above judgment cannot be made applicable
because there was a submission made by the learned Standing
Counsel for the appellants Board stating that there was no provision of
law and the Division Bench has not properly appreciated all the facts
as to the entitlement of the allotment of plots under ex-land owners
category in the above Writ Appeal No.780 of 1999 vide order dated
29.09.2008.
7.Explaining further, learned counsel for the first respondent
submitted that when the similarly placed persons as that of the writ
petitioner, after suffering the land acquisition proceedings in the case
of Salem Neighbourhood Scheme, have approached the very same
appellants board seeking alternative land therein, their requests have
been considered. Therefore, having accepted a similar and identical
request of land owners, after they suffered the land acquisition
proceedings initiated by the appellants board in the Salem
Neighbourhood Scheme, the appellants cannot say that they cannot
extend the same benefit to the poor writ petitioner.
8.Learned Government Advocate appearing for the second
respondent fairly submitted that no doubt, there is no provision for
allotment of land in favour of the land owners under ex-land owners
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W.A.No.1643 of 2018
category. Since this Court, taking sufficient jurisdiction, has given a
direction to the appellants to consider the genuine request of the writ
petitioner for allotment of land under ex-land owners category, the
same cannot be found fault with.
9.We also find merits on the submission made by the learned
counsel for the first respondent for the following reasons:
Firstly, when the land measuring to the extent of 0.33 and 0.53
cents in S.Nos.2/10 and 2/15 respectively situated in Kandampatty
Village, Salem District belonged to the writ petitioner's family, the
same were acquired by the appellants, after notice was issued on
30.07.1980, a request was made by the writ petitioner for allotment of
plots in the acquired land citing a reason that when the land belonged
to the writ petitioner is lying closer to the land acquired by the
appellants board in respect of the Salem Neighbourhood Scheme and
similar requests of the land owners as that of the writ petitioner for
allotment of alternative land under ex-land owners category are being
considered, the appellants cannot make discrimination between the
two land users living in the same village. After coming to know that he
was entitled to allotment of plots in the acquired land under ex-land
owners category similar to the Salem Neighbourhood Scheme, the writ
petitioner gave a representation to the Executive
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W.A.No.1643 of 2018
Engineer/Administrative Officer, Tamil Nadu Housing Board, the third
respondent in the writ petition requesting for allotment of plot No.75 in
S.No.2/15 having an extent of 1300 sq.ft. with an undertaking to pay
the costs of the land as fixed by the appellants board and the Special
Tahsildar, Salem by proceedings dated 23.09.2009 made a
recommendation recommending the allotment in favour of the writ
petitioner under ex-land owners category. Pursuant to the said
recommendation and the request made by the writ petitioner, the
Tamil Nadu Housing Board called for report from the Executive
Engineer/Administrative Officer for the allotment of plots. However,
the Executive Engineer/Administrative Officer, Salem by letter dated
28.01.2010 had also submitted all the details as required, enclosing
the documents in respect of the land acquired from the writ petitioner.
Only thereafter, the writ petitioner was informed that due steps have
been initiated for allotment of Plot No.75, after obtaining approval
from the Board, which shows that recommendation made by the
Special Tahsildar, Salem was duly accepted by the Executive
Engineer/Administrative Officer, Salem. Since the appellants board in
the Salem Neighbourhood Scheme, accepting a similar request, issued
order granting alternative land under ex-land owners category, the
learned Single Judge, carried away by the above reasons, has allowed
the writ petition, setting aside the impugned order passed by the
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W.A.No.1643 of 2018
appellants herein and directed the appellants to consider the request of
the writ petitioner for allotment of plot on the basis of his
representation.
10.Secondly, a perusal of the judgment passed by the Division
Bench of this Court in Writ Appeal No.780 of 1999 shows that on the
basis of the submission made by the learned Standing Counsel for the
Housing Board to the effect that there is no provision of law enabling
the Housing Board to allot a plot to ex-owner of the land, the above
writ appeal was allowed that cannot be presumed as a precedent made
by this Court.
11.When the lands were acquired by the State Government
either for the Housing Board or for any other requisitioning body or
wherever any genuine request is made, such genuine request is being
considered for allotment of alternative land under ex-land owners
category and it has become usual practice now. Therefore, when the
land loser is making a request seeking only a reasonable extent of land
to eke out his livelihood or to continue his residence, nothing wrong in
accepting the said request for granting alternative plot under ex-land
owners category. Therefore, accepting the finding and conclusion
reached by the learned Single Judge and finding no justification
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W.A.No.1643 of 2018
T.RAJA, J.
and
V.SIVAGNANAM, J.
vga
whatsoever on the submission made by the appellants, this Court is
inclined to dismiss the appeal. Accordingly, this writ appeal stands
dismissed. Consequently, C.M.P. No.13226 of 2018 is closed. No costs.
12.It is for the appellants to work out their remedy in the
manner known to law.
(T.R.,J.) (V.S.G.,J.)
19.08.2021
vga
Index: Yes/No
Speaking/Non speaking order
To
The Government of Tamil Nadu,
represented by its Secretary,
Housing and Urban Development Department,
Fort St. George,
Chennai-9.
W.A.No.1643 of 2018 and C.M.P. No.13226 of 2018
https://www.mhc.tn.gov.in/judis/
