Madras High Court

The Managing Director vs S.Paramanandam (Deceased) on 2 November, 2021

                                                                 W.A.No.669 of 2014

            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                      DATED : 02.11.2021

                                   CORAM:

                     THE HON'BLE MR. JUSTICE T.RAJA

                                     AND

       THE HONOURABLE MR. JUSTICE D.BHARATHA CHAKRAVARTHY

                             W.A.No.669 of 2014


The Managing Director,
Tamil Nadu Housing Board,
No.331, Anna Salai,
Nandanam, Chennai – 35.                                     .. Appellant

                                          Vs
1.S.Paramanandam (deceased)
2.V.Sarangapani (deceased)
3.M.Vedanesan (deceased)

4.The Secretary,
  Housing and Urban Development,
  Fort St. George, Chennai – 9.

5.Mrs.Thangammal
6.S.Ebinezer
  (R5 & R6 were impleaded as LRs of deceased R2
   vide order of the Court dt. 05.01.2015 made in M.P.No.2/14)

7.M.V.Saloman
8.Ganaselvi
9.S.Bhritan Raj
10.S.Deepika
11.M.V.Jeyapal
12.M.Nesamani

1/12
                                                                W.A.No.669 of 2014

13.G.Rebekkal
14.Gopu
15.M.V.Selvam
16.M.V.Jones
  (R7 to R16 were substituted as LRs of the deceased R3
   vide order of Court dt.10.09.2015 made in M.P.No.4/15 in WA.No.669/14)

17.P.Selvarani
18.P.Rajesh
19.P.Saranya                                               .. Respondents
  (R17 to R19 were substituted as LRs of the deceased R1
  vide order of Court dt.10.09.2015 made in M.P.No.5/15 in WA.No.669/14)


Prayer : Writ Appeal has been filed under Section 15 of Letter of Patent against

the order dated 28.06.2018 passed in W.P.No.6398 of 2006 by the learned Single

Judge of this Court.

             For Appellant             : Dr.R.Gowri

             For R5 & R6               : Mr.V.Raghavachari
                                       for Mr.Tamil Amudhu

             For R7 to R19             : Mr.P.Wilson, SC
                                       for Mr.P.S.Amalraj

             For R4                    : Mr.T.Arunkumar, GA
             For R1 to R3 : died



                                   JUDGMENT

The Tamil Nadu Housing Baord (TNHB), represented by its Managing

Director, has filed the present appeal challenging the impugned order passed by

the learned Single Judge in W.P.No.3559 of 2004, dated 30.04.2013, in and by

W.A.No.669 of 2014

which, learned Single Judge allowed the prayer of the writ petitioners seeking for

reconveyance of the lands situated in S.Nos.454, measuring 1.33 acres, 455-1

measuring 1.62 acres, 456-1 measuring 0.77 acres, 456-2, measuring 0.57 acres in

Mogappair Village, Ambattur Taluk, Thiruvallur District, holding that in the

matter of reconveyance of the land to the land owners, there cannot be any

discriminatory treatment applying the principles of pick and choose among the

land owners arbitrarily.

2. Brief facts leading to the filing of the writ appeal are stated below:-

The aforesaid lands owned by the writ petitioners were acquired by a

Notification in G.O.R.No.261, dated 23.10.1975, under Section 4(1) of the Land

Acquisition Act (in short “the Act”) for the purpose of Mogappair Eri Scheme.

Subsequently, after a lapse of three years, a declaration under Section 6 of the Act

was issued on 09.11.1978. The said land acquisition proceedings were challenged

before this Court in W.P.No.13582 of 1995 and this Court, by order dated

01.02.1996, quashed the 4(1) notification dated 23.10.1975 holding that

declaration under Section 6 has not been issued within the statutory period of

three years from the date of 4(1) notification. Aggrieved by the same, when Writ

Appeal No.645 of 1996 was filed by the TNHB, a Division Bench of this Court, by

W.A.No.669 of 2014

order dated 12.07.1996, dismissed the writ appeal. Against which, when SLP was

filed by the TNHB, the same was also dismissed. Thereafter, in the year 2001, the

TNHB/Requisitioning Authority took a policy decision as not to undertake any

construction vide their resolution dated 30.10.2001. Therefore, it is averred that

the TNHB was not in a position to undertake any new construction and hence, as

per Section 48(B) of the Act, the writ petitioners deserve the reconveyance of the

lands as original land owners. It is further averred that pursuant to the order

passed by this Court in W.P.No.13582 of 1995, dated 01.02.1996, the writ

petitioners have made various representation to the authorities concerned to

reconvey their lands, but, the TNHB has not taken any steps. Therefore, the writ

petitioners have filed W.P.No.3559 of 2004 seeking for issuance of a writ of

mandamus to direct the TNHB to reconvey the lands in question to the writ

petitioners. This Court, by impugned order dated 30.04.2013, holding that in the

matter of reconveyance, everyone should be treated equally and there shall not be

discrimination among equals, allowed the prayer as prayed for. Against which,

the present writ appeal has been filed by the TNHB.

3. We have heard Dr.R.Gowri, learned standing counsel for the TNHB,

Mr.V.Raghavachari, learned counsel for the respondents 5 and 6, Mr.P.Wilson,

W.A.No.669 of 2014

learned Senior counsel for the respondents 7 to 19 and Mr.T.Arunkumar, learned

Government Advocate for the fourth respondent, and perused the materials

available before this Court.

4. It is seen from the records that the lands in question were acquired by

the State Government by issuing a Notification under Section 4(1) of the Act on

23.10.1975 for the purpose of Mogappair Eri Scheme. Instead of issuing a

declaration under Section 6 of the Act within a period of one year from the date

of issuance of 4(1) notification, Section 6 declaration was issued after a lapse of

three years i.e. on 09.11.1978, as a result, in a writ petition filed by the parties in

W.P.No.13582 of 1995, this Court, by order dated 01.02.1996, was pleased to

quash the 4(1) notification by holding that Section 6 declaration has not been

issued within the statutory period of three years from the date of 4(1)

notification. Against the said order, when writ appeal in W.A.No.645 of 1996

was filed by the TNHB, a Division Bench of this Court, by order dated

12.07.1996, dismissed the said writ appeal. Subsequently, it is stated in the

affidavit, the Special Leave Petition preferred by the TNHB was also dismissed

by the Hon'ble Apex Court.

W.A.No.669 of 2014

5. Challenging the 4(1) notification dated 12.11.1975, one A.S.Naidu went

upto the Hon'ble Apex Court, whereby, the Hon'ble Apex Court, by order dated

21.08.1990 passed in I.A.Nos.1 to 3 in SLP.Nos.11353 to 11355 of 1980, while

disposing the said case, gave liberty to the State Government to make a fresh

preliminary notification if acquisition is necessary in public interest. However,

ironically, even after long passage of 45 years from the date of 4(1) notification,

neither fresh 4(1) notification has been issued nor any new scheme has been

framed for using the lands in question.

6. Besides, it is to be noted that for the very same village for adjacent

survey numbers covered in the very same 4(1) notification dated 23.10.1975, this

Court, vide order dated 20.07.1999 passed in W.P.No.4600 of 1999, held 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. 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 that always it may be open to the requisitioning

W.A.No.669 of 2014

authority to proclaim that the particular land is required for

the 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 required or for any other public purpose.”

7. The above said order of the learned Single Judge was also confirmed by

a Division Bench of this Court in W.A.No.2160 of 1999, dated 01.03.2000.

Subsequently, when Special Leave Petition was filed in SLP(C).Nos.9343-44/2000

by the TNHB, the same was also dismissed as withdrawn on 12.06.2000. Thus, in

the present case, by taking note of the fact that the very same 4(1) notification

dated 23.10.1975 and the subsequent declaration under Section 6 dated 09.11.1978

have already been quashed, which was subsequently confirmed by the Hon'ble

Apex Court, this Court by the impugned order dated 30.04.2013 held as follows:-

“24. Though the respondents have opposed the writ

petition on various grounds, in similar matters, this Court

in W.A.No.2602 of 2004, dated 15.12.2006, W.A.No.645

of 1996, dated 12.06.1996, W.A.No.2430 of 1996, dated

18.02.2000, W.A.No.2160 of 1999, dated 01.03.2000 and

W.A.No.1926 of 2010, dated 19.11.2010, confirming the

W.A.No.669 of 2014

orders passed by the learned Single Judge in W.P.No.3559

of 2004, dated 03.03.2004, W.P.No.13552 of 1995, dated

01.02.1996, and W.P.No.4600 of 1999, dated 20.07.1999

and W.P.No.5431 of 2009, dated 05.11.2009, respectively,

has passed orders granting reconveyance of the lands which

was not utilized for the purpose for which it was acquired.”

8. In the case on hand, it is not in dispute that the direction issued by the

learned Single Judge for reconveyance has not been questioned by the State

Government and only TNHB alone has filed the present appeal. Secondly, in the

present appeal, the State has not even filed any counter affidavit supporting or

objecting the stand of the Housing Board. In this context, it is relevant to extract

Section 48-B which reads thus:-

“ 48-B --- Transfer of land to original owner in

certain cases.--- Where the Government are satisfied that

the land vest in the Government under this Act is not

acquired for the purpose for which it was acquired, or for any

other public purpose, the Government may transfer such

land to the original owner who is willing to repay the

amount paid to him under this Act for acquisition of such

land inclusive of the amount referred to in sub-section (1-A)

and (2) of Section 23, if any, paid under this Act. ”

W.A.No.669 of 2014

A perusal of the above provision clearly shows that the Government alone can

transfer the land to the original owner who is willing to repay the amount paid to

him for acquisition of such land. Therefore, although acquired lands have been

reconveyed to the similarly situated persons relating to the very same acquisition

proceedings, the Government has failed to reconvey the same to the writ

petitioners alone. It is the moral obligation on the part of the Government to act

with substantial fairness and consistency in considering the representations of the

land owners for withdrawl from acquisition whose lands have been acquired

under the same acquisition proceedings. The State Government cannot pick and

choose some landowners and release their land from acquisition and deny the

same benefit to other land owners by creating artificial distinction. Passing

different orders in exercise of its power under Section 48 of the Act in respect of

persons similarly situated relating to the same acquisition proceedings and for

the same public purpose is definitely violative of Article 14 of the Constitution

and must be held to be discriminatory. (A reference can be had from a decision of

the Hon'ble Apex Court in Hari Ram Vs. State of Haryana [2010 3 SCC 621]. In

this case, admittedly, the TNHB has reconveyed the lands acquired to several

persons under Section 48-B and therefore, refusing to grant the similar relief to

the writ petitioners alone, as rightly held by the learned Single Judge holding that

W.A.No.669 of 2014

the authorities should treat everyone equally and there must not be any

discrimination among equals, is untenable.

9. Further, it is to be noted that 4(1) notification in question was issued 45

years ago i.e. on 23.10.1975 for the purpose of Mogappair Eri Scheme. As

declaration under Section 6 of the Act was issued after a lapse of 3 years on

09.11.1978, challenging the belated issuance of declaration under Section 6, a writ

petition No.13582 of 1995 was filed, whereby learned Single Judge, by order

dated 01.02.1996, accepting the case of the writ petitioners therein that a

declaration under Section 6 has not been issued within the statutory period of 3

years, allowed the writ petition quashing the declaration under Section 6. This

was also confirmed by the learned Division Bench by dismissing the writ appeal

filed by the Housing Board on 12.07.1996 in W.A.No.645 of 1996. Aggrieved

thereby, when SLP was filed by the Housing Board, the same was also dismissed

by the Hon'ble Apex Court. Therefore, admittedly, when the land in question

was not utilized by the Housing Board and consequently, the State Government

also re-conveyed the adjacent lands to several land owners, refusing the same

benefit of re-conveyance under Section 48-B to the similarly placed persons,

namely, writ petitioners, is not sustainable. Hence, in our considered view,

W.A.No.669 of 2014

learned Single Judge has rightly allowed the writ petition holding that the

authorities shall not treat the land owners indiscriminately while providing the

benefit of re-conveyance. Therefore, for the reasons stated above, the writ appeal

stands dismissed by confirming the order passed by the learned Single Judge. No

Costs. Consequently, connected miscellaneous petitions are closed.