S. Krishnan and Others vs The Government of Tamil Nadu

K. Chandru, J.—Heard both sides.

These matters came to be posted under the order dated 17.03.2010 of the Honourable Chief Justice.

The petitioners in both the writ petitions are in occupation of the lands in question. The writ petition in W.P. No. 34690 of 2005 was filed by

one S. Krishnan and 10 others. They have filed the writ petition seeking to challenge the order dated 01.08.2005 passed by the first respondent-

State Government refusing to part with the lands acquired in various survey numbers in Sholinganallur Village, Tambaram Taluk, Kanchipuram

District.

The writ petition in W.P. No. 34691 of 2005 was filed by one R. Selvam and 7 others for the very same relief.

Both the writ petitions were admitted on 27.10.2005. Pending the writ petitions, interim order was granted on 27.10.2005 for a period of eight

weeks. Subsequently, there is no endorsement in the Court bundle that it was further extended. In any event, the matters were directed to be

posted before the Division Bench. Accordingly, when the matter came up before the Division Bench on 27.02.2006, one of the learned Judge who

presided over the Division Bench stated that the matter may be posted before some other Bench. This was on the view that subsequent to the

judgment in Prithvi Trust Private Ltd. Vs. The State of Tamil Nadu and Others, , it may not be proper for the Court to pass any order on an

application of this nature and therefore, the matter was directed to be posted before some other Bench. Subsequently, by the orders of the

Honourable Chief Justice, the matters came to be listed before this Court after grouping it together with other connected writ petitions.

On notice from this Court, on behalf of the Tamil Nadu Housing Board, separate counter affidavit dated 16.02.2006 was filed in both the writ

petitions. The Special Tahsildar also has filed another counter affidavit dated 06.09.2007. Reliance was placed upon the judgment of the Supreme

Court reported in 2007 (2) CTC 447.

In the counter affidavit filed by the Tamil Nadu Housing Board, a preliminary objection was taken namely, invocation of Section 48B of the

Land Acquisition Act was not available to the petitioners, since the lands were vested with the Tamil Nadu Housing Board and acquired for the

purpose of formation of Sholinganallur Neighbourhood Housing Scheme. It was also stated that the petitioners are in possession of lands was

unauthorised and they are liable to be evicted. It was further submitted that the Tamil Nadu Housing Board Neighbourhood Scheme was framed in

respect of lands in Sholinganallur Village in the year 1990. An award was passed in the year 1997 and the lands were handed over to the Tamil

Nadu Housing Board on 16.08.2004. Therefore, the petitioners claim that they have put up construction and residing in the Tamil Nadu Housing

Board lands, was unauthorised. In para 18, it was contended that single writ petition was not maintainable. But however, action for eviction will be

taken after giving individual notices. Similar stand was taken in respect of the second writ petition.

It is seen from the records that this is the third round of litigation instituted by the petitioners. The petitioners, in the earlier writ petition in W.P.

No. 11386 of 2005 claimed that their application u/s 48-B of the Land Acquisition Act, pending with the Government, must be disposed of. This

Court by an order dated 11.04.2005 disposed of the writ petition and gave a direction to the Government to consider their representation.

Subsequently, a second writ petition in W.P. No. 16288 of 2005 was filed with different set of petitioners. In that case, an interim stay against

dispossession was granted. But however, it was made clear that such an order will be in force only if they are not dispossessed earlier. Pursuant to

the earlier direction given by this Court, the State Government, by order dated 01.08.2005 rejected the requests of the petitioners. It was stated

that the lands were acquired in respect of Sholinganallur Village Phase-I Scheme covering an extent of 47.36 acres and after following due

procedure, an Award in No. 1/97 was passed on 23.04.1997 and possession was taken over by the Tamil Nadu Housing Board on 16.08.2004.

It was also stated that the lands are essentially required for the formation of the Scheme and the Tamil Nadu Housing Board was taken appropriate

action to finalise the scheme. Therefore, the requests of the petitioners were rejected.

Mr. Kandan Duraisami, learned Counsel for the petitioners contended that the petitioners have already made pucca construction in the lands

and if at this stage, they are sent out, it will cause immense hardship to the petitioners. But in the present case, admittedly the petitioners were not

the original owners of the lands in question and invocation of Section 48-B as rightly contended by the Tamil Nadu Housing Board is not

maintainable. Section 48-B is available only to the original owners and not to any subsequent purchasers who might have come into possession of

the lands. Whether the petitioners are the purchasers of lands or occupiers of the lands is not a question for consideration. It is suffice to state that

invocation of Section 48-B is inappropriate. Even otherwise, in the two orders passed by this Court, the respondents have considered the issue in

consultation with the requisitioning body and passed an order negativing their request. Therefore, the short question that arises for consideration is

whether the petitioners claim can be considered in the light of the order passed by the first respondent.

Though several proceedings had taken place in this writ petition, it is unnecessary to go into the details of the same. The short question that

arises for consideration is whether the petitioners are entitled for return of the land, especially when the lands were acquired under the Land

Acquisition Act and entrusted to the requisitioning body. Though the petitioners placed strong reliance upon a judgment of the Division Bench of

this Court in R. Shanmugam and Ors. v. The State of Tamil Nadu and Ors. reported in 2006 (4) CTC 290, this Court is not inclined to accept the

stand of the petitioners. If at all the petitioners have any right to seek return of the land, it can be done only by the exercise of power u/s 48-B of

the Land Acquisition Act, 1894.

The Supreme Court in Tamil Nadu Housing Board Vs. Keeravani Ammal and Others, 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.

It was brought to the notice of this Court that in the latest judgment in Tamil Nadu Housing Board Vs. L. Chandrasekaran and Others, dated

29.01.2010, the Supreme Court dealt with the scope of Section 48-B and has considered all the cases arising out of reconveyance. In paragraphs

18 and 19, it was observed as follows:

It need no emphasis that in exercise of power u/s 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 u/s 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.

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:

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.

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.

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 and others Vs. M. Bhaskaran Pillai and another, in a similar

situation, this Court observed: (SCC p.433, para 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.

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.

Though the learned Counsel for the petitioners had cited some cases regarding re-conveyance, this Court is not inclined to accept the case of

the petitioners. Even otherwise, once an acquisition took place, even the State cannot withdraw from the acquisition after the purpose of the

acquisition is completed. Citing the cases of others cannot improve the case of the petitioner. The Supreme Court in Shanti Sports Club and Anr.

v. Union of India and Ors. reported in 2009 AIR SCW 6953 dealing with the plea of discrimination and violation of Article 14, in paragraphs 50

and 51 observed as follows:

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 u/s 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 and another Vs. Jagjit Singh and another, , 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.

Similar is the ratio of the judgments in Narain Das and Others Vs. The Improvement Trust, Amritsar and Another, , Gursharan Singh and

others etc. Vs. New Delhi Municipal Committee and others, , Secretary, Jaipur Development Authority v. Daulat Mal Jain (supra), Yadu Nandan

Garg v. State of Rajasthan and Ors. (supra), State of Haryana and Others Vs. Ram Kumar Mann, , M/s. Faridabad Ct. Scan center Vs. D.G.

Health Services and others, , M/s. Style (Dress Land) Vs. Union Territory Chandigarh and Another, , State of Bihar and Others Vs. Kameshwar

Prasad Singh and Another, , Union of India (UOI) and Another Vs. International Trading Co. and Another, , Ekta Shakti Foundation Vs. Govt. of

NCT of Delhi, , Sanjay Kumar Munjal v. Chairman, UPSC (2006) 3 SCC 42, K.K. Bhalla Vs. State of M.P. and Others, , National Institute of

Technology, Jamshedpur and Others Vs. Chandra Shekhar Chaudhary, , Vice Chancellor, M.D. University, Rohtak Vs. Jahan Singh, , State of

Kerala and Others Vs. K. Prasad and Another, , Punjab State Electricity Board and Others Vs. Gurmail Singh, and Panchi Devi Vs. State of

Rajasthan and Others, .

In the light of the same, these writ petitions stand dismissed. No costs. Consequent, connected miscellaneous petitions are closed.