Tamilnadu Housing Board vs Jaya Gurumurthy and The State of Tamilnadu

K. Raviraja Pandian, J.—This is an appeal filed by the Tamil Nadu Housing Board questioning the correctness of the order passed by the

learned single Judge dated 10.04.2006 made in writ petition No. 2589 of 2006 directing the Government and the Housing Board, respondents 1

and 2 respectively in the writ petition, to take appropriate action to evict the encroachers and deliver possession of the land in an extent of 0.06

cents comprised in survey No. 6 1B/9 at Ponmeni village, Madurai Taluk, Madurai District to the writ petitioner, within three months from the date

of receipt of the copy of the order.

That order came to be passed in the following circumstances : The first respondent''s land in an extent of 0.06 cents in R.S. No. 6, 1B/9,

Ponmeni village, Madurai Taluk, Madurai District had been acquired by the Government for the Ellis Nagar Nieghbourhood scheme among other

lands under the provisions of the Land Acquisition Act.

The first respondent''s mother filed writ petition No. 8055 of 1982 challenging the declaration u/s 6 of the Land Acquisition Act before this

Court and obtained a favourable order quashing the declaration by order dated 07.04.1983. Subsequently, she filed another writ petition in W.P.

No. 3109 of 1986 challenging the 4(1) notification and the same was quashed by this Court. The Government and the Housing Board, after taking

possession of the lands left it to be encroached upon by certain persons. When the entire acquisition proceedings has been quashed by this Court,

the Government as well as the Housing Board are duty bound to redeliver the land after clearing encroachments. The learned single Judge by her

order impugned in this appeal, has directed the respondents in the writ petition to redeliver possession of the land in question to the first

respondent/writ petitioner. The correctness of the said order is questioned in this writ appeal.

The learned Standing Counsel for the Housing Board contended that the acquiring body did not hand over the subject land to the Housing

Board. When the land was not handed over to the Housing Board, learned single Judge was wrong in directing the Housing Board to redeliver

possession of the land to the respondent. In order to establish his case, the counsel produced transfer charge certificate issued by the Special

Deputy Surveyor (L.A.) and Head Surveyor, Special Division, Ellis Nagar Scheme, Madurai dated 22.11.1982 wherein the details of handing

over of various survey numbers have been given. So far as the first respondent''s land in survey No. 6.1B/9 in an extent of 0.06 cents is concerned,

the charge certificate categorically states that as the land was covered by the writ petition before the High Court, possession of the land has not

been handed over to the Housing Board. On that basis, the Housing Board contended that the direction given by the learned single Judge directing

the Housing Board to re-handover the vacant land within the stipulated period without any basis. When possession itself has not been handed over

to the Housing Board, directing the Housing Board to re-handover possession to the first respondent/writ petitioner is nothing but a direction to

perform the impossibility.

The Special Tahsildar, Southern Neighbourhood scheme has filed a solemn counter affidavit wherein in paragraph (g), it is stated that the 4th

respondent had not taken possession of the land in question. Further, it is averred that the mother of the first respondent/writ petitioner filed a writ

petition seeking for an order of mandamus in writ petition No. 3109 of 1986 to forbear the 4th respondent herein and his employees and agents

from interfering with her possession and enjoyment of the land in question and that writ petition was allowed by the High Court by its order dated

04.09.1997. The prayer in the writ petition makes it manifestly clear that the land was and is under the possession and enjoyment of the land

owner, and was never taken possession by the 4th respondent. As per the Land Acquisition Act, the property under acquisition vests with the

Government only after passing award u/s 11 of the Act. Though in respect of the property in question, award has been passed, possession has not

been taken u/s 16 of the Land Acquisition Act. Even prior to taking possession u/s 16 of the Act, the first respondent''s mother filed a writ petition

and obtained an order of injunction preserving her possession over the property. Ultimately, the writ petition had also been allowed and

subsequently the writ petition challenging the 4(1) notification also came to be allowed. When possession had not been taken, there is no obligation

on the part of the Government to redeliver possession of the property which is under the possession of the land owner.

Mr. Mani Narayanan, learned Counsel for the first respondent/writ petitioner placed reliance on two documents to sustain the order of the

learned single Judge, one letter dated 17.01.2005 from the Executive Engineer and Administrative Officer of the Housing Board and the other by

the Collector of Madurai dated 11.10.2005. As per the letters, it is contended that it is obvious that possession has been taken by the Housing

Board. Even the title deeds are with the Government and hence, the order of the learned single Judge directing the Housing Board as well as the

Government to handover possession of the property cannot be complained of, either by the Housing Board or by the Government.

Heard the learned Counsel on either side and perused the materials available on record, particularly, the two letters on which reliance has been

placed by the learned Counsel for the first respondent to contend that possession has been taken from her.

First, let us consider the statutory provision.

Section 11 of the Land Acquisition Act, 1894 read as under:

Enquiry and award by Collector .-(1) On the day so fixed, or on any other day to which the enquiry has been adjourned, the Collector shall

proceed to enquire into the objections (if any) which any person interested has stated pursuant to a notice given u/s 9 to the measurements made

u/s 8, and into the value of the land at the date of the publication of the notification u/s 4, Sub-section (1), and into the respective interests of the

persons claiming the compensation and shall make an award under his hand of:

(i) the true area of the land;

(ii) the compensation which in his opinion should be allowed for the land; and

(iii) the apportionment of the said compensation among all the persons known or believed to be interested in the land, of whom, or of whose

claims, he has information, whether or not they have respectively appeared before him:

Provided that no award shall be made by the Collector under this sub-section without the previous approval of the appropriate Government or of

such officer as the appropriate Government may authorise in this behalf:

Provided further that it shall be competent for the appropriate Government to direct that the Collector may make such award without such

approval in such class of cases as the appropriate Government may specify in this behalf.

(2) Notwithstanding anything contained in Sub-section (1), if at any stage of the proceedings, the Collector is satisfied that all the persons

interested in the land who appeared before him have agreed in writing on the matters to be included in the award of the Collector in the form

prescribed by rules made by the appropriate Government, he may, without making further enquiry, make an award according to the terms of such

agreement.

(3) The determination of compensation for any land under Sub-section (2) shall not in any way affect the determination of compensation in respect

of other lands in the same locality or elsewhere in accordance with the other provisions of this Act.

(4) Notwithstanding anything contained in the Registration Act, 1908 (16 of 1908), no agreement made under Sub-section (2) shall be liable to

registration under that Act.

Section 16 of the Act read as under:

Power to take possession:

When the Collector has made an award u/s 11, he may take possession of the land, which shall thereupon vest absolutely in the Government free

from all encumbrances.

As per the provision only after passing an award u/s 11 of the Act, the Collector is empowered to take possession of the land, which was subject

matter of the acquisition, u/s 16 of the Land Acquisition Act. In this case, the award came to be passed on 25.03.1982. But the first respondent

filed writ petition No. 8055 of 1982 and obtained an order of interim injunction on 01.10.1982 preserving her possession over the land. In the

affidavit it was averred that the first respondent was in possession. Hence, possession of the land has not been taken from the first respondent/writ

petitioner. Subsequently, not only the writ petition challenging the declaration u/s 6 of the Act was allowed on 07.04.1983, but also the writ

petition challenging the 4(1) notification was also allowed on 04.09.1997. It is obvious from the prayer and the solemn affidavit filed in support of

W.P. No. 3109 of 1986 that possession of the subject land was only with the first respondent.

Now let us consider the two letters. The first letter is one written by the Executive Engineer and Administrative Officer, Madurai Housing Unit

dated 17.01.2005. From the letter is obvious that the District Collector forwarded a petition received by him from one Gurumurthy. While

disposing of the said petition, the Executive Engineer referred to about the acquisition proceedings initiated in relation to the land in question and

informed him as the land was the subject matter of writ proceedings, it was not handed over to the Housing Board and further informed the said

Gurumurthy to approach the Special Tahsildar (L.A.) South Neighbourhood Scheme. The other letter is dated 11.10.2005 from the District

Collector, Madurai to the Government Secretary of Housing and Development. From this letter it is evident that the District Collector informed the

Secretary to Government that one Jaya Gurumurthy has sent a petition to the effect that the writ petition filed challenging the acquisition

proceedings has been allowed by the Court and that she may be furnished with no objection certificate and the title deed in respect of the subject

property may be returned to her, and the same may be granted.

On the entire reading of the letter, we are of the view that the letter cannot be regarded as one which acknowledged receipt of title deed either

from the first respondent or from the first respondent''s mother. By referring to the statement made by the first respondent in her letter, the

Collector has requested the Government to issue no objection certificate and return the original title deed to the first respondent. Likewise, the

other letter of the Executive Engineer, Madurai dated 17.01.2005 referred by the learned Counsel for the first respondent to contend that

possession in respect of the subject land has been taken by the Government, cannot be regarded as one indicating that possession has been taken

by the Government. In the first paragraph of the letter only the land acquisition proceedings initiated for acquiring the first respondent''s land by

issuance of 4(1) of the Act has been referred to. The same cannot be understood that the possession of the land has been taken by the Housing

Board.

Whatever be the position, now that the proceedings initiated against the first respondent''s land has been held to be invalid by this Court in

more than one writ petition and that neither the Government nor the Housing Board has taken possession of the property, which is apparent from

the filing of the writ petition No. 3109 of 1986, we are of the view that the order of the learned single Judge directing the Government and the

Housing Board to redeliver the possession is not legally sustainable. Accordingly, the order of the learned single Judge is set aside. The writ

petition is allowed. However, the Housing Board, the appellants herein and the Government, are hereby directed to issue a letter or certificate to

the effect that the first respondent''s land in survey No. 6 1B/9, Ponmeni village, Madurai Taluk, Madurai District has not been acquired by the

Government. No costs. The connected miscellaneous petition is closed.