Heard the learned counsels appearing for the parties. Petitioners are
the owners of certain properties in Kallapatti Village, Coimbatore District.
Notification under Section 4(1) of the Land Acquisition Act, (hereinafter
called the Act) was published in the Gazette dated 2 7.3.1991. The land was
being acquired for neighborhood scheme for and on behalf of the Tamil Nadu
Housing Board, the second respondent. The petitioners had filed objections.
Subsequently, declaration under Section 6 had been published. In March 1994,
the petitioners received notice under Section 9(3) of the Act. At that stage,
the petitioners filed separate writ petitions challenging the acquisition. A
learned single Judge of this Court, while dismissing the aforesaid writ
petitions observed :
. . . However it is open to the petitioners to make a
representation before the concerned authority within a period of three months
from the date of receipt of a copy of this order, for exclusion of their lands
from acquisition. If such representation is made by the petitioners, the
concerned authority shall consider and dispose of the same on merits, within a
period of six months thereafter. Till such time, status quo shall continue.
2. On the basis of the aforesaid observation, the petitioners
filed representation dated 16.8.2001 purported to be under Section 48-B of the
Act for reconveyance of the lands. Since no orders had been passed, the
petitioners filed W.P.Nos.9780 & 9781 of 2002, which were dismissed. The
petitioners filed Writ Appeal Nos.1465 and 1466 of 200 2, which were disposed
of with a direction to the Government to consider and dispose of the
representation dated 16.8.2001 and pass appropriate orders in accordance with
law. However, since no orders had been passed, these writ petitions have been
filed with a prayer to issue writ of mandamus directing the respondents to
reconvey the lands.
3. It is unfortunate that in spite of the specific direction
of this Court, the respondents did not dispose of the representation dated
16.8.2001.
4. Since certain questions have been raised relating to
interpretation of Section 48-B and other related provisions, the matter has
been heard at length.
5. Section 48-B, which was introduced by way of State
Amendment, is to the following effect :-
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 required for the purpose for which it was acquired, or for any other
public, the Government may transfer such land to the original owner who is
willing to repay the amount paid to him under this Act for the 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.
6. A perusal of the aforesaid provision makes it clear that
power has been given to reconvey the land acquired under the Land Acquisition
Act and vested with the Government to the original owner subject to certain
conditions relating to repayment of the compensation. It has to be noticed
that Section 48-B would be applicable in respect of lands which are vested in
the Government. Where, however, the lands are not vested with the Government,
obviously the Government would have no power to reconvey such land.
7. It is the contention of the learned counsels appearing for
the State as well as the Board that in the present case, the land had been
acquired for the Housing Board and on deposit of compensation amount such land
has been vested with the Housing Board. This is more particularly so by
virtue of the provisions contained in sections 16 and 17-a, which are
extracted hereunder :-
16. Power to take possession. - When the Collector has made an
award under Section 11, he may take possession of the land, which shall
thereupon vest absolutely in the Government, free from all encumbrances.
17-A Transfer of land to Board. - In every case referred to in
Section 16 or Section 17, the Collector shall, upon payment of the cost of
acquisition, make over charge of the land to the Board; and the land shall
thereupon vest in the Board, subject to the liability of the Board to pay any
further costs which may be incurred on account of its acquisition.
8. So long as such lands remain vested with the Board,
obviously power under Section 48-B cannot be exercised by the Government.
Where the lands have been acquired for a particular purpose by some other
authority or company and such lands have not been used, the Government has
power to forfeit such land under Section 16-B of the Act, which is to the
following effect :-
16-B. Land to be forfeited in certain cases. - Where the
Government are satisfied that the land acquired under this Act for any public
purpose as referred to in sub-section(1) of Section 4 is not used for the
purpose for which it was acquired, they may, by an order, forfeit the land as
penalty and the land shall vest in the Government in Revenue Department free
from all encumbrances:
Provided that no order under this section, shall be made unless the
person or authority aggrieved has had a reasonable opportunity of being
heard.
9. Before passing any order of forfeiture, of course, the
Government has to issue notice to the authority or the company concerned.
These amendments to the Central Act were effected under the State Amendment
Act,1996 (XVI of 1997). It is obvious that all these provisions have to be
read together. From the aforesaid provisions it is apparent that where the
land is acquired for Housing Board, the Government has the power to forfeit
and on such forfeiture, the property again vests with the Government free from
all encumbrances. At that stage, it would be open to the Government to deal
with the land in accordance with the provisions contained in the Land
Acquisition Act including Section 48-B.
10. A contention was raised by the learned counsel appearing
for the State that before action is taken under Section 16B, an application
for reconveyance of the land under Section 48-B is not contemplated. Even
though such a contention may appear to be attractive on the face of it, on a
closer scrutiny, I am unable to accept such a contention. As already
indicated, all these amendments were introduced under the State Act at the
same time. Section 48-B has been introduced with a view to protect the
interest of the persons from whom the land has been acquired but not utilised.
Such provision is a benevolent provision. Even though it is not specifically
indicated in Section 4 8-B regarding the right of such a person to file
application, it is obvious that such a person has to indicate his willingness
to get the land back subject to repayment of the compensation. Therefore,
Such a person can always indicate his willingness by filing a representation.
Where the land is acquired by the Government for itself, obviously the land
remains vested with the Government. Similarly, where the land is acquired for
any other authority or company, until action is taken under Section 16B of the
Act, the land does not get re-vested in the Government. Therefore, where the
land is acquired for an authority or a company and it is not used by such
authority, such nonutilization is required to be brought to the notice of the
Government so that the Government can initiate appropriate proceedings under
Section 16-B of the Act. In all such cases where the land is acquired for a
company or any other authority, an affected person can make a representation
so that the Government can consider the question of forfeiture of such land
under Section 16-B and thereafter take action under Section 48-B, if the facts
and circumstances so warrant.
11. Having regard to all these aspects, the writ petitions
are disposed of with the following directions :-
(1) The State Government has to consider whether any action is
required to be taken under Section 16-B of the Act.
(2) If the Government takes a decision to forfeit the land under
Section 16-B of the Act, thereafter the Government has to consider further
whether the land should be reconveyed to the persons affected in accordance
with Section 48-B of the Act.
(3) Appropriate decision in the matter should be taken within a period
of four months from the date of receipt of a copy of the order.
(4) Any decision taken should be communicated to the petitioners.
12. In the result, the writ petitions are disposed of with
the above directions. No costs.
dpk
To
1. The State of Tamil Nadu,
Rep. by its Secretary,
Housing and Urban Development,
Fort St. George,
Chennai 9.
2. The Managing Director,
Tamil Nadu Housing Board,
331, Anna Salai, Nandanam,
Chennai 35.