Under the impugned order, the Government has rejected the petitioner's
claim for reconveyance under Section 48-B of the Land Acquisition Act as
amended by the State of Tamil Nadu. Mr.R.N.Amarnath, learned counsel
appearing for the petitioner would attack the order on the following grounds:
The property acquired and transferred to the Housing Board remains
unutilised for a long number of years and therefore it must be held that the
public purpose for which the lands were acquired no longer subsists. If that
is so, the land owners have a right to have the lands reconveyed. When the
lands, which were acquired is not used for the purpose for which it was
acquired, then the Government has a right of forfeiture under section 16-B of
the Land Acquisition Act as amended by the State of Tamil Nadu. Therefore
reading Sections 16-B and Section 48-B of the Land Acquisition Act (both
amended by the State of Tamil Nadu) this Court has to necessarily hold, on the
facts available in the order impugned, that the land owners are entitled to
reconveyance.
Mr.R.Muthukumaraswamy, learned Additional Advocate General appearing
for the respondents would submit that the Government will get jurisdiction to
exercise the power under Section 48-B of the Land Acquisition Act only when
the land in respect of which, it has to exercise the power, vests with the
Government and secondly it must be satisfied that the land is not required for
the purpose for which it was acquired. In this case, according to the learned
Additional Advocate General and it is an admitted fact, that the land vests
with the Housing Board. It is a statutory vesting under Section 17-A of the
Land Acquisition Act as amended by the State of Tamil Nadu. Once such vesting
is there, then the land so vested with the Housing Board is governed by the
provisions of the Tamil Nadu Housing Board Act, which is a self contained Act
defining the powers of the Housing Board to deal with the property so vesting
with them. Learned Additional Advocate General would submit that under
section 16-B of the Act, power is available to the Government to forfeit when
it finds that the land acquired is not used for the purpose for which it was
acquired and assuming that the Government can exercise that power which is
not available in this case then such an exercise of power will result in the
lands vesting in the Revenue Department and not on the land owners. Learned
Additional Advocate General brings to my notice a judgment of the Supreme
Court reported in 2004 (5) C.T.C. 506 (GOVERNMENT OF ANDHRA PRADESH v. SYED
AKBAR) to contend that the Government is at liberty to use the land for any
other public purpose other than the public purpose for which it was originally
acquired.
2. Having regard to the submissions made by the learned counsel for
the petitioner and the learned Additional Advocate General, I went through the
relevant provisions of law. Before that, I want to apply my mind to the order
challenged in this writ petition. The order shows that the lands acquired
have been transferred to the Housing Board; there is an approved lay out in
D.T. And C.P vide proceeding in ref.No.313 of 1999; the lands are in
possession of the Housing Board and on account of several litigations filed by
the land owners before this court, the Scheme could not be implemented and
that in the order, the scheme is going to be implemented. Therefore there is
no question of forfeiture. In a case governed by statutory vesting under
Section 17-A of the Land Acquisition Act, as amended by the State of Tamil
Nadu, it is needless to state that there is no vesting with the Government.
There cannot be vesting at the same time on two persons. It is no doubt true
that once the land is acquired, the initial vesting is with the Government
under Section 16 of the Land Acquisition Act. But once the Housing Board pays
the land price, then under Section 17-A of the Land Acquisition Act, the land
stands transferred to the Housing Board and on such transfer the vesting is
with the Housing Board. Once the statutory vesting takes place with the
Housing Board, then the Housing Board, which is governed by the provisions of
the Tamil Nadu Housing Board Act, a self contained Act, has to deal with such
property only in accordance with the provisions of the said Act. That Act
itself contains as to how the property so acquired; transferred and vesting
with them shall be dealt with. Therefore it is clear to my mind that once the
lands acquired were transferred and vested with the Housing Board, then the
Tamil Nadu Housing Board Act alone would govern the dealing of the property in
question and all rights and liabilities arising out of that land have to be
necessarily tested only with the provisions of the said Act alone and not
under the provisions of any other Act.
3. Since vesting of the land already with the Housing Board had taken
place and the condition precedent to exercise the power under Section 48-B of
the Land Acquisition Act is that the land must continue to vest with the
Government, then in the absence of such vesting, the Government cannot
exercise the power under Section 48-B of the Land Acquisition Act. Once a
statutory vesting takes place under Section 17 -A of the Land Acquisition Act,
the property has to be dealt with under the provisions of the Tamil Nadu
Housing Board Act and unless there is an enabling provision, either in the
Land Acquisition Act itself or in the Tamil Nadu Housing Board Act, then such
vesting with the Tamil Nadu Housing Board cannot be divested by an order of
court and consequently revesting in the Government shall not take place.
4. As far as section 16-B of the Land Acquisition Act is concerned, I
have again no doubt at all that the argument advanced by the learned counsel
for the petitioner do not deserve acceptance. The right to forfeit is
exclusively available to the Government and it is they who can exercise that
power, if they find that the land acquired is not used for the public purpose
for which it was acquired. The objects and reasons for introducing Section
16-B of the Land Acquisition Act is seen from the Tamil Nadu Amending Act 16
of 1997 and one of the objects reads as follows:-
Lands are acquired by Government on behalf of several requisitioning
bodies. But after acquisition the requisitioning bodies transfer the lands to
others without the prior permission of Government. With a view to avoid the
requisitioning body from transferring the acquired lands or any part thereof
by sales, mortgage, gift, etc. without the prior permission of the Government
it has become necessary to make a provision in the Act. In certain cases the
requisitioning body does not use the land acquired for them. Similarly, the
land is not put to use for the purposes for which it was originally acquired
and they may keep the land idle for years together without utilising the land.
To prohibit this tendency it has been decided to insert a new provision as
section 16-B in the Act, so as to provide that such land may be forfeited and
the land shall vest in the Government in Revenue Department.
Therefore it is clear from the above object that the Government wanted to
avoid arbitrary exercise of power by the requisitioning body in dealing with
the property transferred to them on their own, without even a reference to the
Government. In other words, there was no control over the requisitioning body
in dealing with the property so transferred to them after the acquisition.
Only to avoid this mischief, section 16-B was inserted. But that is not the
case here, since admittedly, after vesting with the Housing Board, they cannot
deal with the property in any manner as they like, but it is subject to the
provisions of the Tamil Nadu Housing Board Act itself. I have already stated
that the Tamil Nadu Housing Board Act is a self contained Act and therefore it
gives no room at all to fall back upon any other provisions of law in dealing
with the property vesting with them. The contention of the learned Additional
Advocate General that the Government can invoke the power of forfeiture
available under section 16-B of the Land Acquisition Act only when there is no
control over the requisitioning body in dealing with the property transferred
to them, deserves acceptance. The objects and reasons referred to earlier
behind introducing section 16-B of the Land Acquisition Act gives a clear
support to the argument advanced by the learned Additional Advocate General.
5. Learned counsel appearing for the petitioner brought to my notice
an unreported judgment dated 20.7.1999 in W.P.No.4600 of 1999 of this court to
contend that the land owners have a right to have their lands reconveyed, once
if it is found that the public purpose for which it was originally acquired is
not subsisting any more and that on the day when the request for retransfer
was made, the public purpose must be subsisting. Learned counsel also relied
upon an unreported judgment dated 16.10.2003 in W.P.No.6308 of 2003 of this
court between the same parties wherein a learned Judge of this court had given
a direction to the Government to consider whether any action is required to be
taken under section 16-B of the Land Acquisition Act and depending upon the
out come of such decision, whether reconveyance as contemplated under Section
48-B of the Land Acquisition Act is called for. With greatest respect to the
learned Judges, who dealt with the two cases relied upon by the learned
counsel, I find that the impact of Section 17-A of the Land Acquisition Act,
as amended by the State of Tamil Nadu, and the provisions of the Tamil Nadu
Housing Board Act had not been taken into account in disposing of those two
cases. Learned counsel appearing for the petitioner is not in a position to
show any provision of law either in the Tamil Nadu Housing Board Act itself or
in the Land Acquisition Act prescribing an outer limit of period before which
the land acquired for a public purpose should be utilised for such public
purpose, failing which, the entire proceedings would stand reversed in favour
of the land owner. In the absence of such a provision, it is not possible for
this court to fix a period on it's own stating that, before the expiry of that
period if the lands acquired for a public purpose had not been utilised, then
the entire proceedings would stand reversed. If that is encouraged, then
every court would fix, in a given situation, an outer period of it's own
leading to several anomalies. There is yet another judgment relied upon by
the learned counsel for the petitioner reported in 2005(3) C.T. C. 145
(PRITHVI TRUST PRIVATE LTD. V. THE STATE OF TAMIL NADU) where a learned
Judge of this court had given liberty to the petitioner therein to make a
representation to the Government to exercise the power under section 16-B of
the Land Acquisition Act which empowers to forfeit the lands which remain
vested with the Housing Board but not used for the purpose. Once again I have
to state with respect that Section 17-A of the Land Acquisition Act and the
provisions of the Tamil Nadu Housing Board Act have not been brought to the
notice of the learned Judge when the learned Judge was of the opinion as
indicated above. As rightly contended by the learned Additional Advocate
General, the power under section 16-B of the Land Acquisition Act would be
available only when there is no statutory vesting in another Statutory
Authority. In other words, on such acquisition, if the Government transfers
the property to any other person including individuals or other department, to
be used for their public purpose and if they do not use it for their public
purpose then the Government exercising their power of forfeiture can call back
the lands to vest with the Revenue Department so that they can use the lands f
or other public purpose. As already stated by me, once the statutory vesting
takes place with the Housing Board under Section 17-A of the Land Acquisition
Act, then unless there is an enabling specific provision either in the Land
Acquisition Act or in the Tamil Nadu Housing Board Act, for the Government to
forfeit the lands if the lands are not used for public purpose, then such a
power cannot be exercised at all. My reading of section 16-B of the Land
Acquisition Act will not enable the Government to divest the Statutory vesting
that had already taken place in favour of the Tamil Nadu Housing Board. As
referred to earlier, the Tamil Nadu Housing Board Act itself contains a
provision to sell the property vesting with them in open auction (see section
72), if it is of the opinion that the land is not required for the purpose for
which it was acquired and transferred to them. That Statutory power available
to the Housing Board cannot be interfered with by exercising the power
available under section 16-B of the Land Acquisition Act. There is no
provision in the Tamil Nadu Housing Board Act which would enable the
Government to forfeit the vesting already done in the Housing Board and recall
the lands. There is also no provision in the Land Acquisition Act to
interfere with such statutory vesting with the Housing Board. Even otherwise,
I find that a Mandamus cannot be issued to compel the Government to exercise
the right of forfeiture when as on date, the petitioner has no subsisting
interest in the land.
6. For all the reasons stated above, I do not find any ground made
out to interfere with the order under challenge and accordingly, the writ
petition is dismissed. No costs.
Tr/
Index: Yes
Internet: Yes
To:
1. The Secretary
The State of Tamil Nadu
Housing and Urban Development
Fort St. George
Chennai-600 009.
2. The Managing Director
The Tamil Nadu Housing Board
No. 331, Anna Salai
Nandanam
Chennai-35.
3. The Special Tahsildar (Land Acquisition)
Housing Scheme Unit-II
Coimbatore-641 018.