Ratios:
a. The Government may exercise its right of re-conveyance of the acquired land only as long as it retains the possession of such land.
b. Writ of mandamus can be issued by the Courts only if there is a failure of duty by the authorities or inaction and not on the mere asking.

N. PAUL VASANTHAKUMAR, J.

This writ appeal is directed against the order made in W. P. No. 15247 of 2005 dated 29. 4. 2005 wherein the learned single Judge allowed the writ petition filed by the first respondent seeking reconveyance of the land situated in S. No. 327/2B (Part) of Nolambur Village, Ambattur Taluk, measuring an extent of 1. 06 acres.

2. The Tamil Nadu Housing Board filed this appeal contending that the order of the Division Bench made in W. A. No. 2430 of 1999, which was relied on by the learned single Judge has no bearing on the facts of this case, and the writ petition was allowed at the admission stage, without issuing any notice or opportunity to the appellant, and the subject matter of the land is developed by the Tamil Nadu Housing Board after getting possession in the year 1985 and approval of layout. The entire land approved and the lay out for MMDA/PRSP/LO 72/88 was used except the school site.

3. The case of the first respondent before the learned single Judge was that 1. 06 acres of land in S. No. 327/2B (Part) of Nolambur village, Ambattur Taluk was acquired by the Government in the year 1982 by issuing notification under Section 4(1) of the Land Acquisition Act, 1894, followed with declaration under Section 6 of the Act, and after completion of the entire acquisition proceedings, award was also passed in Award No. 7/85. It is contended in the affidavit that the respondents viz. , State Government acquired vast extent of land in that area and the lands having not been utilised for the purpose for which it was acquired, the first respondent is bound to re-convey the land to the original owner under Section 48-B of the Land Acquisition Act, 1894, inserted in the Land Acquisition (Tamil Nadu Amendment) Act, 1996, and consequently the first respondent submitted a representation for re-conveyance of the land on 11. 10. 2003 followed by reminders dated 19. 3. 2004 and 6. 11. 2004 and no order having been passed, he has chosen to file the above writ petition seeking direction to re-convey the said land. It is also averred in the affidavit that adjacent areas were re-conveyed to the respective land owners.

4. The learned Counsel appearing for the appellant/Tamil Nadu Housing Board reiterated the contentions raised in the grounds of appeal and contended that the land is admittedly vested with the Tamil Nadu Housing Board after finalising the acquisition proceedings in the year 1985 and it is utilised for construction of the houses by approving the layout and therefore the second respondent cannot forfeit and re-convey on any account, the land acquired from the first respondent, as possession is given to the appellant in the year 1985.

5. The learned counsel for the first respondent on the other hand submitted that the learned single Judge followed the earlier Division Bench decision of this Court and the said judgment having become final, the appellant cannot take a different stand insofar as the lands acquired from the first respondent is concerned.

6. We have considered the rival submissions made by the learned counsel for the appellant as well as first respondent.

7. The writ petition filed by the first respondent was allowed by the learned single Judge, admittedly without issuing notice to the appellant, who was the second respondent in the writ petition. The grievance raised by the learned counsel for the appellant is to be countenanced in view of the judgment of the Supreme Court reported in (2004) 13 SCC 781 (State of Uttaranchal v. Rajendra Singh) wherein the Supreme Court set aside the order of the High Court on the ground that the writ petition was disposed of after issuing notice, but without giving opportunity to file counter affidavit. Though the writ petition was disposed of by following the earlier judgment, which was claimed as covered by the earlier judgment of the High Court, in paragraph 2 the Supreme Court held thus,

"2. The only grievance of the appellants in this cas