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2012 Supreme(Mad) 2725
High Court of Judicature at Madras
N. KIRUBAKARAN
S. Balasubramaniam
Versus
The Secretary to Government, Chennai & Another
W.P.No.3571 of 2008 & M.P.Nos.1 & 2 of 2008
Decided On : 02-07-2012
For the Petitioner:A.L. Somayaji, Senior Counsel & Narmadha Sampath, Advocate.
For the Respondents:R1, K.V. Dhanapalan, Additional Government Pleader, Hepziba, R2, T. Mathi, Advocate.
Ratio
On the non-utilisation of the land acquired for the purpose for which it was acquired, it is the discretion of the State to decide about reconveyance and the previous owner of the land could not claim reconveyance as of right.
Headnote:(A)Land Acquisition Act, 1894(1 of 1894)-Sec.48B-Land acquisition-Purpose-Utilisation-Failure-Reconveyance-Government-Duty-A landed property was acquired from the petitioner’s father in the year 1949 for extension of graveyard and the appeal against it was also disposed in 1956-After about 50 years, the petitioner sought for reconveyance of the land by alleging that it was not utilized for the purpose for which it was acquired-State resisted it by contending that the petitioner was a stranger and even if the acquired land was not utilized, the discretion was vested only with the Government and the petitioner could not as of right claim it back-Held, on the non-utilisation of the land acquired for the purpose for which it was acquired, it was the discretion of the State to decide about reconveyance and the petitioner could not claim reconveyance as of right-Writ petition was dismissed.
(B)Land Acquisition Act, 1894(1 of 1894)-Sec.48B-Land acquisition-Purpose-Utilisation-Failure-Reconveyance-Government-Duty-On the non-utilisation of the land acquired for the purpose for which it was acquired, it is the discretion of the State to decide about reconveyance and the previous owner of the land could not claim reconveyance as of right.
Only after subjective satisfaction when that the land is not required for the purpose, the Government may transfer. It is not mandatory / obligatory on the part of the Government to transfer such land and it is evident by employment of word "may" in the said Section. Therefore, the petitioner cannot compel the Government to re-convey the land, that too after six long decades. In this case, the Government categorically stated that the land is needed for public purpose. Para 8
1. PHOENIX, at least, needed its ashes to come alive again whereas out of nothing the petitioner wants the acquired land which was acquired by the Government as early as in 1949 for expansion of graveyard. Phoenix is a unique mythological bird of the Arabian desert, worshipped in ancient Egypt, that burned itself on a funeral pyre every five or six centuries and rose from its ashes with renewed youth. The petitioner is knocking the doors of this Court for the relief, which he could not even imagine in his dream.
2. The case of the petitioner is that the property belonging to his father was acquired by the first respondent for the purpose of extension of Otteri burial ground by issuing 4(1) Notification dated 23.02.1949. After hearing his father's objection, declaration under Section 6 was made on 27.12.1949. The quantum of compensation payable for the acquired land also attained finality in Appeal No.811 of 1952, by order dated 28.11.1956 passed by the First Bench of this court.
3. After 5 decades, on 18.08.2005, the petitioner gave a representation to the authorities under Section 48-B of the Land Acquisition Act for re-conveyance of the land as the acquired land has not been utilised for burial ground. The petitioner filed W.P.No.9230 of 2006 for a direction to consider the representation dated 18.08.2005. Pursuant to the direction issued by this Court on 03.04.2006 in W.P.No.9230 of 2006, the impugned order has been passed rejecting the claim of the petitioner, that is being challenged before this Court.
4. Mr.A.L.Somayaji, learned senior counsel appearing for the petitioner submits that the land acquired is no more required for extension of burial ground. After coming to know about the non-requirement of the land, the petitioner gave a representation on 18.08.2005 under Section 48-B of the Land Acquisition Act for re-conveyance and the same was rejected mechanically without any material details stating that the acquired land is utilised for burial ground purpose only. According to him, the impugned order is silent about the details. Moreover, the counter filed by the respondent does not specially deal with what has been contended in ground No.(E) and (F) which state that the subject land is still lying vacant without serving any purpose and the land is not utilised for the purpose for which it was acquired. The learned senior counsel relied upon the following Judgments:-
(i) "L.Selvam v. The Government of Tamil Nadu" reported in 2010(5) CTC 261.
(ii) "Malarkodi v. The Secretary to the Government of Tamil Nadu" reported in 2008(4) CTC 193.
(iii) "Shanmugam, R v. The State of Tamil Nadu" reported in 2006 (4) CTC 290. Relying upon those judgements, the learned senior counsel submitted that the impugned order has been passed without giving material details and no reason is given as to how the lands have been utilised for extension of burial ground. Therefore, the impugned order has to be quashed.
5. On the other hand, Ms.Hepziba appearing for Mr.T.Mathi, learned counsel for the second respondent-Corporation submitted that the land is required for further extension of burial ground and it is for public purpose. The details are given in paragraphs 4 and 7 of the impugned order. She particularly pointed out that the writ petition has been filed after six decades and more over the population is increasing day by day and therefore, it cannot be said that there is no possibility of extension of burial ground. Mr.K.V.Dhanapalan, learned Additional Government Pleader supported the contention of the Corporation and further submitted that the Writ Petition has to be dismissed on the ground of delay.
6. Heard the learned counsel for the parties and perused the records carefully.
7. It is seen that the property belonging to the petitioner's father was acquired for the purpose of extension of Otteri Burial ground under Section 4(1) Notification on 23.02.1949. The requisitioning body was the second respondent-Corporation. The peti
