Madras High Court
R. Thiruvengadam vs The Secretary To Government, Housing ... on 4 February, 1997
Equivalent citations: 1997(2)CTC323
ORDER E. Padmanabhan, J.
1. Petitioner prays for the issue of a writ of certiorari call for the records in Form 3 Notice issued Under Section 56(1) of the Land Acquisition Act dated 26-9-1984 in respect of the properties comprised in S.Nos. 191/3A3, 191/3A5, 195/1C, 195/1D, 195/1F and 195/1H situated at Alamelumangapuram, Vellore on the file of the 3rd respondent and quash the same.
2. Though the petitioner had asked for quashing of notice in Form 3A, I am inclined to consider the writ petition on merits and I do not propose to decline the relief on this technical ground.
3. The petitioner is the owner of 1-83 acres of land comprised in S.No. 191/3A2, 195/1A, 195/1G and 195/1D of Alamelumangapuram Village. According to the petitioner, the land was purchased by his grandfather under a sale deed dated 23.3.1939, a well has been put up, that they put up residential houses in an extent of 0-15 cents where the entire family is residing, that they have also raised basement in addition to the existing two houses. The petitioner states that this is the only land owned by them and that the place where they are residing is being acquired.
4. At the time of hearing of the writ petition, the learned counsel for the petitioner confined himself the relief only in respect of 0-15 cents out of 1-83 acres of land over which the petitioner, his brother and sister put up residential house and are living and they have no objection for the remaining extent of land being acquired. Infact, in para 4 of the affidavit it has been stated that the petitioner had no objection for the rest of the land being acquired. The petitioner is aggrieved by acquisition of his residential houses, where he is residing.
5. The 1st respondent has filed a counter. The land is acquired at the instance of the Tamil Nadu Housing Board for formation of Fourth Phase of Vellore Neighborhood scheme at Sathuvachari. The notification Under Section 4(1) of the Land Acquisition Act was published in G.O.Ms. No. 697 Housing and Urban Development Department dated 31-8-1984 and it was published in the Tamil Nadu Government Gazette dated 26-9-1984. The 4 (1) Notification was published in Tamil Daily "Dinathanthi" on 19-7-1985 and in English Daily "Hindu" on 17-7-1985. The substance of the notification has been published in the locality on 18-7-1985. The respondents further state that after service of Form 3A notice, an enquiry Under Section 5A of the Act was conducted between 9-9-1985 and 12-9-1985. During the said enquiry, the petitioner, his brother Venu and sister Varadammal appeared on 9-9-1985 and filed their objections statement. Even in the 5A enquiry objections viz., the petitioner, his brother and sister have specifically objected to the acquisition of 15 cents of land and they have sought for exclusion of 15 cents in which they are having residential houses.
6. The objections raised by the petitioner, his brother and sister have been forwarded to the Executive Engineer, Tamil Nadu Housing Board who had sent remarks to the effect that objections are common in nature and that the landowners may apply to the Housing Board for allotment of houses under Ex-Landowner category. On the said remarks, objections have been overruled and proposals have been submitted to issue declaration Under Section 6 of the Act.
7. The 1st respondent issued declaration in G.O.Ms. No. 1036 Housing Department, dated 11-7-1986 and published the same in the Government Gazettee on 15-7-1986, in English daily "News Today" on 16-7-1986, Makkal Kural on 16-7-1986 and in the locality on 17-7-1986. The Direction Under Section 7 of the Act was also published on 10-12-1986. Award has not been passed till the date of filing of the writ petition. The total extent that has been acquired for the Housing Board being 243-67 acres and it is contended that the petitioner's land is in the midst of the scheme area and consequently, even 15 cents of land could not be excluded form the acquisition. According to the respondents, Land Acquisition has been completed strictly in accordance with the provisions of the Land Acquisition Act and the Rules framed thereunder.
8. The learned counsel for the petitioner raised the following three contentions:-
(1) Acquisition stands abated in terms of Section 11A of the Act;
(2) Rule 3 (b) of the Rules had been violated and there is no valid and proper enquiry Under Section 5A of the Act;
(3) The objections that the petitioner and his family are residing in the property had not been considered in the manner required by law by either of the respondents and there is no reason to deny the residential houses of the petitioner where they are residing and acquire the land for identical purpose.
9. As regards the first contention of the learned counsel for the petitioner, Section 6 declaration was published in the Gazettee on 15-7-1986 and the petitioner had filed the writ petition and secured orders of stay on 25-3-1988 as such, 2 years have not lapsed before filing of the writ petition and the petitioner cannot invoke Section 11A of the Act. In my view, the acquisition has not abated as contended by the petitioner Under Section 11A of the Act.
10. The 2nd and 3rd contentions merits consideration in the hands of this Court. The petitioner, his brother and sister have submitted their objections with respect to which the second respondent had conducted 5A enquiry. 5-A enquiry had been conducted on 9-9-1985. On 9-9-1985 the petitioner, his brother Venu and sister Varadammal appeared before the 2nd respondent for 5A enquiry. Only after 9-9-1985 remarks of the petitioner had been forwarded to the Tamil Nadu Housing Board, viz., Executive Engineer and Administrative Officer, Housing Board. The said Housing Board had merely stated that objections of the petitioner are common in nature and that the landowner may apply to the Housing Board for allotment of houses under Ex. Landowner category.
The said remarks of the Housing Board has not been forwarded to the petitioner before conclusion of Section 5A enquiry nor 5A enquiry was conducted after communication of remarks to the petitioner. On the other hand, the Land Acquisition Officer by his proceedings dated 14-11-1985 had merely forwarded the objections. Para 5 of the counter which is relevant reads thus:-
"The writ petitioner, his brother Venu and sister Varadammal appeared for the 5A enquiry on 9-9-85 and also filed their objections statement, wherein they have also stated that in the case of compulsory acquisition, they demanded exclusion from acquisition of fifteen cents of land on which their present residence is situated. The said objection was referred to the requisitioning body viz., the Executive Engineer and Administrative Officer, Tamil Nadu Housing Board, Sathuvachari, for their remarks, who has replied stating that the objections are common in nature, that the landowners may apply to the Tamil Nadu Housing Board for allotment of house sites under ex-landowner category and hence, recommended that the objections may be overruled. Accordingly, the objections were overruled and a copy of this proceedings were handed over to the petitioner on 4-11-1985 under proper acknowledgment."
11. As seen from the said passage viz., para 5 of the counter affidavit, it is evidently clear that the remarks of the requisitioning body has not been communicated to the petitioner much less before the conclusion of enquiry Under Section 5A of the Act. This violates the mandatory provision of Rule 3b. A Division Bench of this Court has taken the view that it is essential to communicate the remarks of the requisitioning body and Rule 3b is mandatory. It has also held that if the remarks of the requisitioning body is not forwarded to the party before conclusion of enquiry then 5A enquiry is not valid as it is not an effective enquiry at all. In this respect, the learned counsel relies upon the judgment of the Division Bench reported in Ramanujam N.D. v. Collector of Madras, 1994 W.L.R. 326. The relevant portion of the decision of the Division Bench reads thus:-
"One other submission made by the learned counsel for the petitioners in both the writ petitions is that the mandatory requirements of Rule 3b framed by the Government of Tamil Nadu Under Section 55(1) of the Act, have not been complied with. In this regard, both the counsel rely on Kadirvelu Mudaliar v. State of Tamil Nadu, 1987 W.L.R. 182. The said Rule 3b provides as follows:-
"If any objections are received from a person interested in the land and within the time prescribed in Sub-section (1) of Section 5-A the collector shall fix a date of hearing the objections and give notice thereof to the objector as well as to the department or company requiring the land, where such department is not the Revenue Department. Copies of the objections shall also be forwarded to such department or company. The department or company may file on or before the date fixed by the Collector a statement by way of answer to the objections and may also depute a representative to attend the enquiry."
12. Admittedly, the petitioner, his brother and sister are residing with their families in 15 cents out of 1-83 acres of land. The petitioner and his family members are residing in the land continuously since their birth. An objections in this respect has been specifically raised. It is not only the petitioner but also his brother and sister are also residing there by putting up constructions. It is an admitted fact that there existed two houses in an extent of 15 cents, and what is disputed and stated is that they had put up basement in addition to two houses. Assuming that basements have been put up after 4 (1) Notification, they admitted that the being that the petitioner, his brother and sister are living in their houses put up over the said 15 cents of land. Counter affidavit filed by the respondents also makes it clear. The requisitioning body has overruled the objection stating that the objections are common in nature and it is well open to them to apply for allotment of houses under ex-land owner category. This remark has been accepted by the 2nd respondent as well as the 1st respondent to deny residential houses where the petitioners are residing and allot it to third parties. They are willing to part with the remaining major extent of the land. Mishra, J. had an occasion to consider the identical contention.
13. Mishra, J. has held that user of ones place for residence is also a public purpose and where they live, they should not be depraved of such residential houses or plots acquired. It is true that even residential houses can be acquired for public purpose. But the public purpose for which this land is acquired is also to provide houses or plots of lands to the members of the public who apply to the Housing Board. There is no justification to deprive the petitioner of the land over which they have put up a construction and living there from their childhood. The petitioner, his brother and sister are living there with their family members for decades. As the petitioner, his brother and sister are also residing there with their families by putting up houses, following the judgment of Mishra, J. this Court holds that the respondents have not applied their mind to the objections raised by the petitioner, his brother and sister. In this respect, Mishra, J., had considered the entire case law and has held thus:-
"A question has thus arisen in the instant case, can any land allotted, assigned, or marked for a public purpose and utilised for such a public purpose, be subjected to acquisition proceedings in the name of any of the public purposes that could can be spelled out from the definition or the Explanation of the 'public purpose. A serious objection to the consideration of this aspect of the case, however, has been raised on behalf of the respondents. Learned counsel appearing for them has submitted that no specific plea in this behalf has been raised in the writ petition. Petitioner should not in such situation be permitted to raise any such ground. When pleadings are inadequate and material facts are absent, it is proper for any court not to permit a point, either of fact or law, to be raised in any proceedings. When, however, the material facts are available and on such facts that are not in dispute when law is applied, a consequence has to follow. It will be in my opinion, unjust to deny to a party availability of such a ground. Learned counsel for the respondents has also urged that the objections, which the petitioner was in a position to raise Under Section 5A of the Act and failed to raise at that stage, she cannot raise (such objections to the acquisition) for the first time in a writ proceeding. As I have said earlier, if, on admitted facts when law is applied and the consequence has to follow, it will be unjust to deny to a party the benefit of such a legal consequence. It will indeed be extending the same unfair rule of procedure if on the ground that some objection could have been raised Under Section 5A of the Act but was not raised, a plea of this kind is rejected. In the instant case, however, it is not possible to say that no such objection had been raised by the petitioner at the stage of enquiry Under Section 5-A of the Act. The petitioner, in one of the representations to the Tahsildar (Land Acquisition Officer concerned) has said:-
"Kindly read these objections besides the objections I had sent to you periodically... It should be noted that the house site is allotted by the Kodaikanal Co-operative Limited, to me as a part of the purpose for which the said house construction society was formed and hence the said P.W.D. Executive Engineer stated that the above construction is purely public interest and beyond the jurisdiction of the P.W.D. It should be noted that the site for me under the scheme of public purpose could not be acquired for another public purpose as per the decision of the High Court and the Supreme Court"
14. Further the Apex Court, had held that the right to shelter is a fundamental right under Article 19(1) of the Constitution and the State has to provide facilities and opportunity to build a house. The Apex court in State of Karnataka and Ors. v. Narasimhamurthy and Ors., has held thus:-
"Right to shelter is a fundamental right under Article 19(1) of the Constitution. To make the right meaningful to the poor, the State has to provide facilities and opportunity to build a house. Acquisition of the land to provide house sites to the poor houseless is a public purpose as it is a constitutional duty of the State to provide house sites to the poor..."
15. In the light of the said pronouncement of the Supreme Court, in my considered view, it is neither purposeful nor it is meaningful not it is just nor reasonable to deprive the portion of the 15 cents of land, where the petitioner had put up constructions and been living there for decades together. The State while exercising powers of eminent domain under the Land Acquisition Act to provide accommodation or shelter should also see that the valuable houses, the petitioner or his ancestors had put up and where he has living from his birth should not be pulled down or render the petitioner homeless and throw out his family to street.
16. The fundamental right of the petitioner shall not be ignored or brushed aside while acquiring the land for purpose of putting up houses by the Tamil Nadu Housing Board for the benefit of the affluent or resourceful urbanities, while depriving the poor villager, who is not in a position to complete. The respondents should not unreasonably and deprive his fundamental right of shelter or destroy the right of shelter already owned by the petitioner. The State also should see that the very fundamental right of shelter, which shelter the petitioner is already possessed, should not be deprived. The constitutional duty of State to provide shelter could also be achieved by the petitioner being allowed to retain the house and allow him to live there.
17. It is rather surprising for the requisitioning authority or for that matter for respondents to ignore the petitioner's fundamental right of shelter, as a matter of routine by just stating that the writ petitioner could apply to Housing Board afresh under ex-owner category. By such a course there is only a chance of getting alternative accommodation at a higher cost on a later date, which will be beyond his means. It is unreasonable to uproot the villagers against the well settled and affluent urban population, whose demand is sought to be met by the schemes of the Housing Board.
18. There is no justifiable reason at all to proceed further with acquisition and deny the fundamental right of the petitioner to shelter and acquire his only residential house or plot resulting in dislocation of the petitioner and his family. By the compensation the petitioner who is being rendered houseless and uprooted, will not be in a position to secure allotment or even put up a house as day by day the cost of construction is in the increase. At the same time, the acquisition may deny the house already owned and further deny him the sentiments he has for his house, where he is living since childhood.
19. There is every justification for the fifteen cents being excluded from acquisition as the petitioner is actually residing with his family in the house put up thereon and living there with his kith and kin. There is no justification for the petitioner and his family being uprooted, thrown out and displaced and on the other hand, the Housing Board could very well, with slight change or least deviation proceed with its scheme.
20. In the circumstances, accepting the contention of the learned counsel for the petitioner that acquisition in respect of 15 cents of land over which the petitioner had put up construction alone is quashed and in other respects, the respondents are at liberty to proceed further and complete the acquisition.
21. I have also taken into consideration of the fact that 15 cents of land over which the petitioner had put up construction even if it is in the midst of the scheme, that would not affect the scheme or it would defeat the viability of the scheme. In the circumstances, the writ petition is allowed to the limited extent of petitioner's claim of 15 cents where he had put up construction and residing there along with his family members, In other respects, the writ petition is dismissed. No costs.
It is made clear that the relief is granted only to the extent of 15 cents of land over which the petitioner had put up construction and residing there along with his family members prior to 4(1) Notification.