Madras High Court
R. Krishnasamy Gounder vs The State Of Tamil Nadu on 25 September, 2008
Author: K.K.Sasidharan
Bench: K.K.Sasidharan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED:- 25 .09.2008
CORAM:
THE HONOURABLE MR. JUSTICE K.K.SASIDHARAN
W.P.No.7517 of 1998
1. R. Krishnasamy Gounder
2. A. Padmavathi
3. M.Thenmozhi
4. K.Manimozhi
5. K.Muthukumar ..Petitioners
-Vs.-
1. The State of Tamil Nadu
rep.by its Secretary
Housing and Urban Development
Department, Fort St.George
Chennai-600 009.
2. The Special Tahsildar
(Land Acquisition)
Coimbatore Housing Scheme Unit-II
Coimbatore. ..Respondents
Writ Petition filed under Article 226 of the Constitution of India praying to issue a writ of Certiorari calling for the records of the impugned notification issued under Section 4(1) of the Land Acquisition Act vide G.O.Ms.No.496 Housing and Urban Development Department dated 14.11.1996 and Section 6 Declaration issued under the Land Acquisition Act vide G.O.Ms.No.439 Housing and Urban Development Department dated 22.11.1997 published in the Tamil Nadu Government Gazette dated 22.11.1997 in part II, Section 2, in respect of the petitioners lands in survey Nos.150/3I, 150/3C & 152/2 in Vilankurichi Village, Coimbatore North Taluk, Coimbatore District and quash the same.
For Petitioners : Mr.T.R.Rajaraman
For Respondents : Mr.P.Subramanian, AGP
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O R D E R
This writ petition is directed against the proceedings dated 14.11.1996 issued under Section 4(1) of the Land Acquisition Act as well as the declaration dated 22.11.1997 issued by the second respondent, whereby the property of the petitioners and other land owners were acquired for the purpose of Tamil Nadu Housing Board.
2. The factul matrix necessary for the disposal of the writ petition are as under:-
Petitioners' version The petitioners were the owners of the land in Survey Nos.150/3I, 150/3C and 152/2 in Vilankurichi Village, Coimbatore North Taluk and after purchase of the property, the petitioners along with other land owners jointly formed a lay out in the year 1995 for the purpose of selling the lands in small plots as house sites. The property was purchased by the individual land owners by way of separate documents. Subsequently they got the approval of the lay out from the Director of Town and Country Planning as per the proceedings of the year 1995. The petitioners have also executed a registered settlement deed in favour of the local panchayat for providing road, park, etc. The petitioners executed several sale deeds in the year 1995 and 1996 to individual purchasers and a total number of 56 plots have been sold.
3. While so, the first respondent issued a notification under Section 4(1) of the Land Acquisition Act on 14.11.1996 proposing to acquire an extent of 11.86.0 hectares in Vilankurichi Village. The land belonging to the petitioners and other neighbouring owners were also included in the said notification. However the name of the petitioners or their assignee were not mentioned in the said notification and Section 4(1) notification has been issued in the name of the erstwhile owners. Immediately on receipt of the information about the proposed acquisition, the petitioners made their objections before the authorities and they have also attended 5A enquiry conducted by the second respondent. The objections filed by the petitioners were referred to the requisitioning body namely, the Tamil Nadu Housing Board and on consideration of the matter, the Tamil Nadu Housing Board observed that the property of the petitioners could be exempted from acquisition, as the same was not necessary for the scheme. The said report of the requisitioning body was looked into by the second respondent and the enquiry report was sent to the Government recommending for the withdrawal of the lands belonging to the petitioners and others from the acquisition proceedings. However the first respondent overruled those recommendations and issued a declaration under Section 6 of the Land Acquisition Act, whereby the lands belonging to the petitioners and others were acquired. Aggrieved by the said proceedings, the petitioners have come up with the present writ petition.
Case of respondents
4. The contention of the petitioners were disputed by the respondents in the counter affidavit filed by the second respondent wherein it was stated that the objections filed by the interested persons were forwarded to the Tamil Nadu Housing Board and ultimately the objections were rejected and further proceedings were taken. The land acquisition proceedings were commenced in the year 1988 itself and the petitioners got the approval of lay out only in the year 1995 without disclosing the factum of the ongoing land acquisition proceedings. There was no mutation in the revenue records and the revenue register was in the name of the erstwhile land owners and as such there was no question of including the name of the petitioners and other land owners in the notification issued under Section 4(1) of the Act. Even though the Executive Engineer of the Tamil Nadu Housing Board recommended for exclusion of the property of the petitioners from the purview of land acquisition, the said suggestion was not acceptable to the Government and as such the Government overruled the recommendation made by the requisitioning body. The respondents also justified the acquisition on the ground that the lands were required for construction of houses for Low Income and Middle Income Groups in Ganapathi Neighbourhood Scheme- Phase-II.
Contention on behalf of petitioners
5. The learned counsel for the petitioners contended that the first respondent was not justified in overruling the recommendation given by the Housing Board and no reasons are indicated in the counter affidavit as to the materials collected by the first respondent for the purpose of satisfying himself about the necessity to acquire the property of the petitioners, disregarding the recommendation given by the Tamil Nadu Housing Board for exclusion. The learned counsel also relied on the judgment of the Apex Court in HINDUSTAN PETROLEUM CORPORATION LTD. v. DARIUS SHAPUR CHENNAI (2005(7) SCC 627) in support of his contention that there should be materials available in the award file to show that the objection preferred by the land owners were considered by the Government. In short, the learned counsel challenged the acquisition on the ground of violation on the part of the Government to come to a subjective satisfaction to acquire the property as well as absence of materials to show the decision taken by the first respondent, disregarding the recommendation made by the Housing Board.
Submission of the Government Pleader
6. The learned Additional Government Pleader appearing on behalf of the respondents submitted that the so called sales were all in the name of few people and the same was only an attempt to boost the price, with the knowledge that the property was subject to the process of acquisition. According to the learned Additional Government Pleader, the acquisition was commenced in the year 1988 itself and the present acquisition was only for Ganapathi Neighbourhood Scheme Phase II. When the adjoining lands were already acquired for the purpose of Ganapathi Neighbourhood Scheme Phase I, the petitioners were fully aware of the proposal to acquire the neighbouring property also for the very same scheme and as such there was no bonafides in the contention of the petitioners to the effect that they were deprived of the property without any justifiable reasons.
Analysis of the case
7. It is found from the affidavit filed in support of the writ petition that out of 56 plots developed by the petitioners and other land owners, 28 plots were purchased by a particular person either in his name or in the name of his family members. Some of the other plots were also purchased by the same family and all these clearly shows that the purchase was not for the purpose of putting up individual residential houses. Even according to the petitioners the properties were all sold to individual land owners and none of those land owners have filed writ petition challenging the land acquisition proceedings. The petitioners have not indicated about their right in the property sought to be acquired and in the absence of such right in the property, the writ petition at the instance of the present petitioners was clearly not maintainable. When the properties involved in the writ petition were all sold by the petitioners to third parties by way of registered documents, there was no question of challenging the land acquisition proceedings by the erstwhile owners. Therefore I am of the view that the present writ petition at the instance of the erstwhile owners is clearly not maintainable and they are not entitled to any relief in the matter.
8. The petitioners have sought to quash the notification on the ground that Section 4(1) notification has been issued in the name of the predecessor in interest of the land owners. It was not their case that there was mutation in the revenue records and the name of the individual land owners were included in the revenue records. The counter affidavit filed on behalf of the second respondent shows that the name of the erstwhile owners and whose name finds place in the revenue register were included in Section 4(1) notification. In any case, even according to the petitioners, they have participated in the enquiry under Section 5A of the Land Acquisition Act and as such it cannot be said that they were prejudiced on account of the declaration passed under Section 6 of the Act without considering their objections.
9. In fact, the main objection of the petitioners in respect of the acquisition pertains to the decision taken by the first respondent to go ahead with the acquisition proceedings by disregarding the recommendation for exclusion of the property by the Housing Board. Therefore it is clear that the land owners have taken part in 5A enquiry and their objections were also forwarded to the requisitioning body and the copy of the views of the requisitioning body were also furnished to the land owners. The views of the requisitioning body were forwarded by the second respondent to the first respondent . The proceedings of the first respondent as shown by the learned Additional Government Pleader from the award file clearly shows that the matter was considered by the first respondent independently and came to a conclusion that the property of the petitioners and other land owners were necessary for the purpose of the scheme. Therefore it cannot be said that there were no materials before the first respondent to justify the action taken by the Government to acquire the property in question.
10. The learned counsel for the petitioner by placing reliance on the jugment of the Apex Court in Hindustan Petroleum Corporation Ltd. case (2005(7) SCC 627) contended that subjective satisfaction should be arrived at by the Government before acquiring the property and there should also be materials in the award file to show that the report submitted by the Collector was considered by the Government before proceeding with the acquisition. It is true that the Apex Court in Hindustan Petroleum case cited supra observed that the right to take part in the enquiry under Section 5A is akin to that of a fundamental right. The award file should show the satisfaction arrived at by the Government for the purpose of acquisition. The award file produced by the respondents clearly shows that the report submitted by the Collector was considered by the Government independently and opinion was formed to proceed with the acquisition by overruling the recommendation made for exclusion of the property of the petitioners and others by the Tamil Nadu Housing Board. Therefore there was no violation of the provisions of the Land Acquisition Act in acquiring the property of the petitioners.
11. The petitioners have also contended that there was no local publication of Section 4(1) notification as per the provisions of the Land Acquisition Act. The said plea was countered by the respondents and there was clear indication that the notification under Section 4(1) was published in the locality.
12. An attempt was also made by the petitioners to project as if the declaration under Section 6 was not made within the statutory period. A perusal of the notification under Section 4(1) as well as the dates and events mentioned in the counter affidavit shows that the last mode of publication of the notification in the local newspaper was on 26.12.1996 and it was also affixed in the locality on 27.12.1996. Section 6 declaration was published in the Gazette on 22.12.1997 and as such the declaration was well within the time and therefore there is no merit in the contention with regard to the invalidity of declaration under Section 6 of the Act.
13. The Apex Court in SURESHCHANDRA C. METHA v. STATE OF KARNATAKA (1994 SUPP (2) SCC 511), held that the authority was not required to make a roving enquiry as to the person entitled to the notice in respect of land acquisition proceedings. It was also indicated in the said decision that the land acquisition officer shall serve notice on the person, whose name appears in the land revenue register. Therefore the contention of the petitioners to the effect that the notices were not served on them does not merit acceptance.
Legal position
14. The power of eminent domain is no longer res integra. The Apex Court in Chameli Singh v. State of U.P., (1996(2) SCC 549) considered the authority of the Government to acquire the property for various schemes as permitted by the provisions of the Land Acquisition and held thus:
"18. In every acquisition by its very compulsory nature for public purpose, the owner may be deprived of the land, the means of his livelihood. The State exercises its power of eminent domain for public purpose and acquires the land. So long as the exercise of the power is for public purpose, the individuals right of an owner must yield place to the larger public purpose. For compulsory nature of acquisition, sub-section (2) of Section 23 provides payment of solatium to the owner who declines to voluntarily part with the possession of land. Acquisition in accordance with the procedure is a valid exercise of the power. It would not, therefore, amount to deprivation of right to livelihood. Section 23(1) provides compensation for the acquired land at the prices prevailing as on the date of publishing Section 4(1) notification, to be quantified at later stages of proceedings. For dispensation or dislocation, interest is payable under Section 23(1-A) as additional amount and interest under Sections 31 and 28 of the Act to recompensate the loss of right to enjoyment of the property from the date of notification under Section 23(1-A) and from the date of possession till compensation is deposited. It would thus be clear that the plea of deprivation of right to livelihood under Article 21 is unsustainable. "
15. The Apex Court in KRISH UTPADAN MANDI SAMITI v. RATAN PRAKASH MANGAL (1988(3) SCC 225), held that the State Government was not bound to agree with the report of the Land Acquisition Officer and proceedings could be initiated by the Government disregarding the recommendation made by the District Collector.
16. The acquisition in question was undertaken by the respondents for the purpose of providing construction of houses for Low Income as well as Middle Income Groups . The right to have a reasonable residence is also a guaranteed right under Article 21 of the Constitution of India. Article 21 is one of the salutary provisions included in Part III of the Constitution of India. Right to life as guaranteed under Article 21 includes right to live with human dignity and in a healthy environment. It is the duty of the State to provide the minimum facility to a citizen so as to have a meaningful life. What was contemplated under Article 21 was only a decent living and not a mere animal existence. The very concept of good governance had undergone a sea change in the recent times.
17. The Apex Court in Chameli Singh v. State of U.P.,(1996(2) SCC 549) considered the extended meaning given to the term right of life and observed thus:-
"8. In any organised society, right to live as a human being is not ensured by meeting only the animal needs of man. It is secured only when he is assured of all facilities to develop himself and is freed from restrictions which inhibit his growth. All human rights are designed to achieve this object. Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural rights enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights. Shelter for a human being, therefore, is not a mere protection of his life and limb. It is home where he has opportunities to grow physically, mentally, intellectually and spiritually. Right to shelter, therefore, includes adequate living space, safe and decent structure, clean and decent surroundings, sufficient light, pure air and water, electricity, sanitation and other civic amenities like roads etc. so as to have easy access to his daily avocation. The right to shelter, therefore, does not mean a mere right to a roof over ones head but right to all the infrastructure necessary to enable them to live and develop as a human being. Right to shelter when used as an essential requisite to the right to live should be deemed to have been guaranteed as a fundamental right. As is enjoined in the Directive Principles, the State should be deemed to be under an obligation to secure it for its citizens, of course subject to its economic budgeting. In a democratic society as a member of the organised civic community one should have permanent shelter so as to physically, mentally and intellectually equip oneself to improve his excellence as a useful citizen as enjoined in the Fundamental Duties and to be a useful citizen and equal participant in democracy. The ultimate object of making a man equipped with a right to dignity of person and equality of status is to enable him to develop himself into a cultured being. Want of decent residence, therefore, frustrates the very object of the constitutional animation of right to equality, economic justice, fundamental right to residence, dignity of person and right to live itself."
(emphasis supplied)
18. The materials placed by the respondents clearly shows that the acquisition was not a colourable exercise of power and the Government was justified in overruling the recommendation for exclusion, as given by the requisitioning body.
19. In view of the aforesaid reasons, I do not find any error or illegality in the proceedings of the respondents and as such the writ petition is liable to be dismissed.
20. In the result, the writ petition is dismissed. No costs.
Tr/ To
1. The State of Tamil Nadu rep.by its Secretary Housing and Urban Development Department, Fort St.George, Chennai-600 009.
2. The Special Tahsildar (Land Acquisition) Coimbatore Housing Scheme Unit-II Coimbatore