C. Ponnusamy and Others vs Govt. of Tamil Nadu and Another

E. Padmanabhan, J.—63 petitioners have jointly filed the present writ petition seeking for the issue of a writ of certiorarified mandamus or

any other appropriate writ or order in the nature of writ by calling for the records from the respondents comprised in Section 6 declaration and

issued under the Land Acquisition Act made in G.O.Ms.No. 876. Housing and Urban Development, dated 30.8.1985 and published in the Tamil

Nadu Government Gazette, dated 2.9.85 and quash the same in so far as it relates to the petitioners'' lands in S.No. 276/1, 277/1, 277/2,

274/5,278, 259, 260/5, 275/3, 274, 274/3, 274/3B, 280/1, 275/2A, 274/2, 278/2, 275, 273, 273/3, 280, 257, 274/4, 258, 251, 274/5B,

277/3, 273/1. 275/1, 274/5A, 280/3, 275/B, 272, 258/1 and 259/2 Goundampalayam village, Coimbatore Taluk, Coimbatore District and

consequentially direct the respondents to exclude the said lands from the acquisition proceedings.

According to the petitioners, they have purchased small extends of 5 cents or 6 cents or 11 cents of land for the purpose of putting up

construction for their residence, that many of them have already put up construction and are residing there, with their families, that ignoring their

rights, notification has been issued at the instance of the Tamil Nadu Housing Board to acquire the lands for the Anna Nagar Neighbourhood

Scheme, Coimbatore, that they have sent their objections, that several of them have not been served with the notice despite their objections, that at

the stage of Section 5A enquiry, the remarks of the requisitioning body have not been communicated to them and Rule 3 (b) of the Tamil Nadu

Land Acquisition Rules has been violated in that after communicating the remarks of the Housing Board, no personal hearing or enquiry has been

conducted by the second respondent- Land Acquisition Officer, that there is no reason or rhyme to acquire the lands which the petitioners have

purchased in small plots, put up construction and they reside in the plots, for the purpose of the Housing Board to build houses and to allot the

same to third parties, that the petitioners have no other plot or land, that most of the petitioners are residing there for more than 15 years by putting

up construction securing electricity connection, that the proceedings u/s 5A is vitiated by non-compliance with the requirement of Rule 3 (b), that

Section 6 Declaration is illegal, that Section 4(1) notification is vague, that the lands have been described incorrectly as dry lands when there exist

buildings where the petitioners reside, that there exist coconut trees and as such the lands should not be acquired as per the Government Order,

that there has been no scheme by the Tamil Nadu Housing Board under Sections 41 and 49 of the Tamil Nadu Housing Board Act before

acquiring lands, that the lands should have been excluded as directed by the Government as has been held by the Division Bench of this Court in

A. Subbiah Vs. Deputy Secretary to the Government of Tamilnadu, Social Welfare Dept., Madras, and that there is no justification for the

petitioners being denied of their only plot of land where they reside and that the acquisition should have been dropped.

The first respondent has filed a counter contending that the lands have been acquired for the purpose of the Tamil Nadu Housing Board for the

construction of houses under the Anna Nagar Neighbourhood Scheme. The notification u/s 4(1) Notification of the Land Acquisition Act was

published in G.O.Ms.No. 861, Housing and Urban Development, dated 26.8.1982 and the same was published in the Government Gazette dated

8.9.1982. An errata to Section 4(1) has been published on 22.12.1982. Section 5A enquiry was conducted on 21.2.83, 22.2.83 and 23.2.83 at

the office of the second respondent after publication of the notice. Section 6 Declaration was approved by the Government in G.O.Ms.No. 876,

Housing and Urban Development, dated 30.8.1985. which was published in the Government Gazette dated 2.9.1985, in Daily Thanthi and in the

locality on 6.9.1985. An Errata has also been published to Section 6 Declaration in the Government Gazette dated 4.12.85. Notification u/s 7 of

the Act has also been issued by the Government and the same has been published in the Gazette on 4.12.1985.

It is also stated that Award enquiry was conducted on 1.12.1986, 4.12.86, 21.1.87, 15.4.87, 16.4.87 and 24.4.87. In respect of 60.98 acres

of land, Award has been passed on 4.9.1987 barring the land covered by the order of stay in the present writ petition, that the entire amount of

compensation due to the land owners had been deposited in the civil court under Sections 30 and 31 of the Land Acquisition Act, as per the

Award No. 2/87, dated 4.9.1987.

The respondents further stated that the substance of the notification u/s 4(1) and the notice in Form-3 was published in the locality on

12.1.1983. Out of the 63 petitioners, 20 of them have sent their objections. Only 14 of them have been served with the notice for Section 5A

enquiry and to the remaining six of them, no notice has been served personally but the notice has been affixed by the Revenue Inspector on

13.1.1983 for Section 5A enquiry. In Section 5A enquiry, objections have been raised to the proposed acquisition. For the objections raised by

the petitioners, remarks of the requisitioning body have been communicated to the petitioners. The name of 10 of the writ petitioners, whose names

do not find place in Section 4(1) Notification, have been included in the Section 6 declaration. As regards the conduct of Section enquiry, the

respondents in part 6 of the counter affidavit had stated thus,

As regards paragraph 5 of the affidavit, it is submitted that the remarks offered in paragraph 3 will meet the requirements. Further, there is no

need to obtain any opinion of the requisition body for conducting the 5(A) enquiry and in the absence of petitioners there is no need to conduct

another enquiry after conduct of the 5(A) enquiry on the scheduled dates. As per the procedure laid down in the Land Acquisition Act, 1894 the

land owners who made objection have been given reply after getting the remarks of the requisition body. Hence there is no violation of any

mandatory procedure.

It is contended by the respondents that the acquisition has been completed as per the provisions of the Land Acquisition Act, 1894 and the

Rules framed thereunder by the State. It is contended that there is no illegality in the acquisition proceedings.

The entire file has been placed before this Court at the time of hearing. Various contentions have been raised by the learned Counsel for the

petitioners, which are being dealt hereunder.

As regards the contention that the scheme has not been published u/s 37 of the Tamil Nadu Housing Board Act, 1961. The issue has already

been decided finally by the Apex Court in State of Tamil Nadu v. L. Krishnar, (1996) 1 SCC 250 . This contention is no longer open to the

petitioners and it is rejected.

Next, it is contended by the learned counsel for the petitioners that the lands have been described incorrectly as dry lands in Section 4(1)

notification as well as Section 6 Declaration. In this connection, it is pointed out by the learned counsel for the respondents that the classification of

the lands has been set out correctly in the Section 4(1) notification and Section 6 Declaration and merely because a portion has been used as a

garden, the classification does not cease and it continue to be try land only. Hence this contentions is held to be mis-conceived and factually

incorrect.

As regards the contention that the lands on which coconut trees stand, should be excluded in terms of the Government Order and as laid down

by this Court in A. Subbiah Vs. Deputy Secretary to the Government of Tamilnadu, Social Welfare Dept., Madras, , the learned Counsel for the

respondents placed reliance on the dicta of the Apex Court reported in State of Tamil Nadu and another Vs. Mahalakshmi Ammal and others, .

The Apex Court had already held that giving the benefit of the Government Orders, exclusion of certain lands on identical reasoning is no longer

permissible and that the Government order is administrative instructions issued by the Government for the purpose of consideration by the Tamil

Nadu Housing Board and the Government Orders have since been withdrawn. Hence, this contention is also no longer available to the petitioners.

The contention that Section 4(1) Notification is vague and is no longer res Integra and on the ratio laid down by the Supreme Court in State of

Tamil Nadu v. L. Krishnar, (1996) 1 SCC 250 it has been decided that identical notification u/s 4(1) is not vague. Hence, this contention is also

not available to the petitioners.

It is mainly contended by the learned Counsel for the petitioners that Section 5A enquiry has not been conducted properly and that Rule 3 (b)

of the Rules, which is mandatory, has not been complied with. According to the petitioners, they have submitted their objections with respect to

which they received a notice of hearing u/s 5A from the second respondent. They have appeared before the second respondent for Section 5A

enquiry and their objections were recorded by the second respondent. Thereafter, objections raised by the petitioners had been forwarded to the

requisitioning body-Tamil Nadu Housing Board. The Tamil Nadu Housing Board had taken several months to offer its remarks. The Tamil Nadu

Housing Board had offered identical remarks in respect of all the petitioners. The remarks have been forwarded to the petitioners. After

forwarding the remarks of the Housing Board, no further hearing or enquiry has been conducted by the second respondent as required by Rule 3

(b) and this failure vititates the acquisitions proceedings as laid down by the Division Bench of this Court reported in Ramanujam v. Collector of

Madras and 2 Ors., 1994 W.L.R. 326.

It is also further contended by the learned counsel for the petitioners that when the petitioners themselves being owners of small plots of land

and already, using them for their residence by putting up construction, there is no justification to acquire the lands for the purpose of the Housing

Board, which acquisition has been undertaken only for the purpose of providing house sites to third parties. This objection raised by the petitioners

has not been considered by the Land Acquisition Officer. The requisitioning body also by its remarks had merely stated that it is open to the

petitioners to apply to the Housing Board on the ground of persons who have been displaced by the acquisition. In this respect, it is contended by

the learned counsel for the petitioners that there has been no application of mind by the second respondent or that matter by the first respondent,

who had issued Declaration u/s 6. In this connection, the learned counsel for the petitioners relies upon the judgment of Mishra J. reported in

Saroja Sethu v. State of Tamil Nadu, 1993 W.L.R. 240. These two contentions require to be considered deeply as in my view it merits

consideration.

The Division Bench of this Court in Ramanujam v. Collector of Madras and 2 Ors., 1994 W.L.R. 326 had held thus,

One other submission made by learned Counsel for the petitioners in both the writ petitions is that the mandatory requirements of Rule 3 (b)

framed by the Government of Tamil Nadu u/s 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 3(b) 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 5A, 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.

Thus, the Division Bench of this Court has already held that Section 5A enquiry should have been conducted after communication of the remarks

and the failure to communicate the remarks before holding an enquiry, will not satisfy the requirement of Rule 3 (b) of the rules and the same

vitiates the acquisition.

As seen from the file as well as the contents of para 6 of the counter affidavit, which has already been extracted above, it is evident that after

forwarding the remarks of the requisitioning body, no enquiry or hearing had been conducted by the second respondent. In the present case, as

seen from the files, notice of enquiry u/s 4(1) and 5A of the Act dated 11.1.1983 has been sent to the petitioners calling upon them to state their

objections within 30 days form the date of service and their objections will be enquired into on 22.2.1983 at 11.00 A.M. The petitioners, who

have received the notice have sent their objections to the second respondent. Most of the objections being that the petitioners being purchasers of

small plots of land for their personal occupation, that most of them have put up construction and residing there and that the same should not be

acquired. Notices dated 11.1.1983 were sent by Certificate of Posting and in many cases, the notices have been affixed, even according to the

respondents. Section 5A enquiry has been conducted by the Land Acquisition Officer, the second respondent herein on 21.2.1983, 22.2.83,

23.2.83. These are all the three dates on which the second respondent had conducted Section 5A enquiry according to the counter as well as

according to the files.

The second respondent-Land Acquisition Officer by his letter dated 31.1.1983, had forwarded the objections of 35 land owners to the

Housing Board, the requisitioning body and called upon the Housing Board to submit its report. All the petitioners have submitted their objections

and also pointed out that their plot of lands should be excluded since they are residing there by putting up construction or they have purchased the

small extent of lands for the purpose of putting up construction. The Housing Board had sent its remarks dated 20.4.1983. In fact, in one case,

only on 14.3.1983, the Land Acquisition Officer had forwarded the objections to the Housing Board.

The Executive Engineer and Administrative Officer, Coimbatore Housing Units has submitted remarks on 20.4.83 along with his letter dated

7.3.83. The remarks are identical in nature and they read thus,

The objections raised by the petitioners are common in nature. The lands are situated at the vantage point of the proposed Neighbourhood

Scheme. These lands are absolutely necessary for the formation of the A.A. Nagar Neighbourhood Scheme. Hence the exclusion of these lands

will adversely affect the comprehensive nature of the lay out. If the petitioner desired to have an allotment he may be requested to apply in the

prescribed application form at the appropriate time and allotment will be considered as per the prevailing allotment rules of the T.N.H.B.

Necessary compensation will be paid for the lands and structures as per the Land Acquisition Act. Hence the objection raised by the land owner

may be over ruled and the lands may please be acquired and handed over to Tamil Nadu Housing Board for the early implementation of the

Housing Scheme.

Thus, the remarks if any, had been sent by the requisitioning body only after 20th April, 1983 whereas Section 5A enquiry had been concluded by

23.2.1983. No purpose will be served by communicating the remarks of the requisitioning body after the conclusion of Section 5A enquiry. On the

facts of the case, on the three dated viz., 21.2.83, 22.2.83 and 23.2.83 Section 5A enquiry was conducted. The remarks of the requisitioning

body have not been furnished to the writ petitioners till 23.2.83 to the land owners. Nearly after 2 months after Section 5A enquiry, the remarks

have been forwarded by the Housing Board to the second respondent with a copy to the land owner. After the said communication of the

remarks, no further enquiry or hearing has been conducted u/s 5A of the Act by the second respondent. There is no doubt about this and this is

clear from para 5 of the counter affidavit as well as Section 5A enquiry records produced by the second respondent at the hearing of the writ

petition. Thus, in the present case Rule 3 (b) of the Land Acquisition Rules had not been followed by the second respondent. Following the

judgment of the Division Bench of this Court in Ramanujam v. Collector of Madras and 2 Ors., 1994 W.L.R. 326 it has to be held in the present

writ petition that the mandatory Rule 3 (b) has been violated and Section 5A enquiry is vitiated for failure to comply with the requirement of Rule 3

(b) as well as the principles of natural justice, which could be enunciated from the said Rules.

Though the learned counsel for the respondents sought to contend that there is a delay in filing the writ petition, in my view, the delay cannot be

said to be fatal on the facts of the case as immediately after Section 6 declaration, the petitioners, who have been served with a notice under

Sections 9 and 10, they came before this Court and have filed this writ petition and also secured orders of stay. Thus, on the facts of the case, the

delay cannot be said to be fatal and the objections raised by the respondents in this respect cannot be a ground to reject the relief of the writ

petitioners.

Further, it is contended by the learned counsel for petitioners that the petitioners, who are purchasers of small extend of plots for the

construction of their house, many of them have put up construction and are residing there and there is no reason to ignore the said objections by

the second respondent or that matter by the first respondent. The petitioners have purchased the plots long prior to Section 4(1) notification and

most of their names find place in the Revenue Register. Most of them have submitted their objections. The objections raised by the petitioners are

substantial in nature and the objections have been raised for the acquisition with respect to major portion of the land notified u/s 4(1). The

objection, which is specific is that the petitioners themselves are using the land for the purpose of their residence. Most of them have put up

construction and the remaining of them have already taken steps to put up construction by raising loan.

In the circumstances, it is contended that the second respondent- Land Acquisition Officer as well as the first respondent- Government have

omitted to consider the objections. The failure to consider the objections and the decision to over-rule the objections had been done without due

care and without regard to law. Misra, J. in Saroja Sethu v. State of Tamil Nadu, 1993 W.L.R. 240, after analysing the entire case law had 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 a 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 u/s 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 proceedings. 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 legal consequence,

it will indeed be extending the same unfair rule of procedure if on the ground that some objection could have been raised u/s 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 the enquiry u/s 5A 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

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.

I am in respectful agreement with the decision of Mishra J. and the same has to be applied to the facts of the present case. The objections raised

by the present petitioners also evidently make it clear that most of them have put up construction and the rest of them are owning few cents of land

in which they have already invested huge amount raising loan and have commenced construction as well. The Award passed by the second

respondent also discloses the existence of superstructure of tile and other terraced houses and there is no dispute that there has been number of

houses even prior to Section 4(1) notification. It is thus obvious that most of the petitioners have themselves put up construction and they are

residing there.

This apart this Court had occasion to consider the fundamental right of shelter in W.P.No. 2813 of 1988 while following the dicta of the Apex

Court. In the said writ petition in which order passed to-day this Court has held thus:-

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 others Vs. Narasimhamurthy and others, 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...

In the light of the said pronouncement of the Supreme Court, in my considered view, it is neither purposeful nor it is meaningful nor it is just nor

reasonable to deprive the portion of the 15 cents of the 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 ancestor had put up and where he has been living from his birth should not be pulled down or

render the petitioner homeless and throw out his family to street.

The Fundamental right of the petitioner shall not be ignored or brushed aside while acquiring the land for purpose of putting up houses by 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 act 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.

It is rather surprising for the requesting 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 exowner category. By such a course there is

only a chance of getting alternate accommodation at a higher cost on a later date, which will be beyond his means. It is unreasonable to uproot the

villager as against the well settled and affluent urban population, whose demand is sought to be met by the schemes of the Housing Board. 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.

There is every justification for the fifteen cents being excluded form 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 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.

In these circumstances, on the ground that there has been violation of Rule 3(b) and Section 5A of the Act as laid down by the Division Bench

of this Court in Ramanujam v. Collector of Madras and Ors., 1994 W.L.R. 326, the judgment of Mishra, J. in Saroja Sethu v. State of Tamil

Nadu, 1993 W.L.R. 240, and the petitioner''s fundamental right to shelter which the first respondent has to provide for, I am inclined to quash the

acquisition proceedings impugned in the present writ petition.

The writ petition is allowed as prayed for but without costs.