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High Court of Judicature at Madras
The Honourable Mr. Justice E. Padmanabhan
C. Ponnusamy and 62 others
Versus
Govt. of Tamil Nadu rep. by the Commissioner and Secretary, Housing and Urban Development Dept., Fort George, Ms. and another
W.P.No.2203 of 1988
Decided On : 04-02-1997
LAND ACQUISITION - SEC.5-A ENQUIRY - RULE 3 (B) VIOLATION - FAILURE TO COMMUNICATE REMARKS OF REQUISITIONING BODY - NO FURTHER HEARING - ACQUISITION QUASHED - FUNDAMENTAL RIGHT TO SHELTER - PETITIONERS RESIDING IN HOUSES PUT UP ON LAND - ACQUISITION FOR HOUSING SCHEME - UNJUSTIFIED - ACQUISITION QUASHED.
Fact of the Case:
Petitioners challenged the land acquisition proceedings for the Anna Nagar Neighbourhood Scheme, Coimbatore, contending that the Sec.5-A enquiry was not conducted properly, Rule 3 (b) of the Rules was not complied with, and their objections were not considered. They argued that acquiring their small plots of land, where they resided, for the purpose of providing house sites to third parties was unjustified and violated their fundamental right to shelter.
Finding of the Court:
The court found that the Land Acquisition Officer failed to communicate the remarks of the requisitioning body to the petitioners after forwarding them, and no further hearing or enquiry was conducted under Sec.5-A of the Act. This violated Rule 3 (b) of the Land Acquisition Rules and the principles of natural justice. The court also held that the petitioners' objections, that they were using the land for residence and had put up construction, were substantial and should have been considered. The court recognized the fundamental right to shelter and held that acquiring the petitioners' land, where they had put up constructions and resided, for the benefit of affluent urbanities was unreasonable and deprived them of their fundamental right.
Issues: 1. Whether Rule 3 (b) of the Land Acquisition Rules was violated due to the failure to communicate the remarks of the requisitioning body and conduct a further hearing? 2. Whether the petitioners' objections regarding their residence and construction on the land were considered? 3. Whether the acquisition of petitioners' land for a housing scheme, while depriving them of their fundamental right to shelter, was justified?
Ratio Decidendi: 1. The court relied on the judgment of the Division Bench in Ramanujam v. Collector of Madras, which held that failure to comply with Rule 3 (b) vitiates the acquisition. The court found that the Land Acquisition Officer did not comply with Rule 3 (b) by not communicating the remarks of the requisitioning body and conducting a further hearing. 2. The court referred to the judgment of Mishra, J. in Saroja Sethu v. State of Tamil Nadu, which held that objections raised by the petitioner at the stage of Sec.5-A enquiry cannot be rejected merely because they could have been raised earlier. The court found that the petitioners had raised substantial objections regarding their residence and construction on the land, which were not considered. 3. The court recognized the fundamental right to shelter as a fundamental right under Art. 19 (1) of the Constitution and referred to the judgment of the Supreme Court in State of Karnataka v. Narasimhamurthy, which held that the State has a constitutional duty to provide house sites to the poor. The court held that acquiring the petitioners' land, where they had put up constructions and resided, for the benefit of affluent urbanities was unreasonable and deprived them of their fundamental right.
Final Decision: The writ petition was allowed, and the land acquisition proceedings impugned in the petition were quashed.
1. 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 Sec.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 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.
2. 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 Sec.5-A 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 under Sec.5-A is vitiated by non-compliance with the requirement of Rule 3 (b), that Sec.6 Declaration is illegal, that Sec.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 and another v. Governmentt of Tamil Nadu, A.I.R. 1988 Mad. 355 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.
3. 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 under Sec.4 (1) Notification of the Land Acquisition Act was published in G.O.Ms.No.861, Housing and Urban Development, dated 28. 1982 and the same was published in the Government Gazette dated 9. 1982. An errata to Sec.4 (1) has been published on 212. 1982. Sec.5-A enquiry was conducted on 22. 83, 22. 83 and 22. 83 at the office of the second respondent after publication of the notice. Sec.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 9. 1985, in Daily Thanthi and in the locality on 9
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