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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE E. PADMANABHAN
R. Thiruvengadam
Versus
The Secretary to Government, Housing Department, Government of Tamil Nadu, Madras-9 and others
W.P. No. 2813 of 1988
Decided On : 04-02-1997
LAND ACQUISITION - FORM 3 NOTICE - QUASHING - RESIDENTIAL HOUSE - FUNDAMENTAL RIGHT TO SHELTER - PUBLIC PURPOSE - EXCEPTION - LAND ACQUISITION ACT, 1894 - SEC. 5A, 6, 7, 11A - RULE 3B - CONSTITUTION OF INDIA - ART. 19(1).
Fact of the Case:
Petitioner challenged the Form 3 Notice issued under Sec. 56(1) of the Land Acquisition Act for acquisition of his residential house and land for a housing scheme. He contended that the acquisition violated his fundamental right to shelter under Art. 19(1) of the Constitution and that the authorities failed to consider his objections properly.
Finding of the Court:
The court held that the acquisition of the petitioner's residential house was not justified as it violated his fundamental right to shelter. The court found that the authorities failed to consider the petitioner's objections properly and that the requisitioning body's remarks were not communicated to the petitioner before the conclusion of the enquiry under Sec. 5A of the Act, which violated the mandatory provision of Rule 3b.
Issues: 1. Whether the acquisition of the petitioner's residential house violated his fundamental right to shelter under Art. 19(1) of the Constitution? 2. Whether the authorities failed to consider the petitioner's objections properly?
Ratio Decidendi: 1. The right to shelter is a fundamental right under Art. 19(1) of the Constitution. The State has a constitutional duty to provide house sites to the poor and to provide facilities and opportunities to build a house. 2. The acquisition of the petitioner's residential house was not justified as it violated his fundamental right to shelter. The authorities failed to consider the petitioner's objections properly and the requisitioning body's remarks were not communicated to the petitioner before the conclusion of the enquiry under Sec. 5A of the Act, which violated the mandatory provision of Rule 3b.
Final Decision: The court allowed the writ petition to the limited extent of the petitioner's claim of 15 cents where he had put up construction and was residing there along with his family members. In other respects, the writ petition was dismissed.
1. Petitioner prays for the issue of a writ of certiorari call for the records in Form 3 Notice issued under Sec.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. 1939, a well has been put up, that they put up residential houses in an extent of 015 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 Sec.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 Sec.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 Sec.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 Sec.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 be
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