High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 15.4.2009C O R A M :THE HONOURABLE MR. JUSTICE K. CHANDRUW.P.No.3849 of 19981.Vijaya2.Rajendran3.Vanaja4.Ponnammal5.Ramayee6.Vasantha7.Jabamalai8.Krishnaveni9.Avanasiappan10.Magimmadas11.Thangammal12.Sampath Raj13.Vasanthi14.Padmavathi15.Nataraj .. Petitioners-vs-1.State of Tamil Nadu, rep.by itsSecretary to Government,Housing and Urban DevelopmentDepartment, Fort St.George,Chennai – 9.2.The Special Tahsildar (LA),Erode Development Scheme,Erode District. .. RespondentsPRAYER : Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of certiorari culminated inthe proceedings of the first respondent issued in G.O.Ms.No.171,dated10.2.1995 and the declaration under section 6 of the Land AcquisitionAct in G.O.Ms.No.185, dated 26.3.1996 calling for the records andquash the same in so far as the petitioners' land situated inR.S.No.502/8 of Rangampalayam, opposite to Jeeva Nagar, Erode-9,Erode District with the first petitioner purchased an extent of 780sq.ft.dated 07.3.1995, 2nd petitioner purchased an extent of 780sq.ft.on 07.3.1995, 3rd petitioner purchased an extent of 600 sq.ft.on28.2.1995, 4th petitioner purchased an extent of 750 sq.ft.on https://hcservices.ecourts.gov.in/hcservices/

07.3.1995, 5th petitioner purchased an extent of 800 sq.ft.on16.3.1995, 6th petitioner purchased an extent of 780 sq.ft.on01.3.1995, 7th petitioner purchased an extent of 780 sq.ft.on01.3.1995, 8th petitioner purchased an extent of 930 sq.ft.on28.2.1995, 9th petitioner purchased an extent of 802 1/2 sq.ft.on07.3.1995, 10th petitioner purchased an extent of 780 sq.ft.on28.2.1995, 11th petitioner purchased an extent of 630 sq.ft.on07.3.1995, 12th petitioner purchased an extent of 780 sq.ft.on07.3.1995, 13th petitioner purchased an extent of 765 sq.ft.on07.3.1995, 14th petitioner purchased an extent of 780 sq.ft.on07.3.1995, and 15th petitioner purchased an extent of 600 sq.ft.on16.3.1995.For petitioners: Mr.V.Bharathidasan,For respondents: Mr.A.Arumugam, Spl.G.P. *****O R D E R The writ petition is filed by the petitioners seeking tochallenge the proceedings of the first respondent in G.O.Ms.No.171,dated 10.2.1995 as well as the declaration made under section 6 ofthe Land Acquisition Act (Central Act 1 of 1894) by G.O.Ms.No.185dated 26.3.1996 and to quash the same in respect of the petitioners'lands purchased in Survey No.502/8.2. It is stated by the learned counsel for the petitioners thatthe petitioners during February and March 1995 purchased housesitesin R.S.No.502/8 from the land owners by way of registered sale deeds.The site was purchased for the purpose of building houses. Some ofthem are having tiled houses and others are having thatched houses.They are also having electricity connection to their houses. When thepetitioners came to know that the first respondent State issuednotification under section 4(1) of the Land Acquisition Act videG.O.Ms.No.171, Housing and Urban Development Department, proposing toacquire the lands for the purpose of constructing houses by the TamilNadu Housing Board, the petitioners made representations to excludetheir plots from the Housing Board as they belonged to ScheduledCaste community and are also living in the said lands. The landsowned by the petitioners were on the periphery of the Scheme made bythe respondent Housing Board and, therefore, the exclusion will notresult in the scheme getting altered. It is stated by them thatwithout considering their objections, the State Government issuedG.O.Ms.No.185, Housing and Urban Development Department, dated23.6.1996 under section 6 of the Land Acquisition Act. Therefore,they have approached this Court challenging the notification issuedby the State Government raising various grounds. The objection raisedby the petitioners are set out in their written representationsdated 'nil' enclosed in page 9 of the typed set. https://hcservices.ecourts.gov.in/hcservices/

3. This Court admitted the writ petition on 03.4.1998 and alsogranted an interim-stay of dispossession, if not possession alreadytaken over by the respondents. Subsequently, the interim order cameto be extended by various orders and on 30.12.2002, the interim-staywas made absolute.4. The respondents did not file any counter affidavit exceptwritten instruction dated 16.10.2007 given to the counsel, which wasproduced along with the original records. It is stated in the counteraffidavit that the lands were acquired for the purpose ofMuthampalayam Neighbourhood Scheme to be developed in several places.The Phase V and Phase V-A comprised of 842 plots to the extent of51.72 acres. It is only within that area, Survey Number in R.S.502/8is situated. Though it is stated that the developed plots wereallotted to public in respect of the petitioners' land, the followingstatement is made:-''In the abovesaid schemes, the petitioners' landcovered in Phase V & VA lay-out and located in the westernside of the said scheme and the land could not be developedsince the Hon'ble High Court has given absolute stay. Thesaid land is part and parcel of the Phase V and VA ofMuthampalayam Neighbourhood Scheme, Erode, the land is veryvery essential of housing scheme since the adjacent landshave already been developed and allotted to the public.The said land, the Land Acquisition Officer has passedaward in Award No.1/98, dated 25.3.1998 and not taken overby Tamil Nadu Housing Board since the Hon'ble High Court hasgiven stay on 03.4.1998."5. It is also stated by them that the notification under section4(1) was made on 10.2.1995. It is also published in the Tamil NaduGovernment Gazette on 15.3.1995. On 20.3.1995, newspaper publicationwas made in two newspapers having circulation in the area. The localpublication was made on 30.3.1995. Section 5-A enquiry notice dated28.3.1995 was served on the land owners. The enquiry report was madeon 08.1.1996. The draft declaration was issued on 26.3.1996 byG.O.Ms.No.185. The same was published in the Government Gazette on27.3.1996 and a newspaper publication was made in two newspapers on28.3.1996. The local publication was made on 29.3.1996. Section 9(1)notice dated 19.1.1998 and section 9(3) notice, which is also of thesame date, was served on the affected on the affected parties on19.1.1998. An award was passed being Award No.1/98 on 25.3.1998. Itwas thereafter the petitioners have moved and obtained stay ofdispossession on 03.4.1998. However, this Court granted permission toproceed with the enquiry. https://hcservices.ecourts.gov.in/hcservices/

6. In respect of S.NO.502/8, notices were issued in the name ofM/s.Poosappa Gounder and 40 other persons. Poosappa Gounder, son ofNachimuthu Gounder who appeared in the enquiry only objected to theacquisition in respect of S.No.503/5 and no other information orobjection was received in respect of the said survey number, as theerstwhile land owner had already sold the lands to several personsincluding the petitioners. The petitioners had appeared before theauthorities and gave their registered sale deeds of varying datesfrom 28.2.1995 to 12.9.1995 before the authorities. The authoritiesdid not consider their objections but merely stated that since thetotal area given by the petitioners did not tally, the compensationamount could not be granted to them and it was deposited in Court inrespect of the entire survey number. The petitioners have objectedduring Section 5-A enquiry for the acquisition of their lands andrequested for the exclusion of the said lands. The petitioners wereoriginally living in some other place and the housesites in whichthey were living were taken over by the land owners and thereforethey had purchased the present land and they belonged to ScheduledCaste and they do not have any land in the area. Therefore, theysought for retention of their lands by excluding the lands purchasedby them from the acquisition proceedings. However, their objectionswere overruled on the ground that appropriate compensation will begiven and the exclusion will result in affecting the scheme conceivedby the respondents. 7. Mr.M.M.Sundaresh, learned counsel for the petitionerssubmitted that the ''right to shelter" is traceable to Article 21 ofthe Constitution. When the petitioners themselves purchased plotsand built their own houses, it will be a mockery for the State tohave acquired the very same land for the purpose of a neighbourhoodhousing scheme. In this context, it is necessary to refer to thefollowing judgments of the Supreme Court.8. The Supreme Court in more than one decision had emphasized the''right to shelter" as part of the Fundamental Right guaranteed underArticle 21 of the Constitution. The Supreme Court in ShantistarBuilders -vs- Narayan Khimalal Totame and others ((1990) 1 SCC 520)in paragraphs 9 to 11 and 13 held as follows:-''Para 9. : Basic needs of man have traditionally beenaccepted to be three — food, clothing and shelter.The right to life is guaranteed in any civilizedsociety. That would take within its sweep theright to food, the right to clothing, the right todecent environment and a reasonable accommodationto live in. The difference between the need of ananimal and a human being for shelter has to bekept in view. For the animal it is the bareprotection of the body; for a human being it hasto be a suitable accommodation which would allow https://hcservices.ecourts.gov.in/hcservices/ him to grow in every aspect — physical, mental andintellectual. The Constitution aims at ensuringfuller development of every child. That would bepossible only if the child is in a proper home. Itis not necessary that every citizen must beensured of living in a well-built comfortablehouse but a reasonable home particularly forpeople in India can even be mud-built thatchedhouse or a mud-built fire-proof accommodation.Para 10. : With the increase of population and the shift ofthe rural masses to urban areas over the decadesthe ratio of poor people without houses in theurban areas has rapidly increased. This is afeature which has become more perceptible afterindependence. Apart from the fact that people insearch of work move to urban agglomerations,availability of amenities and living conveniencesalso attract people to move from rural areas tocities. Industrialisation is equally responsiblefor concentration of population around industries.These are features which are mainly responsiblefor increase in the homeless urban population.Millions of people today live on the pavements ofdifferent cities of India and a greater numberlive animal-like existence in jhuggis.Para 11. : The Planning Commission took note of thissituation and was struck by the fact that therewas no corresponding rise in accommodation withthe growth of population and the shift of therural people to the cities. The growingrealisation of this disparity led to the passingof the Act and acquisition of vacant sites forpurposes of housing. Considerable attention hasbeen given in recent years to increasingaccommodation though whatever has been done is notat all adequate. The quick growth of urbanpopulation overshadows all attempts of increasingaccommodation. Sections 20 and 21 of the Act vestpower in the State Governments to exempt vacantsites from vesting under the Act for purposes ofbeing taken over if housing schemes are undertakenby owners of vacant urban lands. Section 21specifically emphasises upon weaker sections ofthe people. That term finds place in Article 46 ofthe Constitution and Section 21 uses the samelanguage. ‘Weaker sections’ have, however, notbeen defined either in the Constitution or in theAct itself. An attempt was made in the Constituent https://hcservices.ecourts.gov.in/hcservices/ Assembly to provide a definition but was given up.Attempts have thereafter been made from time totime to provide such definition but on account ofcontroversies which arise once the exercise isundertaken, there has been no success. Asuggestion for introducing economic criterion forexplaining the term was made in the approach tothe Seventh Five Year Plan (1985-1990) brought outby the Planning Commission and approved by theNational Development Council and the UnionGovernment. A lot of controversy was raised inParliament and the attempt was dropped. In theabsence of a definition perhaps a proper guidelinecould be indicated but no serious attention hasbeen devoted to this aspect.............Para 13. : In recent years on account of erosion of thevalue of the rupee, rampant prevalence of blackmoney and dearth of urban land, the value of suchland has gone up sky-high. It has becomeimpossible for any member of the weaker sectionsto have residential accommodation anywhere andmuch less in urban areas. Since a reasonableresidence is an indispensable necessity forfulfilling the constitutional goal in the matterof development of man and should be taken asincluded in ‘life’ in Article 21, greater socialcontrol is called for and exemptions granted underSections 20 and 21 should have to be appropriatelymonitored to have the fullest benefit of thebeneficial legislation....." (Emphasis Added)9. Similarly, the very same view was reiterated in U.P.Avas EvamVikas Parishad and another -vs- Friends Co-op.Housing Society Limitedand another (1995 Supp (3) SCC 456). It is necessary to refer to thefollowing passage found in para 8 of the said judgment.Para 8 : ''... Right to shelter is a fundamental right, whichsprings from the right to residence assured in Article19(1)(e) and right to life under Article 21 of theConstitution. ... "10. The learned counsel submitted that the petitioners haveobjected to the acquisition of land on the ground that they havealready built houses in the land in question and, therefore, itshould not be acquired for the purpose of an housing scheme. The https://hcservices.ecourts.gov.in/hcservices/ respondent did not consider their objections in an objective manner.On the contrary, they have overruled the objections without anyjustification. He submitted that the Court can go into thesatisfaction of the Government and find out whether the satisfactionarrived at was in accordance with the requirements of law. 11. In this context, he referred to the decision of the SupremeCourt in Bhikhubhai Vithlabhai Patel -vs- State of Gujarat reportedin (2008) 4 SCC 144. The following passage found in paragraph 33 wasrelied upon, which reads as follows:-Para 33. ''The court is entitled to examine whether there hasbeen any material available with the State Governmentand the reasons recorded, if any, in the formation ofopinion and whether they have any rational connectionwith or relevant bearing on the formation of theopinion. The court is entitled particularly, in theevent, when the formation of the opinion is challengedto determine whether the formation of opinion isarbitrary, capricious or whimsical. It is always opento the court to examine the question whether reasonsfor formation of opinion have rational connection orrelevant bearing to the formation of such opinion andare not extraneous to the purposes of the statute." 12. The learned counsel also placed reliance upon a decision ofthe Supreme Court in Sube Singh and others -vs- State of Haryana andothers reported in (2001) 7 SCC 545. He has stated that in that casethe owners of the lands objected to the acquisition on the groundthat structures in the land had already come up and therefore theirlands should be excluded from the acquisition. When the Governmentrefused to accede to their request, the Supreme Court found faultwith the stand of the State Government and observed in paragraphs 11and 12, which is as follows:- Para 11. On the facts and circumstances of the case revealedfrom the records, we are persuaded to accept thecontention raised on behalf of the appellants thatthe rejection of the request of the appellants forexclusion of their land having structures on themwas not based on a fair and reasonable considerationof the matter. We are of the view that such actionof the Government is arbitrary and discriminatory.Unfortunately, the High Court failed to judge thecases in their proper perspective.Para 12. "In the result, the appeals are allowed. Thejudgments under challenge are set aside, the orderspassed by the State Government rejecting therepresentation of the appellants are quashed. The https://hcservices.ecourts.gov.in/hcservices/ Secretary, Urban Estates Department, State ofHaryana, Respondent 1 herein, is directed toconsider the objection petitions filed by theappellants for exclusion of their properties fromacquisition and pass appropriate order excludingsuch lands having structures on them excepting anyland which is required for construction of a road orhospital. Respondent 1 shall give opportunity ofhearing to the appellants before taking thedecision."13. The said decision came to be quoted with approval in thesubsequent decision of the Supreme Court in Jagdish Chand and another-vs- State of Haryana and another reported in (2005) 10 SCC 162. But,in that case, though the relief was granted only to persons who hadput up structures before the issuance of section 4(1) notification,the learned counsel argued that the case of the petitioners had alsoreceived consideration by this court since objections were raised bythe petitioners even during section 5A enquiry and that had notreceived due consideration by the State. It is submitted that theenquiry under section 5A must be real and meaningful. 14. The learned counsel relied upon the decision of the SupremeCourt in Hindustan Petroleum Corporation Limited -vs- Darius ShapurChenai and others reported in (2005) 7 SCC 627 and placed relianceupon paragraph 9 of the said decision, which is as follows:-Para 9. It is trite that hearing given to a person must be aneffective one and not a mere formality. Formation ofopinion as regards the public purpose as alsosuitability thereof must be preceded by application ofmind as regards consideration of relevant factors andrejection of irrelevant ones. The State in itsdecision-making process must not commit anymisdirection in law. It is also not in dispute thatSection 5-A of the Act confers a valuable importantright and having regard to the provisions contained inArticle 300-A of the Constitution it has been held tobe akin to a fundamental right. 15. The respondents have not come forward to show to thesatisfaction of the Court that the lands under acquisition in respectof the petitioners will really hamper the entire scheme if the landsof the petitioners are excluded. Further it is an admitted case thatthe petitioners have produced copies of the sale deeds in havingpurchased the lands in question before the enquiry under section 5Aof the Land Acquisition Act and they had also participated in thesaid enquiry and objected to the acquisition. These objections havenot received due consideration. In the present case the acquisitionis for a public purpose of providing an housing scheme and not forany other purpose. The fact that the petitioners had obtained aninterim stay for the last ten years and are also living in the said https://hcservices.ecourts.gov.in/hcservices/ land all these years will show that the neighbourhood scheme put upby the second respondent can exist even without these lands inquestion. 16. In the light of the above, the writ petition will standallowed and the acquisition notification in respect of thepetitioners will stand quashed. However, there will be no order as tocosts. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.js To1. The Secretary to Government,Housing and Urban DevelopmentDepartment, Fort St.George,Chennai – 9.2.The Special Tahsildar (LA),Erode Development Scheme, Erode District.+ 1 CC To Mr.V.Bharathidasan, Advocate SR NO.14511+ 1 CC to the Government Pleader SR NO.14607 order in W.P.No.3849 of 1998KA {CO}TP/21.4.2009.