The petitioner has filed this writ petition seeking issuance of a writ of mandamus to direct the respondents to handover the possession of the land in Survey No.3/3-1, 3/3-2 and 3/2-5 of Nagercoil Village, Agastheeswaram Taluk, Kanyakumari District to the petitioner based on the judgment of this Court in N.Chelladurai v. The Government of Tamil Nadu and another, 2000 (III) CTC 215.
2. Brief facts of the case are as under: According to the petitioner/trust, the village temple trust is the owner of the land in T.S.No.3/3-1 and 3/3-2 in Ward No.27 of Nagercoil Municipality, Agastheeswaram Taluk, Kanyakumari District of an extent of 0.60.70.282 and 0.06.54.594 hectares from time immemorial and they are in possession of the said land as absolute owner thereof. It is stated that the land is being used as burial ground, except a portion of the land in which there is a temple which belongs to the villagers.
3. It is stated that a notification under
Section 4(1) of the Land Acquisition Act was published on 11.12.1991 stating that the lands in question are required for formation of neighbourhood scheme in Nagercoil Town, without there being any scheme framed as contemplated under Chapter VII of the Tamil Nadu State Housing Board Act, 1961, and without furnishing the details of the public purpose for which the land is proposed to be utilized.
4. It is further stated that the respondents have also not followed the directions stipulated in G.O.Ms.No.2135, Revenue Department, dated 24.09.1979, whereby it was directed that the Housing Board should avoid acquisition of lands classified as non-residential areas due to proximity to burial grounds as per the Public Health Rules. It was averred that the government vide G.O.Ms.No.1630, dated 28.09.1984 directed not to acquire lands which are religious in character. It is stated that there are over 1000 graveyards and each family of the village is allotted a particular stretch of land to perform the last rites and, therefore, acquisition of burial ground and temple is violative of the fundamental right guaranteed under
Article 25 of the Constitution of India.
5. It is further stated that the respondent authorities have not taken any steps to comply with the statutory requirements under Section 6 and 11-A of the Act and in view of the non compliance of the statutory requirements, the acquisition proceedings stand lapsed.
6. It is also stated that the villagers protested against the acquisition proceedings and had also made representation to the District Collector, but the same did not evoke any response.
7. In such backdrop, the present writ petition is filed.
8. The learned counsel appearing on behalf of the petitioner submitted that since the respondent authorities have not conducted enquiry under Section 5A of the Act and Rule 4(b) of the Rules, the acquisition proceedings are bad in the eye of law and are contrary to the law laid down in N.Chelladurai case, supra.
9. It is further contended that the notification under
Section 4(1) of the Act was published in two dailies which are not widely circulated in the locality. It is added that award was not passed within two years from the date of publication of the declaration.
10. Per contra, the learned Additional Government Pleader appearing on behalf of respondents 1 to 3 submitted that respondents have duly complied with the mandatory provisions and there is no defect or error in the acquisition proceedings and, therefore, no interference is warranted.
11. I heard Mr.M.Saravanakumar, learned counsel for the petitioner, Mrs.R.Anitha, learned Additional Government Pleader for the respondents 1 to 3 and Mr.P.Thilak Kumar, learned counsel for the 4th respondent side and perused the documents available on record.
12. At the outset, it is to be noted that this Court passed an order of status quo on 04.08.2009 and the same continues to hold good even as on date and the respondent authorities have not taken any steps to vacate the same.
13. From the documents appended in the typed set of papers, it is seen that patta in respect of the lands in question stands in the name of the petitioner/trust. Admittedly, the Nagercoil Municipality had issued a certificate to the effect that part of the land is being used for burial purposes. Therefore, the acquisition proceedings, prima facie, appear to be against the administrative instructions issued by the Government not to acquire burial ground and religious places.
14. That apart, in respect of the very same acquisition proceedings, of course relating to land in T.S.No.N-4-24/2 of Nagercoil Village, Agasteeswaaram Taluk, Kanyakumari District, this Court in N.Chelladurai case, supra, held that the acquisition proceedings are vitiated as the procedure contemplated under Section 5-A of the Act and Rule 4(b) of the Rules had not been followed. It is apposite to refer to the operative portion of the said order which reads as under:
?3. It is seen from the proceedings that the petitioner is the owner of 10 cents in T.S.No.N-4-24/2 of Nagercoil village, Agasteeswaram Taluk, Kanyakumari District by virtue of a registered sale deed dated 5.10.1990 for valuable consideration. According to him, he is a small land-holder. Patta for this land was transferred in his name after purchase. For the purpose of formation of a Neighbourhood Scheme by Tamil Nadu Housing Board, a notification under Sec.4(1) of the Land Acquisition Act (Central Act) (hereinafter referred to as ?the Act?) was issued in G.O.Ms.No.1214, Housing and Urban Development Department, dated 17.9.1991. The same was published in the Tamil Nadu Government Gazette dated 11.12.1991, in two Tamil dailies viz., Kumari Murasu and Kinnas dated 19.12.1991 and in the locality on 19.12.1991. Individual notice in Form 3-A or 5-A enquiry was issued to the petitioner during February, 1992. The petitioner submitted his written objections on 13.2.1992. 5-A enquiry was conducted on 10.3.1992 and the petitioner also appeared on that date objecting the acquisition. According to the petitioner, even though he had submitted his objections within the time prescribed the second respondent had sent the remarks to the requisitioning body on 11.3.1992 which was served on the petitioner on 23.3.1992. According to him, no enquiry was conducted by the second respondent and he has passed 5-A enquiry proceedings on 30.3.1992 which was served on him on 6.4.1992. There is no dispute that in terms of Sec.5-A(1), (2) read with Rule 4(b) and
(c) of the Rules, if the land owner, submits his objection within the time prescribed namely, within 15 days from the date of receipt of notice for 5-A enquiry, undoubtedly the second respondent had to forward the objection of the land owner to the requisitioning body, here in our case the Tamil Nadu Housing Board and on receipt of the remarks of the requisitioning body, the same has to be communicated to the land owner and thereafter further enquiry has to be conducted. After doing so, it is open to the Land Acquisition Officer to submit a report to the Government for taking further action. This position has been settled in various decisions of this Court as well as the Apex Court. The 5-A proceedings of the Special Tahsildar dated 30.3.1992 shows that the petitioner had submitted his objection in time and remarks were also called for from the requisitioning body. However, it is not stated either in the 5-A proceedings of the Special Tahsildar dated 30.3.1992 or in the counter affidavit of the first respondent regarding further enquiry after service of copy of the remarks of the requisitioning body to the petitioner. In such circumstances, in the light of the particulars furnished, I hold that the 5-A enquiry and the subsequent proceedings dated 30.3.1992 of the 2nd respondent is vitiated since the same was not conducted as laid down in Sec.5-A of the Act and Rule 4(b) of the Rules.?
15. In the light of the law enunciated in the decision referred supra, I am of the firm view that an opportunity should be afforded to the petitioner/trust and due consideration should be given to the representation given by them on 24.07.2009 before taking a decision in this regard.
16. For the foregoing reasons, the writ petition is disposed of with a direction to the second respondent to consider the petitioner's representation dated 24.07.2009 in the light of the decision of this Court in N.Chelladurai case, referred supra, of course after giving personal hearing to the petitioner and pass appropriate orders within a period of four weeks from the date of receipt of a copy of this order. It is made clear all the contentions raised in this writ petition are left open to be raised by the petitioner before the second respondent. No costs. Consequently, M.P.(MD) No.1 of 2009 is closed.
To
1. The Secretary, Housing and Urban Development Department, Fort St. George, Chennai ? 600 009.
2. The District Collector, Kanyakumari District, Nagercoil.
3. The Special Thasildar (Land Acquisition), Neighbourhood Scheme, Nagercoil, Kanyakumari District.
4. The Executive Engineer, Tamil Nadu Housing Board, Sivanthipatti Road, Tirunelveli ? 627 011.
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