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Madhya Pradesh High Court · body

2000 DIGILAW 507 (MP)

Kishanlal v. State of M. P.

2000-05-10

C.K.PRASAD

body2000
ORDER 1. Petitioners are the owners of land bearing Khasra No. 89/1/1/ as also Khasra No. 88/1/1/1/ having an area of 1.186 and 0.587 hectares respectively in Village Bhanpur in the district of Bhopal. Respondent No. 3 a Government Company incorporated under the provisions of the Companies Act by letter dated 18.10.1995 wrote to the State Government for acquisition of 4.38 acres of land at village Bhanpur for extension of the bulk petroleum depot as also for provision of green belt for safety. The State Government in exercise of its power under section 4(1) of the Land Acquisition Act, hereinafter referred to as the 'Act', by notification dated 1st February, 1999, declared its intention for acquisition of the land belonging to the petitioners; as the same is or likely to be required for public purpose. Public purpose indicated in the aforesaid notification is for extension of bulk petroleum depot as also for providing green belt for safety. The State Government further exercised its urgency power as provided under section 17(1) of the Act and directed that the provision of section 5-A of the Act shall not be applicable in relation to the acquisition. Thereafter, notification under section 6 dated 19.4.1999 was notified in the official Gazette as also published in the newspaper (Annex. P/2) in which it was stated that the land is required for public purpose. 2. By this writ petition, filed under Articles 226 and 227 of the Constitution of India, petitioners pray for quashing of the notification dated 1st February, 1999 (Annexure P/1) issued under section 4 of the Act as also the notification dated 19.4.1999 (Annex. P/2) under section 6 of the Act referred to above. 3. It is the stand of the petitioners that the Competent Authority granted approval for acquisition of the land under section 4(1) read with section 17(1) of the Act on 6th February, 1999, but the Gazette notification under section 4(1) read with section 17(1) of the Act has been published on 1st February, 1999. Accordingly, it is the stand of the petitioners that Gazette notification dated 1st February 1999 has been published even prior to its approval by the Competent Authority and the same renders notification dated 1st February, 1999 (Annex. P/1) illegal. Accordingly, it is the stand of the petitioners that Gazette notification dated 1st February 1999 has been published even prior to its approval by the Competent Authority and the same renders notification dated 1st February, 1999 (Annex. P/1) illegal. Respondents in the return have not denied the assertion of the petitioners that the Competent Authority granted approval for issuance of notification under section 4(1) read with section 17(1) of the Act on 6.2.1999 but their stand is that the date mentioned in the Gazelle notification, i.e. 1st Feb. 1999, is a printing error and the alleged infirmity shall not vitiate the acquisition. 4. Mr. R.N. Singh appearing on behalf of the petitioners submits that respondents having admitted that the Competent Authority granted approval for acquisition of land and for issuance of notification under section 4(1) read with section 17(1) of the Act on 6.2.1999 and the Gazette notification being dated 1.2.1999, clearly go to show that the respondents ventured to issue the Gazette notification even prior to the approval of the same by the Competent Authority. 5. Mr. K.S. Wadhwa, Dy. Advocate General, appearing on behalf of respondents No. 1 and 2, however, submits that the date 1.2.1999 in the Gazette notification is an error which has crept in the Gazette notification and the acquisition cannot be invalidated on account of this inadvertent error. 6. Having appreciated the rival submissions. I find substance in the submission of Sri Wadhwa. Competent Authority granted approval for acquisition of the land as also for issuance of notification under section 4(1) read with section 17(1) of the Act on 6.2.1999. Notification although has been published in the State Gazette on 19.2.1999, but inadvertently in the Gazette notification, its date has been mentioned as 1st February, 1999. I am of the considered opinion that the date 1st February, 1999 in the Gazette notification is a printing error and hence I am not prepared to accept the petitioners' submission that acquisition has been notified in the Gazette, even prior to its approval by the Competent Authority. 7. Mr. I am of the considered opinion that the date 1st February, 1999 in the Gazette notification is a printing error and hence I am not prepared to accept the petitioners' submission that acquisition has been notified in the Gazette, even prior to its approval by the Competent Authority. 7. Mr. R.N. Singh then submits that the Indian Oil Corporation has made request for acquisition of the land by its letter dated 18.10.1995 which was taken cognizance of by the Land Acquisition Officer on 28.10.1995 and hence invoking the urgency power under section 17(1) of the Act after a lapse of more than 3 years on 6.2.1999 is absolutely uncalled for and this renders the entire acquisition vitiated in the eye of law. In support of his submission, Sri Singh has placed reliance on a decision of the Supreme Court in the case of Omprakash and another v. State of Uttar Pradesh and others. AIR 1998 SC 2504 , and my attention has been drawn to paragraph 25 of the said judgment. Same reads as follows. "25. In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action of dispensing with inquiry tinder section 5-A of the Act in the present cases was not based on any real and genuine subjective satisfaction depending upon any relevant data available to the State authorities at the time when they issued the impugned notificati0n under section 4(1) of the Act and dispensed with section 5-A inquiry by resorting to section 17, sub-section (4) there of. The first point is, therefore, answered in the negative, in favour of the appellants and against the contesting respondents." 8. My attention has also been drawn by Mr. Singh to a Judgment of a learned Single Judge of this Court in the case of Bhoomandal Singh v. State of M.P. and Ors. 1997(1) MPLJ 547 . My attention has been drawn to paragraph 7 which reads as follows: "7. In any case, the reply indicates that the Collector, District Guna sent a proposal on 19th April, 1984 and a decision was taken by the Commissioner on 19th July, 1985. Thus, it is apparent that it is not a case which could not brook the delay of thirty days. In any case, the reply indicates that the Collector, District Guna sent a proposal on 19th April, 1984 and a decision was taken by the Commissioner on 19th July, 1985. Thus, it is apparent that it is not a case which could not brook the delay of thirty days. As such dispensing with the requirement of section 5-A of the Act was not proper and the declaration made under section 17 of the Act dispensing with the requirement of section 5-A is held to be bad." 9. Mr. Wadhwa, appearing for respondents No.1 and 2 as also Mr. V.P. Verma appearing for respondent No.3, submit that on the materials placed before the Competent Authority, it has decided to invoke the urgency clause and in the facts of the present case, delay had not affected the subjective satisfaction of the authority dispensing with the enquiry. It is relevant here to state that in the present case acquisition of the land has been made for Indian Oil Corporation which is a Government Company, still the respondents had proceeded to examine the case of respondent No. 3 for acquisition under Part VII of the Act which has provided the methodology for acquisition of land for companies. In view of the fact that acquisition in the present case is for a Government Company, procedure as required to be followed in Part VII of the act was not required to be undertaken but the respondents proceeded on an erroneous assumption that the acquisition is for a Company and as such Part VII of the Act would apply, hence delay has occurred in invoking the urgency clause. In my opinion, in the facts of the present case, delay had not affected the subjective satisfaction for dispensing with the enquiry. The view which I have taken finds support from the Judgment of the Supreme Court in the case of Bhagat Singh v. State of U.P. and Others and analogous cases. 1999 (2) SCC 384 , wherein, it has been held as follows: "10. In our view, the subjective satisfaction for dispensing with the inquiry under section 5-A is based on sufficient material and cannot be faulted. 1999 (2) SCC 384 , wherein, it has been held as follows: "10. In our view, the subjective satisfaction for dispensing with the inquiry under section 5-A is based on sufficient material and cannot be faulted. The photographs as to the filthy state of the present mandi with garbage and stray cattle and pigs show that the place is of loathsome that it will be precarious and perhaps hazardous to store vegetables or foodgrains in the existing market. We are, therefore, of the view that the urgency clause was rightly invoked by the Government. There are also enough precedents in connection with acquisition of land for markets where section 5-A has been dispensed with and such action was upheld." On facts, having found that delay had not affected the subjective satisfaction for dispensing with the enquiry, the authorities relied on by Sri Singh, in support of his submissions are clearly distinguishable. 10. Mr. Singh lastly submits that acquisition of land for Company cannot be said to be for public purpose and hence the entire acquisition is fit to be struck down. In support of his submission, he has placed reliance on a decision of this Court in the case of Chaitram Verma v. Land Acquisition Officer and others, 1993 MPLJ 573, and my attention has been drawn to the following passage for paragraph 10 of the said Judgment which reads as follows:- "10. Notification under section 4 of the Act (Annexure-A) mentions that the land was required for the public purpose. Schedule to the notification describes the public purpose as "for constructing railway siding for the cement plant of Tata Iron and Steel Company". Prima facie, therefore, the acquisition was for construction of the railway siding for the cement plant of the respondent No.4. According to the return of the respondents No. 1 to 3, the respondent No.4 has established the cement factory which was likely to go in production in October, 1992, and the railway siding was required for facilitating transportation of cement from the said plant. Agreements under section 41 of the Act tiled with the return of the respondents No. 1 to 3 as Annexure R-4 to R-6 indicate that the acquisition was to be done on behalf of the Company i.e. respondent No.4. Agreements under section 41 of the Act tiled with the return of the respondents No. 1 to 3 as Annexure R-4 to R-6 indicate that the acquisition was to be done on behalf of the Company i.e. respondent No.4. Para 2 of this agreement vested the acquired land in the respondent Company, giving them an absolute title thereto, subject to the payment of an assessment or ground rent. Though this agreement was entered into on 4.7.1991 under section 41 of the Act, it was never published as required under section 42 thereof. Since the notification under section 4(1) of the Act is also dated 4.7.1991, it is reasonable to infer that though the respondents intended to acquire lands for the company, notification wrongly mentioned that acquisition was for a public purpose." I do not have the slightest hesitation in rejecting this submission of Sri Singh. A plain reading of section 39(f)(iv) of the Act makes it clear that the provision of land for a Corporation owned or controlled by the State comes within the expression public purpose. The expression "Corporation owned or controlled by the State" as used in section 3(f)(iv) of the Act has been defined under section 3(CC) of the Act to include Government Company as defined under section 617 of the Companies Act. Here, acquisition has been made for a Government Company. Acquisition of land for Government Company is a public purpose. As regards the authority of this Court in case of Chaitram Verma (supra), same is clearly distinguishable as in the said case acquisition was for a company and not Government Company. 11. Having negatived all the submissions made on behalf of the petitioners. I do not find any merit in the writ petition and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost.