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Judgment
Arun Mishra, J.
In this writ petition, the petitioner challenges the land acquisition as per notification u/s 4 of the Land Acquisition Act. Land has been proposed to be acquired by the Government for construction of bus-stand as per notification published in November, 2000.
Case has a chequered history. Initially the land was proposed to be acquired for construction of bus-stand as per notification issued on 2-6-1995. Enquiry u/s 5A was dispensed with on earlier occasion. Notification was challenged by the petitioner in W.P. No. 4292/1997, in which, interim stay was granted not to dispossess the petitioner. It appears that the award could not be passed within the statutory period, hence, the proceedings were dropped. A fresh notification u/s 4 has been issued, which has been impugned in the instant writ petition.
Petitioner''s main ground of challenge is that the petitioner has established an industry over the land in question and is a running concern. It was established as per the scheme framed under the Town Improvement Trust Act, 1960. That Act has been repealed by M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973. By virtue of section 87 such scheme has to be treated as a scheme having been framed under the Act of 1973. It is also the ground raised to challenge the notification that the scheme can be changed only in accordance with section 74 and proviso to it makes it incumbent to afford opportunity of hearing to the affected persons. Second ground of challenge is that invocation of urgency clause is bad in law as per section 17(4) of the Act. The Commissioner, Indore Division has not applied the mind before invoking the power u/s 17(4) for applying urgency clause dispensing with the enquiry u/s 5A of the Act.
It is further submitted that no plan has been prepared enabling the construction of bus-stand on the site in question, as such acquisition of the land is impermissible and is in contravention of provision of Act of 1973.
Respondents in their return contends that opinion has been formed by the appropriate authority to dispense with the enquiry u/s 5A on the relevant material on record. The acquisition is in the public interest. Looking to the need of general public, Municipal Corporation, Khandwa decided to construct a bus-stand so as to enable the general public to get means of conveyance to a particular place. As previous notification was challenged, the acquisition could be completed within the statutory period. Resolution has been again passed on 12-9-2000 by the Corporation for construction of bus stand. Collector wrote the Commissioner for invoking the urgency clause keeping in view the urgent need for construction of the bus-stand. The Commissioner accepted that there is urgency and ordered for dispensation of the enquiry u/s 5A. Thereafter notification u/s 4 was published in the gazette as well as in the local newspapers.
Shri R.K. Gupta, learned counsel for the petitioner has raised five submissions. First submission is that in view of the scheme having been framed for setting up of industrial township under the Act, the petitioner''s industry was established and such a scheme is saved by virtue of section 87 of the Act. Scheme has not been modified in accordance with section 74 after giving opportunity of hearing to the petitioner. Second submission is that the petitioner is a running concern, as such acquisition is bad in law, as in fact the acquisition is for commercial activities. After establishment of bus-stand commercial establishment has also to be established. The third submission of learned counsel for the petitioner is that no plan has been prepared with respect to the bus-stand, as such acquisition is bad in law. Fourth submission is that invocation of urgency clause u/s 17(4) is without due application of mind by the Commissioner. Fifth submission is also raised by learned counsel for the petitioner that the scheme framed under 1960 Act cannot be changed u/s 74 of the Act of 1973.
Learned counsel for the respondents Shri Ashok Agrawal submits that the provisions of Land Acquisition Act are independent and are not dependent upon the existence of scheme under the Act of 1973 or Act of 1960. His further submission is that the Municipal Corporation has decided to establish the bus-stand and that has been approved by the development authority under the Act of 1973 and State Govt. has sanctioned it and as such there is no infirmity of law. Invocation of urgency clause is ex-facie proper. There is material on record and need by its very nature is urgent Dispensing with the enquiry u/s 5A cannot be said to be arbitrary and the land is not being acquired for commercial activities, but, for public purpose for establishing bus-stand.
The first submission of learned counsel for the petitioner is about the establishment of industry as per scheme framed under the Act of 1960 and such a scheme has been saved u/s 87 of the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973, hence, acquisition is bad in law. This submission cannot be accepted as the scheme once framed cannot be remain static for all the time to come. Land acquisition cannot be said to be dependent upon existence of such a plan/scheme. It has to be seen that for what purpose the land is proposed to be acquired. The Apex Court in S.S. Darshan Vs. State of Karnataka and others, , in para 11 held that the notification u/s 4 cannot be challenged on the ground that purpose of acquisition is different than permitted land use under master plan. Similar contention was raised in Laxmi Bai Tiwari and ors. vs. State of M.P., W.P. No. 6592/2000, decided on 21-9-2001 and was disallowed. In W.P. No. 7045/2000, decided on 14-3-2002, a similar view has been taken following the decision of Apex Court in S.S. Darshan (supra). In my opinion when the Municipal Corporation has resolved to establish a bus-stand and that has been approved by the competent authority under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, 1973 and the Government has also sanctioned the acquisition. In my opinion that has to prevail over the scheme, if any framed under the Act of 1960 which may have been saved u/s 87 of the Act of 1973.
The second submission raised by learned counsel for the petitioner about grant of opportunity of hearing u/s 74 and submission as to jurisdictional competence to amend the scheme framed under the previous Act, does not survive, in view of the finding recorded on the first submission and stands rejected for the reasons aforesaid. The submission raised about absence of plan is rejected as Corporation has resolved to establish bus-stand which has sanction of competent authority under the M.P. Nagar Tatha Gram Nivesh Adhiniyam, and of the State Government.
Coming to the submission of learned counsel for the petitioner that running industrial unit cannot be taken away for commercial purpose as shops etc. have to be established after establishment of bus-stand to cater the need of the passengers. Thus, learned counsel has submitted that the area in question is big where the bus-stand is not going to be established in its entirety, but, major portion has to be utilized for commercial purpose. Learned counsel placed reliance on decision in Metro Theatre Bombay Ltd. and Another Vs. Union of India (UOI) and Others, , in para 39 which is quoted below:
It is true that the definition of ''land'' as given under the Land Acquisition Act includes benefits to arise and things attached to the earth or permanently fastened to anything attached to the earth etc. It is true u/s 23 of the Act, compensation may have to be paid in respect of any damage sustained by the person interested by reason of acquisition, injuriously affecting his other property, moveable or immovable or his earnings etc. I think, there can be no two opinions that the Land Acquisition Act is essentially concerned with the acquisition of land as an immovable property as such. It may be that on such a land, there may be certain moveable properties here and there; it may be that on acquisition, the person may suffer in his earning if any business is carried on, on such a land. Of course, he has to be compensated for all the loss that he might sustain. But that does not mean, that the Government may acquire the business and say that it is mainly an acquisition of land and incidentally of the business. That is not the object of acquisition. In this case throughout the Government has been asserting that they want this theatre as an outlet for their films. That is how the acquisition becomes an acquisition of a commercial undertaking for the purpose of release of their own pictures. Essentially and in substance, it is an acquisition of a "running concern". Of course, the name of Metro would not be there. That would not make any difference. Similarly, the goodwill attached to Metro would not be there. That may not be necessary. But every others paraphernalia annexed to this business would continue when the Government releases its pictures through this theatre. Under the defence of India Rules referred to above, though the Lahore High Court said that that was not possible, the other two High Courts sought to justify the same on the basis that such a power was found in the Rule. In the present case there is no doubt that under the Land Acquisition Act there are no such powers to acquire a running business or any commercial undertaking. Therefore, it is in this sense also the entire acquisition becomes without the authority of law and, therefore, it must necessarily be set aside.
Submission raised by learned counsel for the petitioner cannot be accepted as in my opinion the acquisition is for the public purpose for establishing bus-stand, which is the dominant purpose of the general public utility, which cannot be said to be a commercial venture. To cater the need of passengers if some commercial complex is established at the bus-stand, that cannot change the purpose of acquisition, which is for the general public convenience. Need for bus-stand is such which by no stretch of imagination can be said to be for commercial activities. The facts in Metro Theatre, Bombay (supra) are totally different where the acquisition was for commercial activities for need of release of picture which is not the facts situation obtainable in the instant case.
Next submission is about invocation of urgency clause and dispensation of enquiry u/s 5A. In Bhagat Singh Vs. State of U.P. and Others, the acquisition was for establishing market yard. It was held by the Apex Court that invocation of urgency clause is a matter of subjective satisfaction on consideration of the purpose which is involved in the case. It cannot be said that the Commissioner had not applied mind to the need and urgency of the purpose in this case.
Learned counsel for the petitioner has placed reliance on Division Bench decision of this Court in M.P. No. 416/1996 and M.P. No. 487/1996 decided on 24-4-1997. In that case in view of the material which was placed before the Court, the opinion was expressed that urgency clause was wrongly invoked. In the present case need is different and in my opinion invocation of urgency clause does not suffer with error of law and satisfaction has rightly been reached about that.
I find no merit in the writ petition, same is dismissed. However, in the facts and circumstances of the case, no order as to costs.