AMBRISH KUMAR Vs. STATE OF M P

JUDGEMENT

(1.) THESE two appeals have been preferred under Section 2 (1) of the M. P. Uchcha Nyayalaya (Khand Nyayapeeth Ko Appeal) Adhiniyam, 2005, challenging the defensibility and sustainability of the order dated 8-8-2008 passed by the learned Single Judge in W. P. No. 8723/2007 and W. P. No. 8726/2007. Be it noted, the learned Single Judge has disposed of both the writ petitions in a composite manner and adverted to the facts in Writ Petition no. 8726/2007. As in Writ Appeal No. 960/2008 the assail is to order passed in writ Petition No. 8726/2007, for the sake of clarity and convenience, we shall advert to the material facts and grounds urged in the said appeal.

(2.) THE appellant is the owner of the land bearing Survey No. 957 admeasuring area 1. 58 hectares at Village Morghari, District Khandwa. The said land was diverted by order dated 3-11-2005 under Section 172 of the M. P. Land revenue Code, 1959 (for short 'the Code') for construction of godown. The petitioner has availed a loan of Rs. 25. 55 lacs from the State Bank of India, sanawad Branch. A 'no objection certificate' for construction of godown was also issued by the Gram Panchayat. As set forth, he has constructed a godown having capacity of 1000 MT which was sanctioned by the NABARD scheme. Various aspects were put forth about diversion and construction of the godown. Against this factual backdrop, it was contended before the learned Single Judge that the respondent-State, without carrying out proper survey of the land, proposed a canal to be passed through the aforesaid land bearing Survey nos. 925 and 957 and without application of mind, it issued a notification dated 8-8-2006 under Section 4 (1) of the Land Acquisition Act, 1894 (for short 'the act' ). On the same day, a declaration under Section 6 was issued. It was also urged that the notification under Section 4 (1) of the Act was not published in the newspaper and the notification and declaration were issued on 8-8-2006. In the notification under Section 4 (1) of the Act, it was stipulated that the provision of Section 5-A of the Act would not be applicable as the urgency clause was invoked under the provision of Section 17 (1) of the Act.

(3.) IT was averred in the writ petition that before invocation of the urgency provision as per Section 17 of the Act, it was incumbent on the part of the appropriate Government to examine the urgency but no exercise was carried out in the said regard and further the Collector had himself invoked the urgency provision and not the State Government. It was further put forth that though the secretary has power to grant permission for invocation of the urgency clause, yet the Commissioner on 11-8-2006 had granted the permission. It was highlighted that it was not a fit case where the urgency provision could have been invoked inasmuch as the power conferred under Section 5-A of the Act is a valuable right and a land owner cannot be deprived of the said right in an arbitrary manner. Various assertions have been made about the diversion of the land along with various other ancillary facets to highlight that an alternative sight could have been chosen and further that the rights of the petitioners had been throttled in a most arbitrary and capricious manner. It was also asseverated that no prior survey in respect of alignment of canal was done and hence, the entire exercise was vitiated.