Gujarat High Court
Hasmukhlal Bhagwandas And Ors. vs State Of Gujarat And Ors. on 29 September, 1995
Equivalent citations: (1996)1GLR365, 1996 A I H C 3208, (1996) 1 GUJ LR 365
JUDGMENT B.C. Patel, J.
1. By this petition, petitioners have prayed to quash and set aside the notifications issued under Sections 4 and 6, vide Annexures A and D under the provisions of the Land Acquisition Act.
2. Petitioner Nos. 1 to 6 are the owners of a plot of land admeasuring 1,319 sq. metres of sub-plot Nos. 1 to 3 bearing Nondh No. 2,885/D situated in Ward No. 3, Surat. Petitioner Nos. 7 to 11 are claiming that they are the tenants of some of the shops constructed on that plot. Municipal Corporation of Surat forwarded a proposal to the State Government under Section 78 of the Bomaby Provincial Municipal Corporations Act, 1949, to acquire plot Nos. 1 to 3 for the purpose of constructing a shopping centre thereon. In exercise of powers under Section 4 of the Land Acquisition Act, the notification was published in Gujarat Government Gazette on September 6,1979, vide Annexure 'A' wherein it has been specifically mentioned that the lands specified in the Schedule are likely to be needed for a public purpose, i.e., for shopping centre by Municipal Corporation, Surat. After following procedure laid down under the provisions contained in the Land Acquisition Act, notification under Section 6 came to be issued which has been published in Gazette on 25-8-1982. As there was mistake about the area to be acquired, Corrigendum came to be issued which is not placed on the record, but it is an admitted position that 1,319 sq. metres of land is to be acquired. Miss Shah has raised the following contentions:
(a) The property in question could not be acquired under the Land Acquisition Act as the object is not falling within the obligatory and discretionary duties of the Corporation and therefore, respondent No. 3 was not competent to pass a resolution and the State Government could not have issued the notifications;
(b) By acquiring the land, the shopping centre if so constructed and the shops therein are to be disposed of in favour of some individuals, then it cannot be said that the Corporation has forwarded the proposal in the spirit of Sections 63 and 66 of the Bombay Provincial Municipal Corporations Act;
(c) That the Municipal Corporation has constructed shopping centres on its lands at different places and for which the Corporation is charging non-refundable registration fees varying between Rs. 10,000 and Rs. 1,00,000. Taking into consideration the situation, area, location of the shopping centre and by acquiring the lands of petitioners, the Corporation cannot indulge in commercial transaction by disposal of the petitioners' lands indirectly.
(d) Even presuming for the sake of argument, Miss Shah contended that the object is in accordance with law, yet the same is not to be utilized by the Corporation for its own purpose or for the public purpose, but the shops in the shopping centre are to be disposed of by charging huge amount. As Corporation is to levy nonrefundable registration charges for shops, it cannot be said that cost of construction would be met with from the funds belonging to the coffers of the Corporation, but in effect the amount will be spent by shopkeepers.
(e) That from the affidavit-in-reply it is clear that the laudable object of the respondent-Corporation is to construct a market and not a shopping centre and therefore, the purpose is changed and hence in such case the Corporation should not be permitted to acquire the land for a different purpose than which was disclosed for acquisition of the land.
3. Under the provisions contained in the Bombay Provincial Municipal Corporations Act, 1949 (hereinafter referred to as 'BPMC Act'), there are obligatory and discretionary duties of the Corporation as defined in Chapter VI of the Act. Section 63 provides for obligatory duties. Sub-section (12) of Section 63 reads as under:
63. (1) It shall be incumbent on the Corporation to make reasonable and adequate provision, by any means or measures which it is lawfully competent to it to use or to take, for each of the following matters, namely:
(12) the construction or acquisition and maintenance of public markets and slaughter houses and the regulation of all markets and slaughter houses;
Section 66 provides for discretionary duties, which reads as under:
The Corporation may, in its discretion, provide from time to time, either wholly or partly, for all or any of the following matters, namely:
(42) any measure not hereinbefore specifically named, likely to promote public safety, health, convenience or instruction.
Learned Counsel for the petitioners contended that reading Sections 63 and 66 of the BPMC Act, to provide a shopping centre is not the requirement either obligatory or discretionary. Reading Sub-section (12) of Section 63 and Sub-section (42) of Section 66, it is very clear that it is obligatory duty of a Corporation to construct and maintain the public market and for that purpose the Corporation can take appropriate action as provided under the Act. Sub-section (42) of Section 66 provides for an activity likely to promote public safety, health and convenience. Any purpose which directly benefits the public or the section of the public is a public purpose. Shops would cater the needs of the persons living in the locality. Residents of the locality would have to go to distant parts of the city for shopping if the shopping centre or a market or a shopping site is not provided by the Corporation in the vicinity. Facility would add to the comfort and convenience of the persons living in the vicinity. Reading the scheme of the Act, it is very clear that there is a provision for establishment or construction of markets. Therefore, it cannot be said that the Municipal Corporation was not competent to make a recommendation by a resolution and the Government has approved the same and therefore, the contention has no merit.
4. It is contended that the shops are to be disposed of in favour of some individuals. This submission is based on some advertisements which are annexed to the petition. On behalf of the respondent-Corporation, it has been specifically pointed out that the Planning Committee of the Municipal Corporation by its Resolution No. 186 dated 13th February 1976 took the decision; the site was inspected; and thereafter it was resolved that out of several plots, plot Nos. 1 to 3 admeasuring 1,190 sq. yds. 7.5 sq. ft. land be acquired for shopping centre. It is also stated in the affidavit on behalf of the respondent that since the said acquisition could not be materialised by private agreements, steps were taken under Section 78 of the BPMC Act. On request being made to the Collector, the matter was thoroughly examined by the Government and in its letter dated July 18, 1977 the Government was pleased to accord sanction to the proposal of the Corporation to acquire the said land and thereafter the notification is published under Section 4 of the Land Acquisition Act.
5. Objections were considered and enquiry under Section 5A was held by the competent authority, and after considering pros and cons, notification under Section 6 of the Land Acquisition Act has been published by the State Government. It is pointed out that the shopping centre is to be constructed by the Municipality at its own cost. It is pointed out by the deponent on behalf of the respondent-Corporation that there is no Municipal vegetable market near about the land and the said area needs such vegetable market. Stalls/shops are not to be given to any person at a premiun of non-refundable fees but the said stalls/shops are proposed to be given only in the manner indicated under the Act to the members of the public who on public notice will fill in the tenders for such stalls/shops and there is no question of transferring such stalls/shops to any person on payment of premium. It is also clearly mentioned that such market will meet the needs of the residents of the said locality. Therefore, there is no substance in the contention raised by the petitioners that the shops are to be disposed of in favour of some individuals. Further contention raised in this behalf by the learned Advocate is that the shopping centre is not to be utilised by the Corporation for its own purpose but by charging huge amount by way of levying non-refundable registration charges for shops, the Corporation intends to indirectly dispose of the land of petitioners and the funds are to be provided by shopkeepers and not by the Municipal Corporation. In our view, in view of the aforesaid facts and circumstances of the case, the contention raised by the learned Advocate, cannot be accepted.
6. It is required to be mentioned that in view of Sections 63 and 64 of the BPMC Act, the respondent cannot be said to have exercised their power without authority.
7. It is contended by the learned Advocate that the shopping centre is not for a public purpose. It is further contended that powers are exercised with mala fides and arbitrarily. Section 78 of the BPMC Act is required to be considered at this stage.
78. (1) Whenever the Commissioner is unable under Section 77 to acquire by agreement any immovable property or any easement affecting any immovable property vested in the Corporation or whenever any immovable property or any easement affecting any immovable property vested in the Corporation is required for the purposes of this Act, the (State) Government may, in its discretion upon the application of the Commissioner, made with the approval of the Standing Commmittee and subject to the other provisions of this Act, order proceedings to be taken for acquiring the same on behalf of the Corporation, as if such property or easement were land needed for a public purpose within the meaning of the Land Acquisition Act, 1984.
(2) Whenever an application is made under Sub-section (1) for the acquisition of land for the purpose of providing a new street or for widening or improving an existing street it shall be lawful for the Commissioner to apply for the acquisition of such additionl land immediately adjoining the land to be occupied by such new street or existing street as is required for the sites of buildings to be erected on either side of the street, and such additional land shall be deemed to be required for the purposes of this Act.
(3) The amount of compensation awarded and all other charges incurred in the acquisition of any such property shall, subject to all other provisions of this Act be forthwith paid by the Commissioner and thereupon the said property shall vest in the Corporation.
8. In the case of Kanaiyalal Maneklal Chinai v. State, reported in 1966 GLR 717, Division Bench of this Court construed the provisions of Section 78 of the BPMC Act. The Court has held that, "this power conferred under Section 78 is clearly an additional power which can be exercised by the State Government when moved by the Municipal Commissioners with the approval of the Standing Committee in either of the cases set out in the section. Where the Government proceeds under Section 78, it is not necessary for the State Government to satisfy itself that the immovable property is required for a public purpose nor is it necessary for the State Government to comply with the requirements of Part VII of the Land Acquisition Act: All that is required is that the conditions of Section 78 must be satisfied and if they are satisfied, the machinery of the Land Acquisition Act can be set in motion and the State Government can proceed to acquire the immovable property as if it were land needed for a public purpose. The power conferred on the State Government under Section 78, is, therefore, far from being a limitation on the State Government under Section 6, an extension of that power which can be availed of where the conditions specified in Section 78 are fulfilled."
9. The decision rendered by the Division Bench of this Court in case of Kanaiyalal Maneklal Chinai (supra) was challenged before the apex Court, and in that case, , the apex Court has held, "By statutory provision, it is expressly enacted that where the purpose is one for which the Commissioner of the Municipality may require the land under the provisions of the Bombay Provincial Municipal Corporations Act, 1949, or is a purpose of the Act for which it is deemed necessary or expedient by the Commissioner of the Municipality to acquire the land, such a purpose shall be regarded as a public purpose within the meaning of Section 4(1) of the Land Acquisition Act, even if it does not fall within the expression "public purpose" as normally understood."
10. In our view, the land sought to be acquired is for a purpose, namely, shopping centre. In the affidavit on behalf of the respondent-Corporation, we find the words "market" and "centre" as well as shop/stalls. Section 79 of the BPMC Act empowers the competent authority to dispose of the property. Mr. Desai, learned Advocate appearing for the Corporation stated that the shops/stalls of the centre are to be allotted in accordance with Section 79. He submitted that the property which is conveyed to the Corporation cannot be transferred contrary to the terms of the transfer except with the prior sanction of the appropriate Government. He stated that looking to the need of the public, it is absolutely necessary to have a shopping centre and particularly for sale of vegetables and fruits. Therefore, there is no question of dealing with the property in any manner other than the one which is indicated.
11. Miss Shah, learned Advocate submitted that it is not a public purpose because in the vicinity there are shopping centres; some of the shopping centres are vacant; and therefore, there is no need to have another shopping centre. It is known to everyone that it is difficult to get shops or stalls in a busy locality at a reasonable rate. If the persons dealing in vegetable and fruits are not provided with appropriate place in the locality, then the residents of the locality will be required to go far away from the place for purchase of commodities. It is very much likely that in absence of shopping centre in a particular locality, persons dealing in such commodities may move into that locality for supplying the material by hawking and that may again create another problem for the residents of that locality and such problem is not unknown. Therefore, when a shopping centre is to be built, the residents of a locality would not be required to go to the distant parts of the city for shopping and that would add to comfort and convenience of the persons living there.
12. It was further contended that it is not a public purpose. Against which, Mr. Desai, learned Advocate appearing for the Corporation submitted that it is not open for the Court to examine whether it is for a public purpose or not save and except in three cases, namely, colourable exercise of power, fraud or mala fide. It is required to be noted that if the notification issued under Section 6 is after complying with provisions of the Act, then effect of Sub-section (3) is that there is a conclusive evidence that the land is needed for a public purpose, and that is the view taken by the Apex Court in the case of Kanaiyalal M. Chinai (supra).
13. In the case of Kalidas Gopalbhai Patel v. Special Land Acquisition Officer, reported in 1990(2) GLH 96, a Division Bench of this Court considered Section 6 of the Land Acquisition Act. In that case, the petitioners challenged the acquisition of their lands for the public purpose, the extension of the township for the employees of the Krishak Bharti Co-operative Limited, a project for production of fertilizers. The Court held that "Sub-section (3) of Section 6 of the Land Acquisition Act specifically provides that the declaration shall be conclusive evidence that the land is needed for public purpose or for the Company, as the case may be. It is now well settled that the declaration under Section 6 of the Land Acquisition Act is conclusive evidence that the land proposed to be acquired is needed for the public purpose and the Court cannot go into the question as to whether the need is genuine or not unless the Court is satisfied that the action taken is fraudulent or colourable exercise of power or mala fide". Therefore, it is clear that this Court cannot go into the question whether the need was genuine or not unless we are satisfied that the action taken was a fradulent one or is colourable exercise of power or that mala fide action is taken.
14. The Apex Court in the case of Smt. Somavanti v. Stale of Punjab, laid down the principle that conclusiveness in Section 6(2) must necessarily attach not merely to a 'need' but also to the question whether the purpose was a public purpose. The Apex Court in the case of Jage Ram v. State of Haryana, observed that, "so long as it is not established that the acquisition is sought to be made for some collateral purpose, the declaration of the Government that it is made for a public purpose is not open to challenge. Section 6(3) says that the declaration of the Government that the acquisition made is for public purpose shall be conclusive evidence that the land is needed for a public purpose. Unless it is shown that there was a colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether the purpose for which the land was needed was a public purpose or not." In the instant case, except bare averment, there is nothing on record to doubt the bona fides of the acquiring body or the Government. Mere vague allegation that acquisition is made in colourable exercise of power and is mala fide, is not sufficient and cannot be accepted. There must be convincing material on the record.
15. In the case of Land Acquisition Collector v. Durga Pada, the Supreme Court reiterated the views taken in the case of Ratilal v. State of Gujarat ( and in Jage Ram (supra) and observed that the declaration under Section 6 of the Land Acquisition Act raises the presumption that the land is required for the public purpose and to dislodge the presumption by alleging mala fide or colourable exercise of power the heavy burden lies on the party making such allegation. As held by the Apex Court in Jage Ram's case (supra), unless it is shown that there was colourable exercise of power, it is not open to this Court to go behind that declaration and find out whether the purpose for which the land was needed was a public purpose or not. We are of the view that mere allegation that power is exercised coupled with mala fide would not be enough, but in support of the said allegation, specific material should be placed before the Court. The burden of establishing mala fides is very heavy on the person who alleges it. Normally, the very seriousness of the allegations demands a credible proof of high order in support of such allegations, more so when the allegations are made against the Government or a statutory body. Mr. Desai pointed out number of decisions in this behalf and it is needless to say that in absence of cogent, convincing and reliable material, it would not be wise for this Court to enter into the question of correctness of a decision that the land is needed for a public purpose.
16. Miss Shah, Learned Counsel submitted that it is vaguely stated in the notification that the land is required for a shopping centre and for this purpose she has placed reliance on the Judgment in the case of M.P. Housing Board v. Mohd. Safi and Ors., , wherein the Apex Court has held, "we find even the "public purpose" which has been mentioned in the Schedule to the notification as "residential" is hopelessly vague and conveys no idea about the purpose of acquisition rendering the notification as invalid in law. There is no indication as to what type of residential accommodation was proposed or for whom or any other details. The State cannot acquire the land of a citizen for building some residence for another, unless the same is in "public interest" or for the benefit of the "public" or an identifiable section thereof. In the absence of the details about alleged "public purpose" for which the land was sought to be acquired, no one could comprehend as to why the land was being acquired and therefore, was prevented from taking any further steps in the matter." The Supreme Court in that case quashed the notification as the same was vitiated on account of being vague and for noncompliance with the mandatory provisions of the Act. In that case, there was mere mention of town which is spread over an area of 25 kms. and divided into various Municipal wards. The Apex Court observed, "the word 'locality' was wholly insufficient description and the respondent or any one else could not have come to know from that description whether 2.298 hectares of land which was required for acquisition included the land belonging to him or not. The non-disclosure of the "locality" with precision, invalidates the notification and renders the publication of notice a meaningless formality."
17. In the instant case, there is a specific reference of the property to be acquired and for a purpose which is specifically mentioned as 'shopping centre', i.e., a market. As held by the Apex Court in the case of Smt. Venkatamma and Ors. v. City Improvement of Trust Board, Mysore and Ors., , "according to Section 15(2)(d) the Scheme may provide for the establishment or construction of markets." Under the BPMC Act, there is a clear provision which is in the form of obligatory nature for the Corporation to provide a market. In the case of Venkatamma (supra), the argument was that the land cannot be acquired for shopping sites because the law provides for the scheme for establishment or construction of markets. We find no difference between a market and a shopping centre. Shop is a building or room set apart for sale of merchandise. The word 'shopping' conveys activities of visiting a shop or shops for the purpose of making purchases or of examining the goods exposed for sale. The word 'market' indicates marketing or congregating together of people for the purchase and sale of provisions or live-stock publicly exposed at a fixed time and place. A public place whether an open space or covered building, in which, cattle, provisions, etc., are exposed for sale is known as a 'market' or a shopping centre.
18. Miss Shah read out meaning of word 'market' by referring several dictionaries. In the case of Bombay Municipality v. Yenkanna Ellappa Balaram, Divisions Bench of Bomaby High Court, reported in AIR 1926 Bom. 413, described the word 'market' as under:
The ordinary meaning of the word "market" is that of a concourse of buyers and sellers occurring periodically at a certain spot, for the purpose of retail trade; but the word is used in many senses, and a market may be held in a building, or enclosure, or in the open, as in a market place, and the concourse may occur daily or weekly and be held for the purpose of buying or selling any kind of article. The meaning of the word given in the Standard Dictionaries to which we have been referred, consequently varies, and the result seems to be that a market is one of those events which, owing to the variety in the instances, is incapable of definition in the true sense of that word, that is, by the characteristic or crucial mark common to all the instances, and that, it is a thing which can only be described". Thus, it is very clear that in a common place either in open or in a building or enclosures, vendors offer their goods to the buyers. It may be called a 'market' or a 'shopping centre'. If in open space goods are sold by the vendors, yet it will be known as a market and when there are shops or the premises enclosed wherein the goods are offered will be known as 'market'. The shopping centre indicates a fixed place where commodities will be available and therefore, in our opinion, the market and the shopping centre is one and the same thing. With the advanced technology and facilities, better facilities are provided in the building were vendors are selling their goods. Shopping centre is an area or complex of shops with associated facilities.
19. In towns, where vast land was available, shops were constructed in a row without having storeys and that was known as market. But since few years in cities, vast land is not available and concept of multi-storey buildings being accepted, facilities are provided in such buildings and such buildings where there are shops are known as 'shopping centres'. Thus, in a market or in a shopping centre, there are shops where vendors are dealing/supplying.
xxx xxx xxx xxx xxx
20. In the facts and circumstances of the above case, the Court negatived the contention that the land for shopping site is not being acquired for a public purpose. The Court further held that, "but for the shops proposed to be built, the residents of the locality would have to go to distant parts of the city for shopping, the building of shops in the locality would add to the comfort and convenience of the persons living there. Accordingly, the land is being acquired for a public purpose", and in view of this position, the facts which are similar to the facts of the present case, Miss Shah's, contention is required to be rejected.
21. Miss Shah submitted that the public purpose as it is clearly specified in the declaration must be continued to exist unless land is vested in the State. According to her, in the instant case, public purpose ceased to continue as from the affidavit of the deponent, it appears that the respondent-Corporation wants to construct a market and not a shopping centre. Deponent has even understood 'centre' and 'market' as one and the same thing which is clear from paragraph 5, more particularly when he says that the entire cost of centre as well as the cost of constructing market is going to be met with from Municipal funds. In view of the aforesaid decision, we find no merits in the submission made by the Learned Counsel, and the facts stated in the case reported in the Industrial Development and Investment Co. Pvt. Ltd. and Anr. v. State of Maharashtra and Ors., , on which reliance is placed, are not applicable to the facts and circumstances of the present case. In the case of the Industrial Development and Investment Co. Pvt. Ltd. (supra), the land was acquired for the purpose of housing employees of Dharavi Purification Works. In that case, the purpose specified was changed and the Government sanctioned modified proposals for Band-a-Kurla Complex prepared by the Special Planning Authority. Plot No. 503 was included and was reserved for residential, commercial and semi-commercial use, and thus it is clear that the purpose was changed. In the tacts and circumstances of the case beforehand, there is no such change.
22. Miss Shah lastly submitted that as per the scheme of the Government vide Annexure I, it is not open for the respondent-Corporation to get the land acquired. By that Circular, the State Government indicated that in urban areas, the land should be acquired to meet with the demand preferably by providing a land acquired under the provisions contained in the Urban Land (Ceiling and Regulationa) Act. In view of this, it was argued that Government cannot take a different view in view of its own policy. This contention has no merit. If the entire resolution is read, it is clear that it specifically provides that if it is not possible to get the land under the provisions contained in the Urban Land (Ceiling and Regulation) Act, the instructions are given to acquire that land under the provisions contained in the Land Acquisition Act. It is the case of the petitioners that near about the place, there are buildings and complex and there is no whisper that except the land which is to be acquired, other piece of land is available in the vicinity. It is no where suggested that in the vicinity "vacant land" is available which would attract the provisions contained in the Urban Land (Ceiling and Regulation) Act. We are not holding an enquiry whether the land is available or not, but from the affidavit it is clear that decision is taken and it is not for us to enter into merits or demerits of the decision. In absence of any land available in the vicinity except that of the petitioners, and in view of the clear provision made in the Circular, it cannot be said that there is a breach of that Circular. It was pointed out to us that this Circular is issued with a purpose - with a view to check the tricks so that no action is taken to acquire the land under the provisions contained in the Land Acquisition Act, but the possession is taken under the provisions contained in the Urban Land (Ceiling and Regulation) Act. Mr. Desai, Learned Counsel for the Corporation submitted that if the land is "vacant" and is in excess than provided under provisions contained in Urban Land (Ceiling and Regulation) Act, the same would be at much cheaper rate, and it was for that purpose, the policy decision was taken, but in the instant case, as no land being available in the vicinity, according to Mr. Desai, it is a futile attempt on the part of the petitioners to submit that the land for shopping centre ought not to have been acquired under the provisions contained in the Land Acquisition Act.
In view of our aforesaid discussion, we find no merits in this petition. The petition is, therefore, rejected. The interim relief granted earlier stands vacated.
xxx xxx xxx Rule is discharged with costs.