Mehar Singh, C. J.
1. This is an appeal under Clause 10 of the Letters Patent from the judgment and order of a learned Single Judge, dated January 10, 1968, dismissing a petition under Articles 226 and 227 of the Constitution by the appellants, 22 in number, seeking that notifications, Annexures 'A' and 'B' to the petition, of August 10 and 11, 1966, by respondent 1, President of India, through the Secretary, Town and Country Planning Department, Chandigarh, be quashed.
2. On Augus! 10, 1966, respondent 1 issued the notification, copy Annexnre 'A', under Section 4 of the Land Acquisition Act, 1894 (Act 1 of 1894), that land measuring 115.69 acres in the estate of village Majessar, Tehsil Ballabgarh of Gurgaon District, was likely to be acquired, at public expense, for planned development of eastern portion of Sector 24 in Ballabgarh-Faridabad controlled area, also at the same time directing, under Section 17 ofthe Act, on the ground of urgency, which was described as the pressing need for more industrial area, within the Ballabgarh-Faridabad controlled area, for which there was pressing need and urgent demand, that the provisions of Section 5A of the Act were not to apply in regard to the acquisition of this land. On August 11, 1966, respondent 1 issued notification, copy Annexure 'B', under Section 6 of the Act directing the Land Acquisition Collector, respondent 3, to proceed to take possession of the land.
3. It was the validity and legality of those two notifications that was challenged by the appellants in their petition under Articles 226 and 227 of the Constitution on four grounds which are reproduced in the judgment of the learned Single Judge, but, in this appeal, out of those four grounds, only one ground has been urged. The learned Single Judge rejected all the grounds. The one ground that has been urged here is that not the whole of the land acquired under the impugned notifications was arable and so Section 17 of the Act was not attracted to this acquisition. In paragraphs 5 and 6 of the petition the appellants said that on the land of appellants 6, 9, 10 and other right-holders such as Sardara Singh, Kachera, etc., were standing their permanent and pucca residential and dwelling houses in their personal occupation and that those right-holders had built their pucca houses on part of the land acquired in rectangles 49, 50, 57, and 65 long before the publication of the impugned notifications. So, that part of the land acquired was neither waste nor arable as contemplated by Sub-section (1) of Section 17 of the Act.
The return on behalf of the respondents by way of an affidavit by the Joint Secretary, Town and Country Planning, and Director, Urban Estates, Town and Country Planning, Haryana, said that appellants 6 to 10 had only one small pucca chhappar and a room over the tube-well while their residential houses are in the village, and further reference to Sardara Singh and Kacheru was superfluous as they had made no complaint whatsoever and were not parties to the writ petition. The affidavit further emphasised that there was no residential house in the acquired land. The land-owners have been paid adequate compensation for the land in question including 15 per cent compulsory acquisition charges. The learned Single Judge did not accept this argument on the side of the appellants observing that from the material on the record it was difficult to say that some of the appellants had built pucca and residential houses on parts of the land in question.
The learned Judge pointed out that what could be taken into consideration was that they had one small pucca chappar and a room over their tube-well, but that hardly changed the character of the entire land owned by the appellants which undoubtedly was arable. The room over the tube-well and the chhappar were in fact serving the same purpose to which the land was being put, that is to say farming, and as such it could not be argued that part ofthe property acquired was not arable or waste land.
The learned judge then referred to this observation -- 'If only a part of the land is waste or arable and the rest is not, a notification under Section 17(4) dispensing with compliance with the requirements of Section 5A would be invalid. It would not be open to the Court to regard the notification as partially good and partially bad, for if the State had no power to dispense with the inquiry in respect of any part of the land notified under Section 4(1), an inquiry must be held under Section 5A giving an opportunity to persons interested in the land notified to raise their objections to the proposed acquisition and in that inquiry the persons interested cannot be restricted to raising objections in respect of land other than waste or arable land' -- in Sarju Prasad Saha v. State of U. P., AIR 1965 SC 1763, and observed that that case was not relevant to the facts of the present case, explaining that in that case an appreciable part of the acquired land had been built over and as such the same could not be termed as waste or arable land, whereas in the present case no part of the acquired land was under any building and as such the entire area was waste or arable. He further pointed out that respondent 3 had already taken possession of the land after the award for payment of compensation had been made. So he dismissed the petition of the appellants.
4. In this appeal the same matter is urged again on the reliance of Sarju Prasad Sana's case, AIR 1965 SC 1763, but, obviously, as pointed out by the learned Single Judge, on facts, that case is quite different. No doubt, their Lordships observed that if only a part of the land is waste or arable and not the rest, the notification under Section 17(4) of the Act, dispensing with compliance with the requirements of Section 5A, would be invalid, but tor that factually it must be shown by the appellants in the present case that part of the acquir-ed land was not waste or arable. They alleged that they had pucca residential houses on the land and to that there is a definite denial in the return of the respondents. In fact it is stated that they have their houses in the village A pucca chhappar or a room for a tube-well would not be a building which would mean that the land covered by such structures is neither waste nor arable, for such structures are necessary for the purpose of irrigation of land and form part of the arable nature of the land.
The learned counsel for the appellants first refers to the definition of the word 'building' in J. H. Irani v. Chidambaran Chettiar, AIR 1953 Mad 650 in which the learned Judges having regard to the definition of that word in the Madras Buildings (Lease and Rent Control) Act of 1946 held that building may consist of mud walls; but, it must be covered in by a roof. A mere superstructure dissociated from the site on which it stands cannot in law be considered to be a building. Obviously the particular definition of the word in such Act cannot be imported for consideration in a case like the present under the provisions of Act 1 of 1894. The second case referred to by the learn-ed counsel is United Taxi Operators Co-operative (Urban) Thrift and Credit Society Ltd. v. Municipal Corporation of Delhi, ILR (1966) 2 Punj 851 = (AIR 1967 Punj 82), which was a case of an underground petrol storage tank with no structure over the ground, and the learned Judges held that that was a building as defined in Sub-section (3) of Section 2 of the Delhi Municipal Corporation Act of 1967. Here again nothing of that case is parallel with the facts of the present case.
The conclusion of the learned Single Judge is not open to exception that the appellants have failed to prove that because of the existence of buildings on a part of the acquired land, a part of it is thus not arable land and consequently the notification under Section 17(4) of Act 1 of 1894 debarring objections under Section 5A of that Act was not valid. In this approach, the appeal fails and is dismissed with costs.
Shamsher Bahadur, J.
5. I agree.