S. Rangarajan, J.
(1) There was a composite, notification No. F. 42(7)/67-L&H;(i) under sections 4 and 17 of the Land Acquisition Act 1894. There was yet another notification No. F. 42(7)-L&B;(ii), under section 6 of the said Act and an order, No. F. 42,/(7),/67- L&B;(iii), authorising the taking of possession of the land in dispute. All of them were issued on the same day, namely, 17th June, 1967. Among the several grounds taken in the writ petition which was filed to quash the above said notifications and order it is sufficient to notice the attack on their validity on the ground that the recourse to powers under section 17, dispensing with the opportunity under section 5A to the affected party to file objections, was mala fide, illegal and vocative of the principles of natural justice. A
(2) In the affidavit of return filed by Shri Jagmohan, Secretary (Land & Building) Delhi Administration, on behalf of the respondents, it was stated that the land was urgently required for construction of Delhi Transport Undertaking Depot and resort was. thereforee, had to section 17 of the Act since the land in question was waste and arable. It may be noticed in this context that ground No. 5 specifically raised the question of the land not being either waste or arable in the following words :
'THAT10 bids was out of the notified land is part of Dharamshala and there is a well and other buildings and the same is neither waste nor arable land.'
(3) In addition to the above said averments in the petition the petitioner had stated further as follows :
'IT is denied that the land was waste and arable. The land is situate in the Municipal limits of Shahdara and a portion of it measuring 10 bids was shown as yellow in the plan Annexure A of the writ petition was part of Dharamshala itself and even the doors and windows of the building open on the said portion shown as yellow. This portion of 10 bids was which is shown as yellow is the subject matter of acquisition and is part of the built-up Dharamshala shown within red lines. This portion of 10 bids was shown in yellow colour is recorded as Dharamshala even in the khasra girdawari and Jamabandi', etc.
(4) It is seen that the land Acquisition File contains a note in the vernacular dated 24th May 1967 which when translated reads as follows:-
'THE area of khasra o. 1115/991/450/1 is 3 bighas 19 biswas. In this area 12 bids was is built up having house, tubewell, factory, huts and tin-shed and shop of bamboo and timber merchants. thereforee for this (sic) 12 bids was it is not correct to take resort to section 17. For the rest of 3 bighas 7 bids was there can be no objection to resort to section 17.'
(5) It is obvious that the reference in the said note to 12 bids was includes not only 2 bids was (which is the portion not shaded yellow) as well as 10 bids was which has been shaded yellow in the plan. It seems to me that there is great force in the contention for the petitioner (vide para 2 of the rejoinder) that the respondents had confused the issue and had not specifically adverted to the fact that the said note pointedly brought out the inexpediency of resorting to section 17 in relation to the entire 12 biswas. This seems to have been the result of clear misunderstanding-merely separating the 2 bids was (portion not shaded yellow in the plan) and saving the said portion only from the resort to section 17 of the Act; in other words, it seems to have been overlooked that the portion shaded yellow comprising 10 bids was was also included in the area of 12 biswas, which, according to the said note, did not warrant the invocation of section 17 of the Act.
(6) My attention has not been drawn to any report that the land was either waste or arable, the words in the file being in the vernacular. It has not been even shown to me how despite the above said note. dated 24th May 1967, 12 bids was of land, which obviously includes the present 10 bids was in dispute, resort was still had to section 17.
(7) The Supreme Court had occasion to examine the meaning of the expressions 'waste land' or 'arable land' in section 17(1)(4) of the Act in Raja Anand Brahma Shah v. The State of Uttar Pradesh and others : 1SCR373 .
(8) After setting out the relevant provisions of section 4, 5A, 6, 16 and 17 and after referring to the meaning of 'waste' and 'arable' lands, as stated in the Oxford Dictionary, Ramaswami J., speaking for the Court, observed as follows :-
'THE expression 'waste land' as contrasted to 'arable land' would, thereforee, mean 'land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon'. It follows, thereforee, that S. 17(1) of the Act is not attracted to the present case and the State Government had, thereforee, no authority to give a direction to the Collector to take possession of the lands under S. 17(1) of the Act. In our opinion, the condition imposed by section 17(1) is a condition upon which the jurisdiction of the State Government depends and it is obvious that by wrongly deciding the question as to the character of the land the State Government cannot give itself jurisdiction to give a direction to the Collector to take possession of the land under S. 17(1) of the Act. It is well established that where the jurisdiction of an administrative authority depends upon a preliminary finding of fact the High. Court is entitled, in a proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct. See R. v. Shoreditch Assessment Committee, (1910) 2 Kb 859 and White and Collins v. Minister of Health, (1939) 2 Kb 838'.
(9) This being a jurisdictional fact it will be permissible for a Court exercising writ jurisdiction to satisfy itself whether there was such evidence before the concerned statutory authority which alone would enable it to exercise jurisdiction. What has been stated so far is enough to show that there was no finding, or even evidence on which such a finding could be based, that the land was waste or arable.
(10) The land in question abuts the Delhi Ghaziabad G.T. Road, within Shahdara Municipal area. The following observations of V. S. Desai J. in Shri Navnitlal Ranchhodlal v. State of Bombay and another : AIR1961Bom89 appear to be relevant:
'AN arable land is a land which is fit for tillage and the expression is usually used to mean lands which are ploughed for raising ordinary annual crops such as rice, jowar, etc. The land which is a building site within the Municipal limits anil situated in the developed part of the City cannot in our opinion be regarded as an arable land. The expression 'waste land' in our opinion would apply lo lands which are desolate, deserted, uninhabited and uncultivated as a result of natural barrenness or rendered unfit for cultivation by reason of natural ravages, etc. The expression 'waste land' as contrasted with 'arable land' would mean land which is unfit for cultivation by being marshy, stony, full of pits, ditches, etc. and so for as lands in the urban area are concerned, the expression 'waste lands' may possibly be used with reference to pieces of land which are desolate, abandoned and not fit ordinarily for any use as building sites, etc. A building site which is quite suitable to be built upon cannot be regarded as a waste land simply because it is not put to any present use. It is its unfitness for use and not the mere fact that it is not put to any present use that must determine whether the land is waste or not. We are, thereforee. inclined to agree with the petitioner that the land in the present case cannot come within the expression 'waste or arable' land.'
'WHETHER the land is waste or arable is an objective fact. Under section 17(4) Government is required to form an opinion with regard to this objective fact as a preliminary step to the exercise of its power to issue a direction dropping the inquiry under section 5-A. The Government must form the necessary opinion with regard to this objective fact on consideration of reasons which are relevant to its determination. If the Government forms such opinion, the correctness of the opinion cannot be challenged and the sufficiency of the reasons on which the opinion is based cannot be questioned and the direction issued in pursuance of the opinion cannot be assailed. If, however, the Government has joined no opinion at all or the opinion formed is based on reasons which arc not relevant to the determination of the objective fact regarding which the opinion is formed, in either of these two cases the direction issued can be successfully challenged as not being in accordance with law.'
(11) I respectfully agree. In the present case also neither the impugned notification nor the order states that the land was waste or arable. It would be inappropriate to call the said land 'waste' or 'arable', especially since 10 biswas, subject matter of the notifications and order, were part of the Dharamshala, the same having been so recorded in the Jamabandi for 1948-49. Even the said note dated 24th May 1967 had specifically stated that it was not correct to resort to section 17 in respect of 12 bids was which obviously includes 10 bids was as well. None of these facts had been adverted to in the return and even the concerned file was not initially made available; it was produced only when the case was adjourned after hearing arguments turn the production of the file,
(12) Since section 17 of the Act deprives the person affected from even putting forward his objection to the proposed acquisition, the facts which are a condition precedent to the exercise of such power, should be made out and the authority exercising the power under section 17 must be satisfied that the facts which are necessary a pre-condition for exercising the power under section 17 are present. The present case is a sore instance where the necessary facts, which alone will enable recourse to section 17 of the Act, were not present and no satisfaction had even been expressed with reference to the exercise of the power under section 17 of the Act.
(13) In the result the impugned notifications and order under sections 6 and 17 of the Act are quashed as sought for. The writ petition is accordingly accepted with costs. Counsel's fee Rs. 200.