D.L. Mehta, J.
1. Heard learned counsel for the parties.
2. Status quo versus revolution Protagonists of status quo want that the status quo should be maintained and at the most, revolutionary changes should be allowed. Revolutionaries want revolution in all spheres of life, touching the social structure, economic conditions and political system.
2A. Extreme of both may not be correct, the truth lies in between the two.
3. The rich heritage and culture ofthe country has to be preserved and inthat matter, the protagonists of statusquo will have a better say and can putup the case in a better way showingthat the doctrine of evolution should beapplied.
4. Revolution and evolution lead to a change and it has to be seen which method is necessary for the purpose of implementing the commitment we have made to the Constitution of our country.
5. Judiciary should always be non-committed. We cannot have commitment towards the ideology of any political, social, group or party. We are committed that the law should be applied in a way which is in conformity with the directives given in our Constitution. Preamble to the Constitution reads as under .--
'WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and polity cal;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY OF status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
In OUR CONSTITUENT ASSEMBLY this twenty-sixth day of Nov., 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION'.
Justice, social and economic can only be achieved if we give good-bye to the doctrine of status quo in the matter of implementation of the development schemes. If we adhere to the status quo, we cannot give justice to the teeming millions who are down-trodden and starved. It is well known fact that millions of countrymen are unemployed and the Government is bound to provide the avenues of employment. We cannot shut our eyes to the socio-economic conditions of the country and hue and cry which is made for the payment of maintenance allowance to the unemployed persons. Whenever the Government takes the initiative for implementing the scheme which may give employment to a large number of people, it is expected from the Courts that they will not side with the protagonists of the status quo but they will apply the law in a way which may create the avenue of employment. Production is the backbone of the national economy and any scheme to open the avenues of employment and which may lead towards production has to be implemented by the Government and the Courts are duty bound to protect the implementation of such schemes.
6. Courts are meant to impart justice, as intended in the Preamble. Justice does not mean a justice of status quo for the benefit of an individual but justice means justice to the nation, justice to the unemployed, justice to the economy of nation, justice to the society and so on. Whenever there is a conflict between the cause of an individual and the cause of the nation or the society as a whole, then the justice to the society, to the economy and to the un-employed persons should prevail. We are not here to correct every irregularly or illegality in exercise of the discretionary power vested under Article 226. When we feel that there is a just cause and the development schemes have to be projected in a way which may provide the avenues of employment to the unemployed, which may lead to the production which is the backbone of the national economy, then, in my opinion, we should refrain from ourselves even in issuing directions or writs which may lead to increase the problem of unemployment and which may curtail the avenues of employment or which adversely affects the production.
7. With this in mind, I will deal with the case in hand.
8. The petitioner hag invited my attention to para 1 of the writ petition which reads as under,--
'That the petitioner is a citizen of India, resident of Dungarpur and has among other properties, lands comprising in Khasra Nos. 891, 892, 859, 894, 895, 896, 897, 898, 899, 900, 901, 902, 903, 904, 905, 906, 907, 908, 801, 911, 912, 913 and Khata No. 120 situated in Dungarpur, which comes to 19 bighas'.
He has further invited my attention to para 2 of the writ petition and has submitted that the petitioner had sunk a well and the well is pucca on which 5 HP motor and water pump have been fitted. He further submits that the petitioner has built water reservoir and channel which runs through the entire land for the purpose of irrigation. He further submits that on the said land, there are various fruit bearing trees like mango, lime etc. His submission is that apart from the fruit bearing trees, there are timber yielding trees also and the present market value of the land can run into lacs of rupees. He submits that he has also constructed a cattle-shed thereupon.
9. He submits that vide Anx. 1 dt. 4-2-80, the State Government issued a notification under Section 4 (1) of the Rajas-than Land Acquisition Act (hereinafter called 'the Act'). After issuing of notification under Section 4 (1) (Anx. 1), a notification under Section 17 (4) of the Act marked as Anx. 2 was issued on 14-3-80, that is, just after a period of one month and ten days. In the said notification Anx. 2 dt. 14-3-80, it has been mentioned that the land is required urgently for the purpose of Rajasthan State Industrial Development and Investment Corporaturn Ltd. It is not in doubt that the aforesaid Corporation is the backbone of the Development of the State as a whole and the Government needs the land for the development of the tribal area like Dungarpur where industrial infrastructure has to be established for the development of the tribals for whom there are special Schemes. Apart from that, the Government is within its power to acquire the land for such corporations and now, the Act has been amended and even the land can be acquired for the purpose of private industrial concerns as it needs for the development of the industry which is the backbone of the economy of the nation. Learned counsel for the petitioner submits that the acquisition for the Corporation does not fall within the purview of 'Public Purpose'. Part VII of the Land Acquisition Act specifically provides for the acquisition of the land of such Corporations and Companies. Section 38 of the Act reads as under,--
'38. COMPANY MAY BE AUTHORISED TO ENTER AND SURVEY.-- (1) The appropriate Government may authories any officer of any Company desiring to acquire land for its purposes to exercise the powers conferred by Section 4.
(2) In every such case Section 4 shall be construed as if for the words 'for such purpose' the words 'for the purpose of the company' were substituted; and Section 5 shall be construed as if after the words 'the officer' the words 'of the Company' were inserted.
Section 38-A further provides that an industrial concern ordinarily employing not less than 100 workmen desiring to acquire land for the erection of dwelling houses for workmen employed in the concern and for the amenities directly connected therewith shall so far as concerns the acquisition of such land, be deemed to be a company for the purpose of this part. From the perusal of Section 38, it is clear that the acquisition of land for the industrial development may be for the company or a corporation, falls within the purview of public purpose.
10. Learned counsel for the petitioner has further submitted that there is no urgency and he has invited my attention to the case of Sitaram v. State of Rajasthan reported in 1982 Raj LW 374: (AIR 1982 Raj 256). The proposition laid down in this rase is not in dispute. When the State Government invokes the power under Section 17 (4), the ordinary procedure laid down in Section 4, Clause (5) and Section 5-A of the Act is not to be complied with. Normally, when there is no urgency, every citizen has a right to be heard in person and has a right to raise objection. It is an established law that Section 4 (5) and Section 5-A are mandatory in nature if the provisions of Section 17 (4) are not invoked. Section 17 (4) itself provides that the provisions of Section 5-A can be dispensed with. My learned brother has also held the same view in the case of Sitaram v. State of Rajasthan (AIR 1982 Raj 256) (supra). Learned counsel for the petitioner submits that there is no urgency. In the case of Narayan Govind Gavate v. State of Maharashtra reported in AIR 1977 SC 183, the Supreme Court has held (paras 31, 37):--
'In the cases before us, if the total evidence, from whichever side any of it may have come, was insufficient to enable the petitioners to discharge their general or stable onus, their petitions could not succeed. On the other hand, if, in addition to the bare assertions made by the petitioners, that the urgency contemplated by Section 17 (4) did not exist, there were other facts and circumstances, including the failure of the State to indicate facts and circumstances, which it could have easily disclosed if they existed, the petitioners could be held to have discharged their general onus'.
'We think that Section 17 (4) cannot be read in isolation from Sections 4 (1) and 5-A of the Act. The immediate purpose of a notification under Section 4 (1) of the Act is to enable those who may have any objections to make to lodge them for purposes of an enquiry under Section 5-A of the Act. It is true that, although, only 30 days from the notification under Section 4 (1) are given for the filing of these objections under Section 5-A of the Act, yet, sometimes the proceedings under Section 5-A are unduly prolonged. But considering the nature of the objections which are capable of being successfully taken under Section 5-A, it is difficult to see why the summary enquiry should not be concluded quite expeditiously. In view of the authorities of this Court, the existence of what are prima facie public purposes, such as the one present in the cases before us cannot be successfully challenged at all by objectors. It is rare to find a case in which objections to the validity of a public purpose of an acquisition can even be stated in a form in which the challenge could succeed. Indeed, questions relating to validity of the notification on the ground of mala fides do not seem to us to be ordinarily open on a summary enquiry under Section 5-A of the Act. Hence, there seems to us to be little difficulty in contemplating enquiries contemplated by Section 5-A of the Act very expeditiously'.
In AIR 1968 SC 870 (Ishwar Lal v. State of Gujarat) their Lordships have held (para 10) --
'The Government was not called upon to answer the kind of affidavit which was filed with the petition because bare denial that Government had not formed an opinion could not raise an issue. Even if Government under advice offered to disclose how the matter was dealt with, the issue did not change and it was only this: Whether any one at all formed an opinion and if he did whether he had the necessary authority to do so'. In Raja Anand v. State of U. P. (AIR 1907 SC 1081) their Lordships have considered about the declaration made by the Government and its finality. Para 3 reads as under: --
'The first question to be considered is whether the notification of the State Government under Section 4 of the Act, dated Oct. 4. 1950, is liable to he quashed on the ground that the acquisition of the land was not for a public purpose. It was alleged for the appellant that the limestone extracted from quarries situated in the land was used by the State Government for the manufacture of cement which was -sold for profit in open market and was not used for any public work of construction. It was contended that the manufacture of cement for being sold for profit will not amount to a public purpose and the notification of the State Government under Section 4 of the Act must, therefore, be held to be illegal. In our opinion, the argument put forward on behalf of the appellant cannot be accepted. It is manifest that the declaration made by the State Government in the notification under Section 6 (1) of the Act, that the land was required for a public purpose, is made conclusive by Sub-section (3) of Section 6 and it is, therefore, not open to a court to go behind it and try to satisfy itself whether in fact the acquisition was for a public purpose. It was pointed out by this court in Smt. Somawanti v. State of Punjab (1963) 2 SCR 774 : (AIR 1963 SC 151), that it was for the Government to be satisfied, in a particular case, that the purpose for which the land was needed was a public purpose and the declaration of the Government under Section 6 (1) of the Act will be final subject, however, to one exception, namely in the case of colourable exercise of the power, the declaration is open to challenge at the instance of the aggrieved party. The power conferred on the Government by the Act is a limited power in the sense that it can be exercised only where it is for a public purpose (leaving aside, for the moment, where the acquisition is for a company under part VII of the Act). If it appears that what the Government is satisfied about is not a public purpose but a private purpose or no purpose at all, the action of the Government would be colourable as being outside the power conferred upon it by the Act and its declaration under Section 6 of the Act will be a nullity. On behalf of the respondents the argument was stressed that the limestone was utilised for being used in the cement factory established in the public sector at Churk. It was argued that the production of cement was important in national interest, particularly when the cement was used in the construction of the Rihand dam. It is conceded on behalf of the respondents that the allegation of the appellant that cement was being sold in market for profit was not clearly controverted by the counter-affidavit by the State but it was said that even on the assumption that the cement was sold for profit the use of limestone in the production of the cement was in public interest, because the profit from the sale of cement benefited the General Revenues of the State. It is not necessary for us to express any concluded opinion as to whether the production of cement as commercial enterprise is a public purpose within the meaning of the Act for we consider that the principle of the decision of this court in (1963) 2 SCR 774 : (AIR 1963 SC 151), applies to this case and the argument of the appellant must be rejected because he has not been able to show that the action of the Government in issuing the notification under Section 6 of the Act is a colourable exercise of power'
Their Lordships have also considered the meaning of the words 'waste or arable land' in para 5 of the judgment which reads as under,--
'........It was pointed out that the Collector noticed that there were one lac of trees in the acquired land and there were trees of 'Tendu, Asan, Sidh, Bijaisal, Khair Bamboo clumbs, Mahuwa and Kakora contained in the area'. It was contended that the land in dispute was 'forest land' covered by a large number of trees and cannot be treated as 'waste land or arable land'' within Section 17 (1) or (4) of the Act. According to the Oxford Dictionary 'arable land' is 'land which is capable of being ploughed or fit for tillage'. In the context of Section 17 (1) of the Act the expression must be construed to mean ''lands which are mainly used for ploughing and for raising crops' and, therefore, the land acquired in this case is not arable land. Similarly, the expression 'waste land' also will not apply to 'forest land'. According to the Oxford Dictionary the expression 'waste' is defined as follows :
Waste--(from Latin, vastus--waste, desert unoccupied); Uncultivated, incapable of cultivation or habitation; producing little or no vegetation, barren, desert'. The expression 'waste land' as contrasted to 'arable land' would, therefore, mean 'land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon'.
11. The Preamble of the Constitution provides for justice, social, economic and political. The economic justice needs the development of the industry as a whole and particularly of the public sector. Economic development has to be looked into by the Courts and if the courts interfere in the matter of the acquisition like this where a corporate body owned by the State is planning for the development of a tribal area like Dungarpur, then the position will be that we will not allow the State Government to carry out the development of the nation and the State as is required under the Constitution.
The right to property was a fundamental right but after the amendment of the Constitution, the right to property has been placed out of Chapter III and has been placed in Article 300A of the Constitution. A person has a right to hold the property and he can only be deprived of it by due process of law and due process of law has been provided under the Act. The State Government, in its notification Annex. 2, has specifically mentioned that the land is required immediately for the industrial development. It will not be out of place here to mention that the State Government has been very vigilant in the instant case. The notification under Section 4 was issued on 4-2-1980 and the notification under Section 17 (4) was issued on 14-3-1980, just after a period of one month and ten days. The very fact that within a short span of time, the notification under Section 17 (4) was issued, goes to show that there was an urgency for the development programme and it is the satisfaction of the State Government and the courts should be reluctant to disturb the satisfaction arrived at unless there are cogent grounds or there is a well founded allegation of mala fides. Section 17 (4) provides that in case of any land to which, in the opinion of the State Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the State Government may direct that the provisions of Section 5A shall not apply and if it does so, a direct declaration may be made under Section 6 in respect of any land at any time after the publication of the notification under Sub-section (1) of Section 4. The State Government has issued the notification bona fidely for the development of the tribal area where the infra-structure of the development has to be made at the earliest. The petitioner himself has submitted that the land is wholly used for agricultural purposes as referred in para 2 of the writ petition. The land is arable land as submitted in para 2 of the writ petition. I am fortified also in holding that the land is arable land from the judgment of the Supreme Court in Raja Anand's case (AIR 1967 SC 1081) (supra). Learned counsel of the petitioner has referred to the case of Dora v. State of Punjab (AIR 1979 SC 1594). In the case referred to by the learned counsel for the petitioner, there was no reference that there was any urgency to take recourse to Section 17, but in the instant case, there is a reference that the land is required urgently for the purpose of the development. The principles laid down in the said case do not apply to the present case. In the case referred by the learned counsel for the petitioner, there was a long delay of years and the State Government slept over the papers for years together, and for this reason, the courts have decided the matter that the State Government bad ample opportunity to follow the principles of audi alteram partem. In this context, the notification issued under Section 17 (4) were quashed. But here, the position is different and the State Government has not slept over the matter. They have dealt with the scheme in a way which is expected from the persons who want to see that the national economy is boosted and the avenues of employment are opened. If time is wasted in following the normal procedure laid down under Section 4 (5) and Section 5A then the purpose of immediate implementation of the scheme will be jeopardised. Section 17 (4) has been enacted only for the purpose that whenever the Government is of the opinion that immediate action should be taken for the implementation of the schemes, they have a right to bid a good-bye to the provisions of Section 4 (5) and Section 5A of the Act in urgent matters. In this context, in the present case, I find that the Government was justified in passing the notification under Section 17 (4) without waiting for the procedure laid down under Section 4 (5) and Section 5A. The present petitioner is holding the land mainly for the cultivation. The land is needed for providing the industrial base in a district which is mainly inhabited by the tribals. Opportunities of employment have to be provided to all and in particular to the downtrodden people of the scheduled tribe. This area has not seen the light of the day in the matter of industrialisation and if the Government takes immediate steps to achieve the object of providing the employment avenues and providing the infra structure of the industries, then it cannot be said that the Government has acted mala fidely in passing the notification under Section 17 (4) of the Act. The Government needs a compliment that it has acted with vigilance in the matter of such importance. The courts are reluctant to be a party where the wheel of the development of the economy is to be hindered in one way or the other. The petitioner is entitled to get the sufficient compensation and I do not find any force in the submissions made by the counsel for the petitioner.
12. The writ petition is rejected summarily. The ad interim stay order shall stand automatically vacated.