Skip to content


Smt. Dhanni and ors. Etc. Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtRajasthan High Court
Decided On
Case NumberCivil Writ Petn. Nos. 1038 to 1040, 1160 and 1161 of 1980
Judge
Reported inAIR1983Raj62; 1982()WLN790
ActsRajasthan Land Acquisition Act, 1953 - Sections 4, 4(5), 5A, 17(1), 17(2) and 17(4); Land Acquisition Act, 1894 - Sections 4 and 5A
AppellantSmt. Dhanni and ors. Etc.
RespondentState of Rajasthan and ors.
Appellant Advocate Jagdeep Dhankar, Adv.
Respondent Advocate Paras Kuhad, Adv. and; Ajeet Bhandari, Asstt. Government Adv.
DispositionPetition allowed
Cases ReferredNavneet Ram v. State of U. P.
Excerpt:
rajasthan land acquisition act, 1953 - sections 4(5) & 5a --notice--requirement under/section 5a dispensed with--held, notice to interested person and public notice are not mandatory;since compliance with the requirements of section 5-a of the act had dispensed with in this case, notice to the interested persons under section 4 (5) (i) and public notice under section 4(5) (ii) of the act were not mandatory. ; (b) rajasthan land acquisition act, 1953 - section 17 (/) --state government empowered to form opinion regarding urgency--held, exercise of power is neither arbitrary nor perverse;the state government acted within its powers to form the opinion that it was a case of urgency within the purview of section 17 (1) of the act and that the exercise of such power by it cannot, in the.....orderk.s. sidhu, j.1. this judgment deal with the five connected writ petitions listed above. these petitions came to be instituted in the following circumstances.2. on september 17, 1979, the state government of rajasthan in exercise at its powers conferred by sub-section (1) of section 4 of the rajasthan land acquisition act, 1953 (rajasthan act 24 of 1953), which will hereafter be shortly referred to as the act, issued a notification (annexure r. 1/1) that land com-prised in khasra number 60/1, measuring 15 bigha 6 biswa belonging to dhani and another, khasra number 60/2, measuring 2 bigha 18 biswa, belonging to girdhari das (both dhani and gird-hari das being joint petitioners in writ petition no. 1038/1980), khasra number 61/2, measuring 34 bigha 11 biswa. belonging to kesar dev......
Judgment:
ORDER

K.S. Sidhu, J.

1. This judgment deal with the five connected writ petitions listed above. These petitions came to be instituted in the following circumstances.

2. On September 17, 1979, the State Government of Rajasthan in exercise at its powers conferred by Sub-section (1) of Section 4 of the Rajasthan Land Acquisition Act, 1953 (Rajasthan Act 24 of 1953), which will hereafter be shortly referred to as the Act, issued a notification (annexure R. 1/1) that land com-prised in Khasra number 60/1, measuring 15 bigha 6 biswa belonging to Dhani and another, khasra number 60/2, measuring 2 bigha 18 biswa, belonging to Girdhari Das (both Dhani and Gird-hari Das being joint petitioners in writ petition No. 1038/1980), khasra number 61/2, measuring 34 bigha 11 biswa. belonging to Kesar Dev. Nannu Ram Hari Parsad and Mala Ram (Joint petitioners in writ petition No. 1039/1980), khasra number 62, measuring 13 bigha 12 biswa, belonging to Fatma, Faizu Khan and Moinuddeen (joint petitioners in writ petition No. 1040 of 1980), khasra number 52/1/2/3, measuring 23 bigha 10 biswa, khasra number 52/1/2/4, measuring 6 bigha 10 biswa belonging to Kajod, Ghanshyam, Mangla and Madan (joint petitioners in writ petition No. 1160 of 1980) and khasra number 63, measuring 9 bigha 19 biswa, belonging to Rabiyan and Shiva (joint petitioners in writ petition No. 1161 of 1980) situate in the area of Devipura, Tehsil and District Sikar, was likely to be needed for a public purpose, namely for the Rajasthan State Industrial Development and Investment Corporation. The State Government required and authorised the Tehsildar, Sikar, an officer subordinate to it, to enter the said land and survey it and do all other acts necessary to ascertain whether the said land is suitable for such public purpose. Subsequently on March 19, 1980, the State Government in the purported exercise of its powers under Sub-section (4) of Section 17 of the Act issued second notification (see Annexure II) directing that provisions of Section 5-A of the Act shall not apply to the notified land. By the same notification, the Government made a declaration under Section 6 of the Act that the notified land was needed for a public purpose and directed the Land Acquisition Collector, Sikar, to take action for the acquisition of the said land. The Government simultaneously directed the Land Acquisition Collector Sikar under Sub- Section (1) of Section 17 to take possession of the notified land within fifteen days of the publication of the notice mentioned in Sub-section (1) of Section 9. On June 17, 1980, the Land Acquisition Collector, Sikar, issued a notice under Section 9 to the effect that he intended to take possession of the notified land after July 3, 1980, and that claims to compensation for all interests in such land may be made to him by that date.

3. These writ petitions were filed between July 7 and 24, 1980, for certiorari quashing the notification, dated, March 19, 1980, and the notices to different sets of petitioners issued on June 17, 1980, as mentioned above, and for mandamus restraining the Government and its officers (respondents 1, 2 and 3, respectively) from interfering with the petitioners' possession over the notified land. The Rajasthan Industrial Development and Investment Corporation for whom this land is being acquired was impleaded as respondent 4 in all the five writ petitions on its own motion through an application, dated, January 3, 1981, allowed by this Court, vide order dated Feb. 25, 1981.

4. The petitioners have raised a number of grounds, challenging the legality of the acquisition proceedings of their land. The grounds which were pressed during his arguments by Mr. Jagdeep Dhankar, learned counsel for the petitioners, may be enumerated here as follows :

(i) Notice to the petitioners, as required under Section 4 (5) (i) and public notice as required under Section 4 (5) (ii) of the Act, were not given by the Collector. Such notices are a mandatory requirement of law for validity of the proceedings of acquisition.

(ii) The notification, dated March 19, 1980, issued by the State Government in the purported exercise of its powers under Sections 17 (1) and 17 (4) of the Act dispensing with compliance with requirements of Section 5-A of the Act is ultra vires inasmuch as the State Government did not apply its mind as to the existence or otherwise of the two pre-conditions, namely, (i) that there was urgency and (ii) that the land is waste or arable land, to enable it to take valid recourse to the provisions of Section 17 (4).

5. It is unnecessary to refer here to the pleadings of the parties and other material bearing on these two grounds, for it will be more convenient to refer to such pleadings and materials later in the context in which it may be found necessary to do so. I may straightway start discussing these grounds.

Ground (i) :

6. Section 4 of the Act which deals with 'preliminary proceedings preceding intended acquisition' reads as under:--

(1) Whenever the State Government considers it necessary or expedient to acquire land in any locality, needed or likely to be needed for a public purpose, it shall, by an order published in accordance with the provisions of Sub-section (4) of Section 45, require any officer subordinate to it and generally or specially authorised in this behalf, to enter upon or into any land in such locality, accompanied by his servants and workmen if any.-

(a) to survey and take levels of such land suitable for such purpose.

(b) to dig or bore into the sub-soil thereof,

(c) to set out the boundaries of such land and the intended line of the work, if any, proposed to be carried out thereon or therein.

(d) where otherwise the survey cannot be completed or the levels cannot be taken or the boundaries or the line cannot be set out, to cut down and clear away any part of any standing crop, fence or jungle,

(e) to mark the levels taken or the boundaries or the intended line of work by placing marks and cutting trenches,

(f) to do all other acts necessary to ascertain whether land is suitable for such public purpose, and

(g) to inquire into and ascertain the particulars of the persons interested in such land;

Provided that no person shall enter into any building or upon any inclosed court or garden attached to a dwelling house (unless with the consent of the occupier thereof) without giving such occupier at least seven days notice in writing of his intention to do so.

(2) A copy of the order made under Sub-section (1) shall also be endorsed to the Collector of the district in which such locality is situated with the direction to take suitable action upon receipt of the report under Sub-section (4).

(3) The officer making an entry under Sub-section (1) shall, at the time of such entry, pay or tender payment for all necessary damages to be done to the land entered upon or into and, in case of dispute as to the sufficiency of the amount so paid or tendered, he shall at once refer the dispute for the decision of the Collector and such decision shall be final.

(4) Such officer shall send to the Collector a report on the result of thesurvey as to the other operations described in or carried on under Sub-section (1), as to the enquiries made thereunder and as to the particular land in that locality which may be acquired for the public purpose.

(5) The Collector shall, upon receipt of such report, cause to be given:--

(i) to the head of the Government department at whose instance the order under Sub-section (1) shall have been made and to all persons reported under Clause (g) of Sub-section (1) to be interested in the land proposed thereby to be acquired as being suitable for the public purpose, a notice in the prescribed form of the proposed acquisition, and

(ii) a public notice to the like effect at convenient places on or near about the land proposed to be acquired.

7. It will be seen that this section consists of two parts. The first part comprising Sub-sections (1), (2), (3) and (4) makes provision for the State Government to cause the land, intended to be acquired, to be surveyed, with a view to ascertaining if it is suitable for the public purpose for which it is needed, and to find out the particulars of the persons interested in such land. It enables the State Government to make an order authorising and requiring an officer subordinate to it to conduct the necessary enquiry and survey. Persons having interest in the land are bound to be affected by such enquiry and survey in one way or the other. Having regard to their interest in relation to such enquiry and survey, the legislature has made it mandatory on the State Government to publish its order made under Section 4 (1) in the same manner as a public notice is required to be published in accordance with the provisions of Section 45 (4). It is significant to note that no individual notice is required to be served at this stage. If, however, the authorised officer finds subsequently that the requisite enquiry and survey cannot be made without entering into any building or upon enclosed court or garden attached to a dwelling house and the occupier thereof does not give his consent to such entry he must as required by the proviso to Section 4 (1) give the occupier seven days notice of his intention to so enter.

8. It appears that no occasion arose in the instant case for the authorised officer to take recourse to the aforementioned proviso and hence no notice was required to be issued to the occupiers of the land intended to be acquired. So far as the publication of the order passed under Section 4 (1) is concerned, the State Government has placed on the record a copy of the order (Annexure R. 1/1) to show that it was duly published. The endorsements which appear as foot-notes of this order clearly show that it was published in accordance with the provisions of Section 45 (4) relating to a public notice. There is a presumption of regularity of official acts. It can therefore be legitimately presumed that the order under Section 4 (1) was published strictly in accordance with the requirements of Section 45 (4).

9. To resume the discussion regarding the first part of Section 4 of the Act, it will be seen that on completion of the enquiry and survey conducted by the authorised officer, he is required under Sub-section (4) of this section to send to the Collector a report on the result of the survey and enquiry. It is only on receipt of such a report, and not before, that the Collector acquires seisin of the preliminary proceedings relating to intended acquisition of land.

10. The second part of Section 4, comprising Sub-section (5) consisting of two Clauses, comes into play on receipt of report of the authorised officer under Section 4 (4) of the Act by the Collector, Sub-section (5) may again be reproduced here for convenience of reference. It reads :

Section 4 (5): The Collector shall upon receipt of such report, cause to be given:--

(i) to the head of the Government department at whose instance the order under Sub-section (1) shall have been made and to all persons reported under Clause (g) of Sub-section (1) to be interested in the land proposed thereby to be acquired as being suitable for the public purpose a notice in the prescribed form of the proposed acquisition, and

(ii) a public notice to the like effect at convenient places on or near about the land proposed to be acquired. It will be seen that on receipt of the report aforementioned from the author-ised officer the Collector is required to give notice in the prescribed form of the proposed acquisition to persons reported by the authorised officer under first part of Section 4 to be interested in the land proposed to be acquired and also a public notice to the like effect at convenient places on or near the said land. A reference to Section 5-A of the Act. Rules 3-A, 4, 5 and 6 of the Rajas-than Land Acquisition Rules, 1956, (for short the Rules) and Form No. 1-A under Rule 3-A of the Rules, would at once show that the only purpose which notice to the interested persons and public notice under Clauses (i) and (ii), respectively of Sub-section (5) of Section 4, are intended to serve is to enable the interested persons to raise their objections to the acquisition of the land and get a hearing for a decision on those objections. Section 5-A lays down that such persons may file their objections within thirty days after the service of the public notice in the manner prescribed by Section 45. Section 5-A also provides machinery for the hearing and disposal of such objections. Rules 4 to 6 of the Rules supplement the said machinery, providing, as they do, for the filing of the objections in writing, written statement in answer to those objections by the department of the company at whose instance The acquisition is proposed to be made, scope and mechanics of the enquiry by the Collector. If the State Government dispenses with compliance with the requirements of Section 5-A in accordance with the provisions of tion 17 (4) of the Act, the requirement of giving of notice to interested persons under Section 4, (5) (i) and publishing of public notice under Section 4 (5) (ii) must ipso facto, be taken to have been dispensed with. At any rate, there is no point in giving or publishing such a notice if obiections from the interested persons thus notified are not to be entertained, heard and decided under Section 5-A and Rules 4, 5 and 6 of the Rules as a condition precedent for making the declaration under Section 6 that the land is required for a public purpose.

11. Mr. Dhankar, learned counsel for the petitioners cited Khub Chand v. State of Rrajasthan, AIR 1967 SC 1074 and Narainderjit Singh v. State of U. P., AIR 1973 SC 552, in support of his argument that the requirement as to notice to interested persons, and public notice, as contained in Section 4 (5) (i)and (ii) of the Act, is mandatory regardless of the fact whether compliance with the provision of Section 5-A is dispensed with or not. It is true that while construing the provisions of Section 4 of the Act as it stood before its amendment in 1966 (hereafter called the old section) and Section 4 of the U. P. Land Acquisition Act which is pari materia with the old Section 4, the Supreme Court held that notice under the second part of the old Section 4 (1) is mandatory and unless that notice is given in accordance with the provisions contained therein the entire acquisition proceedings are vitiated. These authorities cannot however be of any avail for the reason that Section 4 of the Act has undergone drastic changes as a result of its amendment in 1966; and the cases cited were concerned with the interpretation of the old section. Section 4 of the Act, as it now stands, as already explained, consists of two parts. In the first part, the State Government is required to give public notice of the intended acquisition of the land needed or likely to be needed for a public purpose. It has been held above that such public notice as required by Section 4 (1) of the Act was given in the instant case. The Collector does not come in the picture at all in relation to the preliminary proceedings of intended acquisition as covered by the present Section 4 (1). As already stated, the role of the Collector, regarding acquisition, commences according to the present scheme of law, after the report of enquiry held by the authorised officer under Section 4 (1) reaches him.

12. Turning now to the old Section 4 (1) with which the Supreme Court was dealing in the cited cases (supra), the old section not only required publication of the preliminary notification in the official gazette, but also additional publicity by giving public notice of the substance of the notification in the locality concerned. All that had been done in the cited cases was the publication of the preliminary notification in the official gazette. The requirement of law, as contained in the second part of the old Section 4 (1) regarding additional publi-city by giving public notice of the sub-stance of the notification in the locality concerned a legal duty charged on the Collector had not been complied with in the said cases. Obviously, the Collector in those cases had failed to discharge the duty regarding the giving ofpublic notice imposed on him by law. It was in this context that the Supreme Court held that giving of public notice by the Collector under the second part is mandatory and that unless such public notice is given, the entire acquisition proceedings are vitiated.

13. Now, so far as the present subsection (1) of Section 4 is concerned, it has already been explained that its only requirement is that the State Govern-ment shall give public notice of the intended acquisition; and such public notice was duly given in the instant case. Mr. Dhankar, however, tried to press into service the aforementioned two rulings of the Supreme Court in support of his contention that even the second part of the amended section, consisting of Sub-section (3) (i) and (ii), requiring the giving of notice to interested persons and public notice is mandatory and that compliance with such a mandatory requirement cannot be dispensed with by dispensing with compliance with Section 5-A by taking recourse to the provisions of Sections 17 (1) and 17 (4) of the Act. Obviously, it would not be permissible to extend the ratio of the cited cases in this manner. It bears repetition that the requirement of the present law, as contained in Section 4 (1), that the notification regarding intended acquisition shall be published in the like manner as a public notice under Section 45 (4) was duly complied with in the instant case. In the cited cases (supra), public notice as required by the second part of Section 4 (1) as it stood before its amendment in 1966, had not been given. This makes the whole difference.

14. Mr. Dhankar also relied on Rajasthan Udyog v. State, AIR 1978 Raj 31, to buttress his argument that the provisions of Sub-section (5) (i) and (ii) of Section 4 of the Act as it now stands, are mandatory. A perusal of the cited judgment would however show that a Division Bench of this court quashed the acquisition proceedings in that case only on the ground that the authorities concerned had failed to comply with the provisions of Rule 32 of the Rajasthan Land Acquisition Rules, 1956. Earlier in the said judgment, the Division Bench made certain observations in the nature of obiter dicta that the provisions of Section 4 (1) are directory and those of Section 4 (5) (i) and (ii) are mandatory. The observation that the provisions of Section 4 (1)are directory cannot be accepted as good law in view of the judgment of their Lordships of the Supreme Court in Khub Chand v. State of Rajasthan, AIR 1967 SC 1074 and Narinderjit Singh v. State of U. P., AIR 1973 SC 552, discussed above. The other observation that the provisions of Section 4 (5) (i) and (ii) are mandatory stands qualified on the facts of that case inasmuch as enquiry under Section 5-A had not been dispensed with in that case and therefore the requirement regarding notice to interested persons under Section 4 (5) (ii) was held to be mandatory. As already stated notice under Section 17 (4) purports to have been issued in this case and thus enquiry under section 5-A had been dispensed with.

15. For all these reasons, I hold, that, since compliance with the requirements of Section 5-A of the Act had dispensed with in this case, notice to the interested persons under Section 4 (5) (i) and public notice under Section 4 (5) (ii) of the Act were not mandatory. The first ground of challenge raised by Mr. Dhankar therefore fails.

Ground (ii) :

16. A reference to the impugned notification, dated, March 19, 1980, (An-nexure II) issued by the State Government in the purported exercise of its powers under Section 17 (1) and Section 17 (4) of the Act will show that the State Government had expressly stated therein its opinion that the land in question was needed to be acquired for the Rajasthan State Industrial Investment and Development Corporation and that the acquisition of the land for the aforementioned purpose was most urgent.

After stating this opinion in the preamble of the notification the State Government directed in the operative portion thereof that the provisions of Section 5-A shall not apply to this land and also made a declaration under Section 6 (1) to the effect that this land is needed for a public purpose i. e., for the Rajasthan State Industrial Investment and Development Corporation. Simultaneously, the State Government directed the Collector Sikar under Section 17 (1) to take possession of the said land on the expiration of fifteen days from the pub-lication of the notice mentioned in Sec-tion 9 (1).

17. The validity of the aforesaid notification (Annexure II) has to be testedon the touchstone of subjections (1) and (4) of Section 17 which read as under:--

17. Special powers in cases of urgency (1) In cases of urgency, whenever the State Government so directs the Collector though no such award has been made may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the State Government free from all encumbrances.

.....

(4) In the case of any land to which in the opinion of the State Government the provisions of Sub-section (1) or subsection (2) are applicable, the State Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the order under Sub-section (1) of Section 4. As its marginal heading makes it clear, Section 17 provides for exceptions to the general rule, as enacted in Section 16, to the effect that possession of any land notified for an acquisition can be taken by the Collector only after he has made his award under Section 11. One of the exceptions is contained in Sub-section (1) of Section 17 which enables the Collector to take possession of any land, even though he has not made his award under Section 11, provided the following two conditions co-exist, namely (i) the case is one of 'urgency' and (ii) the land is 'waste or arable land'. Sub-section (4) of Section 17 which is also very important further lays down inter alia that in case of any land to which in the opinion of the State Government the provisions of Sub-section (1) of Section 17 are applicable, i. e., if the State Government forms the opinion that the case is one of urgency and the notified land is waste or arable land, the State Government may dispense with the requirements as to the holding of enquiry under Section 5-A and may straightway, make a declaration under Section 6 immediately after the publication of the order under Sub-section (1) of Section 4.

18. Now, as to whether the case was one of urgency or not the State Government was the best Judge thereof and, as held by the Supreme Court in Jage Ram v. State of Haryana, (1971) 1SCC 671 : (AIR 1971 SC 1033), the opinion of the State Government in such a case that there was urgency is entitled to weight, if not conclusive. There is enough material on the record to show that the Collector acted reasonably and rationally in forming the opinion regarding urgency. A perusal of the letters, which are on record, written by the officials of the Rajasthan State Industrial Investment and Development Corporation to the Collector before he was persuaded to issue the impugned notification on March 19, 1980, would at once bring out how desperately this land was needed for the extension of the industrial area of Sikar. There is therefore no warrant for this court to question the recital in the notification that there was urgency for this acquisition within the purview of Section 17 (1). The Supreme Court held in Narayan v. State of Maharashtra, AIR 1977 SC 183, that an order Or notification containing a recital, technically correct on the face of it, raises a presumption under Section 114 (e) Evidence Act that the recital is correct and that such recital may obviate the need to look further regarding the fact of its correctness. Their Lordships pointed out that the original and stable onus of proof under Sections 101 and 102, Evidence Act lies on that person who desires the court to give judgment in his favour and who would fail if no evidence at all were given on either side and that such burden cannot be shifted by the use of Section 106, Evidence Act. No material has been placed on the record by the petitioners to discharge their original and stable onus of proof that this was not a case of urgency within the purview of Section 17 (1) of the Act. Mr. Dhankar, learned counsel for the petitioners merely referred to the fact that even after issuing the notification of alleged urgency on March 19, 1980, the authorities concerned took no steps to issue notice under Section 9 regarding possession till June 17, 1980, and that if the urgency had been genuine the said authorities would not have slept over the matter for as long as three months. He also mentioned in this context the time lag of nearly six months, between the publication of the order 6f intended Requisition under Section 4 (1) and publication of the notification under Section 17 (1) & (4), of the Act, in support of his contention that there was in factno urgency. I am afraid such like delays in our bureaucracy though regre-table, are not uncommon even in matters which brook no delay. One should not therefore readily conclude from such delays that in fact there was no urgency. The Supreme Court also took a similar view in Jage Ram v. State of Haryana (AIR 1971 SC 1033) (supra) and observed that the mere fact that the State Government concerned was lethargic at an earlier stage of the proceedings of acquisition of land is not relevant for deciding the question whether there was urgency or not.

19. It may therefore be safely concluded that the State Govt. acted within its powers to form the opinion that it was a case of urgency within the purview of Section 17 (1) of the Act and that the exercise of such power by it cannot, in the facts and circumstances of this case, be said to be perverse or arbitrary. The recital in the impugned notification that there was urgency raises a presumption of fact in favour of the State Government. The petitioners have failed to discharge their original onus of proof under Sections 101 and 102 Evidence Act, that there was no urgency.

20. This brings me to the related question as to whether the other condition regarding the land being waste or arable land was also fulfilled in this case. It bears repetition here that the general rule as enacted in Section 16 of the Act is that the Collector cannot take possession of the land notified for acquisition unless he has first made his award under Section 11 of the Act. One of the exceptions to this rule as enacted in Section 17 (1) is that, though he has not made his award under Section 11, the Collector may take possession of such land on the expiration of fifteen days from the publication of the notices mentioned in Section 9 (1) provided, (i) the case is one of urgency and (ii) the land is waste Or arable land. Ordinarily, a case of urgency would arise when the Stale Government finds it necessary to take possession of the land notified for acquisition under Section 4 (1) of the Act within a couple of weeks from the date of such notification. If compliance with the provisions of Section 5-A and, for that matter, with Section 4 (5) (i) and (ii) of the Act is insisted upon, as it has to be, for such compliance is mandatory for the validity of acquisition and takingof possession according to law, it may not be possible for the State Government even in a case of extreme urgency to take possession of the land for months or even years together. The Legislature has therefore enacted Sub-section (4) of Section 17 enabling the State Govt. to dispense with compliance with the requirements of Section 5-A and thus remove the legal obstacles which could indefinitely delay the taking of possession of the land for the public purpose for which it may be urgently and immediately needed. Under Section 17 (4), the State Government may dispense with such compliance if it forms the opinion that the land notified for acquisition is land to which provisions of Sub-section (1) or Sub-section (2) of Section 17 are applicable. As already stated, the provisions of sub- Section (1) of Section 17 are attracted only if the two preconditions, namely (i) it is a case of urgency and (ii) the land is waste or arable land, are fulfilled. Therefore in order to form the opinion under Section 17 (4) to the effect that the land is one to which the provisions of Sub-section (1) of Section 17 are applicable, the State Government must direct its attention, apart from the consideration as to whether the land intended to be acquired is waste or arable land. If the land intended to be acquired is neither waste nor arable, provisions of Section 17 (1) are not attracted and therefore the enquiry under Section 5-A in respect of such land cannot be validly dispensed with by taking recourse to the provisions of Section 17 (1) read with Section 17 (4).

21. The Supreme Court held in RajaAnand v. State of U. P., AIR 1967 SC1081, and Narayan v. State of Maharashtra (AIR 1977 SC 183) (supra) that theformation of opinion under Section 17 (1)read with Section 17 (4) is a subjectivematter and that a court will not normally enquire whether there was sufficientground or justification for the opinionformed by the State Government underSection 17 (4). Their Lordships however further held in the cited cases thatthough the formation of opinion is subjective, it can still be challenged asultra vires in a court of law if it couldbe shown (i) that the State Government never applied its mind as to whether the land is waste or arable or (ii)that the action of the State Governmentis mala fide.

22. Now, we are here dealing with a case in which the State Government didnot apply its mind at all as to whether the land in question is waste or arable land. A perusal of the impugned noti-fication (Annexure II) dated March 19, 1960, would show that, while it contains the recital regarding urgency, it is conspicuously silent as to whether the land is waste or arable land. This means thatthe question whether the land is waste or arable land was not even present to the mind of the State Government when it issued the impugned notification, in other words, the State Government did not apply its mind at all as to whether the land is waste or arable land. The impugned notification (Annexure II) must therefore be struck down as ultra vires.

23. In Dora Phalauli v. State ofof Punjab, AIR 1979 SC 1594, the noti-fication issued by the State Government under Sections 17 (1) and 17 (4) was silent, as in the instant case, that the land is waste or arable land with the result that the Supreme Court held the notification to be bad in law and observed in this context that the right of a person to file objections under Section 5-A should not be interfered with in such a casual and cavalier manner. The cited case also applies on all fours to the facts of this case.

24. Moreover, a portion of the land covered by the impugned notification (viz., the land which is the subject mat-ter of litigation in writ petition num-ber 1039 of 1980 and writ petition num-ber 1040 of 1980) is admittedly neither waste nor arable land. The petitioners specifically pleaded that they had erected pucca residential buildings on their land costing them thousands of rupees. The State Government did not deny the fact that some pucca buildings stood on a portion of the land involved in the two writ petitions mentioned above. This means that at least a portion of the land covered by the impugned notification cannot be treated as waste or arable. In a similar fact situation, the Supreme Court held in Sarju Prasad v. State of U. P. AIR 1965 SC 1763 as follows (at p. 1767):--

One other point raised at the Bar may be briefly referred to. It was contended by Mr. S. P. Sinha appearing on behalf of the Municipal Board, Basti, that a part of the land notified for acquisition was waste or arable and in support ofhis contention, counsel referred us to certain revenue record. But 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 5-A would be invalid. It would not be open in the Court to regard the notification as par-tially 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 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 to respect of land other than waste or arable land.

25. This authority was cited by Mr. Dhankar, learned counsel for the peti-tioners, in support of his contention that since the impugned notification is a composite one covering the land in all the five writ petitions including the land of Writ Petitions Nos. 1039 and 1040 of 1980 which is admittedly not waste or arable, the entire notification must be struck down for it is not open to the court to regard the notification as partly good and partly bad. It is contended that if the State Government had no power to dispense with the enquiry under Section 5-A in respect of a part of the land covered by the impugned notification, enquiry has to be held any way under Section 5-A, and as such individual notices to the interested persons regarding the land, as required by Sec-tion 4 (5) (i), and public notice as required by Section 4 (5) (ii), will become mandatory. In view of the discussion on this aspect of the case in an earlier part of this judgment, this argument is unassailable and must be upheld. Even if a portion, of the land covered by the impugned notification does not fall in the category of waste or arable land it will be impermissible to take recourse to the provisions of Sections 17 (1) and 17 (4) and thus dispense with the enquiry under Section 5-A of the Act. In that situation the provisions of Section 4 (5) (i) and (ii) and Section 5-A would become mandatory.

26. Mr. Kuhad, learned counsel for respondent No. 4, cited Navneet Ram v. State of U. P., AIR 1975 SC 2144, in support of the opposite contention that impugned notification can be upheld at least in respect of the lands covered by Writ Petition No. 1038 of 1980 andNos. 1160 and 1161 of 1980, which have no building or structure erected on them and as such are waste or arable lands. The facts in the cited case are entirely distinguishable. The owner of one of the plots of land in that case (i.e. owner of plot No. 4361 on which alone there was pucca construction had accepted compensation awarded to him and thus walked out. He did nor object to the dispensing with of enquiry under Section 5-A. The Supreme Court, therefore, held that since the only person who could have taken objection to the inquiry under Section 5-A being dispensed with was not interested in raising objection, the notification relating to the rest of the land which was waste or arable could not be invalidated on a ground which was not open to the owners of that land. It is significant to note that the Supreme Court observed in that context that if the owner of plot No. 436, had objected to the notification, 'different consideration might arise'. In the instant case, all the owners of land en which buildings were standing at the time of the issue of the notification have raised objections to it and therefore, to quote the Supreme Court, 'different considerations' do arise and Sarin Prasad's case (AIR 1965 SC 1763) (supra) will have full force.

27. Even otherwise, it has been held that since the State Government never applied its mind as to whether the land is waste or arable, the impugned notification cannot fee saved by proving in the court that some of the land in question is in fact waste or arable.

28. For all these reasons, ground (ii) of the arguments of the petitioner's learned counsel prevails. Consequently, the impugned notification, dated March 19, 1980, issued by the State Govt. in the purported exercise of its power under Sections 17 (1) and 17 (4) of the Act dispensing, with compliance with the requirements of Section 5-A of the Act is ultra vires.

29. In view of my findings on ground (ii) above, these writ petitions succeed and the impugned notification (An-nexure II) darted. March 19, 1988, and the notices issued to the petitioners on June 17, 1980, are hereby quashed. The State Government is, therefere, restrain-ed from interfering with the petitioners'possession of the notified land. The par-ties are left to bear their own costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //