S.K. Mallodha, J.
1. A learned single Judge of this Court has referred the writ petition to the Division Bench as it raises the question with respect to the validity of the Notification Ex. 6 dt. April 28, 1977 issued under Section 17(4) and Section 6 of the Rajasthan Land Acquisition Act, 1953 (No. XXIV of 1953) (for short 'the Act') and according to him, the correctness or otherwise of the decision in Kanwar Chandra Singh v. State of Rajasthan, ILR (1961) 11 Raj486, is also involved and as such, it should be determined by the Division Bench in the light of the subsequent decisions of the Supreme Court. This is how this writ petition is before us.
2. The original petitioners were Narendra Singh, Nahar Singh and Sobhag Kumari. During the pendency of the writ petition, Narendra Singh died and his legal representatives, who are now petitioners Nos. 1/1 to 1/4, have been brought on record.
3. A bungalow and vacant land surrounding it was gifted to Rao Raja Narpatsinghji by the former ruler of the erstwhile State of Jodhpur. A patta was issued on Aug. 14, 1939 in favour of Rao Raja Narpatsinghji and it was renewed by a new Patta on July 16, 1956 issued under the provisions of the Marwar Patta Ordinance, 1921, which was in vogue at that time. A part of the land covered by the aforesaid Patta was sold by Rao Raja Narpatsinghji to the Government of India and certain buildings have been constructed on the said land. A Notification Ex. 5 dt. Mar. 23, 1977, was issued by the Government of Rajasthan in exercise of the powers conferred on it under Section 4(1) of the Act. It was notified therein that the land specified therein which included part of the land in respect of which patta was issued in favour of Raja Rao Narpatsinghji, was required for a public purpose i.e. R.C. P.O. (Defence Department of the Central Government). The said Notification Ex. 5 was published in the Rajasthan Rajpatra dt Mar. 31, 1977. However, subsequent to that, another Notification Ex. 6 dt. April 28, 1977, was issued by the Government of Rajasthan under Section 17(4) and Section 6 of the Act. It was mentioned in that Notification that the provision of Section 5A of the Act shall not apply and a declaration was made under Section 6 of the Act that the lands mentioned in the said notification were needed for public purpose. The State Govt. directed the Land Acquisition Officer to take the possession of the lands mentioned in the notification after the expiry of 15 days from the publication of the notice under Section 9(1) of the Act. A notice Ex. 7 under Section 9 of the Act was issued to the original petitioners by the Sub-Divisional Officer, (Land Acquisition Officer), Jodhpur on May 19, 1977. After receipt of the notice, they filed objections tothe acquisition of their land. The award Ex. 9 was made on Mar. 21, 1978 by the Land Acquisition Officer. He, however, did not award any compensation to the petitioners on the ground that the petitioners have failed to establish their right, title or interest in respect of the land alleged to be theirs and further that they were not entitled to any compensation for the same. The petitioners submitted an application Ex. 10 for making reference under Section 18 of the Act. The reference was made to the District Judge, Jodhpur. However, after making of the award by the Sub-Divisional Officer on Mar. 21, 1978, the petitoners filed a writ petition on Sept. 12, 1978 seeking to quash the Notification Ex. 6 dt. April 28, 1977; the notice Ex. 7 dt. May 19, 1977 and the award Ex. 9 dt. Mar. 21, 1978. It was prayed that entire acquisition proceedings may be quashed.
4 Before the learned single Judge, it was stated that the validity of the notice Ex. 7 dt. May 19, 1977 and the award Ex. 9 dt. Mar. 21, 1978 depends upon the validity or otherwise of the Notification Ex. 6 dt. April 28, 1977 issued under Section 17(4) and Section 6 of the Act. A reply was filed to the show cause notice on behalf of respondents 1 to 3 contesting the writ petition on various grounds on Dec. 4, 1978. Along with the reply, the documents; copy of the letter of Mahendra Singh (Ex. R1) and the copy of the document showing wide publicity of the Notification (Ex. R2) were filed. On behalf of respondent 5 (Assistant Military Estates Officer, R.P.C.O. Defence Department, Government of India, Jodhpur) reply was filed on Feb. 9, 1979 justifying the Notification Ex. 6 dt. April 28, 1977; notice Ex. 7 May 19, 1977 and the award Ex. 9 dt. Mar. 21, 1978. On Jan. 1, 1980, Mr. R.R. Vyas filed an application on behalf of respondents 4 and 5 for dismissing the writ petition, inter alia, on the ground that it is not maintainable and the petitioners should pursue their claims, if they have any title to the property, before the competent authority.
5. We have heard Mr. H.M. Parekh, learned counsel for the petitioners, learned Government Advocate and the learned counsel for respondents 4 and 5.
6. Mr. H.M. Parekh, learned counsel for the petitioners has raised three contentions before us : --
(1) that in pursuance of the Notification Ex. 6 dt. April 28, 1977, the land which is sought to be acquired is neither waste nor arable land and, therefore, no action could be taken under Section 17(4) of the Act and it could not be acquired;
(2) that the Notification Ex. 6 dt. April 28, 1977, is bad in law inasmuch as no mention has been made in it that the land is 'waste' or 'arable' and that the requirement for acquisition is imminent. In other words, in the Notification Ex. 6, urgency has not been mentioned; and
(3) that the Notification Ex. 5 dt. Mar. 23, 1977 was not given publicity at spot as envisaged by Section 4(5)(ii) of the Act, i.e. a public notice at convenient places on or near about the land proposed to be acquired, was not given. In addition to this, it was also pressed that the individual notices to the persons interested in the land in question were not delivered to them as required by Section 4(5)(ii) of the Act.
7. Before we proceed to examine the aforesaid contention, we may notice the relevant provisions of the Act, reference of which has been made by the learned counsel for the parties during the course of the arguments.
8. Section 4 deals with preliminary proceedings of intended acquisition. The material part is 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 provisions and 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 enclosed 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.
(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.'
and on the notice board of the Village Panchayat, if any, constituted under any law for the time being in force. Us contents shall be made widely known in the locality in which the land proposed to be acquired is situated, by affixing copies thereof at some convenient place on or near about such land and in other conspicuous public places in the locality or by publishing the same by beat of drums or by advertisement in a newpaper having wide circulation in the locality or by any two or more of these means.'
The referring Judge, while considering the contention about the waste or arable land, noticed the view taken in Kanwar Chandra Singh's case, (ILR (1961) 11 Raj 486) and also Ishwarlal Girdharilal Joshi v. State of Gujarat, AIR 1968 SC 870, which were cited on behalf of the non-petitioners. Learned counsel forthe petitioners cited before him Raja Anand Brahma Shah v. State of Uttar Pradesh, AIR 1967 SC 1081. On a consideration of the aforesaid authorities and Nandeshwar Prasad v. U.P. Govt., AIR 1964 SC 1217 the learned Judge thought it fit not to pronounce on the correctness or otherwise of the decision in Kanwar Chandra Singh's case.
9. In these circumstances, in order to judge the validity or otherwise of the Notification Ex. 6 dt. April 28, 1977, which was issued under Section 17(4) and Section 6 of the Act, we have to see whether the petitioners' land which is sought to be acquired is 'waste' or 'arable' within the meaning of Section 17(1) of the Act.
10. The words 'waste' or 'arable' land as used in Section 17(1) of the Act, were examined Kanwar Chandra Singh's case. The plot in question in that case comprised in an area of 800 sq. yards on the Mirza Ismail Road, near the Western Indian State Motors. The case of the petitoners was that the land in question was settled with their father on payment of annual assessment of Rs. 5217- by Urb.an Improvement Board. The Government issued notification for acquiring it for a public purpose, i.e. for construction of a Village Industries Emporium. This was followed by a Notification under Section 6 read with Section 17(4) of the Act. On that land there were admittedly no constructions. Nor there were anything to show that it was appurtenant to any house or tenement so as to provide amenities for persons residing in the house standing on any part of the land. It was also not part of any compound or enclosure. The land was found to be an open land in its natural uncultivated state and so it could be treated at least as waste land for the purpose of Section 17(1). On these facts, it was held that if the land was fit for cultivation, although it may have been reserved for building purposes in a town area, that would still continue to be arable land, and further that the land which is intended for building site cannot come under the category of either waste or arable land, and for that there is no authority. Their Lordships held that the acquisition of land is possible even in a town area provided it answers to the description of waste or arable land as given in Section 17(1) of the Act. It was observed in this connection, as under : --
'The section makes no such distinction and the passage refers only to an illustration. It is true that in this case we have no evidence to show that the land was actually cultivated or fit for cultivation; but as we pointed out earlier it is obvious that the land is an open land in its natural uncultivated state and therefore, we can at least treat it as waste and which could be acquired by the Government under Section 17(1) of the Act, provided the other requirements were fulfilled, namely, that the acquisition was for a public purpose as defined in the Act. Under Section 17(3) of the Act the Collector has to pay compensation for standing crops and trees on such land and for any damage sustained by the persons in possession owing to such dispossession. So where such a land with crops and trees standing thereon can be taken possession of, we see no reason why a land which is lying uncultivated and fallow or is waste land cannot be taken possession of on the authority of Section 17(1) of 'the Act.'
In construing the words 'waste' or 'arable' land, their meaning as given in some of the Dictionaries was taken note of. The test laid down for 'arable land' in the aforesaid case was that if the land was 'fit for cultivation' it is arable. For 'waste land' what was stated was that if the land was 'an open land in its natural uncultivated state' it could be taken as 'waste land'. We have to determine the correctness or otherwise of this view as in subsequent decisions of the Supreme Court, these words 'waste' or 'arable' land as used in Section 17(1) of the Act have been examined and interpreted.
For the applicability of Section 17(1) or for that matter Section 17(4) of the Act, the land sought to be acquired should either be 'waste' or 'arable'. It was observed (in?) Nandeshwar Prasad's case, (AIR 1964 SC 1217), while considering Section 17(1) and Section 17(4) of the Act as under : --
'It will also be seen that under the Land Acquisition Act an order under Section 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.'
The words 'waste or arable land' used in Section 17(1) or for that matter in Section 17(4) of the Act, were examined in Raja Anand's case,(AIR 1967 SC 1081). Ramaswami, J., speaking for the Court, stated as under : --
'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. In our opinion, the argument put forward on behalf of the appellant is well founded and must be accepted as correct and in view of the facts mentioned in the affidavits and in the Inpsection Note of the Collector, dated Dec. 15, 1961, we are of the opinion that the land sought to be acquired is not 'waste land' or 'arable land' within the meaning of 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'. It follows therefore, that Section 17(1) of the Act is not attracted to the present case and the State Government had, therefore no authority to give a direction to the Collector to take possession of the lands under Section 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 Section 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 the finding of fact is correct. See R. v. Shoreditch Assessment Committees, (1910) 2KB 859 and While and Collins v. Minister of Health (1939) 2 KB 838.)
We are accordingly of the opinion that the direction of the State Government under Section 17(1) and the action of the Collector in taking possession of the land under that subsection is ultra vires.'
11. . On behalf of the respondents, considerable reliance was placed on Ishwarlal's case (AIR 1968 SC 870). The Supreme Court in that case, while dealing with the question as to whether arable land meant only land which is fit for cultivation or includes land which is also actually under cultivation, observed as under : --
'It is, thus, clear that by arable land is meant not only land capable of cultivation but also actually cultivated. It is not arable land because it is cultivated but because it is something else such as waste, pasture, ancient meadow etc. In deed the fact that the land is actually cultivated demonstrates its nature arable land.' (Underlining is ours)
In our opinion, the test laid down for determining 'arable land' in Raja Anand's case (AIR 1967 SC 1081) does not run counter to the one laid down in Ishwarlal's case as land actually cultivated is an arable land.
12. Before the learned single Judge, it was contended that the test laid down for determination of arable land in Ishwarlal's case was the test that was applied by the learned Judges in Kanwar Chandra Singh's case (ILR (1961) 11 Raj 486). We are unable to agree with the contention raised on behalf of the non-petitioners. What was laid down in Kanwar Chandra Singh's case is that if land is fit for cultivation, though it may have been kept for building purposes or reserved for construction, still it would continue to be arable whereas in Raja Anand's case (AIR 1967 SC 1081), the test for arable land is its main use for ploughing and for raising crops; in Ishwarlal's case (AIR 1968 SC 870 the land not only capable of cultivation, but also actually cultivated was held to be arable land. So the test stated in Kanwar Chandra Singh's case, namely, the land which is fit for cultivation, is not in conformity with the test laid down in Raja Anand's case and Ishwarlal's case. In view of the authoritative pronouncements in Raja Anand's case and Ishwarlal's case KanwarChandra Singh's case to the extent indicated hereinabove is no more a good law.
13. The land of the petitioners regarding which the notification Ex. 6 relates and which was sought to be acquired is in the compound of a residential bungalow, There is nothing to show that it is mainly used for cultivation, i.e. for ploughing and for raising crops. This land is building site and is situated in the urban area. In these circumstances, having regard to the connotation of the word 'arable' laid down in Raja Anand's case, the land of the petitioners cannot be said to be arable one. Then, we consider whether it is a waste land. The meaning of the words 'waste' as given in Raja Anand's case (AIR 1967 SC 1081) shows that it should be desolate, deserted, uninhabited and uncultivated as a result of natural barrenness or being unfit for cultivation. In other words, in the urban area, it may possibly mean land which is desolate, abandoned and not fit ordinarily for any use as building site, etc. As stated above, it is in the compound of a residential bungalow and is suitable for the use of building or building purposes. It cannot be regarded as a waste land simply because it is not put to any use or is in compound of the bungalow. The criterion for determining whether the land is waste or not is fitness or unfitness for its use and the fact that it is not put to any use, will not make it a waste land.
14. The test that we have to apply for the purpose of determining whether tie land in question is arable is whether the land in question is mainly used for ploughing of for raising crops and applying this test, we have no doubt, in our mind, that the land is not arable. We have already given the reasons for taking the view that it cannot be characterized as waste land within the meaning of Section 17( 1) or for that matter under Section 17(4) of the Act. As the land in question is neither waste nor arable land, the necessary consequence is that neither Section 17(1) nor Section 17(4) of the Act can be invoked and, thus, the proceedings taken in pursuance of the notification Ex. 6 dt. April 28, 1977 are illegal and void. It may be stated that if the land intended to be acquired is neither waste nor arable, provisions of Section 17(1) are not attracted and, therefore, enquiry under Section 5A regarding such land cannot be validly dispensed with by taking recourse to the provisions of Section 17(1) read with Section 17(4) of the Act.Contention No. 2.
15. It was argued on behalf of the petitioners that in the Notification Ex. 6, which was issued under Section 17(4) and Section 6 of the Act, it has not been recited that the land is waste or arable land, which is mandatory and on that count, the proceedings in pursuance thereof stand vitiated. It was also pressed for our consideration that there is no mention of urgency as such for taking recourse to Section 17(4) of the Act. According to the learned counsel for the petitioners, a direction to the Collector to take action under Section 17 on the ground of urgency is not legal and in accordance with the law. In support of the submission, reliance was placed on Dora Phalauli v. State of Punjab AIR 1979 SC 1594. There is force in the aforesaid submissions. While considering Sub-sections (1), (2) and (4) of Section 17 of the Act, it was observed in Dora Phalauli's case as under : --
'It is to be clearly understood that under Sub-section (4), the appropriate Government may direct that the provision of Section 5A shall not apply where in the opinion of the State Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, otherwise not For making the provisions of Sub-section (1) applicable, two things must be satisfied that the land in respect of which the urgency provision is being applied is waste or arable and secondly that there is an urgency to proceed in the matter of taking immediate possession and so the right of owner of the land for filing an objection under Section 5A should not be made available to him. In the portion of the Notification which we have extracted above, it is neither mentioned that the land is waste or arable nor has it been stated that in the opinion of the Government, there was any urgency to take recourse to the provisions of Section 17 of the Act. A direction to the Collector has been given tp take action under Section 17 on the ground of urgency but this is not a legal and complete fulfilment of the requirement of the law. It is to be remembered that the right of a person having any interest in the property to file an objection under Section 5A of the Act should not be interfered with in such a casual or cavalier manner as has been done in this case.'
It is not in dispute before us that no recital of waste or arable land has been made in the notification Ex. 6 and further urgency does not find mention in it.
16. Dora Phalauli's case (AIR 1979 SC 1594) was noticed by a learned single Judge in Dora Phalauli v. State of Punjab AIR 1979 SC 1594Dhanni v. State AIR 1983 Raj 62 wherein, while considering the aforesaid provisions, it was held that 'where the notification is completely silent as to whether the land is waste or arable land indicating that the 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 or in other words, the State Government did not apply its mind at all as to whether the land is waste or arable land the notification is ultra vires.'
17. For the aforesaid reasons, the proceedings relating to the acquisition and taking of possession of the petitioners' land mentioned in Ex. 6 are illegal and bad in the eye of law.
Contention No. 3
18. An argument was raised by the learned counsel for the petitioner that even the Notification Ex. 5 under Section 4(1) of the Act was bad for, it was not published in the vicinity of the petitioners' land and proceedings taken in pursuance thereof are void. No controversy has been raised that the copies of the order issued under Section 4(1) of the Act were not affixed at some convenient place or near about the petitioners' land in question, and on other conspicuous public place in the locality or by publishing the same by beat of drums. The compliance of Section 4(1) of the Act has been held to be mandatory by the Supreme Court in Khub Chand v. State of Raj. (AIR 1967 Raj 1074). It was further held in that case that notification under Section 4(1) without complying with the provision as to notice is void and also the acquisition proceedings taken in pursuance thereof.
19. Section 4, as it stood prior to its amendment by the U.P. Act of 1974, was examined in Collector v. Raja Ram Jaiswal (1985) 3 SCC 1 : (AIR 1985 SC 1622). In that case, the question was whether the requirement of giving public notice of the substance of the notification was mandatory and its non-compliance would vitiate proceedings calling for interference by the Court. It was held that the publication of the notice in the locality required by the second part of Section 4(1) is mandatory and unless that notice is given inaccordance with the provisions contained therein, the entire acquisition proceedings, would be vitiated, and the court would interfere in such a situation. The reason given was that the notice under Section 4(1) initiates the proceedings for acquisition of land and uses the expression 'shall', and so the mandate of the Legislature becomes clear and therefore, the infirmities therein cannot be wholly overlooked. The argument that the Courts do not interdict at the stage of a mere proposal under Section 4, was repelled. In coming to this conclusion their Lordships followed Khub Chand's case (AIR 1967 SC 1074), and Narendra Bahadur Singh v. State of U.P. (1977) 1 SCC 216 : (AIR 1977 SC 660). Reference was also made to Babu Barkya Thakur v. State of Bombay AIR 1960 SC 1203 and Somavanti v. State of Punjab AIR 1963 SC 151.
20. It is, thus, crystal clear that the mandatory provision of Section 4(1), in so far as it relates to the publication of the notice/order, in terms of Section 45(4) of the Act is concerned, was not followed and, therefore, failure to comply with the (same,) renders proceedings in pursuance thereof void and as a result of that the subsequent proceedings are also void and bad in the eye of law.
21. The net result of the discussion made hereinabove is : --
(1) that Kanwar Chandra Singh's case (ILR (1961) 11 Raj 486) is no more good law to the extent it is not in conformity with the principles laid down in Raja Anand Raj's case AIR 1967 SC 1081 and Ishwarlal's case AIR 1968 SC 870;
(2) that the Notification Ex. 5, in so far as it relates to the petitioners' land, under Section 4(1) of the Act, is void for non-compliance of the mandatory provisions contained in it, as, that was not published in terms of Section 45(4) of the Act in the vicinity of the petitioners' land in question and further proceedings taken in pursuance thereof are, therefore, void;
(3) that no action or proceedings could be taken under Section 17(1) read with Section 17(4) of the Act for the reasons that the petitioners' land which is sought to be acquired is neither waste nor arable land; non-mention of the facts inthe notification Ex. 6 about its character as waste or arable land and the urgency.
22. For the aforesaid reasons, the writ petition is allowed and the notification Ex. 5 dt. Mar. 23, 1977 and the Notification Ex. 6 dt. April 28, 1977, in so far as they relate to the petitioners' land and acquisition proceedings taken in pursuance thereof are quashed.
23. In the circumstances of the case, we leave the parties to bear their own costs.
24. Before parting with the case, it may be stated that Mr. H.M. Parekh, after consulting Mr. G.M. Bhandari, learned Deputy Govt. Advocate, who was formerly counsel for the petitioners, in this writ petition, submitted and offered that despite the order having been passed in the writ petition, quashing the acquisition proceedings, the petitioners are ready to accept the amount of compensation determined by the learned District Judge in the reference under Section 18(1) of the Act, if it is arranged to be paid to them, as the same has not been paid so far at the instance of respondents 4 and 5. This offer was put to Mr. J.P. Joshi, learned counsel for respondents 4 and 5, but we are a little surprised that there was no favourable response to it. Be that as it may, Mr. H.M. Parekh learned counsel for the petitioners submitted that if the amount of compensation determined by the District Judge Jodhpur in the reference under Section 18(1) of the Act is paid to him within a period of two months from today, the petitioners will abide by the offer that has been made by him today in Court and would accept the amount of compensation despite that the acquisition proceedings have been quashed by this Court in the writ petition.