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Mohammad Habibullah Sahib and ors. Vs. Special Deputy Collector for Land Acquisition Madras and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberWrit Appeal Nos. 165 and 166 of 1965 and C.M.P. Nos. 14027 and 14024 of 1965
Judge
Reported inAIR1967Mad118
ActsLand Acquisition Act - Sections 4(1), 5-A and 6
AppellantMohammad Habibullah Sahib and ors.
RespondentSpecial Deputy Collector for Land Acquisition Madras and ors.
Cases ReferredKashappa v. Chief Secretary
Excerpt:
.....is waste or arable in nature - held, in view of precedent separate land could be treated as waste arable land. - - 4 was bad as it dispensed with the enquiry under s. 4 is not waste or arable but it is on the other hand used for running a dairy farm, that the urgency must be a real one and in the instant case though the government issued the notification in the year 1960 they did not take possession of the land till 1963 thereby disproving the urgency contemplated by the government and that the acquisition is bad as no notice was given to all the owners of the lands in question. (7) of course, in regard to contention that there is no urgency in the instant case, it is too late for the appellants to contend, as it has been well settled by a decision of a division bench of this court..........owner of the land that the land notified for acquisition under the notification was not waste or arable land. it was held by the supreme court that the notification issued in exercise of the powers under sub-section (4) of s. 17 declaring that the provisions of s. 5-a shall not apply to the acquisition was invalid. it was contended for the municipality that part of the land notified for acquisition was waste or arable. their lordships of the supreme court held that is only a part of the land was waste or arable and the rest was not, a notification under s. 17(4) dispensing with compliance with the requirements of s. 5-a would be invalid and that it would not be open to the court to regard the notification as partially good and partially bad. but we think that the principles laid down.....
Judgment:

Venkatadri, J.

(1) These writ appeals are directed against the judgment of Srinivasan J. which dismissed the writ petitions filed by the appellants to quash the notifications and declarations in respect of their lands acquired by the State of Madras, in connection with the housing schemes in the City of Madras.

(2) The appellants are the owners of the lands bearing S. No. 2/1 of an extent of 11.26 acres, S. No. 3/1 of an extent of 6.91 acres and S. No. 4 of an extent of 13.37 acres in Kalikundram village within the Corporation limits of the City of Madras. The entire extent of land has been enclosed by a fence, and is alleged to be used and treated as a compact block. The Government of Madras, in pursuance of the housing scheme to meet the serious problem of acute housing shortage in the City, have been acquiring lands in and around the villages of Urur and Kalikundram. Thus, in the course of their acquisition, the Government proposed to acquire the lands belonging to the appellants. The Government, therefore, issued two separate notifications under Section 4(1) of the Land Acquisition Act, one in respect of S. Nos. 2/1 and 3/1 together, and another in respect of S. No. 4. In regard to S. Nos. 2/1 and 3/1, they called for objections from the owners of the land. In regard to S. No. 4, they were of opinion the lands were waste or arable and therefore they applied the provisions of S. 17(4) of the Act, thereby dispensing with the enquiry under S. 5-A of the Act. The appellants put forward their objections in regard to S. Nos. 2/1 and 3/1 but they were rejected. As the enquiry under S. 5-A was dispensed with, in respect of S. No. 4, the Government issued the Declaration under S. 6 of the Act on 16-1-1961, but in respect of S. Nos. 2/1 and 3/1, the said declaration was issued only on 6-6-1962, that the lands were required for a public purpose. The appellants filed writ petitions challenging the notifications and declarations of the Government, on the ground that they were vitiated by material irregularities and error apparent on the face of the record. They contended that the original notifications under S. 4(1) of the Act were not addressed to all the owners or person interested in the land, that the notification under S. 4(1) in respect of S. No. 4 was bad as it dispensed with the enquiry under S. 5-A of the Act, as the lands are neither waste nor arable nor required for purposes mentioned in S. 17(2), that as the appellants are the owners of S. Nos. 2/1 and 3/1 and 4, the Government erred in splitting the land into separate blocks and issuing separate notifications applying different procedures in the process of acquisition, viz, applying the ordinary provision in respect of S. Nos. 2/1, and 3/1 and applying the urgency provision in respect of S. No. 4, that the lands sought to be acquired are all agricultural lands which had been leased for a period of ten years, that they themselves had taken steps to develop the land into a model agricultural farm, that they have received an offer for 18 lakhs of rupees, that in any event they themselves were prepared to design and lay out the plots and have them sold to the public at cheaper rates if the Government dropped the proposed acquisition and that therefore the notifications and declarations were vitiated by material errors and were liable to be quashed.

(3) The State of Madras has filed a counter denying all the allegations.

(4) When these writ petitions came for final hearing before Srinivasan J, the learned Judge held that the lands in question were acquired for a public purpose, that it was not necessary for the concerned authorities to specify the names of all the persons interested in the land, that it was for the persons interested in the land to come forward and file their objections to the Section 4(1) notification, that it was not for the appellants to direct which lands had to be acquired, that it was a matter left to the entire discretion of the authorities concerned, that the action of the Government in applying the urgency provisions to a particular land(S. No. 4) could not be challenged, and that whether there was any urgency or not was for the authorities to decide at the stage of S. 4(1) notification and not on the date when they took possession of the lands from the appellants. It is against this order of Srinivasan J, that the writ appeals have been preferred by the writ petitioners.

(5) Mr. M. S. Venkatarama Aiyar, learned counsel for the appellants, contends that the urgency provision cannot be applied to a portion of the land belonging to the owners that the land covered by S. No. 4 is not waste or arable but it is on the other hand used for running a dairy farm, that the urgency must be a real one and in the instant case though the Government issued the Notification in the year 1960 they did not take possession of the land till 1963 thereby disproving the urgency contemplated by the Government and that the acquisition is bad as no notice was given to all the owners of the lands in question.

(6) The substantial points, therefore, that arise for consideration in these appeals are whether the Government can split up the lands contiguous in extent and belonging to a single owner for the purpose of issuing the Sec. 4(1) Notifications in respect of a portion of a land and call for objections under S. 5-A, and apply the provisions of S. 17(4) in respect of other portion of the land and dispense with the enquiry under S. 5-A of the, whether there is any quasi-judicial finding or decision or declaration that the land covered by S. No. 4 is arable or waste land, and whether the Section 4(1) notification in respect of S. Nos. 2/1 and 3/1 can be declared invalid, by virtue of the fact that the Notification in respect of S. No. 4 is invalid on account of dispensing with the provisions of S. 5-A read with S. 17(4) of the Act.

(7) Of course, in regard to contention that there is no urgency in the instant case, it is too late for the appellants to contend, as it has been well settled by a decision of a Division Bench of this court in Natesa Asari v. State of Madras, : AIR1954Mad481 , that whether an urgency exists or not is a matter solely for the determination of the Government and that it is not a matter for judicial review. In regard to the other contention that notice should be given to all the persons concerned of the properties, we agree with Srinivasan J. that it is not possible for the acquiring authorities to acquaint themselves with the names of all the persons who may be interested in the land proposed to be acquired at the stage of S. 4(1) notification and that it is for the persons who are interested therein to make their claims before the appropriate authorities and put forward such objections as they have not after the notification was issued.

(8) Now, we will take up for discussion the contention whether the Government is right in splitting up the lands belonging to the appellants into separate blocks and issuing two separate notifications, one applying the ordinary provisions and the other applying the urgency provisions. In effect, learned counsel contends that the Government cannot apply the urgency clause to a portion only of the lands knowing fully well that the appellants are the owners of the entire block of land bearing S. Nos. 2/1, 3/1 and 4, used and enjoyed by them as a compact block of land by a single owner. According to learned counsel, the Government must make up their mind to apply the urgency provision to the entire block, and if they cannot apply the urgency provision to one part or portion of the lands, they could then apply the normal and ordinary procedure to all the lands thereby giving an opportunity to the appellants to put forward their objections against such acquisition. In order to support this proposition of law, he drew our attention to the decision of the Supreme Court in Sarju Prasad v. State of U.P. : AIR1965SC1763 . In that case, the State of U.P. issued a notification in the year 1955, that plots Nos. 1708, 1709 and 1710 measuring in the aggregate 3.21 acres situate in the town of Basti were likely to be needed for a public purpose i.e., for water works supply scheme for the Basti Municipality. On objections filed by the owners, the Government abandoned the acquisition. However in the year 1960, that is after a period of five years, the Government again issued a fresh notification under S. 4(1) of the Land Acquisition Act intimating that an area measuring 1.13 acres in plots Nos. 1708, 1709 and 1710 was likely to be needed for the public purpose already mentioned. Simultaneously with the publication of S. 4(1) notification, the Government also issued a notification under S. 17(4) of the Act dispensing with the provisions of S. 5-A of the Act, Immediately thereafter, the Government issued the Declaration under S. 6 of the Act. It was recited therein that the case being one of urgency, the Collector might under sub-sections (1) and (1-A) of S. 17 of the Act take possession of the land though no award under S. 11 might have been made. It was contended by the owner of the land that the land notified for acquisition under the notification was not waste or arable land. It was held by the Supreme Court that the notification issued in exercise of the powers under sub-section (4) of S. 17 declaring that the provisions of S. 5-A shall not apply to the acquisition was invalid. It was contended for the Municipality that part of the land notified for acquisition was waste or arable. Their Lordships of the Supreme Court held that is only a part of the land was waste or arable and the rest was not, a notification under S. 17(4) dispensing with compliance with the requirements of S. 5-A would be invalid and that it would not be open to the court to regard the notification as partially good and partially bad. But we think that the principles laid down in that case would not be applicable to the facts of the present case. Here there are three survey numbers, S. Nos. 2/1 and 3/1 forming together while S. No. 4 being different, in that in S. Nos. 2/1 and 3/1, there are some old and dilapidated buildings and structures and some huts, whereas in S. No. 4, there are no such buildings or structures. Further, two notifications were issued in the instant case, applying the ordinary provisions in respect of S. Nos. 2/1 and 3/1, and applying the urgency provisions in respect of S. No. 4, which was found to be a waste or arable land. In Iftikhar Ahmed v. State of M.P. : AIR1961MP140 a Division Bench of the Madhya Pradesh High Court, following the ruling laid down in Lachmi Narain v. State of U.P. : AIR1957All816 held that it was incorrect to say that sub-section (1) of S. 17 applied only in a case where all the land proposed to be acquired was waste land and that it could apply to any part of the land covered by the notification. Therefore relying on those decisions, we can safely hold that S. No. 4, a separate block of land, could be treated as waste or arable land and the provisions of S. 17(4) could be applied to it thereby dispensing with the provisions of S. 5-A of the Act. We do not, therefore, agree with the learned counsel's broad proposition that, where there is sizable extent of land belonging to a single owner, the Government cannot apply the ordinary provisions in respect of one portion and apply the urgency provision in respect of the other portion, even where it is possible to sever such portion of the land which is waste or arable in nature.

(9) Learned counsel has next contended that before the Government could treat a portion of the land belonging to a single owner as waste or arable land, it would be the duty of the Government to form an opinion or give a finding that that land was of such nature. It is useful to refer to the observations of a Division Bench of the Bombay High Court in Sri Navnitlal v. State of Bombay, : AIR1961Bom89 .

'Whether the land is waste or arable is an objective fact. Under S. 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 enquiry under S. 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 formed no opinion at all or the opinion formed is based on reasons which are 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'. In Sadrudding Suleman v. J.H. Patwardhan, : AIR1965Bom224 , another Division Bench of the Bombay High Court observed that in considering whether any land was waste or arable land, it was the nature of the land and its substantive use that one must have regard to and not what it was formally dubbed in archaic revenue records. In that case, the learned Judges came to the conclusion that the Commissioner formed no opinion at all, in regard to the nature of the land. In the instant case, the concerned authorities have stated definitely on enquiry and examination of the lands belonging not only to appellants but also other owners that the land in S. No. 4 is a waste or arable land. They have also come to the conclusion that it is a dry land which is not at all cultivated. Further, the appellants did not put forward these arguments before Srinivasan J. when the writ petitions came for final disposal. This point was neither taken in the pleadings. It was only contended before Srinivasan J. that there could be no different procedures in respect of the same land belonging to a single owner. Even the affidavit filed in support of the writ petitions did not specifically disclose that the land bearing S. No. 4 was fit for cultivation. The word 'arable' seems to include ordinary cultivable lands. It is true that, while acting under S. 17(4) of the Act, it is the duty of the authorities concerned to form the necessary opinion objectively as to whether the land is waste or arable. In this case, the Government have found the land to be dry, and the correctness of such an opinion cannot be challenged; neither the sufficiency of the reasons on which the opinion is based can be questioned, nor the directions issued in pursuance of the opinion can be assailed in writ proceedings.

(10) Further, we are also aware of the undue delay on the part of the appellants in rushing to the court for canceling the notifications. For, it is common case that the S. 4(1) notification was issued for S. Nos. 2/1 and 3/1 and S. No. 4, separately on 19-11-1960. So far as S. Nos. 2/1 and 3/1 are concerned, objections were called for as early as 26-8-1961, but were filed only in October 1961. The Declaration under S. 6 of the Act was made on 6-6-1962. The actual award was made on 10-4-1963. The appellants made a reference under S. 18 of the Act for enhanced compensation in respect of S. Nos. 2/1 and 3/1. The writ petitions were filed only in 1963, that is, after a delay of nearly three years. In W.A. No. 127 of 1965 (Mad), a Bench of this court to which one of us was a party, while considering the matter arising on similar facts, have held that the writ petition was filed two years after the notification and on that ground alone the petition was liable to be dismissed. Learned counsel, appearing for the State of Madras, drew our attention to the observations of the Calcutta High Court in Tirthalal v. State of West Bengal, 66 CW.N. 115, that where a petitioner had already made an application for reference claiming increased compensation, he could not be permitted to challenge the acquisition itself and at the same time claim increased compensation. On this ground also, the petitions are liable to be dismissed.

(11) Lastly, in regard to the contention whether the entire notifications, that is both for S. Nos. 2/1 and 3/1 and for S. No. 4, should be declared invalid, merely by reason of the fact that the Government cannot issue a declaration to a portion only of the land belonging to a single owner applying the urgency provisions. Even assuming for a moment that the declaration in respect of S. No. 4 id bad, still we cannot say that the Section 4(1) notification in respect of S. Nos. 2/1 and 3/1 is invalid, for the Government have issued two distinct and separate notifications, one in respect of S. Nos. 2/1 and 3/1 and another in respect of S. No. 4, as the land is capable of severance from each other, on account of the nature of the land. In S. Nos. 2/1 and 3/1, there are old and dilapidated buildings. But S. No. 4 is a vacant land without any structures. In this connection, it is useful to refer to the observations of the Mysore High Court in Kashappa v. Chief Secretary, Mysore Government, AIR 1963 Mys 318. In that case, in a proceeding for acquisition of lands for development of agricultural produce market yard, a composite notification under Ss. 4 and 17(4) had been issued in respect of all lands, and it was subsequently discovered that a particular land bearing a distinct survey number was not a waste or arable land and therefore no direction could be given in respect of that land. The learned Judges observed at page 323 as follows:

'I can imagine no reason why we should take the view that a direction which was perfectly within the competence of the Government in respect of the other lands should be struck down notwithstanding that direction being fully within the competence of the Government. If power such as what is conferred by S. 17(4) is exercised by the Government in respect of more than one land belonging to more than one individual and if it is discovered that that power could not have been exercised with respect to one of those lands, there would be small reason for thinking, if that part of the Notification which is invalid can be severed from the other parts of it which are above reproach, we should not only strike down the invalid portion of the direction but also what is perfectly valid. That is, what, in my opinion, we should say even if the lands in respect of which the direction is issued belonged to the same individual'. Applying the above mentioned principle, we can certainly say that the notification under S. 4(1) regarding S. Nos. 2/1 and 3/1 are concerned is a perfectly valid one. Therefore the contention of learned counsel for the appellants that the entire notification should be struck down is not tenable.

(12) Learned counsel for the appellants finally argued that there should be a fresh notification in respect of these lands, as the urgency as contemplated in the Act had ceased, in view of the fact that the Government took possession of the land only in 1963. Even here, the appellants fail, for the delay was not due to the land acquisition officers taking possession of the lands but was due to the proceedings enunciated by the appellants themselves thereby preventing the officers from taking possession of the lands. They could at the most contend that the Court should declare that the provisions under S. 17(4) would not apply to S. No. 4 and that they should be given an opportunity to file their objections, if any, under S. 5-A of the Act. But, since we have declared that the notifications under S. 4(1)and the application of the urgency provision under S. 17(4) thereby dispensing with the requirements of S. 5-A of the Act are all perfectly valid, the appellants cannot succeed in getting a fresh declaration even to this limited extent.

(13) In the result the writ appeals fail and they are dismissed with costs of one set respondents 1 and 2 Advocate's fee fixed Rs. 150.

(14) C.M.P. 14028 and 14024 of 1965:-In these petitions, the Madras State Housing Board pray that they may be impleaded as a party respondent in the appeals. These petitions are allowed.

(15) Appeals dismissed.


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