ISHWARLAL GIRDHARLAL JOSHI Vs. STATE OF GUJARAT
LAWS(GJH)-1966-12-6
HIGH COURT OF GUJARAT
Decided on December 13,1966

ISHWARLAL GIRDHARLAL JOSHI Appellant
VERSUS
STATE Respondents

JUDGEMENT

P.N.BHAGWATI, N.G.SHELAT - (1.) These petitions challenge the validity of acquisitions made by the Government of Gujarat for the construction of Gandhinagar the new capital of Gujarat. The facts giving rise to the petitions are identical barring only the difference in the survey numbers of the lands sought to be acquired and the dates of the notifications issued under secs. 4 and 6 of the Land Acquisition Act 1894 acquiring such lands and it will therefore be sufficient to state the facts of Petition No. 1003 of 1965 which has been heard as the main petition and in which the arguments have been principally advanced. The petitioner in this petition owned at all material times several lands bearing different Survey numbers situate in village Pethapur Taluka Gandhinagar District Gandhinagar. By a notification dated 10th March 1965 issued under sec. 4 of the Act the Government notified that the said lands were likely to be needed for the public purpose namely construction of proposed Gandhinagar the capital of the Gujarat State and after reciting that the Government was satisfied that the said lands were arable lands the notification proceeded to state : The Government of Gujarat is further pleased to direct under sub-sec. (4) of sec. 17 of the said Act that as the acquisition of the said lands is urgently necessary the provisions of sec. 5A of the said Act shall not apply in respect of the lands. In view of this direction of the Government under sec. 17 sub sec. (4) no inquiry was held under sec. 5A. The Government thereafter issued a notification dated 31st July 1965 under sec.6declaring that the said lands were needed for the public purpose namely construction of proposed Gandhinagar the capital of the Gujarat State and this notification also contained a direction that : The Government of Gujarat is further pleased to direct under sub-sec. (1) of sec. 17 of the said Act that the Collector shall on the expiration of fifteen days from the publication of the notice relating to the said lands under sub-sec. (1) of sec. 9 of the said Act take possession of all arable lands specified in the Government Notification aforementioned. The notice under sec. 9 sub-sec. (1) was then issued on some date in August 1965 and on the issue of the notice the petitioner preferred Petition No. 1003 of 1965 challenging the validity of the notifications under secs. 4 and 6 on various grounds. The petitioners in other petitions also similarly preferred their petitions challenging the validity of the respective notifications issued in respect of their lands on the self same grounds. The grounds on which the validity of the notifications under secs. 4 and 6 was challenged were principally five and they were : (1) Sec. 17 sub-secs. (1) and (4) were violative of Articles 14 and 19(1)(f) of the Constitution and the directions issued by the Government under sec. 17 sub-secs. (1) and (4) were therefore without authority and void; (2) The lands sought to be acquired being admittedly cultivated lands could not possibly be regarded as arable lands within the meaning of that expression as used insect. 17 sub-sec. (1) and the opinion formed by the Government that the said lands were arable lands was therefore based on a mis-interpretation of the true meaning of the expression arable land and was consequently no opinion at all so as to warrant the issue of direction under sec. 17 sub-sec. (4) and the direction issued by the Government under sec. 17 sub-sec. (4) was therefore invalid. Since the said lands were not arable lands the direction issued by the Government under sec. 17 sub-sec. (1) was also void. (3) There was no formation of opinion by the Government as regards urgency and in any event even If an opinion was formed by the Government it was arbitrary and based on no grounds or on extraneous grounds and directions given by the Government under sec. 17 sub-secs. (1) and (4) were therefore invalid. (4) The purpose for which the lands were sought to be acquired was vague and was in any event not a public purpose within the contemplation of Article 31 of the Constitution and sec. 6 of the Land Acquisition Act 1894 (5) L.P. Raval who signed the impugned notifications under sec. 6 was not duty authorized to do so under the Land Acquisition Act 1894 and the impugned notifications under sec. 6 were therefore invalid and of no effect. Of these grounds grounds (1) to (3) were directed inter alia against the validity of the direction issued by the Government under sec. 17 sub-sec.(4) and it was contended that; the invalidity of this direction vitiated the impugned notifications under both sections namely 4 and 6. Now it is no doubt true that if the direction under sec. 17 sub-sec. (4) is invalid on any of (1) to (3) the impugned notifications under sec. 6 would be bad as having been issued without complying with the requirements of sec. 5A but we do not think the impugned notifications under sec. 4 would be vitiated in their entirety. It is now well-settled by two decisions of this Court one an unreported decision of Desai S.T. C.J. as he then was and Bakshi J. in The Irish Presbyterian Mission Trust Association Anand v. The State of Gujarat and others S.C. A. 247 of 1960 decided on 31st October 1960 and the other a reported decision of Shelat C.J. as he then was and Mehta J. in Hiralal v. State (1964) 5 G L. R. 924 that if a direction given by the Government under sec. 17 sub-sec. (4) is invalid the direction alone would be liable to be struck down and not the whole notification under sec. 4 since the direction can be easily severed without affecting the rest of the notification under sec. 4. With these preliminary remarks we will now proceed to examine the aforesaid grounds in the order in which we have set them out.
(2.) In order to appreciate the arguments which have been urged before us relating to these grounds it is necessary to refer briefly to some of the relevant provisions to the Land Acquisition Act 1894 The Act as its long title and preamble show has been enacted to amend the law for the acquisition of land for public purposes and for Companies. Sec. 3 defines various terms used in the Act and clause (aa) which was introduced in sec. 3 by Bombay Act 27 of 1950 gives an inclusive definition of arable land by saying that arable land includes garden land. Sec. 4 provides that whenever it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette. Sec. 5A which was introduced in the Act by Central Act 38 of 1923 then declares : (1) 5A. Any person interested in any land which has been notified under sec. 4. sub-sec. (1) as being needed or likely to be needed for a public purpose or for a company may within thirty days after the issue of the notification object to the acquisition of the land or of any land in the locality as the case may be. (2) Every objection under sub-sec. (1) shall be made to the Collector in writing and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall after hearing all objections and after making such further inquiry if any as he thinks necessary submit the case for the decision of the appropriate Government together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the appropriate Government on the objections shall be final. ... ... ... ... ... This is the general rule but sec. 17 sub-sec. (4) authorizes a departure from that rule and empowers the Government to dispense with the inquiry under sec. 5A. Sac. 17 sub-sec. (4) runs in the following terms : 6 In the case of any land to which in the opinion of the appropriate Government the provisions of sub-sec. (1) or sub-sec. (2) are applicable the appropriate Government may direct that the provisions of sec. 5A shall not apply and if it does so direct a declaration may be made under sec. 6 in respect of the land at any time after the publication of the notification under sec. 4 sub-sec. (1). There is a reference in this provision to sec. 17 sub-sec. (1) and (2) and we must therefore see what those sub-sections say. But before we do so it would be appropriate to refer to sec. 6. Omitting portions immaterial that section says : 5 (1) Subject to the provisions of Part VII of this Act when the appropriate Government is satisfied after considering the report if any made under sec. 5A sub-sec. (2) that any particular land is needed for a public purpose or for a company a declaration shall be made to that effect under the signature of Secretary to such Government or of some officer duly authorized to certify its orders. ...... ........ ........ ......... After the issue of the notification under sec. 6 the Collector is required to take order for the acquisition of the land and amongst other things the Collector has to give notice under sec. 9 sub-sec. (1) inviting claims to compensation for all interests in the land and hold an inquiry into the objections if any which any person interested may lodge pursuant to the notice under sec. 9 sub-sec. (1) and make an award determining the amount of compensation which in his opinion should be allowed for the land and the apportionment of the amount of compensation amongst all persons known or believed to be interested in the land. It is only after the Collector has made an award that he can take possession of the land and on his taking possession the land vests absolutely in the Government free from all encumbrances under sec. 16. There is a departure made in respect of this provision too and that departure is to be found in sec. 17 sub-secs. (1) and (2) which run as follows : (1). In cases of urgency whenever the appropriate 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 sec. 9 sub-sec. (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 Government free from all encumbrances. (2). Whenever owing to any sudden change in the channel of any navigable river or other unforeseen emergency it become necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or that station or of providing convenient connection with or access to any such station the Collector may immediately after the publication of the notice mentioned in sub-sec. (1) and with the previous sanction of the appropriate Government enter upon and take possession of such land which shall thereupon vest absolutely in the Government free from all encumbrances. In cases falling within sec. 17 sub-sec. (1) the Collector can take possession of the land on the expiration of fifteen days from the publication of the notice under sec. 9 sub-sec. (1) though no award has been made by him and in cases falling within sec. 17 sub-sec. (2) the Collector need not even wait for the expiration of fifteen days from the publication of the notice under sec. 9 sub-sec. (1) and he can proceed to take possession immediately after the publication of such notice. Sec. 17 sub-sec. (3) provides for compensation to the persons interested in the land for the standing crops and trees (if any) on the land and the provisions it enacts is : (3). In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees (if any) on such land and for any of her damage sustained by them caused by such sudden dispossession and not excepted in sec 24; and in ease such offer is not accepted the value of such crops and trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained. These are the relevant provisions of the Act which have to be borne in mind in dealing with the various arguments advanced on behalf of the parties.
(3.) Now it is clear on a plain reading of sec. 17 sub-sec. (4) that the issue of a direction under that sub-section that the provisions of sec. 5 shall not apply in respect of any land is dependent on the subjective satisfaction of the Government that the land is one to which the provisions of sec. 17 sub-sec. (1) are applicable. The provisions of sec. 17 sub sec. (1) would apply to a land if two conditions are fulfilled namely that there is urgency and that the land is waste or arable land. The opinion which the Government has to form under sec. 17 sub-sec. (4) therefore relates both to urgency as well as to the nature and condition of the land. The Government has to be satisfied in respect of two objective facts one that there is urgency and the other that the land is waste or arable land and the subjective satisfaction of the Government in respect of these two objective facts is a condition precedent to the exercise of the power to give direction under sec. 17 sub-sec. (4). Sec. 17 sub-sec. (1) also like sec. 17 sub-sec. (4) makes the issue of direction under that sub-section dependent on the subjective satisfaction of the Government as regards urgency-this was common ground between the parties-but there is one important difference between the two sub-sections and it is that unlike sec. 17 sub-sec. (4) sec. 17 sub-sec. (1) does not leave the determination of the objective fact whether the land is waste or arable land to the subjective determination of the Government nor makes the exercise of the power to issue direction dependent on the opinion of the Government that the land is waste or arable land. The power to give direction under sec. 17 sub-sec. (1) can be exercised only in relation to waste or arable land is thereFore a condition precedent to the exercise of the power to give direction under that sub-section and not the subjective satisfaction of the Government in respect of such objective fact.;


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