JAGANNATH PRASAD Vs. STATE OF MADHYA PRADESH
LAWS(MPH)-1967-12-2
HIGH COURT OF MADHYA PRADESH
Decided on December 04,1967

JAGANNATH PRASAD Appellant
VERSUS
STATE OF MADHYA PRADESH Respondents

JUDGEMENT

DIXIT C. J. - (1.) BY this application under Article 226 of the Constitution the petitioners, who claim to be the owners of a piece of land situated within the limits of the Gwalior Municipal Corporation, seek a writ of certiorari for quashing a notification issued by the Government on 6th November 1965 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and published in the Gazette dated 19th November 1965 with regard to the acquisition of the land belonging to the applicants for the purpose of constructing a dispensary. The notification also directed that section 5-A of the Act shall not apply in respect of the said land as in the opinion of the Government section 17 (1) of the Act applied to the land. This notification was followed by another notification under section 6 of the Act published in the Gazette dated 8th April 1966. The notification under section 6 directed the Collector under section 17 (1) of the Act to take possession of the land on the expiration of 15 days from the publication of the notice mentioned in section 9 (1). A writ of certiorari has been sought also for quashing the notification issued under section 6.
(2.) THE only ground which Shri A. R. Choube, learned counsel appearing for the petitioners, urged before us was that the land in the present case was neither waste land nor arable land and consequently the provisions of subsection (1) and sub-section (4) of section 17 could not be invoked in respect of the land and the Government had no power to direct that section 5-A of the Act shall not apply and that possession of the land shall be taken on the expiration of 15 days from the publication of the notice under section 9 (1). Learned counsel contended that the direction of the Government about the inapplicability of section 5-A of the Act deprived the applicants of their valuable right of objecting to the acquisition of the land, of being heard in the enquiry under section 5-A and of satisfying the acquiring authority that the proposed acquisition of the land was not justified or legal. In the return filed on behalf of the respondent-State it is not disputed that the land in question belonged to the petitioners and that it is situated within the limits of the Gwalior Municipal Corporation. It has, however, been averred that the land was a waste land on the date of the issue of the notification under section 4 of the Act. It has also been stated that on the publication of the notification under section 4- "..it was open to the parsons interested in the laud to raise such objections under section 5 (A) of the Act as they might have deemed proper. The mention of the opinion of the Government that section 17 of the Act applies to these lands, even if erroneous, did not preclude the owners of the land from filing objections against the alleged expression of opinion as also on the merits of the case. The persons interested in the land filed no objections under section 5 (A) of the Act within the prescribed period of one month, they or their successors in interest can have no grievance now." Having heard learned counsel for the parties we have reached the conclusion that this application must be granted. Sub-sections (1) and (4) of section 17 of the Act are as follows:- 17. Special powers in cages of urgency- "(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 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 Government, free from all encumbrances. * * * (4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (1) or sub-section (2) are applicable, the appropriate 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 notification under section 4, sub-section (1)". It will be seen that section 17 (4) applies only in the case of the land to which the provisions of section 17 (1) or section 17 (2) are applicable. We are not concerned with section 17 (2) which deals with acquisition of land for Railway Administration. The relevant provision is section 17 (1). For the applicability of section 17 (1), two conditions must be fulfilled. First, the acquisition of the land must be urgently necessary; and, secondly, the land must be waste or arable land. It is only when these two conditions are satisfied that it is competent for the acquiring authority to direct under section 17 (4) that the provisions of section 5-A shall not apply to the proposed acquisition of the land.
(3.) THE question of the existence of urgency is undoubtedly a matter for the subjective determination of the Government. It is not a justiciable matter. But the question whether the land is waste or arable is an objective fact and under section 17 (4), the Government is required to form an opinion in regard to this objective fact before exercising its power under that provision of issuing a direction with regard to the inapplicability of section 5-A. It is true that, as pointed out by the Supreme Court in Raja Anand v. State of U. P., AIR 1967 SC1081, the opinion of the State Government which is a condition for the exercise of the power under section 17 (4) is subjective and the Court cannot normally enquire whether there were sufficient grounds or justification of the opinion formed by the Government under section 17 (4). But as further emphasized by the Supreme Court in that case- "..even though the power of the State Government has been formulated under section 17 (4) of the Act in subjective terms the expression of opinion of the State Government can be challenged as ultra vires in a Court of law if it could be shown that the State Government never applied its mind to the matter or that the action of the State Government is mala fide. If, therefore, in a case the land under acquisition is not actually waste or arable land but the State Government has formed the opinion that the provisions of sub-section (1) of section 17 are applicable, the Court may legitimately draw an inference that the State Government did not honestly form that opinion or that in forming that opinion the State Government did not apply its mind to the relevant facts bearing on the question at issue." The meaning of the expressions "waste land" and "arable land" has been expounded by the Supreme Court in Raja Anand v. State of V. P. (1) and Ishwarlal v. State of Gujarat, AIR 1968 SC 870. According to the decision in Raja Anand's case (1), 'arable land' is "land" which is mainly used for ploughing and for raising crops; 'waste land' means "land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon." In the case of Ishwarlal v. Slate of Gujarat (2) it has been held that "by arable land is meant not only land capable of cultivation but also actually cultivated". In the case of Raja Anand (1) it has also been held that the question of determination of character of land is a preliminary finding of fact on which depends the jurisdiction of the State Government to act under section 17 (1) and section 17 (4) of the Act and, therefore, the High Court is entitled in a proceeding of writ of certiorari to determine whether or not the finding of the State Government is correct. The pertinent observations in the case of Raja Anand (1) are:- "..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 that finding of fact is correct." ;


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