Decided on May 18,1965

Allahabad Glass Works (P) Ltd. Appellant
The Collector and Ors. Respondents


M.C. Desai, C.J. - (1.)THE following two questions have been referred by our brother; Jagdish Sahai and G.C. Mathur to a Full Bench:
1. Whether in view of the declaration that the Governor was of the opinion that the provisions of Section 17(1) were applicable to the land, it is open to the Court to go into the question whether the land is 'arable land' or not?

(2.)WHETHER land, which was lying in an industrial area but was used for cultivation and has been purchased for setting up of a factory and has now beer, enclosed by a high boundary wall and included in the factory compound but on which at present crops are being sown temporarily during the transitory period, is comprehended by the expression 'arable or waste land' as used in Section 17(1) of the Land Acquisition Act?
They arise in a special appeal pending before our learned brothers. The Appellant carries on the business of manufacture of glass and glassware in Naini within the limits of the Municipal Corporation of Allahabad; its factory has been in existence for a long time. It has been constructed on land measuring about 28 bighas but 10 or 12 years ago it decided to extend its manufacturing capacity and purchased 24 bighas adjacent land about 8 years ago. It included this area of 24 bighas in the factory compound by constructing a boundary wall enclosing the entire area of 52 bighas. Some working sheds have been erected on this area of 24 bighas. A portion of the area was previously under cultivation and continues to be cultivated and crops are being raised. The U.P. Financial Corporation has sanctioned a loan of Rs. 1,60,000/ - to the Appellant on security of he entire land and buildings owned by (sic). In January 1961, the Govt. of India granted it a license for the manufacture of Kitchenware, Laboratory, Scientific 'lass -ware and neutral glass tubes etc. New furnaces, working sheds and other buildings, residential quarters for the staff and godowns are intended to be constructed on the newly acquired land and the Appellant's case is that when they ire constructed no land will be left vacant.

2. On 30 -8 -1961, the U.P. Govt. published a notification Under Section 4(1) of the and Acquisition Act to the effect that and measuring 43 bighas and odd in village Chaka, measuring 1/2 biswa in Chak Ataullah and measuring nearly 13 biswas in Chak Raghunath was needed or a public purpose namely for construction of foodgrain storage godown and ancillary buildings by the Govt. of India. The notification also contained he direction, that the provisions of Section 5A of the Act shall not apply, made by the Governor Under Section 17(4) because he was of pinion that the provisions of Section 17(1) are applicable to the land. On the same date another notification was issued by the State Govt. containing a declaration referred to in Section 6 to the effect that le Governor was satisfied that the land mentioned in the schedule attached to the notification was needed for a public purpose and a direction by him under section to the Collector of Allahabad to take order for the acquisition of the said land and another direction Under Section 17(1) to the collector that as the case was one of regency he should take possession of the (sic) on the expiry of fifteen days from le publication of the notice mentioned Section 9(1), even though no award Under Section 1 has been made. The land mentioned the schedule is the same land mentioned in the notification issued Under Section 4 and the purpose for acquisition also is the same. Both these notifications were published in the Gazette on the same date. The Collector of Allahabad issued a notice Under Section 9(1) some time in April 1962 and after the expiry of fifteen days from its publication directed the Tahsildar to take possession of the land. So the Appellant filed a petition on 25 -5 -1962 for certiorari to quash the proceedings for acquisition of the Appellant land in pursuance of the notifications, mandamus requiring the Collector, the Govt. of U.P. etc. to forbear from interfering with the Appellant's possession and property rights in the land enclosed within the boundary wall and injunction staying proceedings for dispossession of the Appellant from the land.

The grounds given in support of the petition are, among others, that the land in respect of which the direction Under Section 17(1) and the declaration Under Section 17(4) is issued is not waste or arable land. The petition was contested by the opposite parties and one of the defences taken by them was that the opinion of the Governor that the provisions of Section 17(1) were applicable to the land was binding upon the court and that it was not competent to enter into the question whether the land was waste or arable.

(3.)THE Govt.'s power Under Section 17(1), is subject to three conditions or restrictions, one is that it is a case of urgency, second is that the direction is to take possession after the expiry of 15 days from the publication of a notice Under Section 9(1) and the third is that it can be given only in respect of waste or arable land. It is not open to the Govt. to give the direction contrary to any of these conditions or restrictions; for instance it cannot direct the Collector to take possession of the land that is not waste or arable. It is to be noted that the power is conditional upon the land being waste or arable, i.e. upon the nature of the land and not upon its forming an opinion, or its being satisfied, that it is waste or arable. It depends upon the actual or real nature of the land and not upon what it thinks it to be. It follows that its opinion or decision as to its nature may justify, for the time being, the direction given by it but is not conclusive. It has not the power to change the nature of the land; if it is not waste or arable it cannot convert it into waste or arable. What is the nature of the land is an objective and not subjective question; therefore, the Govt.'s opinion or decision that it is waste or arable is subject to scrutiny by a court. It is not a decision made by it in the course of, or after assuming, jurisdiction and therefore, it cannot be contended that a court having no appellate authority over it cannot interfere with its decision. It is a decision to be made for the purpose of assuming the jurisdiction of issuing a direction and therefore that the land is waste or arable is a finding in respect of a jurisdictional fact. A finding in respect of a jurisdictional fact, it is well settled, does not bind a court for the simple reason that an authority cannot confer jurisdiction upon itself simply by giving a wrong finding. The land must be waste or arable in order that the Govt. has the jurisdiction to issue a direction; if it is not waste or arable it cannot, by wrongly calling it waste or arable, clutch the jurisdiction.

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