K.C.Agrawal, J. - (1.) BY this petition under Article 226 of the Constitution the petitioners have challenged the validity of the notifications issued under Ss. 4 (1) and 6 of the Land Acquisition Act (briefly stated as the Act), dated 30th October, 1975, and 29th October, 1975, respectively. The petitioners claim themselves to be the bhumidhars of the land in dispute situate in village Kukuda, district Muzaffarnagar. A notification under S. 4 of the Act dated 14th March, 1975 was published by the State Government notifying a number of plots which were likely to be required for public purpose namely, for the construction of market, yard for Krishi Utpadan Mandi Samiti, Muzaffarnagar (hereinafter referred to as the Mandi Samiti). The petitioners filed a writ petition in this court on 10th July, 1975, challenging the validity of the said notification issued under S. 4 of the Act. The petition was admitted, and the respondents were restrained from dispossessing the petitioners from the land forming subject matter of the acquisition proceedings. During the pendency of the above writ petition, the State Government issued another notification on 5th August, 1975, cancelling the notification dated 14th March, 1975. The writ petition filed challenging the notification dated 14th March, 1975, was thereafter dismissed on the ground that it had become infructuous. Subsequently, the State Government issued another notification under S. 4 (1) of the Act on 30th October, 1975. The Governor, being of the opinion that the case was one of urgency and, as such, the provisions of Sub-sec. (1) of S. 17 of the Act were applicable to the land, was further pleased to direct under Sub-sec. (4) of S. 17 of the Act that the provisions of S. 5-A would not apply to the acquisition of the land in dispute. In this notification, the purpose disclosed for acquisition was the construction of market yard for Krishi Utpadan Mandi Samiti, Muzaffarnagar. This was followed by a notification under S. 6 of the Act. The petitioners have filed the present writ petition challenging these notifications under Ss. 4 and 6 of the Act.
(2.) THE first ground urged in support of the writ petition by the petitioners was that a substantial portion of the land was covered by constructions and, therefore, the State Government did not have power to dispense with the mandatory provisions of S. 5-A of the Act inasmuch as under Sub-sec. (4) of S. 17, the power of dispensing with S. 5-A could be applied only with respect to waste and arable land and not with respect to the land over which constructions were standing on the date of the notification issued under S. 4 (1) of the Act. THE petitioners gave the details of the various constructions which according to them were standing on the land in dispute on the aforesaid date. In the counter affidavits filed on behalf of the Collector, Muzaffarnagar, as well as the Mandi Samiti, the fact that the constructions were standing on the land in dispute has been denied. THE aforesaid respondents in their separate affidavits asserted that there were no constructions on the land on the date on which the notification under S. 4 (1) of the Act had been issued. The view which we are going to take in the instant case does not require us to give any concluded finding on the question whether any constructions were standing on the land or not. Had it been necessary for us to do so, we would have declined to go into this disputed question of fact as this court has said that it is not proper and appropriate for the High Court to enter into disputed questions of facts in the proceedings under Art. 226 of the Constitution. But, the controversy can be resolved on the legal aspect of this question which we will presently deal. We may, very briefly, refer to the scheme of the Land Acquisition Act, which provides machinery for compulsory acquisition of land, amongst others, for public purposes. Under S. 4 (1) of the Act, the appropriate Government, if it appears to that government that land in any locality is needed or is likely to be needed for any public purpose, may publish a notification to that effect in the official gazette. On the issue of such a notification, it is open to an officer authorised to enter upon and survey and take possession of any land in such locality. By S. 5-A opportunity is provided to any person interested in any land in respect of which the notification under S. 4 (1) has been issued to raise objections either to the acquisition of the land or of any land in the locality, as the case may be. On such an objection being raised, the Collector is required to give an opportunity of hearing to the party concerned and, thereafter, to submit the case for decision of the appropriate Government, together with his recommendations on the objections, and if the appropriate government is satisfied after considering the report, if any, made under Sub-sec. (2) of S. 5-A of the Act that any particular land is needed for a public purpose, a declaration under S. 6 may be made to that effect by the Government. Sub-s. (3) of S. 6 of the Act makes the declaration issued by the Government as conclusive evidence that the land is needed for a public purpose. The next relevant section with which we are concerned is S. 17. It confers special powers exercisable in cases of urgency. Under this section, in cases of urgency, when 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 S. 9 (1), take possession of any waste or arable land needed for public purposes. Sub-s. (4) of S. 17 lays down that in the case of any land to which the provisions of Sub-s. (1) or (2) were applicable, the appropriate Government may direct that the provisions of S. 5-A shall not apply.
(3.) THIS would show that S. 17 confers special power on the appropriate Government to be exercised in appropriate cases of urgency. Under Sub-secs. (1) and (2), the State Government is empowered to take possession of land notified for acquisition even though an award is not made. THIS power, however, could be exercised only in respect of waste and arable land. By Sub-sec. (4) power has been conferred upon the appropriate Government to direct that the provisions of S. 5-A relating to the filing of the objection would not be applicable. As these powers could under the Act be exercised, only in respect of lands described in Sub-secs. (1) and (2), by Sub-s. (1-A), added by U. P. Amendment Act XXII of 1954, power was conferred on the appropriate Government to take possession under Sub-sec. (1) even in respect of lands other than waste and arable. It, however, appears that even under the amended provision, the State Government was not authorised to use the power conferred by Sub-sec. (4) to a case falling under Sub-sec. (1-A). Accordingly, the provisions of S. 5-A had to be complied with in all the cases of urgency. Reference may be made to a ease of the Supreme Court reported in Sarju Prasad Saha v. State of U. P. 1966 All LJ 1 : (AIR 1965 SC 1763) where the Supreme Court held that by the Land Acquisition Act No. XXII of 1954, the State legislature did not provide that the provisions of S. 5-A could be dispensed with in cases of lands other than waste and arable. It, however, appears that subsequently by U. P. Act No. VIII of 1974, the Legislature amended S. 17 (4) of the Land Acquisition Act and made a provision to that effect. After amendment, S. 17 (4) reads as under (at pages 1765, 1766 of AIR): "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 S. 5-A shall not apply, and, if it does so direct, a declaration may be made under S. 6 in respect of the land at any time after the publication of the notification under S. 4, Sub-sec. (1)." By the aforesaid amendment, it is now clear that the power of dispensation of S. 5-A can be exercised with respect to the land other than waste and arable as well. Accordingly, the submission of the learned counsel for the petitioners that Sub-s. (5-A) could not be dispensed with in the present case as the land was not waste and arable, cannot be accept-ed. As already stated, the effect of the amendment made by U. P. Act. No. VIII of 1974 was that the proceedings contemplated by S. 5-A can be dispensed with also in respect of land other than waste and arable. This view of ours is amply supported by the decision of our court reported in Somdutt v. State of U. P. ((1976) 2 All LR 529: (AIR 1977 NOC 10)) and Ram Surat v. State of U. P. (AIR 1976 All 166). In view of the above, it is not necessary for us now to go into the controversy whether the constructions belonging to the petitioners were standing on the land in dispute or not. As a matter of fact, this writ petition was mainly filed on the ground that the power of Sub-sec. (4) of S. 17 could not be exercised in respect of lands other than waste and arable, presumably due to the ignorance that the said provision had been amended by U. P. Act. No. XXII of 1974.;