- (1.) THIS is an application under Art. 226 of the Constitution of India by thakur Bhim Singh, jagirdar of Sanderao. It has been opposed by the State of Rajasthan.
(2.) THE case of the petitioner if this. He says that he is jagirdar of thikana Sanderao, and as such is owner of two pieces of land, According to him chahdarya for is a preserved grass farm, while valwala arath is arable land in the personal cultivation of the applicant. It seems that the State of Rajasthan is constructing certain canals which, we are given to understand, are to come out of the Jawai Bund. Two of the distributories in relation to this canal system are expected to pass through these two pieces of land. THE present application was field on the 10th March, 1954, and the applicant contended that the necessary steps required under the law of Land Acquisition had not been taken; under these circumstance, the take possession of any portion of the land from this grassfarm, or this arath. Consequently the applicant prayed for the issue of an appropriate writ, direction or order to the State under Art. 226 of the Constitution. Later, another application was made on the 29th of June, 1954, and though it was merely an application for stay, it really changed the case but forward on behalf of the applicant, and almost amounted to an application for amendant. The case, as it now appears after this amendment application, is that though the provisions of the Rajasthan Land Acquisition Act (No. XXIV) of 1953 (hereinafter called the Act) have been complied with and notification under sec. 4 and declaration under sec. 6 have been issued, the State had no authority to take possession of the lands because proceeding under secs. 5 and 5a of the Act were not taken. It is also urged that neither arable land nor waste land, and sec. 17 of the Act, on which the state relies, does not apply to it. The State in reply urged that the provisions of the Act have been complied with, and it was not necessary to take proceedings under secs. 5 and 5a of the Act in view of the powers conferred on the State Government by sec. 17 (4) of the Act. By virtue of these powers, the State Government took action under sec. 17 (1) of the Act, and possession was taken of the lands after necessary notice had been issued. As to the grass-farm, namely chandarya for; the contention on behalf of the State is that it must be held to be either arable land or waste land, and sec 17 (1) applies to it in any view of the matter. | We shall now proceed to dispose of the two grounds which have been urged before us by learned counsel for the applicant on the basis of the case put forward in the application of the 29th of June, 1954. So far as valawala arath is concerned, it is common ground between the parties that it is arable land. It appears that the notification under sec. 4 of the Act was issued on the 6th of March, 1954, four days before the present application was made in this Court on the 10th March, 1954. It seems that the applicant had no knowledge of this notification. Thereafter the declaration under sec. 6 was issued on the 8th May, 1954, and the notice under sec 9 on the 2nd of June, 1954. The State Government also directed the Collector under sec. 17 (1) to take possession of this land as the case was one of urgency. The procedure prescribed by the Act for acquisition of land may be briefly summarised in order to see whether the State complied with this procedure in connection with this land. A preliminary notification has to be issued under sec. 4 whenever it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose. After this preliminary notification under sec. 4, it becomes lawful for any officer of the Government, generally or specially authorised, to take certain measures like surveying of the land proposed to be acquired. Thereafter, a report is submitted by the Collector to the Government, and after reading this report, the Government publishes a further notification giving sufficient description of the land already notified to enable it to be identified, and stating the purpose for which it is likely to be needed. On this notification, any person interested in the land is authorised under sec. 5-A to object to the acquisition of the land before the Collector. The Collector gives an opportunity to the objector of being heard, and thereafter makes final recommendation to the Government for acquisition of the land. The decision of the Government upon the objection is final. Then follows a declaration under sec. 6 that the land is required for a public purpose. After this declaration has been made, the Collector under sec. 7 takes order for the acquisition of the land. During this stage the Collector causes under sec. 9 public notice to be given at convenient places on or near the land to be taken stating that the Government intends to take possession of the land, and that claims to compensation for all interests in such land may made to him. Thereafter, follow proceedings for compensation which are not necessary to be set out for our present purpose. It is not in dispute that the preliminary notification under sec. 4 and the declaration under sec. 6 have been issued in this case, and the collector has given notice under sec 9. What is urged on behalf of the applicant is that the proceedings under sec. 5 and 5-A were not taken, and therefore the declaration under sec. 6 and the notice under sec. 9 are of on avail. The reply of the State to this is that under sec. 17 (4) of the Act, the Government has power in case of any land, to which the provisions of sub-sec. (1) of sec. 17 apply, to direct that the provisions of secs. 5 and 5-A shall not apply. 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. It is clear therefore that where the Government is of opinion that the case is one of urgency, and the land to be acquired is waste or arable land, Government may direct that the provisions of secs. 5 and 5-A shall not apply, and thus dispense with proceedings under these sections and make a declaration straight off under sec. 6 after the preliminary notification under sec. 4. It is contended on behalf of the State that this is exactly what the State has done in this case, and therefore the absence of proceedings under sec. 5 and 5-A do not affect the declaration under sec. 6, and the notice under sec. 9 issued in this particular case. In the affidavit filed on behalf of the State on the 24th of July 1954, in reply to the affidavit dated 29th of June, 1954, after stating that the Government have the power to direct in case of emergency that the provisions of secs. 5 and 5-A shall not apply, it is said that in the present case in the exercise of that power the Government issued declarations under sec. 6 immediately. This, in our opinion, is a complete answer to the point raised on behalf of the applicant that the declaration under sec. 6 and the notice under sec. 9 of the Act are of no avail in this case, because proceedings under secs. 5 and 5-A were not taken. All that appears is that there was a slight irregularity in taking over possession because under sec. 17 (1), the Collector can take possession 15 days after the publication of the notice under sec. 9. Somehow it was thought that this period of 15 days was to count from the declaration under sec. 6. However, as more than 15 days have elapsed, in any case, now since the notice under sec. 9, the State could take over possession by today, and we need not therefore interfere on account of this slight irregularity. So far as chandarya jor (the grass-farm) is concerned,the facts are that the notification under sec. 4 was issued on the 1st of June, 1954, the declaration under sec. 6 on the 12th June 1954, and the notice under sec. 9 on the 18th June, 1954. Possession was taken by the Collector on the 27th June, 1954. and the same slight irregularity is apparent here also. The contention of the application so far as the procedure under secs. 5 and 5-A are concerned is met by the same reply which we have considered in connection with valawala arath, and we need not repeat what we have said there. But a further point is raised by the applicant in connection with this grass-farm. It is contended that this grass-farm is neither a waste-land nor an arable land, and therefore sec. 17 (4) has no application to such land, and proceedings under secs. 5 and 5-A cannot be dispensed with in respect of this land. A perusal of sec. 17 (1) shows that that section applies only to taking possession of any waste or arable land needed for public purpose or for a Company, Sec. 17 (4) gives power to Government to direct that the provisions of secs. 5 and 5-A shall not apply in this case of any land to which the provisions of sub-sec. (1) to sec. 17 apply. Therefore, proceedings under secs, 5 and 5 A can only be dispensed with in respect of this grass-farm provided it comes within the definition of waste or arable land. Waste or arable land is not defined anywhere in the Act, and we have to go by the ordinary meaning attached to the term. This much however is clear from the use of these two words that the intention of the legislature under sec. 17 (I) is that emergency powers are only to be used in connection with land which is open land as distinguished from land covered by buildings or having valuable gardens containing permanent trees and so on. Now this particular grass-farm is certainly open land. It is not covered by any building, nor does it contain any garden having valuable trees of a permanent nature. The meaning of wasteland in the Oxford English Dictionary, Vol. XII, is 'land in its natural uncultivated state'. The question immediately arises whether this grass-farm can be called 'land in its natural uncultivated state'. It is not the applicant's case that the grass which grows on this filed has been planted by him. The grass appears to be of spontaneous growth, and what the applicant does is that after the rains are over,and the grass has become full-grown, he sees to it that it is preserved for his own use and not used up by the cattle of the surrounding villages. Therefore, as the grass which appears on this land, is self-grown, this land obviously satisfies the meaning of the word 'waste-land' given above, for the land is undoubtedly in its natural uncultivated state. Learned counsel for the applicant in this connection relied on Ranga Reddi vs. The State of Hyderabad (l) where it was held that a certain land on which guinea grass grew was neither waste-land, nor arable. It may be pointed out that in that case it was conceded on behalf of the State that it was not wasteland, that is to say land in its natural uncultivated state, perhaps because the particular grass that was grown there, namely guinea grass seems to have been imported from Africa and planted on that land. The question than arose whether that land would be arable land, and the learned Judges came to the conclusion that it could not be called arable land. The meaning of arable land in the Oxford English Dictionary, Vol. I, is "capable of being ploughed, fit for tillage, opposed to pasture or wood land". If, therefore, the land is fit for tillage and capable of being ploughed, it must be held to be arable land though it may not have been actually cultivated at any time. It is the nature and quality of the land which would make it arable and not the fact of actual cultivation. It seems to us that when the legislature authorised, in an emergency, the State to take possession of land which is actually under cultivation and on which even a valuable crop might be standing at the time the possession is being taken, it can hardly be the intention that lands on which mere grass grew would be excepted from the provisions of sec. 17 (1) This aspect of the matter does not appear to have been present before the minds of the learned Judges of the Hyderabad High Court. So long as the land is fit for cultivation, or capable or being ploughed, it would be arable land even though it might not have been actually cultivated at any time before. It is, however, difficult to say in the present case whether this land is actually fit for cultivation or not. All that we know is that self-grown grass is growing on it, and it has been preserved for that purpose. No records have been produced show what the quality of the land is. As is well-known, uncultivated land lying in a village may be of two kinds. It may be uncultivable waste namely open land which is not capable of cultivation at all, and in such a case it cannot be called arable. On the other hand, it may be open land which is capable of cultivation though not being actually cultivated. In this particular case, it is not possible to say, in the absence of any evidence, whether this land is of one kind or the other. However, it is not necessary for our purposes to go into the matter further, because on the meaning of the word 'wasteland', we are satisfied that this land can be called waste-land. In this view of the matter, sec. 17 (1) as well as sec. 17 (4) applies to this land, and it is not necessary to take proceedings under secs. 5 and 5-A, and the action taken by the State Government cannot be challenged by an application to this Court. Whatever rights the applicant might have, he must go to the Land Acquisition Court for redress. We, therefore, dismiss the application. But, in view of the fact that practically all the legal steps under the Act were taken after the application had been filed, we order parties to bear their own costs. .;