SAXENA, J. - (1.) - The petitioner has filed this writ petition for seeking relief in the nature of certiorari for quashing the notification dt. 25. 9. 80 issued u/s. 4 of the Rajasthan Land Acquisition Act, 1953, hereinafter referred to as 'the Act', notification dt. 11. 3. 81 (Annex. 1) issued simultaneoulsy u/s. 17 (4) and Sec. 6 and the notice dated 30. 6. 81 issued u/s. 9 (1) of the Act and to quash all the proceedings initiated against him in pursuance of the said notification and for issuance of writ of prohibition restraining the respondents from taking possession of his land.
(2.) THE petitioner alleges that he is the Khatedar and in cultivatory possession of agricultural land comprising of Kila Nos. 6/11,7 to 14, 15/11, 16/11, 17 and 24 and 25/11 total area eighteen bighas of square No. 49 (Old No. 36) situated in chak 1a Minor, Tehsil Sriganganagar. THE Dy. Secretary,local Self Govt. ,raj. , Jaipur issued a notification u/s. 4 (1) of the Act on 25. 9. 80, published in the Rajasthan Rajpatra, manifesting the intention of the State Govt. to acquire the aforementioned land of the petitioner alongwith other lands of so many other persons. THE petitioner claims that no notice was issued to him in respect of the said notification. However, a notice inviting objections u/s. 5 (A) of the Act was received by one Ramesh Kumar and it was through him that the petitioner knew that the objections were being invited from the persons interest in the land purported to be acquired by the State Govt. THE petitioner,therefore,filed his objections u/s. 5-A of the Act on 31. 12. 80 before the S. D. O.-cum-Land Acquisition Officer, Sri Ganganagar. Another notification (Annex. 1) u/s. 17 (4) of the Act came to be issued on 11. 3. 81 and the same was published in the Rajasthan Rajpatra on 14. 5. 81 i. e. more than after two months. THE said notification proclaimed that the land already notified in the notification issued u/s. 4 of the Act is required for the public purpose and in turn to be placed at the disposal of the municipality, Sri Ganganagar. By the said notification, the State Govt. by exercising powers u/s. 17 (4) further dispensed-with the enquiry u/s. 5-A of the Act. THE notification (Annex. l) also made a declaration u/s. 6 of the Act that the lands enumerated & referred to in the notification are necessary to be acquired for expansion of urbanisation. In pursuance of notification Annex. 1, a notice dt. 30. 6. 81 (Annex. 2) u/s. 9 (l) of the Act was also issued by the Land Acquisition Officer calling upon the affected and interested persons to file their claims for compensation by 23rd July,1981. THE petitioner alleges that the said notification Annex,2 was also not served upon him. THE petitioner challenges the notification dt. ll. 3. 81 (Annex. l) mainly on the ground that the State Govt. has not applied its mind nor formed its opinion u/s. 17 (1) of the Act, that it was a case of emergency and that the land enumerated in notification issued u/s. (4) of the Act is waste or arable land. On the other hand, notification Annex. l is conspicuously silent about the aforementioned basic ingredients. He asserts that the provisions of Sec. l7 (4) of the Act are subject to the provisions of sub sec. (1) of sec. 17 and in the notification Annex. 1 and that it has also not been mentioned that it has been issued by the State Govt. under the purported exercise of its powers u/s. 17 (1) of the Act. THE petitioner,therefore,maintains that the notification Annex. 1 is ultravires of the provisions of the Act and that the purpose for which the land is being acquired i. e. for expansion of the urbanisation, cannot be termed as an urgent or emergent purpose. THE petitioner reiterates that his land sought to be acquired is neither a waste land nor arable land; because the Collector, Sri Ganganagar has already converted one parcel of his land, situated just adjacent to the notified land to be acquired, for the purpose of construction of a cinema hall vide his order dated 16. 11. 78 (Annex. 3) and that in pursuance thereof, he has already constructed the skeleton of the cinema hall. THE petitioner maintains that the issuance of a composite notification issued u/s. l7 (4) dispensing-with the enquiry u/s. 5a and making declaration u/s. 6 of the Act is also bad in law. THE petitioner further reiterates that notification u/s. l7 (4) of the Act (Annex. 1)- was issued on 11. 3. 81,whereas it was published in the Rajasthan Rajpatra on 14. 5. 81 with a gap of more than two months and that this very fact shows that it was not at all a case of emergency and that the notifications dt. 25. 9. 80 and 11. 3. 81 are bad,invalid and illegal in as much as those have been issued in total violation of the principles of natural justice, in contravention of the provisions of the Act and also ultfavires of the articles 14,21 and 300 A of the Constitution. THE petitioner,therefore,prays for relief of certiorari and prohibition. This court by its ad interim order dt. 3. 8. 81 ordered that the petitioner shall not be dispossessed from the land in dispute,which was confirmed on 10. 9. 92. It is significant to note that the respondents,despite ample opportunities, have not cared to file any reply to the writ petition. I have heard Mr. L. M. Lodha,learned counsel for the petitioner and Mr. H. R. Panwar, Addl. G. A. at length and carefully perused the record. Mr. L. M. Lodha has vehemently contended that the notification dt. 11. 3. 81 (Annex. l) issued by the State Govt. in the purported exercise of its powers u/s. l7 (4) dispensing with the compliance of requirements of Sec. 5 A and making declaration u/s. 6 of the Act is bad in law and ultravires of the provisions of the Act in as much as it does not speak that there was any urgency and that the land sought to be acquired is waste or arable land. The State Govt. has thus not applied its mind to enable it to take a valid recourse to the provisions of Sec. 17 (4) of the Act. According to him, the State Govt. has also not made any notification u/s. l7 (l) of the Act and since the powers of the State Govt. u/s. l7 (4) are subject to the provisions of sub secs. (l) and (2) of Sec. 17 of the Act, the impugned notification dt. 11. 3. 81 (Annex. l) is patently illegal and ultravires of the provisions of the Act. Mr. Lodha has placed reliance on the following cases: "raja Anand Brahma Shah V. The State of U. P. (l),dora Phalauli V. State of Punjab (2), Smt. Dhanni & Ors. V. State of Raj. (3) and Dr. Laxmi & Ors. V. The State of Raj.
(3.) ON the other hand, Mr. H. R. Panwar,learned Addl. G. A. , despiteumpteen opportunities, has not filed any reply. He has contended that the opinion of the State Govt. u/s. l7 (4) of the Act pre-supposes that it was a case of emergency; that the land to be acquired by it was waste or arable land and that the same can not be challenged in the court. He has however clearly conceded that in notification dt. 11. 3. 81 Annex. l, there is no mention of the purported exercise of the State Govt's power u/s. l7 (l) of the Act. According to him, since the notification has been issued in purported exercise of power u/s. 17 (4) of the Act, it should be presumed that it is a case of urgency and that the land sought to be acquired is waste or arable land and, as such, the notification Annex. l is neither illegal nor bad nor ultravires of the provisions. In support of his contention, Mr. Panwar has cited the following cases: Murari Lal Gupta Vs. The State of Punjab (5), Sellappa Gounder and anr. Vs. State of Madras (6), State of U. P. Vs. Smt. Pista Devi & Ors. (7); and Ajit Singh etc. Vs. State of Raj. & Ors. " I have given my thoughtful consideration to the rival contentions of the parties. A bare perusal of notification dt. 11. 3. 81 (Annex. l) reveals that the State Govt. has proclaimed that the land already notified in its previous notification issued u/s. 4 of the Act, was required for public purpose for being placed at the disposal of the Municipal Board, Sriganganagar for expansion of urbanisation and that in exercise of its powers u/s. 17 (4), it has dispensed- with the enquiry envisaged u/s. 5a of the Act. The State Govt. has also made a declaration u/s. 6 that the land is required for the public purpose. However, there is no mention at all that Annex. l has also been issued by the State Govt. under its purported exercise of Sec. 17 (1) of the Act, which deals with the special powers in case of emergency. Sub Sec. (l) of the said section clearly lays sown that in cases of urgency,whenever the State Govt. so directs the Collector though no award has been made final u/s. 12 of the Act,may on the expiration of fifteen days from publication of the notice mentioned in Sec. 9 (1), take possession of any waste or arable land needed for public purpose and that such land shall thereupon vest absolutely in the State Govt. from all encumberance. Sub Sec. (4) of Sec. 17 of the Act in most unambiguous and clear terms states that in case of any land to which in the opinion of the State, the provisions of Sub Sec. (1) or sub sec. (2) are applicable,the State Govt. may direct that the provisions of Sec. 5a shall not apply and if it does so direct,a declaration may be made u/s. 6 in respect of the land at any time after the publication of the order under sub section (1) of Sec. 4. Therefore , it is abundantly apparent that the State Govt. must disclose its satisfaction as to the urgency in the notification issued under sub sec. (4) of sec. 17 and that there must be something on record so as to enable the State Govt. to form a reasonable opinion as to an urgency. The provisions of S. 17 (4) can only be pressed into service in case of a land to which in the opinion of the State Govt. ,the provisions of Sub. Sec. (l) apply namely in cases of urgency and the land being waste land or arable land. Therefore, the opinion of the State as required u/s. l7 (l) of the Act is sine qua non for dispensing with the inquiry u/s. 5a and for making a declaration u/s. 6 that the land is needed for a public purpose. This is true that the State's power to decide urgency is purely an executive matter left with the State Govt. & the Govt's satisfaction as to urgency for a public purpose is presumed. But this does not mean that the State has an unfettered power to flout and ignore the specific provisions of law and exercise the powers in an arbitrary and wanton manner. For invoking the provisions of Sec. l7 (4), the State Govt. is first required to form an opinion that it is a case of urgency and that the land to be acquired is waste or arable land & needed for public purpose. In the instant case, the notification Annex. 1 has neither been issued by the State Govt. under the purported exercise of its power u/s. l7 (l) of the Act nor it has been mentioned therein that it is a case of emergency or that the land sought to be acquired is either a waste or arable land. Thus the basic pre-requisites required for invoking the powers u/s. l7 (l) of the Act are conspicuously missing in notification Annex. l. Therefore, by no stretch of imagination, it can be presumed that the State Govt. has applied its mind and come to a subjective satisfaction that it was a case of urgency and the land needed to be acquired was waste land or arable land. ;