ALLAHABAD GLASS WORKS (P) LTD. Vs. THE COLLECTOR AND ORS.

JUDGEMENT

(1.) THE following two questions have been referred by our brother; Jagdish Sahai and G.C. Mathur to a Full Bench:

(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?

(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.