ORDER
1. This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the notifications issued under Sections 4 and 6 of the Land Acquisition Act and further for a writ of mandamus directing the opposite parties not to give effect to the said notifications and refrain from dispossessing the petitioners from the land in dispute.
2. Briefly the facts are that on the 14th of December 1956, a notification purporting to be one under Section 4(1) of the Land Acquisition Act was issued for general information that the disputed land was needed for public purpose and that the provisions of Section 17(1) of the said Act applied and that the provisions of Section 5A of the said Act would not apply to these proceedings. Thereafter another notification dated the 27th of December 1956, was issued under Section 6 of the Land Acquisition Act giving out that the laird was needed for public purpose and the Collector of Bulandshahr was directed to take orders for the acquisition o£ the said land.
It was further provided in the notification that as the case was one of urgency the Collector was directed on the expiry of the notice to take possession of any waste or arable land forming part of the land measuring 47.5 acres situated in Khurja, belonging to the petitioners as tenants, for the alleged construction oi an Engineering Institute. The land in dispute is plot No. 1551 measuring 52 acres, Mohal Baqi Mada at Qasba Khurja, district Bulandshahr, and was known as 'Bhura Parao Sarkari'.
It was declared surlpus from military needs and was let out in 1939 to Lachhmi Narain, petitioner, and Sri Krishna Gopal, father of petitioners Nos. 2 and 3, under a registered lease deed dated the 9th of June 1939 to the extent of 48 acres and 24 polies for thirty years for cultivation etc., on a rent of Rs. 550 per year and about four acres of land to the J. A. S. High School, Khurja, on lease on a rent of Rs. 50 per annum. It is asserted by the petitioners that due to some personal enmity between the petitioners and one Sri Din Dayal, M.L.A., the District Magistrate was forced by the said M.L.A. to issue a notice dated the 25th October 1955 to the petitioners to quit the land.
As against that order a writ petition No. 1254 of 1955 was filed in this Court. That writ petition was withdrawn on some undertaking being given by the Standing Counsel. Another notice dated the 19th of June 1958 was issued by the Collector requiring the petitioners to deliver possession of the entire land to the Tehsildar. Thereafter a writ petition No. 1384 of 1956 was filed in this Court. The petitioners' contention was that they were hereditary tenants of the land and that the land could not be resumed and that without filing a suit they could not be ejected by the executive orders. The writ petition was, however, rejected on the 12th of November 1956. A Special Appeal against that order was also rejected on the 29th of November 1956.
Thereafter these land acquisition proceedings were taken for the acquisition of the piece of land which is in the possession of the petitioners. In para. 11 of the affidavit filed in support of the petition it is asserted that the petitioners are still in possession of the land in dispute and the land contains residential houses, servant quarters and cattle-sheds, etc., which are mostly pucca buildings of considerable value, including tubewell, pucca drainage and other constructions.
It also contains a large number of fruit bearing and timber trees planted by the petitioners on the land which constitute grove as defined in the Tenancy Act, and these constructions and trees constituting grove are spread over the land in dispute and in acquisition of 47.5 acres land all of them would be lost to the petitioners. It is further alleged in the affidavit that there are about four acres of land of this plot which had already been vacated by the school to which it was let out and it is already at the disposal of the Government to be used for any purpose.
There is also, according to the petitioners, a large acreage of waste and uncultivated land lying in Qasba Khurja which can be easily acquired for the construction of the school and the petitioners' land which is very fertile and highly developed does not deserve to be taken for the construction of the Engineering School. On these facts the present petition has been filed.
3. The contentions raised by the petitioners are firstly, that the notifications under Sections 4 and 6 are invalid inasmuch as a part of the land sought to be acquired is admittedly not waste or arable land with regard to which powers under Section 17(4) could not be exercised by the State Government. As that part is not severable from the other part the entire notification under Section 4 is illegal.
It is contended in this connection that in respect of the land which is admittedly not a waste or arable laud by making a declaration under Section 17(4) which was to apply both to waste and arable land as well as non-arable and non-waste land the persons interested in such a land have been deprived of their right to file objections under Section 5A and as such the subsequent notifications under Section 6 are also invalid.
Secondly, it was contended that on the facts alleged by the petitioners in their affidavit which have not been substantially controverted a major part of the land consists of buildings and grove of the petitioners and as such the land could be regarded as a waste or arable land and the power under Sections 17(1) and 17(4) of the Land Acquisition Act could not be exercised in respect of such a land.
Thirdly, it was contended that the order was mala fide inasmuch as it was passed at the instance of some M.L.As. who were inimical to the petitioners and was not a bona fide order. And lastly, it was contended that there was no public purpose inasmuch as there was other land which was available or the construction of the Engineering. School. On this ground it is further alleged that the notifications are discriminatory.
4. A counter-affidavit has been filed in this case on behalf of the State. In the counter-affidavit it is said that in connection with the Five Year Plan it was proposed to start a technical institute and the Military Camping Ground was considered to be the most suitable site for locating that institute. The State Government accordingly approached the Government of India for transferring the site free of cost to the State Government so that the initial expenses on starting the institution may be reduced. The Union Government transferred the site to the State Government for the purpose of the technical institute.
A part of the disputed land was held by Janki Prasad Anglo Sanskrit High School, Khurja, and it had already handed over possession of that area to the Collector. Notices were then again given to the petitioners to vacate the lease land in terms of Clause (2) of the lease deed; but the petitioners did not agree to do so. As no other suitable site was available and the petitioners refused to vacate the land proposals were initiated for the acquisition of the disputed site by the Government for the purposes of the technical institute which was to be started by the Government itself. The proposal of the Collector for notifying the disputed land under Section 4 read with Section 17(1) of the Land Acquisition Act was approved by the State Government. It is denied that the Government was moved by mala fide motives and at the instance of Sri Din Dayal, M.L.A.
The Government is serious for starting the institution for technical training to the students and the petitioners have been adopting delaying tactics in the matter. According to the counter-affidavit the buildings were constructed by the present petitioners in violation of the terms of the lease. There is some dispute between the parties as regards the valuation of the structures on this piece of land. That is a matter for consideration at the time when compensation is to be awarded and is not material for the decision of the present petition. It has, how ever, been denied in the counter-affidavit that there is any grove. It is asserted that there are some few scattered trees.
5. The main contention raised by the petitioners is that as a part of the land is admittedly not waste or arable land which is neither demarcated nor severable from, the other part the notifications issued under Sections 4 and 6 arc illegal. It is necessary to refer to the two notifications and certain provisions of the Land Acquisition Act in order to appreciate the point. The notification issued under Section 4 is annexure 'B' to the affidavit filed in support of the petition and is as follows:--
"The Government is pleased to notify for general information that the laud is needed for a public purpose.
The Government being of opinion that the provisions of Sub-section (1) of Section 17 of the Act are applicable is further pleased under Sub-section (4) of the said section to direct that the provisions of Section 5A of the Act will not apply."
In the Schedule it is given that the area of the land is 47.5 acres in mauza Khurja, pergana Khurja, district Bulandshahr and that the land was required for the construction of an Engineering Institute. The subsequent notification under Section 6 is as follows:--
"The Governor is pleased to declare under Section 6 of the Act that he is satisfied that the land mentioned in the Schedule is needed for a public purpose and under Section 7 of the Act to direct the Collector of Bulandshahr to take orders for the acquisition of the said land, and further pleased under Sub-section (1) of Section 17 of the Act to direct that the Gollector of Bulandshahr though no award under Section 11 has been made on the expiry of the notice undermentioned in Sub-section (1) of Section 9 take possession of any waste or arable land forming part of the land mentioned in the Schedule for the public purpose.''
6. Section 4 of the Land Acquisition Act provides as follows:--
"4 (1). Whenever it appears to the Provincial Government that land in any locality is needed or is likely to be needed for any public purpose, a notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notice of the substance of such notification to be given at convenient places in the said locality."
7. Section 5A of the Act reads as follows:--
2. Every objection under Sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, submit the case for the decision of the Provincial Government, together with the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Provincial Government on the objections shall be final.
.............."
8. Section 6 of the Act provides that:--
"6 (1). Subject to the provisions of Part VII of this Act, when the Provincial Government is satisfied, after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or some officer duly authorised to certify its orders:
Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority.
.............."
9. Section 17(1) of the Act provides that:--
"In cases of urgency, whenever the Provincial Government so directs, Collector, though no such award has been made, may, on the expiration of fifteen days from the publication of the notice mentioned in Section 9, Sub-section (1), take possession of any waste or arable land needed for public purposes or for a company. Such land shall thereupon vest absolutely in the Government free from all encumbrances."
10. Sub-section (4) of Section 17 of the Act provides that:
"In the case of any land to which in the opinion of the Provincial Government, the provisions of Sub-section (1) or Sub-section (2) are applicable, the Provincial Government may direct that the provisions of Section 5A shall not apply, and, if it does so direct, a declaration may be made under Section G in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1)."
11. Section 17, Sub-section (1), therefore, gives power to the State Government to direct the Collector in cases of urgency where the land is needed for public purposes and is a waste or arable land to take possession without any award being made and Sub-section (4) further gives power to the State Government to dispense with the provisions of Section 5A in respect of the land which in its opinion is a waste or arable land.
12. In the present case the notification under Section 4 was issued in respect of 47.5 acres of land in December 1956. The nature of the land need not be specified in the notification under Section 4. This notification of December 1956, however, further gave out that the State Government was of opinion that the land in respect of which the notification had been issued was a waste and arable land and consequently the provisions of Section 5A were not to apply to it.
The later part of this notification was really an expression of the State's opinion that the land was a waste and arable land and also a declaration under Section 17(4) that the provisions of Section 5A will not apply. Thereafter a declaration under Section 6 was issued on the 27th of December 1956. The effect of a declaration under Section 17(4) is that a declaration under Section 6 can be issued immediately after the notification under Section 4 even though no proceedings under Section 5A have been gone into.
That declaration contains further a direction as contemplated under Section 17(1) to the Collector to take possession of the waste or arable land. The notification issued under Section 4 to my mind cannot by itself be considered to be illegal. It is not required under the said section that it should be specified in the notification itself which part of it was a waste or arable land and which part of it was not a waste or arable land. The nature of the land need not be specified in that notification.
13. Reliance was placed on the case of Prasanna Kumar v. The State, (S) AIR 1956 Orissa 114 (A). That was a case in which a notification under Section 4 was issued on the 25th of January 1955. The land which was notified under that notification comprised of homestead lands also. In the said notification there was also a declaration under Section 17(4) that the provisions of Section 5A would not apply.
Thereafter possession was taken and a notification under Section 6 was issued. On the 28th of March 1955, another notification was issued by which homestead lands were withdrawn from the operation of the earlier notification, and a fresh notification under Section 4 in respect of that land was issued on the 1st of April 1955 and thereafter a notification under Section 6 was issued. The contention raised there was that as the earlier notification issued under Section 4 was a notification in respect of the land, both waste or arable and homestead land, and as the land could not be demarcated and was mixed up the entire notification under Section 4 was invalid.
The notification under Section 4 being invalid the second notification under Section 6 was also invalid in respect of the arable and waste land as well. As regards the subsequent notification issued on the 1st of April 1955 in respect of the homestead land it was held to be invalid inasmuch as possession had already been taken before the issue of the notification under Section 4. On this finding both the notifications were declared to be ultra vires and the proceedings ware quashed. Particular reliance was placed on the following observations at p. 121 of the report:--
"The State admits that the notification is invalid as far as the homestead lands are concerned. Consequently, it withdrew the homestead lands from the notification by another notification dated 28th March 1955, and issued a fresh notification under Section 4, Land Acquisition Act, calling for objections with regard to the same. If the notification of 25th January is invalid as far as the homestead lands are concerned, then can it be held as contended by the learned Government Advocate, that the said notification is valid as far as the waste and arable lands are concerned? It can be seen from the said notification that there is no separation of the waste and arable lands on the one hand and the homestead lands on the other.
All the plots are jumbled together and it is not possible for any man to know at a look of the notification or the plan referred to in the said notification what the homestead lands are and what the waste and arable lands are. Persons owning homestead lands kept quiet without filing any objections as it was a notification issued under Section 4 read with Section 17(4). Under these circumstances, I am of opinion that it is not possible in this notification dated 25-1-55 to separate the invalid portion from the valid portion of the notification."
14. In that case 80 villages out of 100 were admittedly homestead lands. It was conceded by the State Government that the notification issued under Section 4 was invalid in respect of the homestead lands. It was further found that the entire plots were jumbled together and it was not possible to know from the map what part of it was homestead lands and what was the waste and arable land. Under these circumstances the notification under Section 4 was held to be ultra vires. In the present case there is no such admission on the part of the State Government that the notification under Section 4 was invalid.
On the contrary it has been argued by the counsel for the State that a declaration Under Section 17(4), can be made if the State Government is of opinion that a particular land was such to which the provisions of Section 17(1) applied. That was a matter which was left within the exclusive opinion of the State Government and unless it can be said that in the present case the opinion was arbitrary this Court will not hold that the declaration under Section 17(4) was absolutely ultra vires.
In the present case it was contended that there was a big plot of land over which there are certain scattered trees and constructions. It was admittedly taken for agricultural purposes by the petitioners. The petitioners had developed it as an agricultural farm. Under these circumstances it cannot be said that the State Government when it formed an opinion that the land was arable and waste land it acted arbitrarily and that the notification under Section 4 was an invalid notification.
In fact, the Standing Counsel, and not without force, contended that even if we assume that the declaration under Section 37(4) was invalid that by itself would not invalidate the notification under Section 4. If however it is held that the declaration under Section 17(4) was invalid the effect of that will be that the petitioners were entitled to file objections under Section 5A and a declaration made under Section 6 without giving that opportunity to the petitioners would be void and thus the petitioners at any rate would be entitled to a relief that the declaration under Section 6 was invalid.
But, as I have held above, it cannot be said that the opinion which was formed by the State Government that the provisions of Section 17(1) applied to the land notified under Section 4 was so unreasonable and arbitrary that this Court will hold the declaration under Section 17(4) ultra vires.
15. Coming therefore to the declaration under Section 6 it is conceded by the counsel for the petitioners that if the notification under Section 4 read with Section 17(4) is held to be valid it cannot be said that the declaration under Section 6 issued on the 27th of December 1956 was illegal. In the present case, as I have already held, from the allegations of the facts made by the parties it cannot be said that the opinion which was formed by the State Government in this case was arbitrary and thus the declaration under Section 17(4) was legal. The petitioners therefore are not entitled to the relief of declaration that the notifications under Sections 4 and 6 are illegal.
16. Corning to the relief claimed by the petitioners for restraining tae opposite parties from dispossessing the petitioners from the land in dispute, under Section 17(1) the condition precedent for the exercise of the power to direct is that the laud must be arable and waste land. In this case the direction to take immediate possession was given along with the declaration under Section 6. The direction no doubt specified that the Collector should take possession of any waste and arable land forming part of the land mentioned in the schedule for the public purpose, but the portion, which according to the State Government, was arable or waste land, has not been specified at all in that order; but it is in effect confined to the waste and arable land.
Section 17(1), however, only provides that the State Government will issue directions to the Collector to take possession of any waste or arable land. The possession in accordance with the direction issued by the State Government will have to be taken by the Collector and in my opinion the Collector will only be entitled to take possession over the land other than those on which there are constructions. The Collector before, however, taking actual possession will have to specify which portion according to the Collector was arable and waste land. Without specifying the portion it is not possible for the Collector purporting to act under the declaration to take possession over the entire land. The Collector is therefore directed to take possession of the land after specifying which portion, according to him, was waste and arable land.
17. In the result therefore I reject the petition in so far as the petitioners have asked for the relief quashing the notifications issued under Sections 4 and 6 of the Land Acquisition Act, but I grant relief to the petitioners in so far as I direct the Collector not to take possession under the direction issued in the notification of the 27th of December 1956, without specifying the portions which, according to him, were arable and waste land and not to take possession over the constructions. The parties will bear their own costs.