JUDGMENT
1. This and the connected petition are for certiorari to quash notifications issued under the land Acquisition Act on 17-3-1952, 7-4-1962 and 24-54962 and prohibition restraining the State of Uttar Pradesh and the Special Land Acquisition Officer, Lucknow, from taking possession of certain plots of land. The petitioner is the lessee of a part of the land in dispute and the petitioner in the associated petition is the lessee of another part. The land in dispute is situate in a mohalla of Lucknow city on the bank of river Gomti. It is Nazoo land but was let out by the Municipal Board in 1940 in one case and in 1915 in the other case. One lease is for 90 years and the other is for 30 years but is renewable for the period of 90 years. The leases were for building purposes, and the petitioners were permitted to make shops of a particular design on the land leased out to them. They surrounded the land leiased to them with wooden boundaries and Put up constructions of pucca bricks for use as shops and offices.
2. On the 5th of March, 1962, the State Government issued a notification under Section 4 of the Land Acquisition Act stating that the land was needed for a public purpose, i.e. for the protection of Lucknow Town from floods in Gomti river in the Lucknow District, and "the Governor, being of opinion that the provisions of Sub-section (1) of Section 17 ..,...., are applicable to the land, is further pleased under Sub-section (4) of the said section to direct that the provisions of Section 5-A of the Act shall not apply."
Prior to the issue of this notification no direction mantioned in Section 17 (1J or 17 (1-A) of the Act had been issued by the Governor requiring the Collector of Lucknow to take possession of the land in dispute on the expiration of fifteen days from the publication of a notice under Section 9 (1). The notification was published on the 17th Of March, 1962.
On the 30th March, 1962, the State Government issued-ed a declaration under Section 6 of the Act to the effect that the Governor was satisfied that the land in dispute was needed for the public purpose of "the protection of Lucknow town from floods in Gomti river in the Lucknow District", a direction under Section 7 requiring the Collector of Lucknow to take order for the acquisition of the land and an order to the effect that "the case being one of urgency, the Governor is further pleased under Sub-section (1) of Section 17 of the Act to direct the Deputy Commissioner of Lucknow, though no award under Section 11 had bean made, on the expiration of the notice mentioned in Sub-section (1) of Section 9 (to) take possesion of the land being waste or arable land". The notification was published on the 7th of April, 1962 On the 2nd of June, 1962, this notification was amended by another notification to this extent that for the words Sub-section (1)" the words "sub-section (1-A) were substituted. The effect of this amendment was that the notification dated the 30th of March, 1962, contained a direction under Section 17 (1-A) requiring the Collector to take possession of the land, being waste or arable land, on the expiry of the notice! issued under Section 9 (1), for the public purpose of protection of Lucknow town from floods in the Gomti river. Thereupon these petitions were filed by the petitioners. They are opposed by the State Government and the Land Acquisition Officer.
3. We are no longer concerned with the controversy whether the land in dispute is waste or arable or building site because now the case of the opposite parties is that it is governed by Section 17 (1-A) and not by Section 17 (1). Section 17 (1) lays down that in case of urgency the Collector may take possession of any waste or arable land needed for a public purpose if directed by the Government, though no award has been made. Section 17 (l-A) was added by the Land Acquisition (U.P. Amendment) Act, 1954 (U. P. Act No. 22 of 1954) and reads as follows:
"The power to take possession under Sub-section (1) may also be exercised in the case of other than waste-or arable land, where the land is acquired for or in connection with sanitary improvements of any Kind or planned development."
Though this provision was added in. Section 17 no amendment was made in Section 17 (4) and the words "or sub-section (1-A)" were not inserted between the words "subsection (1)" and "or Sub-section (2)." The result is that notwithstanding the conferment upon a Collector of the-power to take possession of land before an award is made, on the Government's direction, if it is acquired for sanitary improvements or planned development, the power of the State Government to direct that the provisions of Section 5-A shall not apply under Section 17 (4) remains what it was, i.e. it is to be exercised only 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."
In Srimahant Visheshwar Shivacharya Mahaswami v. State of U. P., AIR 1957 All 127 and Lachhmi Narain v. State of U. P., AIR 1957 All 816, Mehrotra, J. held that the direction mentioned in Section 17 (4) can be issued by the State Government in respect of the land governed by Sub-section (1-A) also. A contrary view was taken by Mathur, J. in Gur DayaI v. State of U. P., AIR 1960 All 564. The view taken by Mehrotra, J. was confirmed by A.P. Srivastava and Mithan Lal, JJ. in Sarju Prasad Sahu v. State of U. P., 1962 All LJ 96 : (AIR 1962 All 221). They overruled the decision in the case of AIR 1960 All 564 (Supra). They held that because the purpose behind the addition of Sub-section (1-A) could have been achieved by suitably amending Sub-section (1) itself the effect of the addition was that the power added by it is to be deemed to be included in the power conferred by Sub-section (1). They observed that though the form of the amendment was to add a new Sub-section "the real effect of the amendment was only to add a few words in the old Sub-section (1)", i.e. to increase its scope in one respect and that consequently it was not necessary to add anything in Sub-section (4). Since Sub-section (1) was held applicable to cases covered by Sub-section (1-A) the power under Sub-section (4) was held to be exercisable in a case governed by Sub-section (1-A). With great respect to the learned Judges we find it difficult to agree with this view.
The legal fiction treating something not done as done- requires legislative authority and cannot be indulged in by Court without it. It would be difficult to say that the addition of words "or Sub-section (1-A)" in Sub-section (4) would have been redundant and if they would not have been redundant, it follows that the existing Sub-section (1) is to be exercised only in respect of waste or arable land whereas the power conferred by Sub-section (1-A) can be exercised in respect of any land (provided it is acquired for a particular public purpose). If the land sought to be acquired is not waste or arable the power under Sub-section (1) cannot be exercised in respect of it even if it be acquired for the particular purpose mentioned in Sub-section (1-A). It is the power conferred by Sub-section (1-A) that is to be exercised in respect of it though it may be identical with the power that can be exercised under Sub-section (1).
When it is said in Sub-section (1-A) that the power to take possession under Sub-section (1) may be exercised what is meant is that the power identical with that power may be exercised. The reference is to the power to take possession without an award having been made. That power now can be exercised in respect of waste or arable land regardless of the nature of public purpose for its acquisition and in respect of other land provided it is acquired for a particular purpose. Though the object behind the addition of Sub-section (1-A) could have been achieved by the Legislature's combining the two powers in Sub-section (1) it was not bound to do so and it could enact separate provisions, one in respect of each power. The result is that the power in respect of waste or arable land is to be exercised under Sub-section (1) and that in respect of land acquired for the particular purpose, under Sub-section (1-A). The land to which the provisions of Sub-section (1) can be said to be applicable is clearly waste or arable land because they are not applicable to any other kind of land, whatever be the purpose for its acquisition. What is material for the applicability of Sub-section (4) is the nature of the land and not the nature of the power to be exercised. The sub-section does not refer to the nature of the power at all and does not lay down that it is applicable whenever the power mentioned in Sub-section (1) can be exercised. The nature of the land may be different even though the same power may be exercised; a land that is not waste or arable does not become waste or arable land merely because it is to be acquired for a particular purpose and in respect of it the power mentioned in Sub-section (1) can be exercised. If it is a building site or cultivated land, it remains a building site or cultivated land. Sub-sections (1) and (1-A) can apply to the same land but only when it is waste or arable land and it is acquired for the particular purpose mentioned in Sub-section (1-A). Both will not apply to land that is not waste or (sic) Therefore land that is not waste or arable cannot be said to be land to which Sub-section (1) applies.
What is assumed in the cases of Mahaswami etc. is that Sub-sections (1) and (1-A) will apply to every piece of land or that the applicability of Sub-section (4) depends not on the nature of the land but on the question whether the power mentioned in Sub-section (1) can be exercised or not. Though we disagree with the view taken by A.P. Srivastava and Mithan Lal, JJ. we do not consider it necessary to refer this case to a large Bench because the petitioners are entitled to succeed on other grounds.
can be given when the circumstances mentioned in Sub-section (2) exist. Similarly, it can be given only when the circumstances mentioned in Sub-section (1) exist and they include the wastes or arable nature of the land and the giving of a direction by the Government in a case of urgency to the Collector to take possession even before an award has been made. Neither the waste or arable nature of the land nor the existence of an urgency will justify a Collector's taking possession of the land before an award has been made; there must also be a direction by the Government to do so. It is only after the direction has been Riven that it can be said that the power mentioned in Sub-section (1) can be exercised in regard to the land, i.e. that the provisions of Sub-section (1) are applicable to it. They cannot be said to be applicable to land merely because it is waste or arable if they are not of urgency and no direction to take possession of it before an award has been given; they cannot be said to be applicable simply because such a direction may at a later stage be given. They must be applicable when the direction referred to in Sub-section (4) is given; the direction cannot be given in anticipation of their being applicable.
It is not enough that they may be applicable; they must actually apply and they can be said actually to apply only after the direction mentioned in Sub-section (1) has been given. It is impossible for the direction referred to in Sub-section (4) being given when no direction referred to in Sub-section (1) has been given at all; if the former direction wars given in respect of waste or arable land in anticipation of the latter direction being given, it is possible that no urgency arises later or that the existing urgency disappears and the latter direction is .not given at all. It follows, therefore, that the direction referred to in Sub-section (4) must follow in order of time the direction referred to in Sub-section (1). The Government must bring the land actually within the application of subsection (1) by directing the Collector, on account of urgency, to take possession of it on the expiry of 15 days from the publication of a notice under Section 9 (1) even though no award has' been made. Here no direction had been given by the State Government under Sub-section (1). Therefore, the direction issued under Sub-section (4) was illegal and it was not open to the Collector to make a declaration under Section 6 without hearing objections under Section 5-A.
5. A Bench of this Court of which one of ITS was a member took the same view in Special Appeal No. 47 of 1962, Khushi Ram v. State of U. P., on 5-3-1963 (All). In that case too the direction was made under Sub-section (4) of Section 17 without the direction contemplated by subsection (1) having been given previously and it was held that direction of Sub-section (14) has to be given in respect of that land in respect of which direction mentioned in Sub-section (1) has been given because it is only after the latter direction has been given that it can be said that there is some land to which the provisions of Sub-section (1) apply.
6. The declaration made under Section 6 was Illegal. As it was illegal the stage of issuing a notice under Section 9 did not arise and if that stage did not arise the Collector could not take possession of the land under Section 17 (1) or(1-A).
7. Sub-section (1-A) applies only when the land is acquired for sanitary improvements or for planned development Sri Uma Shankar Srivastava contended that the land in dispute was acquired for planned development but this is not the object mentioned in the notification under Section 4 or the declaration under Section 6. In both the documents the purpose is stated to be protection against floods in the river Gomti. No facts have been given in the counter-affidavit and in the absence of any facts we cannot say that protecting Lucknow town against floods in the river Gomti in every case amounts to planned development. Protecting Lucknow town from floods in the river Gomti may or may not be a part of the planned development and it has not been alleged that it is a part of planned development. We, therefore, find that subsection (1-A) is not applicable at all. As the land is now considered to be not waste or arable land Sub-section (1) also is not applicable. The consequence is that the direction mentioned in Sub-section (4) could not be issued and that consequently the declaration issued under Section 6 is illegal and the Collector has no power to take possession of the land in dispute.
8. 1m the result we allow this petition and quash the second paragraph of Notification No. 684-C/XXIII-PWA 35-1A (l)-62 dated March 5, 1962 and published on March 17, 1962 and the whole of Notification No. 684 (5)/CW/-XXIII-PWA-35-lA-(l)-62 dated March 30, 1962 and published on April 7, 1962, as amended by corrigendum No. 26180 /XXIII-PWA-35KA (l)/62, dated June 2, 1962, and prohibit the opposite parties from taking possession of the land in pursuance of these quashed notifications. The petitioner will get his costs of this petition.