ORDER Mehrotra, J.
1. This is a petition under Article 226 of the Constitution praying that a writ of certiorari be issued quashing the notifications under Sections 4, 6 and 9, Land Acquisition Act and that a writ of mandamus be issued directing the opposite parties not to proceed with the acquisition proceedings relating to the property in question.
2. The facts briefly are that the applicant is a Mahant of a well-known Math in the city of Varanasi called Sri Jagat Guru Vishwaradhya Singhasan or Jangamwudi Math being in existence for several hundred years. The Math owns several properties including the disputed plot which is situated just in front of the main building of the Math across the road.
The land is enclosed mostly by houses and on one side by a pucca wall. Within this enclosure on a portion of the land there are temples and samadhis of disciples, who, according to the tenets of the Shaiva sect, come and die in Varanasi and are buried there in the enclosure. The contention of the petitioner is that this land is not a waste or arable land and consequently the State Government has no power to take action under Section 17(4), Land Acquisition Act and to dispense with the provisions of Section 5A of the said Act.
3. In the petition originally the State of Uttar Pradesh and the Land Acquisition Officer, Varanasi, were impleaded as opposite parties but the Municipal Board, Varanasi, through its Administrator, also sought to be added as a party and by an order of this Court the Board has been impleaded as opposite party in these proceedings.
4. A notification under Section 4, Land Acquisition-Act was issued in December 1955 in the following terms:
"In exercise of the powers conferred by Sub-section (1) of Section 4, Land Acquisition Act, 1894 (1 of 1894) the Governor is pleased to notify for general information that the land mentioned in the Schedule is needed for a public purpose.
2. The Governor being further of the opinion that the provisions of Sub-section (1-A) of Section 17 of the said Act are applicable to the land is pleased under Sub-section (4) of the said section to direct that the provisions of Section 5A of the Act shall not apply."
Thereafter on 19-1-1956 another notification under Section 6, Land Acquisition Act was issued in the following terms :
''With reference to this department notification No. 8851 XI A-75 L. A. dated Nov. 30 of 1955 issued under Section 4, Sub-section (1), Land Acquisition Act, 1894 (I of 1894), 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 Banaras to take order of the occupation of the said land.
The case being one of urgency the Governor is further pleased under Sub-section (1) of Section 17 of the Act to direct that the Collector of Banaras though no award under Section 11 has been made may on the expiration of notice mentioned in Sub-section (1) of Section 9 take possession of the land mentioned in the schedule for public purpose."
Thereafter notices under Section 9 of the Act were issued by the Land Acquisition Officer; the proceedings for the acquisition of the disputed land are going on.
5. In the present petition, as I have already stated the prayer is that all these three notifications should he quashed. Counter-affidavits have been filed on behalf of the opposite parties in which it is denied that the land sought to be acquired is not a waste land. It is asserted that there are no samadhis on this land and that the land on which there are two temples which are in a dilapidated condition is exempted from the scheme.
6. It is next contended by the opposite parties that as the land is being acquired in connection with the Planned Development Scheme the provisions of Section 17(1) are attracted and therefore the State Government is justified in directing under Section 17(4) that the provisions of Section 5A of the Act will not apply to those proceedings. The acquisition proceedings are therefore legal and the notifications issued under Sections 4, 6 arid 9 could not be quashed.
7. Mr. Ambika Prasad, who appears for the petitioner, has confined his arguments to three points only. Firstly his contention is that by the U. P. Act No. 22 of 1954 certain provisions of the Land Acquisition Act have been amended and by Section 6 of the amending Act Clause (1-A) has been added to Section 17(1), Land Acquisition Act. Section 6 of the amending Act runs as follows :
"After Sub-section (1) of Section 17 of the principal Act of the following shall be inserted as a new Sub-section (1-A):
(1-A) 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."
The effect of this amendment is that Clause (1-A) has been added to Section 17(1) which provides as follows :
''In cases of urgency, whenever the appropriate Government so directs, the 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."
Section 17, Sub-section (4) reads as follows:
"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, the appropriate Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1),"
8. The contention of the petitioner is that by the amendment a new sub-section has been added to Section 17(1). The amendment gives power to the Governor to order immediate possession in respect of the lands which are acquired in connection with a planned development scheme, but there has been no corresponding amendment of Section 17(4).
The result is that the Governor cannot direct that the provisions of Section 5A will not apply to the cases where lands are being acquired under development schemes. In my opinion there is no force in this contention. The effect of the new Section 17(1-A) is that tile Collector can exercise power under Section 17(1) of the Act not only in respect of waste or arable land but also in respect of land required in connection with a planned development scheme; but the power is still exercised under Section 17(1) and not under Section 17(1-A).
As the power under Section 17(1) can be exercised in respect of the land the provisions of Section 17(4) are attracted. In my judgment the provisions of Section 17(4) applied to the disputed land and the State Government had power to declare that the provisions of Section 5A will not apply to these proceedings.
9. The next point urged in this petition is that the land is not a waste or arable land and therefore the provisions of Section 17(1) could not be applied to this ease. In view of my decision that this, being a land which is being acquired in connection with the development scheme the powers under Section 17(1) could be exercised in respect of this land and thus the provisions of Section 17(4) apply to it and it is not necessary to decide the question whether this land is a waste or arable land or whether there are still constructions on this land.
10. Lastly, it is contended by the counsel for the petitioner that the notifications issued under Sections 4 and 6 arc Vague and therefore cannot be acted upon. I do not sec any force in this contention. The notifications comply with the provisions of Sections 4 and 6 of the Act and it cannot be said that the particulars in the notifications are vague and give no indication of the disputed land.
11. It was urged by the counsel for the applicant that as in the notification issued under Section 4 it is stated that the land is acquired for the purposes of constructing refugees shops it cannot now be said that the and is acquired under a scheme for planned development.
In the two notifications there is an express mention that the Governor thinks that the provisions of Section 17(1) are attracted to this land in view of the amending Section 17(1-A) and as such the notification under Section 17(4) should be issued, it cannot therefore be said that the Governor had not applied his mind to the question that the power under Section 17(4) was being exercised in view of the amending section.
12. The opposite parties have admitted the existence of two temples but they have denied the existence of the samadhis as alleged by the petitioner. So far as the temples are concerned, the opposite parties will not disturb the possession of the petitioner. As regards the samadhis, there is dispute between the parties whether they exist on a part of the disputed land. It is not therefore for this Court at this stage to determine this question.
13. No other point was argued before me.
14. There is therefore no force in this petition and it is rejected with costs.