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TMI Blog1964 (7) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... r a public purpose viz. for development and utilisation of lands as an industrial area. It is hereby notified under the provisions of Section 4 of the Land Acquisition Act, 1894 (I of 1894), that the said lands, are needed for the public purpose specified above. All persons interested in the said lands are hereby warned not to obstruct or interfere with any surveyors or other persons employed upon the said lands for the purpose of the said acquisition. Any contracts for the disposal of the said lands by sale, lease, mortgage, assignment, exchange or otherwise, or any outlay or improvement made therein without the sanction of the Collector, after the date of this notification, will under Section 24 (seventhly) of the said Act, be disregarded by the Officer assessing compensation for such parts of the said lands as may be finally acquired. And whereas the Commissioner, Bombay Division, is of the opinion that the said lands are waste or arable lands and that their acquisition is urgently necessary ; he is further pleased to direct under Sub-section (4) of Section of the said Act that the provisions of Section 5-A of the said Act, shall not apply in respect of the said lands. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application of Section 17(4). It though dated 19th April 1963 and calling upon him to attend at the time of taking possession i.e. at 12 noon on 6th May 1963, was actually served on him on 7th May 1963 after possession was taken. On 30th April 1963 a further notice was served upon the petitioner by the Special Land Acquisition Officer, the second respondent, to appear before him on that 15th of May 1963 and to lodge his claim for compensation. In the meanwhile, pursuant to the notice dated 19th April 1963 informing the petitioner that possession of the land would be taken on May 1963, the petitioner's land was taken possession of on 6th May 1963. It also admitted that on the same day to the fourth respondent the Maharshtra State Industrial Development Corporation. All this was pointed out in a letter dated 14th May 1963 written by the petitioner's attorneys complaining that the acquisition was illegal. The present petition was filed on 12th June 1963. (4) Now it is the petitioner's case that the Notification under Section 4, 6 and 9 of the Land Acquisition Act are illegal. The grounds, briefly stated are as follows :- That the notification purport to have been signed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... firstly that the Notifications issued under Sections 4 and 6 of the Land Acquisition Act declaring that the land is required for a public purpose are a mere colourable exercise of the power granted under those sections and secondly that the procedure followed for the acquisitions is vitiated. The correct procedure which ought to have been followed is that prescribed in Part VII of the said Act which deals with acquisitions for Companies or Chapter VI of the Maharashtra Industrial Development Act which deals with acquisition for that Corporation. (7) Next attach was levelled against what has been concisely dubbed the urgency clause in the three Notifications whereby the respondent No. 1 announced his intention to take the petitioner's lands because they were waste or arable lands and their acquisition was urgently necessary under the powers vested in him under Sub-section (4) of Section 17 of the Act. By virtue of that sub-section the first respondent dispensed with the provisions of Section 5-A of the Land Acquisition Act and declared that it shall not apply to the said land. It is the petitioner's case that thereby he was deprived of a very valuable right viz. the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal grounds and urged that neither the Notifications nor the provisions of section 3(f)(2) as amended were liable to be set aside on the ground of unconstitutionality. The Commissioner also pointed out that he had issued the Notification under Section 4 after he had satisfied himself that the said lands were acquired for the purpose of developing and utilising the same as an industrial area and he asserted - I say that as the said lands were waste or arable lands and as their acquisition was urgently necessary I directed that the provisions of Section 5-A of the Land Acquisition Act would not apply to the said acquisition . He added that he was satisfied that the said lands were needed for the aforesaid public purpose before he issued the declaration under Section 6 and that he had similarly satisfied himself so to the requirements of Section 9(1) when he issued the Notification under that section. (10) In order to meet the point taken by the petitioner that the acquisition was for a Company viz. the Maharashtra State Industrial Development Corporation, the Commissioner stated in paragraph 10 of his return, I say that the said land is to be acquired from the funds of the Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed to land revenue as agricultural lands. I say that the said lands are waste or arable lands within the meaning of Section 17 of the Land Acquisition Act. I am not aware of and do not admit the allegations that the petitioner's land was fit for immediate use for non-agricultural industrial or building purposes or that the land had been surveyed or that plans had been prepared for construction thereon before the issue of the impugned Notifications . He also asserted in answer to the point raised by the petitioner that he had satisfied himself after fully considering all the facts that the said lands were urgently required for development as an industrial area On the question of delegation of authority to the Commissioner, he stated that he himself acted under the legal and that he himself by Section 3(4) of the Bombay Commissioners Notification No. 1957 and the Government Notification No.IAQ - 2558 / V, dated 5th September 1958. The second affidavit with the Commissioner filed merely negatived all the pleas as to the unconstitutionality of the notifications as well as Section 3(f)(2) of the Land Acquisition Act as locally amended. (13) Matters stood at this, when on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mr. Nargund is in direct conflict with that taken by Mr. Patwar in direct conflict with that taken by Mr. Patwardhan in this first affidavit. We shall deal with the question raised upon the documents. (14) Before we proceed, therefore, to discuss the several points raised, it is necessary to say a word about the local amendments that have been effected in the Land Acquisition Act. They provisions of the Land Acquisition Act have been several times amended by local legislation. We are concerned in this petition with two such amendments. The first is the amendment made by Act XXXV of 1953 in the definition of public purpose contained in sub-section (f) of Section 3 of the Land Acquisition Act. The definition as it stands after amendment is as follows. (f) of Section 3 of the Land Acquisition Act. The definition as it stands after amendment is as follows: (f) the expression public purpose includes (1) the provision of village sites in districts in which the (Appropriate) Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provisions (and it housing scheme as defined in the Land Acquisition (Bombay A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... September 1958. (17) We may also at this stage refer to the Maharashtra Industrial Development Corporation and the law under which it was established. (18) The Maharashtra Industrial Development Act, 1961 (Act III of 1962) was brought into force on the 1st of March 1962. It applies to the whole of the State of Maharashtra but Sub-section (3) of Section 1 thereof provides that Chapter VI shall take effect in such area, from such date as the State Government may, from time to time, by notification in the Official Gazette, appoint in that behalf. Accordingly, the State Government has from time to time actually applied Chapter VI to several areas under its jurisdiction, but it is conceded on both sides that Chapter VI has not been brought into force so far as the area in which the lands in dispute are situated. Therefore, for the purposes of this petition Chapter VI does not apply at all. The preamble of the Act recites that it is expedient to make special provision for securing the orderly establishment in industrial areas and industrial estates of industries in the State of Maharashtra, and to assist generally in the organisation thereof, and for that purpose to establish an I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Corporation. Sub-section (4) of Section 13 is somewhat important, because of the stand taken that the expenditure for the acquisition in the case was really an expenditure of the Corporation. Sub-section (4) says: All expenditure which the Board of Industrial Development may have incurred before the date of the coming into force of this Act in connection with any of the purposes of this Act shall deemed to be a loan advanced to the Corporation under Section 21 on that date, and all assets acquired by such expenditure shall vest in the Corporation . It is also not in dispute that the erstwhile Board of Industrial Development which was a Board set up by Government itself was replaced by the Corporation on 1st August 1962 by a Notification No. IDC - 1062 - IND - 1 dated 1st August 1962 in the Official Gazette. Section 14 and 15 indicate the functions of the Corporation and its powers, Section 14 mentions the functions as follows:- 14. The functions of the Corporation shall be (I) generally to promote and assist in the rapid and orderly establishment growth and development of industries in the State Maharashtra, and (ii) in particular, and without prejudicial to the gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecial provision for acquisition of lands for this Corporation provided the Chapter is made applicable to the area in question. (20) In the affidavit made on behalf of the Commissioner a reference is to be found to Section 40 of the Act which gives power to the State Government upon such conditions as may be agreed upon between it and the Corporation to place at the disposal of the Corporation any lands vested in the State Government for the furtherance of the objects of this Act and that after such land has been developed by, or under the control and supervision of the Corporation, it shall be dealt with by the Corporation in accordance with the regulations made and directions given by the State Government. The affidavit averred that the petitioners land would be dealt with under Section 40, but obviously in view of the fact that Chapter VI has not be brought into force in the area in which this land is situated, that reference is irrelevant. The miscellaneous and supplemental provisions contained in Chapter supplemental provisions contained in Chapter VII amply indicate that the State Government has a very rigid control over the Corporation and it if so decides can even disso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervance of the provisions of Section 5-A. If they cannot be so taken what is the effect on the notification under Section 4. (7) Whether the opinion of the authority under Section 17 would be merely a subjective opinion which the Court cannot scrutinise or whether it should be objectively proved that the requirements of Section 17(1) have been fulfilled. (22) We may first of all dispose of the objections to the notification that the Commissioner could not promulgate them as he had no valid power. We have already indicated that the notifications under Section 4, 6 and 9 were all signed by Mr. J.H. Patwardha, the Commissioner of Bombay Division who is the first respondent. The first of these two notifications also contains the necessary declaration under Sub-section (4) of Section 17 of the Act, dispensing with the provisions of Section 5-A. In the Land Acquisition Act as it originally stood the power under each of the Section 4, 6, 9 and 17 was only entrusted to the Local Government. After the Constitution by the amendment made by the Adaptation of Laws Order, 1959 instead of the word local the word appropriate was substituted. It was only the appropriate Government which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Acquisition Act was not one of the Acts mentioned in the Schedule and the amendment of that Act could therefore be made only under Sub-section (4) Section 3 of the Commissioner of Divisions Act which says that the State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force... (23) Purporting to act under these powers the State Government issued a notification on the 5th September 1958, notification No. G.N. R.D. LAQ - 2558/V dated 5th September 1958 inserting the words or the Commissioner in the said section of the Land Acquisition Act in the then State of Bombay excluding the transferred territories under the Reorganisation of States Act. By virtue of Sub-section (4) of Section 3 the Schedule to the Commissioners of Divisions Act accordingly stood amended and that in its turn incorporated those amendments in the Land Acquisition Act. (24) Now it has been urged on behalf of the petitioner that this was a very devious method of amending the Land Acquisition Act. It is not disputed that the State Legislature could with the requisite assent of the President have directly legislated to amend the Land Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) Where the executive authority was permitted, at it discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the Legislative sway of the Centre to the new area: This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way: This was upheld by give to two. (4) Where the authorisation was to select future Provincial laws and apply them as above: This was also upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification: This was held to be ultra vires by a majority of four to three. (6) Where the authorisation was to apply existing laws, either Central or Provincial, with al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was a delegation of an essential function of the Legislature and, therefore, the provisions of the Act which authorised such a delegation were void. It was held that the action of the Governor in subjecting a resident of the new area to municipal taxation without observing the formalities imposed by Section 4, 5 and 6 of the Bihar and Orissa Municipal Act, 1922 cut across one of its essential feature touching a matter of policy and was bad to that extent, but so far as Section 3 (1) (f) of the Act which authorised the delegation of powers to the Government is concerned, it was a valid delegation. Dealing with that point the Supreme Court ruled in Rajnarain's Case [1955] 1 SCR 290 : Now the only difference between that case )the Delhi Laws Act case [1951] 2 SCR 747 : AIR 1951 SC 332 and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any Section can be picked out .................... It follows that when a Section of an Act is selected for application, whether it is modified or not, it must be done so as not to effect any change of policy, or any essential change in the Act regarded as whole. Subject to the Li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Governor of Bengal was in excess of the Council. The High Court held that the 9th Section of the Act of 1869 which purported to empower the Lieutenant-Governor to extend the Act to the Khasi and Jaintia districts was in excess of the Legislative powers of the Governor-General in Council Repelling this view, the judicial Committee of the Privy Council observed at p. 193: But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has empowers expressly limited by the Act of the Imperial Parliament which created it, and it can, of court, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent for delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question : and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her territories subject to his Government . The Legislature determined that, so far, a certain change should take place : but that it was expedient to leave the time and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor; and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor ...................... Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (Large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority then that of the Governor-General in Council. Their whole operation is directly and immediately, under and by virtue of this Act (XXII of 1869) itself. The proper Legislature has exercised its judgment as to place, person, laws, powers; and the result of that j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conceivable notification make amendments which may affect essential legislative functions. It was urged, for instance, that the State Government could by notification amend the legislation taking away the power from the Courts. Wherever power of this kind is conferred, undoubtedly it is liable to be exceeded by those entrusted with it or for that matter even to be abused. But the argument does not amount to saying, therefore, that the power conferred in bad but that in the implementation of that power the authority is liable to exceed or overstep its delegated functions. That is a different question. It seems to us that it is not seriously argued here with in adding the words or the Commissioner in the several sections of the Land Acquisition Act the State Government has exceeded the powers conferred upon it but that the delegate may abuse those powers. The mere capability of its abuse or misuse cannot after the nature of the power. In the instant case, we have already said that that power was only a power to give effect to the conditions attached to a legislation and did not amount to giving any power to make any essential legislative determination. The delegation was therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay Commissioners of Divisions Act. Similar instances of enactments held valid, though not identical with the present case are to be found into the State of Bombay v. Meman Santial Alreja AIR 1952 Bom 16, Edward Mills Co. Ltd. v. State of Ajmer (1954) IILLJ 686 SC, Mohammad Hussain Gulam Mohammed v. State of Bombay [1962] 2 SCR 659, and Patna Improvement Trust v. Lakshmi Devi AIR 1963 SC 1077. (33) Next we turn to the challenge to the provisions the Land Acquisition Act and particularly to Section 6 thereof upon constitutional grounds. The provisions of Section 6, it has been said, are ultra vires of Article 19(1) (f) and (g), of Article 31 and of Article 14. So far as Articles 19(1) (f) and (g) are concerned, we may at once point out that the challenge to the Act on the ground of infringement of Article 19 has been answered by the highest Court in Somawanti v. State of Punjab [1963] 2 SCR 774. At p. 160 in the same passage which we quote below the Supreme Court also repelled the argument that it infringed Article 31 of the Constitution. In paragraph 21 of the judgment, Mr. Justice. Mudholkar observed with reference to the Land Acquisition Act: The Act has been in operati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar made it clear that the Supreme Court in that case were not concerned with a post-Constitution law, but a pre-Constitution law. Replying on these observations a distinction is sought to be drawn between that decision and the present case. It has been urged that so far as the definition of public purpose in Section 3(f)(2) of the Land Acquisition Act is concerned, it was added by the local amendment made by ACT XXXV of 1953 and, therefore, would be a post-Constitution law and not a pre-Constitution law as the rest of the Act would be. The conditions necessary to be fulfilled by Article 31 of the Constitution are that no property can be acquired compulsorily except for a public purpose and under authority of law. The law has been enacted and in our opinion is valid. The question then is whether in Sub-section (2) of Section 3(f) of the Land Acquisition Act (as amended), the purposes mentioned can be held to be public purposes within the meaning of Article 31. We shall presently discuss this question as it arises also in connection with Sub-section (1) of Section 6. We may say here, however, that in our opinion, Sub-clause (2) of Section 3(f) added by the local amendment which inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner was himself a person engaged in industry, had himself bought the land in dispute for the manufacture of explosives which is an industry and three was no point in the Government starting acquisition proceedings for the same land for an identical purpose stated in the notification under Section 4 as for development and utilization of lands as an industrial area . Mr. Bhatt points to the several provisions of the Maharashtra Industrial Development Act, 1961 and the Maharashtra Industrial Development Corporation for which he says that the acquisition in Section 3(f)(2) where the words and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development occur. He says that the whole object, therefore, of the present acquisition is really to take the lands of the petitioner who is himself engaged in industry and dispose them of to another person for profit though ostensibly for a public purpose. This law this permits the State to take the lands of one citizen held by him upon certain terms and conditions and hand them over to another citizen upon similar terms and conditions and, therefore, it discriminates a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power being discriminatory. The distinction has been drawn in a number of cases, but the most authoritative of these Statements is to be found I n the decision of the Supreme Court in Pannalal Binjraj v. Union of India [1957] 1 SCR 233 . In that case power was given by Section 5(7-a) of the Indian Income Tax Act to the Commissioner to transfer the case of any assessee from one officer to another officer. It was urged that the assessee had a right under Section 64 (1) and (2) of the Act to have his tax assessed at the place where he carried on his business or resided and that, therefore, the very wide power given to the Commissioner amounted to an arbitrary power which tended to discriminate between one assess and another. The Supreme Court put the point before them thus (page 252 of the Report of SCR) at p. 406 of AIR). The position, therefore, is that the determination of the question whether a particular Income Tax Officer should assess the case of the assessee depends on (1) the convenience of the assessee as posited in Section 64 (1) and (2) of the Act, and (2) the exigencies of tax collection and it would be open to the Commissioner of Income tax and Central Board of Reven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes Act, 1947 were challenged as ultra vires of article 14, their Lordships reiterated same view. The Industrial Disputes Act, 1947 gives authority to the State Government in different circumstances and conditions to take different actions to resolve industrial disputes. It has been given one of several alternative powers e. g. of arbitration, of reference, of conciliation. It was urged that these were powers which could be exercised at the whim of the Government. They could exercise them in a given case and not exercise in another case or use one power in once case and another in a similar case and, therefore, those powers tended to work a possible discrimination against certain persons. The argument was negatived in Niemla Textile Finishing Mills. Ltd. v. The 2nd Punjab Industrial Tribunal 1957 SCR 335 : ( (S) AIR 1957 SC 329 , as follows:- We are unable to accept these contentions. Having regard to the provisions of the Act hereinbefore set out it is clear that Section 10 is not discriminatory in its ambit and the appropriate Government is at liberty as and when the occasion arises to refer the industrial disputes arising or threatening to arise between the employers and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vested in the authorities not do they lead to discrimination. (43) In the next place, upon the facts, the land which is being acquired from the petitioner is not an isolated piece of land but part of a very much larger area which the Government have declared an area suitable as an industrial area for development. The whole area is being acquired for a public purpose and the petitioner's land is a small part of it. This is not only clear from the affidavit of the Commissioner, dated 15th November 1963 a portion from which we have already quoted, but it is further made clear in the affidavit of Mr. P.C. Nayak (Paragraph 6) the Chief Executive Officer of the Maharashtra Industrial Development Corporation, dated 15th July 1964. The Chief Executive Officer has three indicated that a large block of lands known as the Waggle Estate comprising about 310 acres which originally belonged to Government before the Board of Industrial Development Corporation for development as industrial areas. Therefore, even assuming that the law permits any discrimination, it seems to us, that in the present case there is no scope for discrimination against the petitioner. His land is part of a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest of individuals, is directly and vitally concerned . That being so, all that remains is to determine whether the purpose here is a purpose in which the general interest of the community is concerned. Prima facie the Government are good judges of that. They are not absolute Judges. They cannot say: Sic vol. sic jubeo , but at least a Court would not easily hold them to be wrong, the whole of the learned Judges who are thoroughly conversant with the conditions of India life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants . Thus, this decision which, is the basis of all subsequent decisions, lays down two important criteria, firstly that it is not necessary in order that there should be a public purpose that the land which is taken must always be made available to the public at large. It may be that it may benefit only a small section of the community. Secondly, it must be for an object or aim in which the general interest of the community as opposed to the particular interest of individuals is directly and vitally concerned. (45) The definition of public purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bombay. Therefore, it has become necessary to relieve the congestion and the consequent bad condition of housing, educational and medical facilities etc. The affidavit further points out that the object of Government is that these areas which are being acquired would be properly laid out and planned with some deliberation so that their development as an industrial area would be a proper development and space would be avoided for the future . All this has not be controverted on behalf of the petitioner, and it seems to us that if that be the object, as we have no doubt it is, then the lands sought to be acquired are clearly being acquired for a public purpose. We have no hesitation, therefore, in holding that the purpose mentioned in the notifications is a public purpose as shown therein. (49) Turning next to the amended definition of public purpose in clause (2) of Section 3(f), the words used are for purposes of the development of area ................ and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development:. It was urged that the expression development of areas is a very vague expression and what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 6. Section 6 sub-section (1) runs as follows:- Subject to the provisions of Part VII of this Act when the Appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, 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 of some officer duly authorized 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 . So far as sub-section (1) is concerned, the acquisition could be for one of two purposes viz. (1) that any particular land is needed for a public purpose or (b) for a company. These are initially two limitations upon the power to acquire and these limitations have to be decided upon before the issue of notification by the Appropriate Government and/or now the Commissioner. We have already held that there was involved in the notifications impugned a public purpose. The satisfaction of the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first cannot upon the terms of the notifications and the pleadings on behalf of the State at all apply here, for it is not the case of the State that the acquisition in the instant case was for a Company or that the compensation to be awarded for such property was to be paid by a Company. On the other hand, the stand has been expressly taken at least in the arguments, that the compensation was to come wholly or partly out of public revenues. Of course, we may say at this stage that the learned Advocate General urged that in the case the entire funds for the acquisition were to come out of public revenue, but it is not necessary for him to go as far as that for even if they were to come partly out of public funds, the proviso would be fulfilled. It is the case of neither party that any amount was to come out of funds controlled or managed by a local authority. We, therefore, turn to scrutinise the facts as they appear upon the affidavits and the numerous documents which the parties have placed before us. But before we do so, we may here observe that the self-same facts and documents are also germane to a consideration of the question, which we will next discuss, whether the acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hri Patwardhan. Para. 3 :- In paragraph 10 of the said affidavit dated 4th October, 1963 (the date is that of its being sworn, not the date on which it was filed in Court), it has been stated the said land is to be acquired from the funds of the Maharashtra Industrial Development Corporation . I say that the said lands are being acquired by the State Government for the development of the lands as an industrial area and the compensation payable for the said lands was intended to be paid and is to be paid from public revenues out of the consolidated fund of the State of Maharashtra and the necessary provision therefore has been made in the Annual Budget Estimates of the Industries and Labour Department of the State Government. The sanctioned amount will be paid by the Government to the Special Land Acquisition Officer concerned for payment of compensation according to his Award to the interested persons. An Extract of the said Budget Estimates for the year 1964-65 which also shows the estimates and revised estimates for the financial year 1962 - 63 and 1963-64 is annexed hereto and marked exhibit 1 . In the next paragraph the Under Secretary referred to the policy of the Gove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the funds of the Maharashtra Industrial Development Corporation and not from the shall come to these documents a little later. But we must here refer to the further affidavits. After the arguments had proceeded for several days and the petitioner had attached the affidavit of Mr. Nargund as useless, a further affidavit by Mr. Patwardhan came to be filed on 14th July 1964. In that affidavit, the Commissioner stated in paragraph 2: In Paragraph 10 of my affidavit dated the 4th October 1962, I have stated the said land is to be acquired from the funds of the Maharashtra Industrial Development Corporation . I say that I made that statement on the basis of the information derived by me from the records of my office which records alone were perused by me and were available to me at the time when I made the said affidavit. I did not have in the said records or before me the order of the said records or before me the order of the State Government dated 27th February 1963, the various provisions in the Budget Estimates of the State of Maharashtra, the entries in the books of the Accountant-General for the State of Maharashtra or the books of account of the Maharashtra Industrial De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the State of Maharashtra that the true position is that the compensation for the acquisition of the said lands is to be paid from the consolidated fund of the state by the State Government and not from the funds of the Corporation . Supplemental to these several affidavits was another affidavit filed by one R. Seshadri Assistant Accounts Officer, from the office of the Accountant-General Maharashtra State who presented a number of documents with the affidavit which he sought to prove by that affidavit. We shall refer to the documents filed a little later. (57) It may be noticed that till this stage, the reply to the petition was made only by one or more officers of Government. The Government itself filed no return. The Maharashtra Industrial Development Corporation which was cited as the 4th respondent in the petition, was also nowhere in the picture and had not made any statement before this Court. On 15th July 1964, however, after arguments had proceeded for the better part of a week an affidavit was filed by Mr. P. C. Nayak, the Chief Executive Officer and Member-Secretary of the Maharashtra Industrial Development Corporation. That affidavit in paragraph 6 the Secretar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Corporation thereafter for the execution of certain water supply and other schemes in industrial areas. I say that not a single paisa of these amounts received by the Corporation has been paid by it to the Special Land Acquisition Officer, Ulhas Valley Project, Thana or to any other officer or agent of the Government for the purpose of paying compensation for lands acquired by the impugned Notification or by any other Notification in other areas . In Paragraph 13 the Secretary stated : I submit that the amounts paid by the Government for acquisition of lands are not loans by Government to the Corporation and cannot be so because the lands are not acquired by or for the Corporation. In developing the lands as an industrial area, the Corporation is carrying out the Five Year Plan objects of the Government as its agent. I further submit that there cannot be a loan between the Government and the Corporation unless and until there was an agreement between the Government and the Corporation setting out the terms and conditions of the loan such as the time and period of repayment, the rate of interest, the security if any for repayment of the loan and the consequences of any defaul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government to the Corporation for the purpose of development or on the cash advances that may be made by the Government to the Corporation ........... The Corporation felt that these provisions of the Act made the Corporation in substance a limb of the Government. The Corporation has adopted the said accounts on the basis that all amounts expended for the development of industrial areas and estates (including amounts expended by the State Government for the acquisition of lands for industrial development which are entrusted to the Corporation) and all income received in such development as expenditure incurred on behalf of and income received on behalf of State Government. These allegations in the several affidavits filled on behalf of the officers of Government or of the Corporation or the Commissioner were further controverted by the petitioner in his affidavit dated 21st July 1964. (58) It is patent that the case on behalf of the Commissioner, the respondent No. 1 before us, has been improved from time to time and the original stand taken in the first affidavit of the Commissioner has clearly been abandoned. Not merely that, but the stand subsequently taken as to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ic revenues. Unless such a decision is first reached by the State Government or the Commissioner making the declaration under Section 6, they cannot issue that declaration having regard to the proviso. But here the Commissioner has issued such a declaration. In the notification under Section 6 he has categorically stated that the lands are needed for the public purpose specified in column 4 of the said schedule. That means in its turn that he had regard to Section 6, and must have come to the conclusion that the funds for the acquisition of the land are to be paid wholly or partly out of public revenues, and yet it is some what surprising to find that it is precisely upon that point that the Commissioner has canvassed before us that he made a mistake. If as be says he was only partially informed or wrongly informed and believed that wrong information, then we wonder how he made up his mind that a public purpose was involved and put that declaration in the notification signed by him. The error he made whether due to partial information or wrong information was as to an essential requirement of the law; a requirement which has to be stated in the notification; a requirement which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms shown Rs.2,42,263 and Rs.42,66,756 thus making the total figure of expenditure for 1962-63 as Rs.45,08,919. It may first of all be mentioned that the expenditure even as shown is the expenditure not on the Maharashtra Industrial Development Corporation but on the Board of Industrial Development for development of Industrial Area., that is to say the old Board the Government agency which was on the 5th August 1962 replaced by the Maharashtra Industrial Development Corporation. Now it is necessary to consider certain explanations offered relative to these figures. (62) The extracts of the Budget Estimates were filled because the petitioner asked for particulars by the letters exchanged between the attorneys of the two parties dated respectively 27th June 1964 (No. YMD/11258/64) and 6th July 1964 wherein matters were clarified with reference to the increase in the Budget Estimates and a long explanation was given by the attorneys for the Respondents in their letter of the 6th July 1964. The explanation which they gave was as under. The relevant entries for the purposes of the present petition are those appearing under the column Accounts 1962-63 . It will appear from the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration for the acquisition of land in the village Panch, Pakhadi near Thana, (the village with which we are concerned) or for acquisition of land for industrial development in the Ulhas Valley Project . This is virtually the stand which has been subsequently taken in all the affidavits filed before us, whether by the Commissioner himself or by the Secretary to the Maharashtra Industrial Development Corporation. (63) In the arguments which were advanced on the basis of this pleading the learned Advocate-General placed much reliance on two documents: Firstly the Memorandum No. IDC-1063/16146-IND-1 dated 27th February 1963 issued in the name of the Government of Maharashtra and signed by Mr. Nargund who at the time was the Assistant Secretary in the Industrial and Labour Department of the Government of Maharashtra. He communicated this Memorandum to the Maharashtra Industrial Development Corporation by his letter No.IDG-1063/16146. Pursuant to this Memorandum the Special Land Acquisition Officer Ulhas Project drew the amount of Rs. 20 lakhs and signed a receipt exactly one month later on 27th March 1963 (Page 72). This is the second important document relied on. Now the argument ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (66) It seems to us that the moment Government resolved that this expenditure of Rs. 20 lakhs for payment of land compensation in respect of land acquired for the Maharashtra Industrial Development Corporation shall be recovered from the Maharashtra Industrial Development Corporation, the expenditure ceased to be an expenditure by the State and could only be understood as an expenditure upon a pre-existing arrangement with the Maharashtra Industrial Development Corporation that it would be repaid. That in substance would make it a loan whatever gloss may be put upon the transaction. We cannot understand the State Government spending moneys directly for acquisition stating that subsequently the expenditure will be recovered from the Maharashtra Industrial Development Corporation. Thus, these documents, which the learned Advocate General said, were crucial documents leave the matter in doubt as to whether it was an outright payment or a loan. (67) But there are several other documents and entries which indicate that the amount was paid as a loan and nothing alse. Long before the resolution of the Government was passed correspondence was going on between the Maharashtra Industrial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State Government that the cost of acquisition will be provided by the Corporation in due course . It is not alleged that this letter of 7th November 1962 was not acted upon. On the other hand, the Commissioner has in the third affidavit which he has filed crying pecavi . sworn to it that he acted only upon that letter'. In paragraph 3 of his affidavit dated 14th July 1964 he stated. At that time when I made the said affidavit )the first affidavit which has now been withdrawn), I believed that the compensation for the land required for acquisition which are the subject matter of the above petition was to be paid for out of the funds of the Corporation. I believed so because of a statement in the Corporation's letter dated 7th November 1962, in which it was stated that the funds to meet the cost of acquisition will be provided by the Corporation in due course . Then in paragraph 4, the learned Commissioner proceeded to state that On receiving the Corporation's proposal for acquisition and after considering the contents thereof and being satisfied that the lands mentioned in the Corporation's letter were needed for the public purpose mentioned therein, I set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial Development Corporation credited the amount in its books by a transfer entry showing that the amount had been transferred to them. Similarly the journal account of the Maharashtra Industrial Development Corporation has been produced (page 114) and the expenditure incurred by the Special Land Acquisition Officer has been credited into the account of the Government and on the debit side, we find the following entry 'Loans received from the State Government by way of expenditure incurred by this S. L. A. O. in payment of the land compensation'. (italicized (here into ' ') is ours). In column 8 is referred Ledger Folio No. 5 which is the same page number mentioned in the ledger in the earlier account. Thus the account books of the Maharashtra Industrial Development Corporation clearly show that Government had given them a loan out of which payment was to be made for the acquisitions exactly the case which the Commissioner initially set forth. (69) It is of some significance that these entries in the journal accounts purport to have been made on the 18th August 1963. The payment were in March 1963 and though it is said that they were not loans, but out right paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration at some time in the future. One thing is certain upon these documents that the amount must have been paid to the Corporation as a loan and when it was paid to the Special Land Acquisition Officer also, it was paid for and on behalf of the Maharashtra Industrial Development Corporation by the Government. That is what the Commissioner has said in his first affidavit. It was, therefore, in law and in fact the money of the Corporation that was utilised by the Special Land Acquisition Officer for the payment of the compensation. (71) With regard to the entries in the Budget Estimates filed along with the affidavit of Mr. Nargund, one other circumstance must be here emphasised. Under Section 21 there is specific provision for the grant of loans by the Government to the Corporation. No doubt, the section says, The state Government may, after due appropriation made by the State Legislature by law in this behalf, make such grants, subventions, loans and advances to the Corporation as it may deem necessary for the performance of the functions of the Corporation under this Act . Therefore, a loan can only be made after due appropriation made by the State Legislation by law in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cannot accept the statement in the particulars supplied by the attorneys for the respondents that although for the purposes of Government accounts and audit, the amounts so sanctioned and drawn may have been described as a loan to the Maharashtra Industrial Development Corporation, this was only for the purpose of financial accounting and, therefore, only a national debit . That statement relating to Government accounting and, therefore, only a national debit . That statement relating to Government accounts has not been sworn to on an affidavit by any officer connected with Government nor by the Commissioner who is the respondent No. 1 before us. The State Government is the third respondent but till to day they have not filed a single affidavit in reply to the petition nor is it stated by Mr. Nargund, whose affidavit contradicted that of the Commissioner that he was filing the correct affidavit on behalf of Government. (73) At the fag end of the proceedings and after the arguments had proceeded for several days an affidavit came to be filed on the 15th July 1964 by Mr. P.C. Nayak, the Chief Executive Officer and Member Secretary of the Maharashtra Industrial Development Cor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly or partly out of public revenues within the meaning of the proviso to Section 6. The argument, as we understand it, runs somewhat as follows: That it is the ultimate hand that pays which has to be looked at and it is immaterial in what manner the money is paid for the acquisition so long as the ultimate burden falls upon the public revenue. this contention is based upon certain observations of the Supreme Court in the case which we have already referred to of Jhandu Lal v. State of Punjab [1961] 2 SCR 459. Chief Justice Sinha in stating the decision of the High Court in that case indicated at p. 466 (of SCR) : (at p. 346 of AIR). It has been pointed out by the learned Single Judge that it was clear from the Government Housing Scheme that a substantial amount to be expended on this Scheme comes out of the Revenues, in the form of subsidies and 'loan' (italicized )here into ' ') is ours) and then the learned Chief Justice in giving the decision of the Supreme Court in the penultimate paragraph of the judgment at p. 469 (of SCR) : (at p. 437 of AIR) observed, As in the present instance, it appears that part at any rate of the compensation to be awarded for the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The notification there no doubt stated that it was to be acquired for the purposes of and at the expense of the State Transport Corporation and upon the facts it was found that the State Transport Corporation was to pay for it as we have done here but then the argument similar to the one here advanced of the ultimate burden was advanced and it was thus answered [1964] 3 SCR 686. Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, court it be said that the terms of the proviso to sub-section (1) of Section 6 have been satisfied? It is contended by the learned Attorney General on behalf of the respondent that the funds of the Corporation have themselves come out of public revenue inasmuch as they consist of moneys provided by the State of Bombay. Even assuming that the funds of the Corporation consist only of the moneys which have been provided by the State of Bombay it is difficult to appreciate how they could be regarded as part of the public revenue. No doubt the source of the funds would be public revenue but the funds themselves belong to the Corporation and are held by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer was only for the purposes of accounting and national. We have already rejected that stand. Then for the first time in the third affidavit which the Commissioner filed a third stand was taken. The Commissioner casually mentioned to paragraph 5. The Corporation is an agent of the Government for carrying out industrial development in accordance with the provisions of the said Act and the directions of the Government issued from time to time . Till the time that Mr. Palwardhan filed this affidavit on 14th June 1964 after arguments had proceeded in this Court for a number of days, no question of the Corporation being an agent of the Government was ever adumbrated in any of the affidavits, nor is it to be found in any of the documents to which our attention has been invited. This which our attention has been invited. This stand was further elaborated in the affidavit of the Secretary to the Maharashtra Industrial Development Corporation Mr. Nayak, He has in his affidavit paragraphs 6 and 14 taken the stand with greater emphasis. We cannot permit such a plea to be taken at such a late stage. It may give rise to disputed questions of fact which were initially not raised. The stand is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablishment and organisation of industries in industrial areas and industrial estates in the State of Maharashtra, does not show that the Corporation is an agent of the Government, nor the fact that the State Government can give directions as to policy under Section 18 or that the Corporation has to observe the directions of Government regarding the starting of a reserve and other funds under Section 24 is indicative of agency as such. At any rate, the plea with never taken in time and we cannot allow it to be taken as it has been at a late stage of the proceedings. (80) The last stand that has also been taken at a somewhat late stage in these proceedings is that everything is uncertain and nothing has yet been decided. The first occasion on which this stand was taken was in the particulars replied by the respondents' attorney on 6th July 1964. There the attorneys stated: Precise nature or terms of the relationship between Government and the Corporation as regard the transaction have not been finally determined so far and there is no express or implied agreement of loan or otherwise between the Government and the Corporation . This thesis again was elaborated in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... needed .............. for a company the condition in the proviso that the compensation to be awarded for such property is to be paid by a Company alone has to be fulfilled. In such a case the clause in the proviso wholly or partly out of public revenues or some fund controlled or managed by a local authority, for that is not the case of any party. Thus since the declaration in the notification under Section 6 is of a public purpose it is clear that the Commissioner must satisfy himself only that the compensation was to be paid wholly or partly from out of public revenues. Now, if the arrangement between the Corporation and the State was in an inchoate state and nothing had been determined and yet money for payment of the compensation had already passed out of the hands of the State Government, and been paid to the Special Land Acquisition Officer we are at a loss to understand how the Commissioner on the date on which he promulgated the notifications was satisfied that the land was needed for a public purpose. He could not be so satisfied unless he knew and ascertained before hand, that the compensation was to be paid wholly or partly from out of public revenues. That was the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on under Section 6 would be patently illegal for it would not fulfill the requirement of the proviso to Section 6. It would also indicate a complete non-application of the mind. We shall show a little further when we come to discuss the question raised under Section 17(4) also that there does not appear to have been any application of mind in the promulgation of these notifications. (83) The proviso to Section 6 has been analysed and pronounced upon in a number of decisions of the highest Court. We have already referred to some of them. Jhandu Lal's case [1961] 2 SCR 459 ; Somavanti's case [1963] 2 SCR 774 and Valjibhai's case, [1964] 3 SCR 686 . We may also refer to the recent decision in February of this year in Civil Appeal No. 177 of 1962 which reiterates the same position Shyam Behari v. State of Madhya Pradesh [1964] 6 SCR 636. In the case last mentioned Mr. Justice Wanchoo observed as follows:- Section 6(1) of the Act required that whenever any land is needed for a public purpose or for a company, a declaration shall be made to that effect. Further the proviso to Section 6(1) provides that no such declaration shall be made unless the compensation to be awa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the notification. The conclusiveness can only be imparted to a notification which is valid in law. Apart from this we have also held that in declaring that the land was required for a public purpose the Commissioner did not apply his mind to the question at all. If as the Commissioner has stated the proper material was not before him and he was obviously misguided thereby then that error must necessarily be reflected in the making up of his mind as to the existence as the affidavits of other officers and the statement of particulars wish to make out, the Commissioner' s statement that the petitioner's land was to be acquired from the funds of the Maharashtra Industrial Development Corporation was incorrect, then the Commissioner's declaration that there was a public purpose was made upon incorrect premises and without a consideration of the proper material. We must, therefore, hold the action taken by the Commissioner to be a colourable exercise of the power. (85) In Valjibhai's case, [1964] 3 SCR 686 the Supreme Court was faced with a similar acquisition and considering the provisions of Section 6(2) the Supreme Court observed in paragraph 5 of the Judgment a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the declaration under Section 6 is made, must be that prescribed by Part VII. It is conceded on all hands that that was not done in the instant case and only the general procedure prescribed for acquisitions for a public purpose was followed. or this reason also the acquisition must be held to be bad in the instant case. (87) In Valjibhai's case, [1964] 3 SCR 686 (sup. cit.) there was also involved an acquisition for a company, viz. the State Transport Corporation of the State. There was of course a contention raised in that case that the State Transport Corporation was a local authority but the Supreme Court negatived it and held that the State Transport Corporation was a company. In the present case, there is no dispute that the Maharashtra Industrial Development Corporation is a company within the meaning of the Act. On the question of the procedure to be followed the Supreme Court held as follows in paragraph 9: It is no doubt true that it has been the appellants' case throughout that the State Transport Corporation is a company. It is also a fact that the entire compensation is to come out of the funds of the State Transport Corporation. If, therefore, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lands. The petitioner's land is neither waste nor arable land. It is land fit for non-agricultural industrial use and building purposes immediately. The lands have already been surveyed and plans have been prepared for construction thereon long before Notification under Section 4 was issued. The said land is within industrial Area. The said land is not desolate or abandoned land as it is fit ordinarily for use for building purposes. It is also within the Thana Borough Municipal Limits ............... The land which is a building site within the Municipal Limits cannot be regarded as arable land :. The petitioner also stated in paragraph 3 of the petition that the land was levelled land and was fit for erection of a factory and construction of building. He alleged that the Government of India had asked him to shift his explosive factory and therefore, he had his explosive factory and therefore, he had purchased this site and that Government had approved of his plan for a new factory. The petitioner, therefore, submitted that the opinion of the Commissioner that they were waste or arable lands was clearly not bona fide and was without any application of mind to the facts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petition that the lands is a building site within the Thana Borough Municipal Limits is concerned, it appears that there has been no specific denial of that fact in the return filed by the Commissioner. Even the allegation in paragraph 8 (d) of the Petition that the land is fit for non-agricultural and building purposes immediately is not specifically denied. All that the Commissioner says amounts to this I am not aware of and do not admit these allegations . The denial also does not meet the substance of the allegation in the petition and the substance is that the petitioner's land was fit for non-agricultural, industrial or building purposes and included within the area of the Thana Borough Municipality. What is really denied is that it is so fit for immediate use. The petitioner has placed on record voluminous correspondence with the Inspector of Explosives of the Government of India and a letter to the Director of the petitioner was proposing to shift his existing explosives factory to the site in dispute and after protracted negotiations, the Government of India through its Inspector of Explosives had on 24th January 1963 approved of the plans to shift the factory to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on as to urgency it seems to us that the authority must indicate which class of land the authority thinks it is going to take under the 'urgency' provisions. To say that the Commissioner is of the opinion that the said lands are waste or arable lands is, in our opinion, not indicative of any decision whatever. It is, on the other hand, an indication that the Commissioner has not applied his mind to the question. The mechanical reproduction of the words of the section that the said lands are waste or arable itself shows, that the Commissioner never applied his mind to the question. We do not say that it necessarily vitiates the notification altogether but that he left the question open to doubt is itself an important indication of the non-application of mind. In Navnitla's case, AIR 1961 Bom 89 to which we have referred above, the Commissioner was wiser. He omitted all reference to waste or arable lands and the Division Bench held that the notification was bad for the reason that the authority had not applied its mind before forming the opinion. At p. 628 (of Bom LR) : ( at p. 93 of AIR), the Division Bench observed : The affidavit does not state that the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of urgency, (2) a direction from the appropriate Government or the Commissioner (3) waste or arable land, (4) need for a public purpose and (5) need for a Company. All these concepts are treated equally by the section and there is no indication that anyone is discretionary or subjective. It seems to us on a plain reading of the section that they are all conditions prescribed for the exercise of the power of jurisdiction of the Collector to take the Citizen's property under those provisions. Upon the non-fulfillment or non-existence of any one of those conditions the exercise of the power must necessarily be interdicted. The conditions going to the root of the jurisdiction must be strictly fulfilled and are not left to the subjective satisfaction or opinion of the authority concerned. Secondly the passage from Navnitlal's case, AIR 1961 Bom 89 which we have quoted is decisive of this question. We may only make one thing clear here. The word 'opinion' is used in Subsection (4) in the clause In the case of any land to which, in the opinion of the Appropriate Government or the Commissioner the provisions of Sub-section (1) ............. are applicable ............ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he meaning of Sub-section (1) of Section 17. (96) Upon this question, it has been pointed out that there are two decision of this Court, one reported in Jairam Balaji Anikar v. State of Maharashtra Special Civil Appln. No. 25 of 1962 D/- 26-9-1962 (Bom) and the other in Sadashiv Lahanu v. State of Maharashtra, Special Civil Appln. No. 93 of 1962 D/- 9-11-1962 (Bom). In the first of these cases, the Division in Navnitlal's case AIR 1961 Bom 89 and with reference to the question whether agricultural land can be arable land, they observed as follows:- The Commissioner has issued this Notification stating in the notification that in his opinion the land is arable land. We cannot accept the contention that the words arable land would include land which is under cultivation either of agricultural crops or fruit-bearing trees from which income is derived by the land owner. It seems more consonant with the scheme of Section 17 that it is only that land which is actually waste or which is arable that is, which is culturable but which is not under crops or not being put of use for raising income to which are provisions of the urgency clause can be made applicable, so that nobody ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection (3) of Section 17 was not noticed in any of those decisions; secondly, that in the Special Civil Appln. No. 93 of 1962 (Bom) the meaning of the word arable as given in the Oxford Dictionary was followed, but that there are other Dictionaries which give an extension of the meaning as including land which is cultivated; thirdly, that the definition of arable land in Section 3(aa) of the Land Acquisition Act makes a crucial difference. We would deal with each one of these submissions separately. (98) Section 17 runs as follows:- Special powers in cases of urgency: (1) In cases of urgency, whenever the (Appropriate) Government or the Commissioner so directs, the Collector, though no such award 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. (2) Whenever, owing to any sudden change in the channel of any navigable river or other unforeseen emergency, it becomes nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have already indicated the conditions for the exercise of the power to take those lands. Sub-section (2) refers to any sudden change in the channel of any navigable river and/or other unforeseen emergency and is a power reserved to the authorities only where possession of any land becomes necessary for a railway administration. Sub-section (2), however, uses the words any land in contra-distinction with Sub-section (1) where the words are any waste or arable land Sub-section (2) is thus not confined merely to waste or arable land as Sub-section (1) is. We are not concerned with the other requirements of Sub-section (2). It is upon the words of Sub-section (3) that emphasis is laid by the learned Advocate General. He says that the key word in this section in the word either preceding the words of the preceding Sub-sections that is to say, it means either of the Sub-section (1) or (2) and so reading it, it is impossible to apply Sub-section (3) unless we read into the word arable in Sub-section (1) the meaning that it includes cultivated lands also. It is urged that otherwise the subsequent words of Sub-section (3) offer to the persons interested compensation for the st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub-section (1) of Sub-section (2) . or in other words each of the two sub-sections . Moreover, we shall presently show that nothing turns upon the meaning of the word either and that the key words of the sub-section are the words, if any in the brackets and if one the carefully considers why those words were at all put in, in the section the construction sought to be put upon the word either by the learned Advocate General must fail. (100) An analysis of the possible cases which may arise under Sub-sections (1) and (2) of Section 17, will make the matter further clear, In Sub-section (1) the words used are waste or arable land and in Sub-s. (2) any land , In Sub-section (3) compensation is to be given for the standing crops and trees (if any). Now it is clear that crops and trees cannot possible exist in both cases of waste land and of arable land. In arable land there may be crops and trees and those trees may be of two kinds, growing spontaneously or cultivated by the hand of man, but in waste land there can only be at the most wild trees of spontaneous growth, but there never can be crops in waste land. The draftsman of the section realized that the words crops ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ese separate ideas into one compact sentence. He realized that under Sub-sections (1) and (2) there were bound to arise a variety of cases There would be trees only and no crops: or crops only and no trees: or neither trees nor crops: He wanted to include every variety into one sentence and therefore he said standing crops or trees (if any). (102) Were we to hold that the words standing crops and trees would apply to both Sub-sections (1) and (2) in their entirety, then in the first place, we would be rendering the words (if any) meaningless and of no effect and in the second place, we would be so construing the words as to give rise to an impossibility. For instance, in waste land there never can be standing crops, yet we would be so constructing the Sub-section that the words standing crops would apply even to waste lands, it is in precisely such a case that the words (if any) would come into operation. On the other hand in waste land there may be wild trees of spontaneous growth standing, in which case the words (if any) would come into operation so far as the standing crops and cultivated trees and concerned. Similarly in the case of arable lands, there can be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wth of an established sod; 2. Brit, of live-stock; fed on cultivated crops (as roots) (the arable ewe going back on to the rough grazing (S. J. Watson) . As a noun the meaning given is land that is tilled or tillable . Thus even Webster makes a distinction between the adjectival use of the word arable and the noun arable . It seems that the adjective has now begun to be used in Britain as a noun and so used, it is used indiscriminately for both tilled and tillable lands. The meaning, however, it is clear is of comparatively recent growth and it is not of universal use. In Britain it is used in a peculiar connotation, but its basic meaning still remains the same fit for tillage and crop production or capable of being ploughed . It may be pointed out that this meaning is the same as occurs in 1902 edition of Webster's Dictionary and also in the Imperial Dictionary of 1882 where also the meaning is given fit for ploughing or tillage; arable land, land which is cheaply cultivated by means of plough as distinct from pasture land. (105) There is a clear conflict as to the extended meaning in the several dictionaries. One thing is at least clear that the original and basic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct always to the husbandry covenants which secure all the lands against real 'waste This decision was given in 1890 and nowhere was it suggested that arable meant land which is already cultivated or on which crops were grown. On the other hand, we have shown that Vice-Chancellor Chatterton has Definitely said that the word arable does not imply cultivated land. We can see, therefore, no reason why the decision in the two cases should not be followed. There appears to be no doubt as to the meaning of the word arable , not is there any indication in Sub-section (3) or any other provision of Section 17 to indicate that the word arable has a special connotation and includes cultivated lands as well. Upon the citation of Webster's and other dictionaries wherein the extension of meaning has been shown, we suggested to the learned Advocate General at an early stage of the arguments on this point that if there was any doubt, we were prepared to refer this case to a larger Bench, but the learned Advocate General felt that that ought not to be done as it would delay the decision of this case. On fuller arguments we see no reason to doubt the earlier view taken in this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affidavit put in but the Commissioner in that case observed as follows: From the affidavit in reply filed by the Commissioner, it does appear that the only ground on which the Commissioner has regarded the land as waste and arable is that it was not put to any present use and had no structure standing on it. An arable land is a land which is fit for tillage 'and the expression is usually used to mean lands which are ploughed for raising ordinary annual crops such as rice, jowar etc. ' (italicized (here into ' ') is ours). The learned Advocate General relied upon the words single quoted in this quotation to urge words single quoted in this quotation to urge that the words arable land have been judicially interpreted by that Division Bench to include cultivated land. From a perusal of the judgment it is quite clear that learned judge was not attempting to define the expression at all. He was referring to what the Commissioner in that case had regarded as waste and arable land and in that context be referred to the meaning of arable land as land which is fit for tillage and further observed that the expression is usually used to mean lands which are ploughed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was raised by the learned Advocate General. He urged that even assuming that we take the view that the lands of the petitioner were not arable lands and could not be taken under Section 17(1), all the notifications issued in this case ought not to be held bad, but only those notifications which were issued from the point where the authorities went wrong. The effect of holding that section 17(1) did not apply to the petitioner's lands would be that Section 5-A would not be excluded and therefore the petitioner would be entitled to urge and be heard upon any objections to the acquisition which he may choose to take. It was urged that, therefore, the notification under Section 6 and the subsequent notification under Section 9 should alone be held, bad but not the notification under Section 4. On behalf of the petitioner, however, Mr. Bhatt contended that section 4 is so inextricably inter-mingled with the other provisions of the Act that we cannot set aside only the notifications under Sections 6 and 9. He pointed out that under Sections 6 and 9. He pointed out that under Section 5-A he was entitled to show by taking objections, that the land was really not needed for a public pur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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