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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 ..... as the said lands) are needed for 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 by and issued under the authority of the first respondent Mr. J. H. Patwardhan, Commissioner of Bombay Division. Mr. Patwardhan purported to sign these Notifications by virtue of the authority conferred on him by an Amendment made in the Land Acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowed 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 right take objections and try to persuade the authorities that there was no "public purpose" involved or that the land was not needed or likely to be needed for a contemplated public purpose. The petitioner was says that the urgency clause has, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter 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 Maharashtra Industrial Development Corporation which is a Government of Maharashtra Undertaking financed by the State Government from Public funds and are intended to be developed from the said funds and to be subsequently dealt with by lease or sale in orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 24th June 1964 an affidavit came to be filed by an Under Secretary in the Industries and Labour Department of the Government of Maharashtra, Mr. Hanumant Shrinivas Nargund. That affidavit purports on the face of it to have been filed "in order to correct a mis-st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 Amendment) Act, 1918: and (2) the acquisition of land for purposes of the development of areas from public revenues or some fund controlled or managed by a local authority and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplies 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 Industrial Development Corporation, and for purposes connected with the matters aforesaid. In Subsection (g) of Section 2 "Industrial Area" has been defined to mean an industrial area so declared by the State Government in the Official Gazette, which us to be developed and where indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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 generality of clause (I), to:- (a) establish and manage industrial estates at places selected by the State Government: (b) develop industrial areas selected by the State Government for the purpose and make them available for undertaking to establish themselves: (c) assist financially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 dissolve the Corporation itself (vide Section 58) subject to its being satisfied that its purposes have been substantially achieved. Despite this provision in the Corporation Act there has been no dispute raised here that the Maharashtra Industrial Corporation is a "company". It was conceded that it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 could exercise all the relevant powers under the Act. A definition was added of the words "appropriate Government" in section 3(ee) as follows:- "The expression "appropriate Government" means, in relation to acquisition of land for the purpose of the Union, the Central Government, and in relation to acquis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment 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 Acquisition Act to give the necessary powers to the Commissioners, It is also not in dispute that the Bombay Commissioners of Divisions Act has received the assent of the President and that would mean in the context of Section 3(4) that the President has assented to those powers being conferred upon and being entrusted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (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 alterations and modifications : and (7) Where the authorisation was to apply future laws under the same conditions : the views of the various members of the Bench were not as clear cut here as in the first five cases, so it will be necessary to analyse what each Judge said". The authorisation under Section 3 (4) of the substance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sa 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 Limitation we hold .................. that Section 3(1)(f) is intra vires that is to say, we hold that any Section or Sections of the Bihar and Orissa Municipal Act of 1922 can be picked out and applied to "Patna" provided that does not effect any essential change in the Act or alter its policy". (27) Judged in the light of this principle we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the only way in which they can properly do so, it by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernment 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 judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute. Where plenary powers of legislation exist as to particular subjects, whether in an imperial or in a provincial Legislature, they may in their Lordships' judgment be well exercised, either absolutely or conditionally". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 proper. (32) It was then urged that though, the Commissioner of Divisions Act has undoubtedly received the assent of the President, the subsequent amendments effected by the notifications of the State Government in the Land Acquisition Act as well as the other Acts were not assented to by the President and to that extent the subject of the Legislation which ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 operation since 1894. The validity of the law was challenged before this Court in Babu Barkya Thakur v. State of Bombay [1961] 1 SCR 128 , on the ground that it infringes the provisions of Arts. 31(2) and 19(1)(f) of the Constitution. But this Court held that the law being a pre-Constitution law is protected from the operation of Art. 31(2) by the provisions of Art. 31(5)(a). ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 includes certain purposes within the definition of a public purpose are within the accepted connotation of that expression. (36) Turning to the challenge under Article 14 of the Constitution it is the petitioner's case that he himself is the owner of the small factory manufacturing explosives in close proximity to the residential part of Bombay, that therefore the Government of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 against the petitioner. He has also urged that the power given by virtue of Section 6 read along with the amendment in Section 3(f)(2) is an arbitrary power conferred upon the State of acquire the lands of the petitioner. There are no safeguards against the exercise of this arbitrary power and, therefore, discrimination is writ large upon the face of the law itself. For these reasons th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nother 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 Revenue who are the highest amongst the Income Tax Authorities under the Act to transfer the case of a particular assessee from the "Income-tax Officer of the area within which he resides or carries on business to any other Income Tax Officer if the exigencies of tax collection warrant the same". and the Court answered the point as follows:- (at p. 254 of SCR) : at p. 408 of AIR). "Such discr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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 the workmen to one or the other of the authorities according to the exigencies of the situation. No two cases are alike in nature and the industrial disputes which arise or are apprehended to arise in particular establishments or undertakings require to be treated having regard to the situation prevailing in the same. There cannot be any classification and the reference to one or the other of the authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all 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 large area of land which is all being acquired. We hold, therefore, that the challenge to the notifications and the provisions of the Act under article 14 and article 19 fails. (44) Then we turn to a more substantial contention urged on behalf of the petitioner that in the notifications as well as in the amendment to Section 3(f) contained in sub-clause (2) in-public purpose apparent. Therefore, it was ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 purpose" with particular reference to the Land Acquisition Act was also adverted to in a case which we have already referred to [1961] 1 SCR 128, Chief Justice Sinha defined it thus: "It will thus be noticed that the expression "public purpose" has been used in its generic sense of including any purpose in which even a fraction of the community may be interested or by which it may be benefited". (46) In Somawanti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded 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 is involved is a very vague expression and what is involved in "development" is not indicated. It was even suggested that if the State were to take the areas, merely remove the weeds and cut the grass growing thereon that could also be said to be "development". Here again the contention only amounts to this that taking advantage of the use of the expression "development of areas" the authorities may be enabled to take advant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Commissioner that there exists a public purpose is also endorsed upon the face of these notifications and, though it has been held that that is not essential, so far as sub-section (1) of Section 6 is concerned, the notifications could be said to be in order. But there is then the proviso to Section 6. The relationship of the proviso to the parent section and its effect has also been indicated is one of the recent cases which came before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 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 acquisition was really for a Company or for a public purpose and, therefore, we could deal with the facts here under both these heads and indicate what our conclusions are upon those facts. (53) We have already referred to the first affidavit filed by Mr. Patwardhan, the Commissioner of Bombay Division and the respondent No. 1 before us. He was also the authority who signed all the notifications in the instant case, whether under Section 4, 6 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Government" and stated "the lands would be placed at the disposal of the Maharashtra Industrial Development Corporation as provided in Section 40 of the Maharashtra Industrial Development Act, 1961". (54) We have already indicated that the reference to Section 40 was hardly relevant since it was not brought into force in the area concerned. It may be stated here that on the date on which the Under Secretary made his affidavit Mr. J. H. Patwardhan was st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Development Corporation". In paragraph 3 it is further stated: "At that time when I made the said affidavit, I believed that the compensation for the lands 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 wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich 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 Secretary of the Corporation supported the further stand taken by Mr. Patwardhan in his third affidavit that the Corporation was the agent of the Government of Maharashtra. This will clearly appear from paragraph 6. The Secretary of Corporation indicated in paragraph 7 that a sum of Rs.20 lakhs was paid by the Government of Maharashtra to the Special Land Acquisition Officer, Ulhas Valley Project out of which a part of the compensation for the acquisition of the lands for the Pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tary 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 default on the part of the debtor in carrying out the terms of the agreement". After taking the stand that the Corporation is carrying out the works as an agent of the Government, the Secretary of the M .I. D. C. has further come out with a statement which shows that in all probability all his previous statement and the varying stand of the other officers may be incorrect. Towards the end of paragraph 13 he stated : "Such an agreement with Government has to be in the manner laid d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 source of the funds for the acquisition of the subject-matter in dispute, is in flat contradiction to the stand taken in his first affidavit. No doubt, the Commissioner has in the third affidavit which he filed frankly confessed that he was ill-informed and that is what the Under-Secretary to the Government Mr. Nargund also states and normally having regard to the fact that a high public officer has thus admitted that he had made mistaken statement in an affidavit because of partial inf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 a precondition to the issuance of the declaration. If he made a mistake as to that preliminary requirement it seems to us that he must necessarily make mistake in his decision as to whether there exists a public purpose or not. It is clear, therefore that upon the admission of the Commissioner that he has made a mistake as to the source from which the funds came, he could never have come to a correct decision as to whether there exists a public purpose or not. It is patent that there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary 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 extract (page 2 of the Exhibit to the Affidavit of Shri Nargund) that during the financial year 1962-63, a total sum of Rs.45,08,919 was expended by the Government on various schemes specified under sub-head (4) "Expenditure on the Board of Industrial Development for development of Industrial areas" under the Account Head "C-Miscellaneous Schemes in the Third Five Year Plan". "Although the budget sub-head refers to the Board of Industrial Development, the expenditure incurred under the said sub-hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocate-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 has been that these documents show beyond any doubt that the amount of Rs.20 lakhs passed directly from the consolidated fund of the Government to the Special Land Acquisition Officer and that, whatever other versions may have been given in the accounting or subsequent entries made in the books of the respondents Nos. 3 and 4 were only for purposes of accounting as explained in the particulars. (64) We would have ordinarily accepted these statements on behalf of very responsible parties like the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Development Corporation and the first respondent the Commissioner and on 7th November 1962 the Chief Executive Officer Mr. P. C. Nayak (the person who has filed the affidavit before us) wrote to the Commissioner a letter No. L/W/52, dated 7th November 1962 in which he stated: "The Maharashtra Industrial Development Corporation has undertaken the development of the area in the village Panch-Pakhadi Taluka and District Thana situated on the outskirts of the Greater Bombay Municipal Limits. The development w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation 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 the machinery of the Land Acquisition Act in motion for acquiring the said lands". Nothing is more eloquent than the two paragraphs read in the context of the said letter, dated 7th November 1962 as to the manner in which the requisite satisfaction was reached under Section 6 of the Land Acquisition Act: It is nowhere stated in any of the affidavits that the letter dated 7th November 1962 was not acted upon. The Commissioner on his part has said that that was letter before him on the basis of which he proceeded to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ayment 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 payments to the Special Land Acquisition Officer by Government in March 1963 and that the Maharashtra Industrial Development Corporation had nothing to do with that amount, yet we find that on 19th August 1963 the Maharashtra Industrial Development Corporation clearly stating in its accounts that the same amount of Rs. 20 lakhs was a loan received from the State Government. (70) It was urged that the State Government cannot be held bound by the entries made by the Maharashtra Industrial Development Corporation in its accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ensation. (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 behalf". That appropriation is shown by the production of the extracts from the Budget Estimates. These are the appropriations made by the State Legislature by law. Therefore, the preliminary condition for the grant of the loan was also fulfilled. It will bear a little repetition to point out that the particulars supplied by the respondents' attorneys in terms say that, included in the consolidated amount of Rs. 45,08,919 was the amount of Rs. 20,00,000 received by the Special Land Acquisition Officer and that the rest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Corporation and it was through the mouth of this person that the statement in the particulars supplied by the respondents' attorneys was further sought to be supported. We have absolutely no doubt that in making that statement Mr. Nayak was stating something which was not correct. His statement stands completely disproved by his own letter of 7th November 1962 in which he categorically stated that the funds for the cost of the acquisition will be provided by the Corporation in due course and the affidavit does not explain how ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 acquisition is to come 'eventually' from out of public revenues, it must be held that the acquisition is not for a Company simpliciter" (here into ' ' is ours). The learned Advocate General emphasised the word "eventually" and urged that what the learned Chief Justice was clearly laying down was that if the amount in the final coking comes from out of public revenues that would be sufficient compliance with Section 6(1) and its proviso No doubt in the judgment referred to there is a reference to "loans" in the passage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 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 it as its own property. They cannot, therefore, be regarded as "public revenue" in any sense". (the italicized (here into ' ' ) is ours). It seems to us clear upon an interpretation of the proviso to Section 6 and upon the authorities that when moneys are advanced by the State to a Corporation for the payment of compensation for lands acquired for the Corporation, the compensation to be awarded cannot be said to be paid "wholly or partly out of public revenue". (77) The finding which we have given, moreover, is in no way in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roceeded 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 moreover contrary to the stand taken in the first affidavit of the Commissioner which, in our opinion, represents the true state of affairs. So far as the Maharashtra Industrial Development Act is concerned it is clear that the Corporation is an independent legal entity and function as such, and cannot by any stretch of language of the provisions of the Act be said to be an agent of Government (vide Section 3 (2), 4, 7, 12(2), 13, 15, 16, 19, 20, 21 and 40). The Corporation is an autonomous corporation having statutory powers independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 affidavit of the Chief Executive Officer of the Maharashtra Industrial Development Corporation Mr. Nayak and he has devoted three paragraphs to explaining how no decision was arrived at until the 29th June 1964, (vide the explanation given in paragraphs 13 and 14 of his affidavit). He concluded paragraph 13 by saying "Though consultation are going on between the Government and the Corporation for determining the arrangement between them as regard the lands that have been and may be entrusted to the Corporation for development, 'no final decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 sine qua non before the power under the sub-section to make the declaration of a public purpose could be exercised and it was on that vital point that the case now built up says that the whole thing was not final and was indeterminate. If so, the satisfaction which the Commissioner has expressed upon the face of the notification must be held to be had and indeed colourable. (82) We may also say that for another similar reason it must be held colourable. If the subsequent stands of the Commissioner and the Maharashtra Industrial Development Corpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;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 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. This clearly contemplates two kinds of declarations. In the first place, a declaration may be made that land is required for a public purpose, in which case in view of the proviso, the compensation to be awarded for the property to be acquired must come wholly or partly out of public revenues or some fund controlled or managed by a local authority. No declaration under Section 6 for acquisition of land fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 at p. 1892 of the AIR Report: "The notification under Section 6 reiterates this fact and in addition says that the land was needed to be acquired for the purposes of and at the expense of the State Transport Corporation. There is thus a clear declaration of the Government that the purpose of acquisition was a public purpose and as has been consistently held by this Court in a number of cases, including the most recent one, [1963] 2 SCR 774 the declaration as to public purpose by the Government is final except where it is a colourable exercise of power". Sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsport 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 accept the contention of the appellants on this point the terms of the proviso will be said to have been satisfied. On the other hand it has been the case of the respondent that the State Transport Corporation is not a company but a local authority. The reason why this contention is raised on behalf of the respondent is that the provisions of Part VII of the Act have not been complied with here and, therefore, if in fact the acquisition is on behalf of a company it will have to be said to be bad on the ground of non-compliance with the provisions of Part VII". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the case. The petitioner also submitted that there was no urgency in taking possession of the lands. (89) Unlike the traverse to the other allegations in the petition, the allegations on this point have only been traversed in the first affidavit of the Commissioner Mr. Patwardhan. In paragraph 13 he stated : "With reference to ground (d) contained in the said paragraph, I say that the "said lands are agricultural lands' described as such in the Record of Rights. I say that the said lands are being 'assessed to land revenue as agricultural lands'. I say t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 this very site. The land is also included within the confines of the Thana Borough Municipality. From all this material it does appear to us that though no doubt the land is still classed as agricultural land in the revenue records of the State Government building and industrial purposes and earmarked for that purpose. Otherwise it could not have been included within the Borough limits of Thana. It cannot, therefore be called "waste or arable land" by any stretch of the meaning of those words. In considering whether any land is "waste or arable: it is the nature of the land and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. 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 had formed the opinion that the provisions of Section 17(1) were applicable to the land in the present case nor does it state facts from which we can conclude that such an opinion was formed by the Government. The affidavit has stated that before issuing the Notification the land was inspected and was found to be waste and arable and having no structure on it .......... Whether the land is waste or arable is an objective fact. Under Section 17(4) Government is required to form an opinion with regard to this objective fact as a preliminary step to the exercise of its power to issue a di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 .............. :" and it was urged on the strength of that word "opinion" thus used that all that is necessary is that the authority must be subjectively of that opinion and that Courts cannot look at the matter objectively and determine whether the conditions exist. The word "opinion" may import only a subjective satisfaction (4) the word "opinion" is used in the context of the duty to see whether Sub-section (1) is applicable to any land and not in the context of whether the conditions of Sub-section (1) are fulfilled or not. Those conditions as held in Navnitlal's case, AIR 1961 Bom 89 must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tification 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 who is in possession and enjoyment of the land and raises crops or fruits by way of income is put to loss. It is unlikely that the Legislature could have intended that the urgency clause should be made applicable to lands which are under crops or on which fruit beating trees are standing". This decision was followed in the subsequent case to which one of us (Kotval J.) was a party. In that decision also it was held that "arable land as the expression is used in Section 17 Subsection (1), cannot include land which is under cultivation either or agricultural crops or fruit-bearing trees from wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncy, 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 necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon a river side or ghat station or of providing convenient connection with or access to any such station (or whenever owing to a like emergency or owing to breaches or other unforeseen events, causing damage to roads, rivers, channels or tanks, it becomes necessary for the State Government to acquire the immediate possession of any land for the purpose of maintaining road communication or irrigation or water supply service as the case may be) the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 standing crops and trees (if any) on such land ............ " would be rendered nugatory. The argument is that between Sub-section (1) and (2) there are contemplated three categories of lands, waste land, arable land and any land and then Sub-section (3) says that in every case under either of the preceding Sub-Sections the Collector shall at the time of taking possession offer to the persons interested compensation for the standing crops and trees if any, Obviously, then, if arable land does not include cultivated land, then the words "crops and trees" could not apply, certainly not the word "crop" and, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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" in Sub-section (3) must be meaningless so far as Sub-section (1) is arable land. It would have meaning so far as "any land" in Sub-section (2) is concerned. It is quite clear that Sub-section (3) is not limited to Sub-section (1) : Sub-section (2) as we have pointed out, is concerned with any land which may include even cultivated land or a garden or a pasture or a building land and in such a case it may be that that land may contain crops or trees both wild and cultivated. Therefore, the words "crops and trees" can always apply to Sub-section (2), but the word "crops" it appears cannot apply to Sub-section (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 standing crops and may be no trees whatsoever and therefore, the words "(if any)" would come in operation. It is not necessary, therefore, to import by virtue of Sub-section (3) that meaning into "arable land" in Sub-section (1) which would include standing crops in arable land. We do not, therefore, think that Sub-section (3) in any way compels us to give to the meaning of the word "arable" any special connotation other than its normal connotation and that takes us to a consideration of what is the normal connotation of the word "arable" in the English language. (103) In the second of the two judgments, which we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, 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 meaning of the word "arable" was "fit for ploughing or tillage or capable of being ploughed". As to the extended meaning we would prefer to rely upon the Oxford Dictionary which is a work of great renown and a standard work on the meanings of words in the English language, and in that great work the extended meaning does not find place. (106) But though with the aid of Counsel we have gone into this research as to the meaning of the word "arable" we think that the matter before us can be decided upon the judicial construction of the word and the meaning given to it in early English decisions. Where dictionaries differ, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Court. (109) Then we turn to the third contention as to whether the new definition added by local amendment makes any difference to the Interpretation of the word "arable" in Sub-section (1) of Section 17. By the Amendment Act XXVII of 1950 a local amendment has been incorporated in Section 3 and in the definition clause the following clause has been added :- "The expression "arable land" includes garden land". This definition of course did not come up for consideration before the two Division Benches which decided the earlier cases because that definition was not operative in the area in definition was not operative in the area i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 for raising ordinary annual crops such as rice, jowar, etc. With respect we may point out that there is no authority referred to and no reasoning and it is clear that the remark was wholly obiter and that was also conceded by the learned Advocate General. (111) Having regard to the correct meaning of the word " arable" we do not think the petitioner's lands in the present case were arable lands. That they were not waste lands is not disputed. On the interpretation which we have given to the word "arable" and upon the statement of the Commissioner himself that these are agricultural lands, therefore, it must be held that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 purpose at all or that other land was available, or that only a part of the land ought to be taken, in which case even the notification under Section 4 would have to be held bad and unnecessary. He also relied upon the decision in Navnitlal's case AIR 1961 Bom 89 where the Division Bench set aside all the notifications although they held that the notification under Section 17(1) was bad. In the view we have taken upon other points, we do not feel called upon to decide this question regarding the severability of the proceedings. Moreover we have in this case also held that the notification under Section 4 is bad for other reasons. In that view it ..... X X X X Extracts X X X X X X X X Extracts X X X X
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