Full Judgment Text
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PETITIONER:
ISHWARLAL GIRDHARLAL JOSHI ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT & ANR.
DATE OF JUDGMENT:
16/11/1967
BENCH:
HIDAYATULLAH, M.
BENCH:
HIDAYATULLAH, M.
BHARGAVA, VISHISHTHA
VAIDYIALINGAM, C.A.
CITATION:
1968 AIR 870 1968 SCR (2) 267
CITATOR INFO :
R 1970 SC1102 (14)
RF 1977 SC 183 (35,36)
R 1980 SC 91 (17)
ACT:
Constitution of India, 1950, Art.166 and Rules of Business,
rr.7, 10, 13 and 15-Notifications under Land Acquisition Act
(1 of 1894) Whether could be signed by an Under Secretary-
Formation of opinion regarding urgency and nature of land-
Whether could be delegated to Secretary-Standing Orders,
if necessary-Arable land, meaning
HEADNOTE:
By a notification under s. 4 of the Land Acquisition Act
issued on March 10, 1965 the respondent State Government
notified that certain lands were needed for a public purpose,
namely, the construction of the State capital, that the
Government was satisfied that they were ’arable lands’ and
further directed, under s. 17(4) of the Act, that as the
acquisition of the lands was urgently necessary, the
provisions of s. 5A would not apply. Thereafter, a
notification was issued under s. 6 containing a direction
under s. 17(1) of the Act enabling the Collector to take
possession of all the arable lands on the expiry of 15 days
from the publication of the notice under s. 9(1) of the Act.
Both Notifications were signed by an Under Secretary of the
respondent-Government.
The petitioners challenged the notifications in writ
petitions under Art. 226. In the original affidavits, the
petitioners merely asserted that the Government had not made
up its mind regarding the acquired lands as to urgency and
that the lands were not arable. The parties filed a number
of affidavits at various stages of the bearing, the
Government in order to establish that everything was
regularly done, while the petitioners alleged
infractions. In one of the affidavits on behalf of the
Government it was stated that file Minister-in-charge gave
oral instructions to the Secretary that he or his under-
secretaries may take action under s. 17(1) and (4) of the Act
according to law, that the Secretary was satisfied regarding
urgency and gave instructions to the Under Secretary to take
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the necessary action. The High Court after considering the
affidavits, dismissed the petitions.
In appeal to this Court it was contended that: (i) only
a Secretary could sign the notifications and that the Under
Secretary who signed the notification under s. 6 was not duly
authorised to do so; (ii) that there was no formation of
opinion by the Government as regards urgency or that the
lands were arable; (iii) that this function could not be
delegated to the Secretary and even if it could be delegated,
a general oral instruction given by the Minister was not
according to the procedure prescribed by the Rules of
Business; (iv) that since the lands in question were under
cultivation, they were not waste or arable lands; and (v)
that sub-ss. (1) and (4) of s. 17 of the Act were violative
of Arts. 14 and 19(1)(f) of the Constitution.
HELD: Dismissing the petitions.
(1) The word ’Secretary’ is not defined in the Land
Acquisition Act or the General Clauses Act so as to exclude
Additional, Joint, Deputy, Under or Assistant Secretaries.
On the other hand r.13 of the Rules of Business framed under
Art. 166 of the Constitution specifically places a
268
Secretary, Joint Secretary, Deputy Secretary, Under Secretary
and Assistant Secretary on equality for authentication of
orders and instruments of Government. The Under Secretary
was, therefore, competent to sign the notifications. [273F;
274E]
Even if he did not possess the power as a Secretary he
would have been competent as an officer ’duly authorised’,
within the meaning of s. 6 of the Act, by virtue of r. 13 of
the Rules of Business. [274F]
(ii) Under Art. 166 of the Constitution the validity of
the notification could not be called in question on the
ground that it was not an order made by the Governor,
because, as required by the Article the executive action of
the Government was expressed to be taken in the name of the
Governor and the order was authenticated in the manner
required by r. 13 of the Rules of Business. In addition,
there is also the presumption of regularity of official acts.
Therefore, the bare assertion that Government had not formed
an opinion could not raise an issue. The Government was not
called upon to answer the affidavit of the petitioners and
the Government need not have undertaken the burden of showing
the regularity of their action.[275 E--G; 278 D, F]
(iii) Rules 7, 10, 13 and 15 of the Rules of Business
specifically allow conferral of powers on Secretaries and the
determination of the Secretary becomes the determination
of the Government. There is nothing in the Rules or
instructions which prescribes that the authority must be in
writing or by Standing Orders. Under Paragraph 3 of the
instructions issued by the Governor under r. 15 of the Rules
of Business, Standing Orders are necessary for the disposal
of cases in the department, and a case is defined as ’the
papers under consideration and all previous papers and notes
put in connection therewith to enable the question raised
to be disposed of’. Paragraph 4, on the other hand refers
to "matters or classes of matters". Therefore, paragraph 3
only refers to the disposal of cases and not to matters
arising In a case, regarding which under paragraph 4, the
Minister may arrange with the Secretary whether they are to
be brought to his personal notice or not.The matters in the
present case were the application of s. 17(1) and (4), to the
acquisition of waste and Arabic lands and the Minister could
leave this matter to his Secretary as he did.For this
purpose, Standing Orders were not necessary and oral
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instructions would be sufficient.The Secretaries concerned
were given the jurisdiction to take action on behalf of
Government and they satisfied themselves about the need for
acquisition under s. 6, the urgency of the matter and the
existence of waste and arable lands for the application of
sub-ss. (1) and (4) of s. 17.Therefore, on a review of the
affidavits, the provisions of the Act and the Business Rules
and Instructions, the directions under sub-ss. (1) and (4) of
s. 17 were not invalid. [280 D--G; 281 C--D; 282 E--G]
Shayamaghana Ray v. State, A.I.R. 1952 Orissa 200, referred
to.
Emperor v.Shlbnath Banerji, L.R. 72 I.A. 241, distinguished.
(iv) Arable land under the Act is not only land capable
of cultivation but also land actually under cultivation. The
words ’compensation for the standing crops and trees (if any)
on such land’ in s. 17(3), show that the land may have crops
or he fallow and the crops can only be on arable land.
because. if crops could grow or were actually grown the land
Would hardly he waste land [286 A--B, E]
Baldeo Singh & Ors. v. State of U.P. A.I.R. 1965
All Smt. Lakshmi Devi Ors. v. State of Bihar’ & Ors. A.I.R.
1965 Pat, 400
269
and Guntur Ramalakshmamma v. Govt. of Andhra Pradesh, A.I.R.
1967 A.P. 280, approved.
Sadruddin Suleman v.J.H.Patwardhan, A.I.R.1965 Born.224.
over-ruled.
(v) The High Court had rightly held that sub-as. (1) and (4)
and 17 were not unconstitutional. [286 F-G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 883, 915 to
967 and 1042 to 1044 of 1967.
Appeals from the judgment and order dated December 2, 5, 12
and 13, 1966 of the Gujarat High Court in Special Civil
Applications Nos 1003, 1177, 1178, 1183, 1186, 1195, 1197 to
1202, 1205 to 1210, 1220 to 1222, 1244, 1275, 1374, 1377,
1380, 1387, 1389 of 1965, 68 to 70, 72 to 74, 76, 77, 80, 83,
84, 166, 183, 393, 399, 547, 554, 790 of 1966, 1187, 1188,
1233 of 1965, 75, 154, 202, 402, 403 of 1966, and 1179, 1184
and 1185 of 1965.
B. Sen, S.K. Dholakia and Vineet Kumar, for the appellant (in
C.A. No. 883/1967).
S, K. Dholakia and Vineet Kumar, for the appellants (in C.
As. Nos. 915 to 967 and 1042 to 1044 of 1967).
S.V. Gupte, A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the
respondents (in C. As. Nos. 883 and 915 to 967 of 1967).
A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the respondents
(in C. As. Nos. 1042 to 1044 of 1967).
The Judgment of the Court was delivered by
Hidayatullah, J.--On March 10, 1965, the Government of
Gujarat notified under s. 4 of the Land Acquisition Act that
certain lands were needed for a public purpose, namely, the
construction of the capital of the State at Gandhinagar and
that Government was satisfied that they were ’arable lands’.
Government further directed under s. 17(4) of the Act that as
the acquisition of the said lands was urgently necessary the
provisions of s. 5A of the Act shall not apply in respect of
the lands.A list of the lands was appended to the
notification.This notification was followed by another on
JuLy 31, 1965 under s. 6 of the’ Land Acquisition Act and it
contained a direction under s. 17 (1) of the Act, enabling
the Collector, on the expiration of 15 days from the
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publication of the notice under s. 9 (1) of the Act, to take
possession of all arable lands specified in the earlier
notification. Both notifications were signed by L.P. Raval,
Under Secretary to Government and were shown to be by order
and in the name of the Governor of Gujarat.
Numerous petitions were filed in the High Court of
Gujarat under Art. 226 of the Constitution by the owners of
the lands
Sup, C. I,/68-3
270
affected by the notifications to challenge the validity of
the acquisition. One such petition was numbered Petition No.
1003 of 1965 and it was typical of all the others. The
facts in all the petitions were the same, save the details of
the lands, and as the contentions were also the same, the
High Court pronounced a common judgment applicable to all,
on December 2/5, 1966 and dismissed them. The High Court,
however, granted a certificate under Art. 133(1)(c) of the
Constitution and the present appeals have been brought.
Civil Appeal No. 883 of 1967 arises from the Special Civil
Application No. 1003/65 and the other appeals are in the
other petitions. This judgment will accordingly dispose of
all the appeals.
Before we consider the arguments we may see the relevant
provisions of the Land Acquisition Act. The scheme of the
Act, which entered into force almost seventy-five years ago,
is by now familiar to lawyers and courts and it is not
necessary to refer in detail to it. The High Court has
painstakingly analysed the provisions already. We shall
refer in passing to what is material to the discussion,
Acquisition of land under the Act originarily begins with a
preliminary inquiry. Government notifies first under s. 4
that ’land in any locality is needed or is likely to be
needed’ for a public purpose. Public notices are also given.
This enables the officers of Government to enter upon lands
to survey them and also enables persons interested to object
to the acquisition generally and also particularly in
accordance with the provisions of s. 5A of the Act. After
the objections have been considered and Government has
satisfied itself on the report or reports of the Collector
that a particular land is needed, a second notification
is issued under s. 6 that a particular land is needed for the
public purpose. This declaration is conclusive evidence that
the land is so needed and Government then proceeds to acquire
the land. The procedure is detailed in the sections that
follow. Under s. 9 (1 ) the Collector causes public notices
to be given that Government intends to take possession of the
lands and that claim to compensation for all interests in
lands shall be made to him. Then commence proceedings for
the fixation of compensation with the details of which
procedure we are not presently concerned. When these
proceedings are completed the Collector makes his award about
the true area, the compensation to be allowed and the
apportionment of that compensation among persons known or
believed to be interested. When the Collector has made his
award (which is made conclusive for certain purposes) s. 16
enables him to take possession of the lands and the lands
vest absolutely in Government free from all encumbrances.
The is provided in s. 17. Under this procedure Government in
cases award. There is a shorter procedure for cases of
urgency and it is provided in s. 17. Under this procedure
Government in cases
271
of urgency, is enabled inter alia to omit the application of
s. 5A and to notify the lands under s. 6 at any time after
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the publication of the notification under s. 4(1). Under
sub-s. (1) of s. 17, Government can direct the Collector,
though no award has been made, to take possession of any
waste or arable lands needed for the public purpose, on the
expiration of fifteen days from the publication of the
notice under s. 9. Under Sub-s.(4) of the same section
Government may direct that in the case of any land to which
in its opinion the proviSiOns of the first sub-section are
applicable, the provisions of s. 5A shall not apply and if
it so directs a declaration may be made under s. 6 in respect
of that land at any time after the notification under s. 4
(1) has been published. It will therefore, be noticed that
the shorter procedure has been followed here. Before we refer
to the grounds on which the action of Government is
challenged we may read ss. 4(1) 6(1) omitting the proviso,
and s.17. Although we are principally concerned with the
first and fourth sub-section of the last section we shall be
required to refer to the remaining sub-sections, and we shall
read the section as a whole:
"4(1) Whenever it appears to appropriate
Government that land in any locality is needed
or is likely to be needed for any public
purpose, a notification to that effect shall be
published in the Official Gazette, and the
Collector shall cause public notice of the
substance of such notification to be given at
convenient places in the said locality.
6(1) Subject to the provisions of Part V/I
of this Act, when the appropriate Government is
satisfied, after considering the report, if
any, made under section 5A, sub-section (2),
that any particular land is needed for a public
purpose, or for a Company, a declaration shall
be made to that effect under the signature of a
Secretary to such Government or of some officer
duly authorized to certify its orders and
different declarations may be made from time to
time in respect of different parcels of any
land covered by the same notification under
section 4, sub-section’ ( 1 ), irrespective of
whether one report or different reports has or
have been made (whenever required) under
section 5A, sub-section (2).
17(1) In cases of urgency, whenever the
appropriate Government so directs, the
Collector, though no such award has been made,
may, on the expiration of fifteen days from the
publication of the notice mentioned in section
9, sub-section (1),
272
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 that station,
or of providing convenient connection with or
access to any such station, the Collector may,
immediately after the publication of the notice
mentioned in sub-section (1) and with the
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previous sanction of the appropriate
Government, enter upon and take possession of
such land, which shall thereupon vest
absolutely in the Government free from all
encumbrances:
Provided that the Collector shall not take
possession of any building or part of a
building under this sub-section without giving
to the occupier thereof at least forty-eight
hours’ notice of his intention so to do or such
longer notice as may be reasonably sufficient
to enable such occupier to remove his movable
property from such building without unnecessary
inconvenience.
(3) 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) on such land
and for any other damage sustained by them
caused by such sudden dispossession and not
excepted in section 24; and, in case s
uch offer
is not accepted, the value of such crops and
trees and the amount of such other damage
shall be allowed for in awarding compensation
for the land under the provisions herein
contained.
(4) In the case of any land to which, in the
opinion of the appropriate Government, the
provisions of sub-section (1) or sub-section
(2) are applicable, the appropriate Government
may direct that the provisions of section 5A
shall not apply, and, if it does so direct, a
declaration may be made under section 6 in
respect of the land at
273
any time after the publication of the
notification under section 4, sub-section (1)
In the High Court sub-ss. (1 ) and (4) of s. 17 of the
Act were assailed under Arts. 14 and 19(1)(f) of the
Constitution.This argument was placed at the forefront.In
this Court this submission was relegated to the end.
Apparently not much faith was reposed in its potency. The
other arguments urged before the High Court and found against
the appellants, were pressed with vigour upon us.These
arguments concern the issue of notifications invoking the
shorter procedure and those notifications are questioned.
These arguments involve the validity of the notifications as
(a) unauthorised by Government, (b) without formation of the
necessary opinion on relevant matters, and (c) on erroneous
assumption of facts.The first ground, when amplified, is that
D.P. Raval, Under Secretary, who signed the notifications
under s. 6 was not duly authorised to do so under the Act and
the notifications were, therefore, invalid and of no effect.
The second ground is based on the assertion that there was no
formation of opinion by the Government as regards urgency or
that the lands were arable, and on both the points the Act
requires Government to reach a decision, which fact has not
been established if not disproved. The third ground proceeds
on the meaning of the expression ’arable land’ which, it is
claimed, denotes land capable of cultivation or village but
not land already under the plough. We shall now proceed to
consider each point in turn.
Raval’s authority to issue the notification under s. 6 is
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questioned on the wording of the latter portion of that
section where it is mentioned that "the declaration shah be
made under the signature of a Secretary to such Government
or some officer duly authorised to certify its orders." The
argument is without substance The word ’Secretary’ is not
defined either in the Land Acquisition Act or the General
Clauses Act so as to exclude Additional, Joint, Deputy,
Under or Assistant Secretaries. If this were established,
then it might be said that the word was intended to
designate only the head of the secretarial department
concerned with land acquisition. No such indication is
available from any source. Nor was it necessary to invest
any particular Secretary specially under the Act for no such
requirement can be spelled out from the words relied upon.
On the other hand, the business of Government is regulated
by the Rules of Business made under Art. 166 of the
Constitution. How those Rules operate will be more fully
considered presently when we deal with the second point.
For the present it is sufficient to point out a few
provisions of the Rules, Rule 7 provides:
"7. Each Department of the Secretariat
shall consist of the Secretary to the
Government, who shall be the
274
official head of that Department and of such
other officers and servants subordinate to
him as the State Government may determine :--
Provided that-
(a) more than one Department may be placed
in charge of the same Secretary;
(b) the work of a Department may be divided
between two or more Secretaries."
If this Rule stood by itself, it might have been necessary to
place on record evidence to establish that the work of this
Department was divided among the Secretaries and how, but
Rules 13 and 15 additionally provide:
"13.Every order or instrument of the
Government of the State shall be signed either
by a Secretary, an Additional Secretary, a
joint Secretary, a Deputy Secretary, an Under
Secretary or an AssiStant Secretary or such
other officer as may be specially empowered in
that behalf and such signature shall be deemed
to be the proper authentication of such order
or instrument."
"15.These rules may to such extent as
necessary be supplemented by instructions to be
issued by the Governor on the advice of the
Chief Minister,"
Rule 13 specifically places all Secretaries on equality
for authentication of orders and instruments of Government
and Rule 15 further authorises supplemental instructions
which as we shall presently see were in fact issued.Thus
Raval was competent to sign the declaration as a Secretary.It
is not necessary to consider whether he can be treated as an
officer ’duly authorised’ because he already had authority by
virtue of his office and rule 13 of the Rules of Business
contemplates officers other than Secretaries. But if he did
not possess the power as a Secretary he would undoubtedly
have been competent as an officer duly authorised by virtue
of rule 13 of the Rules of Business and that is all that s. 6
requires. No further special authorisation under the Act was
necessary.
To overcome these rather obvious difficulties Mr. B. Sen
raised the second point which was that the provisions of the
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Act require Government to form an opinion and this function
cannot be delegated to the Secretaries and even if it could
be delegated, strict compliance with Rules of Business and
the instructions issued under Rule 15 was necessary. He
submits that there was no formation of the necessary opinion
in the case before action under s. 17(1) or (4) was taken.
To understand this argument
275
provision on the subject.To begin with Art.166 of the
Constitution provides.
"166. Conduct of business of the Government
of a State.
(1) All executive action of the Government
of a State shall be expressed to be taken in
the name of the Governor.
(2) Orders and other instruments made and
executed in the name of the Governor shall be
authenticated in such manner as may be
specified in rules to be made by the Governor,
and the validity of an order or instrument
which is so authenticated shall not be called
in question on the ground that it is not an
order or instrument made or executed by the
Governor.
(3) The Governor shall make rules for the
more convenient transaction of the business
of the Government of the State, and for the
allocation among Ministers of the said business
in so far as it is not business with respect to
which the Governor is by or under this
Constitution required to act in his
discretion."
It is obvious that the executive action of the Government was
in fact expressed to be taken in the name of the Governor,
and that the orders were authenticated in the manner required
by rule 13 of the Rules of Business already quoted. The
validity of the order could not, of course, be called in
question that it was not an order made by the Governor. Had
the Government sheltered itself behind the constitutional
curtain, it is a little doubtful the appellants could have
successfully pierced this barrier by merely stating that the
Government had not passed the orders or made the necessary
determination without alleging definite facts. In addition
to the constitutional provision there is also the presumption
of regularity of official acts. Orders of Government,
whether at ministerial or gubernatorial level, are all issued
in the same form and the constitutional protection as well as
the presumption both cover the case.
But, as it happens frequently, Government tried to
establish that everything was regular. A batch of counter
affidavits was filed on behalf of Government to show how the
matter was dealt with from stage to stage and the appellant
filed affidavits in rejoinder and were not slow to point out
infractions or supposed infractions. As they sought to do
this on facts furnished by the
276
affidavits on behalf of Government we may say a word about
those affidavits.
No less than eight affidavits were filed by Government
and five affidavits including one supporting the petition
were filed by the petitioner in Special Civil Application
No. 1003 of 1965. Other affidavits on behalf of the other
petitioners repeated the allegations. The affidavits filed
with the petitions had averted only that Government had not
’made up its mind regarding acquired lands’, that the
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satisfaction was ’mala fide’ and ’colourable’ and that the
gap of time between the two notifications itself showed that
there was no urgency. The affidavits also raised the issue
that the lands were not ’arable lands’. Government apparently
took up the challenge and flied affidavit after affidavit.
The first affidavit was filed by L. P. Raval, Under Secretary
(Oct. l, 1965) that the lands were arable lands’ and
Government had formed the opinion about urgency, and further
that the determination of these two matters by Government was
not justiciable. This was followed by an affidavit by the
Executive Engineer (Oct. 8, 1965) who stated that the master
plan was ready which involved 12 villages including Pethapur
where these lands are situated. The lands were involved in
the construction of main roads and the laying out of sectors.
He explained the delay between the two notices on the ground
that survey had to be done and that took time but reaffirmed
that the matter was urgent. The appellants promptly
questioned the formation of opinion by alleging ’that
Government had not formed the opinion and that the affidavit
of Raval did not establish this. In reply another Under
Secretary (Nimbalkar) filed an affidavit (Nov. 8 1965) that
Jayaraman, Deputy Secretary was ’subjectively satisfied’
that the lands were ’arable lands’ and that there was
urgency and asserted that both matters were for the
subjective determination of Government and thus not open to
question in a court of law. This was followed by another
affidavit in rejoinder from the appellants (November 24,
1965) ’that Jayaraman had not personally filed any affidavit
and therefore it was not clear who had made the subjective
determination regarding the matters disputed and the public
purpose. Raval ’then swore another affidaVit (August, 1966)
giving details of the urgency and stated that he had
considered the need for issuing the notification under s. 4
and that ’it was decided’ to apply s. 17(4). He also stated
that the notification under s. 6 and the application of s.
17(1 ) was considered first by him and then by Jayaraman and
they had agreed to issue the notification and apply s.
17(1). Another affidavit ill rejoinder was filed during the
hearing (December 2, 1966) that neither Raval nor Jayaraman
had stated that they had satisfied themselves about- s.
17(4) nor had Raval or Jayaraman stated that they were
authorised by the State Government
277
or by the Rules of Business or by any special order to form
the said opinion. A number of affidavits were then fled.
The Minister-in-Charge filed an affidavit in which he said:
".....for the purpose of urgently acquiring
the lands for the Capital Project, I had given
instructions initially to Shri S.M. Dudam and
subsequently to Shri A.S. Gill after he became
the Secretary of the Revenue Department, and
had made arrangements with them, during their
respective tenures as Secretaries of the
Revenue Department, to take necessary action
for urgent acquisition of lands for the Capital
Project and had also instructed them that they
or the concerned Deputy Secretaries or Under
Secretaries in the Revenue Department may,
without bringing the cases to my personal
notice and without referring such cases to me,
issue notifications under sections 4 and 6
o/the Land Acquisition Act and may apply
urgency clause under section 17(1) and (4) of
the said Act as the case may be wherever it was
possible to invoke the urgency clause according
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to law."
S.M. Dudani who was Secretary ’till April 2, 1965 and A.S.
Gill who followed him swore two affidavits. Their purport
was almost the same A.S. Gill said:
".....Shri Utsavbhai S. Parikh, the Hon’ble
Minister for the Revenue Department for the
purpose acquiring lands urgently for the
Capital Project had given instructions to me
and had made arrangements with me to take
necessary action for urgent acquisition of
lands for the Capital Project and had also
instructed me that myself or the concerned
Deputy Secretaries or the Under-Secretaries in
the Revenue Department may, without bringing
the cases to his personal notice and without
referring such cases to him, issue
notifications under sections 4 and 6 of the
said Act and may apply urgency clause under
sections 17(1) and (4) of the said Act, as the
case may be, wherever it was possible to
invoke the urgency clause according to law.
I had given instruction to the concerned
Deputy secretaries and the under Secretaries of
the Revenue Department to take necessary
actions under sections 4 and 6 of the said Act
and to apply the urgency clause wherever it was
possible according to law."
The appellants then filed a last affidavit in rejoinder
denying the power of the Minister to delegate by oral
instructions his own
278
power to the Secretary and questioned the sub-delegation to
the Deputy and Under Secretaries.
It would thus appear that the controversy got enlarged
as time passed and Government undertook more and more burden
although there was hardly any attempt by the appellants to
support their assertions by mentioning any facts. The High
Court noticed in its judgment that there was really nothing
in the original affidavit supporting the petition which
Government need have answered and yet it allowed affidavits
to be filed during the hearing and even in the midst of the
pronouncement of the judgment. Each affidavit on the side
of Government itself enabled the appellants to enlarge their
allegations and to take up new stands. This unusual course
appears to have been permitted from a desire to be just
and fair but was hardly proper and the High Court ought
really to have stemmed the flow of affidavits, keeping the
appellants to their burden and the Government to its burden,
if any. The Government also did not leave the appellants to
their burden which would have been heavy in view of the
presumption and the provisions of Art. 166(2) already
mentioned.
The High Court having before it allegations, counter
allegations and denials dealt first with the legal side of
the matter. Then it readily accepted the affidavits on the
side of Government. If it had reversed its approach it need
not have embarked upon (what was perhaps unnecessary) an
analysis of the many principles on which onus is distributed
between rival parties and the tests on which subjective
opinion as distinguished from an opinion aS to the existence
of a fact, is held open to review in a court of law. As
stated already there is a strong presumption of regularity
of official acts and added thereto is the prohibition
contained in Art. 166(2). Government was not called upon
to answer the kind of affidavit which was filed with the
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petition because bare denial that Government had not formed
an opinion could not raise an issue. Even if Government
under advice offered to disclose how the matter was dealt
with, the issue did not change and it was only this.
Whether any one at all formed an opinion and if he did
whether he had the necessary authority to do so.The High
Court having accepted the affidavits that Raval and
Jayaraman had formed the necessary opinion was only
required to see if they had the competence.The High Court
after dealing with many matters held that they had.
Mr. B. Sen has, therefore, very rightly confined himself
to this aspect of the case. and has questioned the
competence of Raval and Jayaraman to act for the Government.
His contention is that the procedure followed by the
Minister-in-Charge offended the Rules of Business and
therefore the necessary satis-
279
faction or the opinion of Government was wanting in the
case. In support he has relied upon Emperor v. Shibnath
Banerji(1). Mr. Sen’s argument proceeds like this:
Under the Rules of Business (Rule 4) the business of
Government is to be transacted in the Department specified
in the First Schedule and item No. 15 covers the topic of
acquisition of property and the principles on which
compensation is to be determined and it is assigned to the
Revenue Department. Each Department of the Secretariat
consists of a Secretary to the Government (Rule 7) but the
work may be divided between two or more Secretaries. The
Minister-in-Charge is primarily responsible for the disposal
of the business appertaining to the Department (Rule 10).
Therefore only ’the Minister for Revenue could decide
questions. Referring to the oral instructions said to have
been given by the Minister, Mr. Sen refers to the
instructions issued by the Governor under Rule 15 and draws
attention to paragraph 3 of the instructions which reads:
"3. Except as otherwise provided in these
Instructions, cases shall ordinarily be
disposed of by, or under the authority of the
Minister-in-Charge, who may by means of
standing orders, give such directions as he
thinks fit for the disposal of cases in the
Department. Copies of such standin
g orders
shall be sent to the Governor and the Chief
Minister."
He contends that a general instruction of the type mentioned
by the Minister in his affidavit could only be given as a
standing order of which a copy had to be sent to the
Governor and the Chief Minister and, therefore, the oral
instructions had no validity in law. He submits in the
alternative that at least an order in writing ought to have
been passed.
Mr. S.V. Gupta in reply contends that this overlooks
the opening words of Rule 10 which are "without prejudice to
the provisions of rule 7," indicating that the business of
land acquisition is to be transacted in the Revenue
Department (Rule 4) by the Secretary to the Department (Rule
7 read with Rule 10) although the Minister is primarily
responsible for the disposal of the business. He then draws
attention to the provisions of Rule 13 where a Secretary is
equated to Additional, Joint, Deputy, Under and Assistant
Secretaries for certain purposes and the definition of
Secretary in paragraph (1 )(vii) which includes these other
functionaries for ’the purpose of the Instructions. Mr.
Gupte next reads with paragraph 3 the provisions of
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paragraphs 4 and 5 which provide:
(1) L.R. 72 I.A. 241.
280
"4. Each Minister shall arrange with
the Secretary of the Department what matters
or classes of matters are to be brought to his
personal notice."
"5.Except as otherwise provided in
these Instructions cases shall be submitted
by the Secretary in the Department to which
the case belongs to the Minister-in-charge."
Mr. Gupta contends that there is nothing in the Rules or
Instructions that oral instructions, if clearly issued,
cannot confer on the Secretaries the power to make
determinations and submits that Standing Orders refer to
all cases generally and oral instructions ,can be issued in
certain particular contingencies and this was done as stated
in the affidavits of the Minister, A.S. Gill and S.M. Dudani
which have been accepted. He contends that there is no sub-
delegation because Rule 7(b) covers this case.
In our judgment the argument of Mr. Gupte is
valid.There is nothing in the Rules or Instructions which
prescribes that the authority must be in writing or by
Standing Orders. Standing ’Orders are necessary for the
disposal of cases in the Department (paragraph 3) and this
applies to cases generally. Paragraph 4, on the other
hand, refers to "matters or classes of matters" and that is
not a "case" but a "matter" in a case. The definition of
case in the Instructions is:
"Case includes the papers under
consideration and all previous papers and
notes put in connection therewith to enable
the question raised to be disposed of",
but this definition is excluded by the context.Although the
case belongs to a Department [paragraph 2(i)],the word case
in paragraph 3 obviously refers to the disposal of cases and
not to matters arising in a case regarding which the
Minister may arrange with the Secretary whether they are to
be brought to his personal notice or not. The matters here
were application of s. 17(1) and (4) to the acquisition of
waste and arable lands and the Minister could leave this
matter to his Secretaries as he did. For this purpose
Standing Orders were not only not necessary but would be
inappropriate.
Reliance was placed upon the decision of the Orissa
High Court in Shayamaghana Ray v. State(1) that Rules 15 must
prevail over the instructions. But ’that Rule itself
provides that the Rule may be supplemented by instructions
and the power so conferred was available in paragraph 4 to
provide that the ’Minister may arrange with the Secretary of
his Department what ,(1) A.I.R. 1952 Orissa 230.
281
matters or classes of matters are to be brought to Iris
personal notice. This dispenses with the taking of orders
of the Minister each time.
Mr.Sen then refers to the words of ss.4, 6 and 17(1) and
(4) which are different.In s.4 the words are whenever it
appears to the appropriate Government that land in any
locality is needed or is likely to be needed’ while in s.6
the words are ’when the appropriate Government is satisfied’
and in s. 17(4) the words are ’in the opinion of the
appropriate Government’. He contends that some difference
must be made between them and when sub-ss. (1 ) and (4) of
s.17 require, a direction from the appropriate Government the
determination must be by the Minister himself.If the sections
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stood by themselves this argument would be unanswerable but
we have the Rules of Business which specifically allow
conferral of powers on Secretaries and the determination of
the Secretary becomes the determination of
Government.Mr.Sen’s reference to Emperor v.Shibnath Banerji’s
case(1) is not apposite because the circumstances there were
different.That case arose from petitions under s. 491 of the
Code of Criminal Procedure seeking directions in the nature
of habeas corpus on behalf of certain pensons detained in
pursuance of orders made under Rule 26 of the Defence of
India Rules 1939. It appears that detentions were dealt with
in Bengal in the Home Department and the Home Minister
Bengal, in the Bengal Legislative Assembly in answer to
interpellations, slated that he had directed that on receipt
of the report of arrest under Rule 129 (Defence of India
Rules 1939) together with a recommendation by the police for
detention under Rule 26, orders of detention under Rule
26(1) (b) should at once be issued as a matter of course
subject to review by Government on receipt of further
details. As Lord Thankerton pointed out tthat clearly meant
the substitution of the recommendation by the police in place
of the recommendation of the Governor prescribed by Rule 26
and equally rendered any order under r. 26 in conformity
with the Home Minister direction, to which their Lordships
referred as the routine order, ab initio void and invalid as
not being in conformity with the requirements of r. 26.
Further Mr. Porter, the Additional Home Secretary, in an
affidavit regarding Shibnath Banerji stated:
"10. Shibnath Banerji: He was arrested by
the Police under r. 129, Defence of India
Rules on 20th October 1942. On 27th October
1942, I considered the materials before me and
in accordance with the general order of
Government directed the issue of an order of
detention under r.26(1)(b) Defence of India
Rules.On receipt of fuller materials the case
was later submitted for consideration of the
Honourable
282
Home Minister, Bengal, from whom no order
directing withdrawal or modification of the
order of detention was received."
"Their Lordships are unable to read Mr.
Porter’s state- ment that he had considered
the materials before him as involving anything
more than he has considered the report of the
arrest and the recommendation of the police to
see if there was material sufficient to
justify the issue of an rder under the routine
order. It cannot mean that, in spite of the
direction of the Home Minister in the routine
order, he considered the materials before so
as to satisfy himself, independently of the
police recommendation that an order under r.26
should be issued. That would not be in
accordance with the requirement of the routine
order that-the police having recommended
it--the order of detention should be issued
as a matter of course.
The position in the present case is different. If Mr.
Porter had sworn the affidavit that he had considered the
need for detention, quite apart from the routine order, the
result might have been different because of the orders being
in the name of the Governor and by his order. In any case
Mr. Porter admitted that he had not considered the matter.
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In our case the Secretaries concerned were given the
jurisdiction to take action on behalf of Government and
satisfied themselves about the need for acquisition under s.
6, the urgency of the matter and the existence of waste and
arable lands for the application of sub-ss. (1) and (4) of
s. 17. In view of the Rules of Business and the Instructions
their determination became the determination of Government
and no exception could be taken. Of course, if Government
had relied upon the provisions of Art. 166(2) and the
presumption of regularity of official acts, all this enquiry
would have become unnecessary since the appellants had not
originally pleaded any fact.s leading to any enquiry.
However, on a review of the affidavits the provisions of
the Act and the Business Rules and instructions we are
satisfied that the directions under sub-ss. (1) and (4) of
s. 17 were not invalid.
This brings us to the contention that since the lands in
question were under cultivation, they did not constitute
’waste or arable lands’ because by arable land is meant
land capable of being ploughed or fit for village and not
land actually Cultivated. The High Court has rejected this
contention disagreeing with a decision of the Bombay High
Court reported in Sadruddin Sideman v.
283
J.H. Patwardhan(1). Mr. Sen has adopted the judgment of the
Bombay High. Court as part of his argument. Mr. Gupte in his
reply has ruled upon Guntur Ramalakhsmana and Others v.
Government of Andhra. Pradesh and another(2), Baldeo Singh
and others v. State of Uttar Pradesh and others(3) and Smt.
Lakshmi Devi & others v. The State of Bihar and others(4) and
the reasons given in the judgment under appeal. We shall
first deal with the three rulings from Andhra Pradesh,
Allahabad and Patna High Courts. The first contains no
discussion and may not be referred to here. In the case from
Allahabad reference is made to s. 17 ( 3 ) of the Act
(already quoted) in which there is a provision that standing
crops must be compensated for and it is inferred that by
’arable lands’ must be meant not only land fit for
cultivation but also land actually under cultivation. In the
case from Patna reference is made to Halsbury’s Laws of
England (II Edn.) Vol. 14 p. 633 paragraph 1187, where arable
land is shown as including untilled land.
In the case from Bombay relied upon by Mr. Sen three
different reasons were given. First several dictionaries
were referred to and reliance was placed upon the Oxford
Dictionary in preference to Webster’s particularly because
the Oxford Dictionary did not mention land under actual
cultivation as one of the meanings although Webster’s
Dictionary did. The learned Judges next referred to the
etymology of the word ’arable’ and finally to the dicta of
Judges in Palmer v. McCormick(5) and ’Simmons v. Norton(6).
Support was then found for the view in s. 17(3) of the Act,
the mention of compensation for standing crops
notwithstanding.
There is no definition of the word ’arable’ in the
original Land Acquisition Act.A local amendment includes
garden lands in the expression. Now lands are of different
kinds: there is waste-land desert-land, pasture-land,
meadow land, grass-land wood-land, marshy-land, hilly
land, etc. and arable land. The Oxford Dictionary gives the
meaning of ’arable’ as. capable of being ploughed; fit for
village; opposed to pasture-land or wood land and gives the
root as arablis in Latin. The learned Judges have
unfortunately not given sufficient attention to the kinds of
land and the contrast mentioned with the meaning. Waste-land
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comes from the Latin vastitas or vastus (empty, desolate,
without trees or grass or buildings). It was always usual to
contrast vastus with incultus (uncultivated) as in the phrase
’to lay waste’ (agrivastate)..A meadow or pasture-land is
pratum and arable is arvum and Cicero spoke ’of prata et
arva (meadow and arable
(1) A.I.R. 1965 Bom. 224. (2) A.I.R. 1967 A.P. 280.
(3) A.I.R. 1965 All. 433. (4) A.I.R. 1965 Pat. 400.
(5) [1890] 25 Ir.Rep.110. (6)[1831] 7 Bing 640=131 E.R. 249.
284
lands). Grass-land is not meadow or pasture-land and in
Latin is known as campus as for example the well-known
Campus Marflus at Rome, where the comitia (assembly of the
Roman people ) used to meet. Woodlands is silvae, nemora or
saltus.
We have given these roots became a great deal depends on
the distinctions thus visible in understanding the judicial
decisions of English and Irish Courts. Lands described in
different combinations of words such as waste and arable or
arable and pasture or pasture and woodland emphasise
different aspects of land. In many cases the change from
one kind of use to another was held to be waste. It is in
this sense that Coke on Littleton 53b (quoted in Oxford
Dictionary) said that the conversion of meadow into arable
or arable into wood is waste but 2 Roll. Ab. 815 said that
’if meadows be sometimes arable, and sometimes meadow, and
sometimes pasture, then the ploughing of them is not waste.’
In Lord Darey v. Askwith (Heb. 234) it is laid down as
"generally true that the lessee hath no power to change the
nature of the thing demised: he cannot turn meadow into
arable, nor stub a wood to make it pasture, nor dry up an
ancient pool or piscary, nor suffer ground to be surrounded,
nor decay the pale of a park "It was thus in Simons v.
Norton(1) which was an action of waste for ploughing
ancient meadow that Tindal C.J. made the observations which
are relied upon in the Bombay case. He observed:
"It is clearly established by several
authorities, that ploughing meadow land is
waste.......In grants,land often passes
specifically, as meadow, pasture, arable, or
by other descriptions. Ploughing meadowland
is also esteemed waste on another account;
namely, that in ancient meadow, years, perhaps
ages, must elapse before the sod can be
restored to the state in which it was before
ploughing. The law, therefore, considers the
conversion of pasture into arable as prima
facie injurious to the landlord on those two
grounds at least."
Similarly, the observations of Chatterton V.C. in
Palmer v. McCormick(2) and of Fitzgibbon J. in the same case
cannot lead to any conclusion that ’arable land’ means only
land capable of cultivation and not land actually cultivated.
Tiffs was also a case of’ alleged waste. Chatterton V.C.
observed:
"arable’ does not mean land actually
ploughed up or in tillage but land capable or
fit to be so: for ought I know this land,
though properly designated arable in 1821, may
even then have been in process of acquiring
(1) 131 E.R. 249. (2) 1890 25 Ir. Rep, 110.
285
the character of ancient pasture, which
process have commenced, and been going on for
sometime."
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Mr. Justice Fitzgibbon observed that because the laud
was not .in grass for 20 years the defendant could treat it
as arable. ’that is. cultivable by him. The contrast
between grass-land and arable is thus established but it
does not rule out that arable land does not include land
actually cultivated. As a matter of fact the passage from
Chatterton V.C. is correctly understood in Stroude’s not
only land actually ploughed upon in tillage but also I and
capable or fit to be so. In tiffs connects it is useful to
see that in the Agricultural Holdings Act, 1923 (13 and 14
Geo. 5 c.9) ’arable land’ is defined as not including land
in grass, and in the second schedule to the Agriculture Act,
1947 (10 and 11 Geo. 6 c. 48) special direction may be given
by the Minister requiring the ploughing up of any land
consisting of permanent pasture, and the land is deemed ’to
be arable land and to have been arable land at all material
times. It is thus clear that by arable land is meant not
only laud capable of cultivation but also actually
cultivated. It is not arable not because it is cultivated
demonstrates its nature as arable land.
All this discussion by us was necessary to dispel the
inferences drawn from dictionaries and repons of cases from
England and Ireland, but ’the safest guide, as always, is
the statute itself which is being considered. In this
connection we may first turn to the Land Acquisition Act of
stood:
"17. Power to take possession in cases of urgency.
In cases of urgency, whenever the Local Government so
directs. the Collector (though no such reference has been
directed or award made) may, on the expiration of fifteen
days from the publication of the notice mentioned in the
first paragraph of section nine, 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.
The Collector shall offer to the persons interested
compensation for the standing crops and trees (if any) on
such land; and in case such offer is not accepted, the,
value of such crops and trees shall be allowed for in
awarding compensation for the land under the provisions
herein contained."
LISup.CI./68 4
286
It will be noticed that compensation was then payable for
standing crops and trees (if any). There can be no question
of crops on waste land for the crops can only be on arable
lands became if crops could grow or were actually grown the
land would hardly be waste.The words in parenthesis
obviously indicate that land may have crops or be fallow and
compensation was payable crops if there were crops.
Turning now to the section as it is today it will be
noticed that the first sub-section corresponds to the first
and second paragraphs of s. 17 of the Act of 1870 taken
together. The third paragraph of the former Act corresponds
to the third sub-section of ’the present. Act. The
difference in language in the third sub-section necessary
because the provisions of sub-section (3) are now intended
to apply also to the second sub-section of the present Act
’which is new. Hence the opening words ’in every case under
either of the preceding sub-sections’ which means all cases
arising either under sub-s. (1) or sub-s. (2). The words in
parenthes is (if any) in relation to the first sub-section
continue to have the same force and no other, as they had
previously. The learned Judges of the High Court of Bombay
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did not give sufficient consideration to the fact that the
opening words "in every case under either of the preceding
sub-sections" do not play and more part than to indicate
that what follows applies equally to cases under sub-s.(1)
and sub-s. (2). They ought to have read the words that
follow the opening words in relation to sub-s. (1) and if
they had so read them, there would have been no difficulty
in seeing the force of the words in parenthesis (if any) or
why crops are mentioned when the words of the sub-section
are waste and arable.The quotation from Roger’s Agriculture
and Prices quoted in the Oxford Dictionary-"half the arable
estate, as a rule, lay in fallow",gives a clue to the
meaning of the words ’if any’. In our judgment, therefore,
the conclusion of the Bombay High Court was erroneous and
the judgment under appeal is right on this point.
Finally there remains the question of the
constitutionality of sub-ss. (1) and (4) of s. 17. On this
point very little was said and it is sufficient to say that
the High Court judgment under appeal adequately answers all
objections.
In the result the appeals fail and are dismissed.We,
however,think that this is a proper case in which there
should be no order about costs and direct accordingly.
V.P.S. Appeals dismissed.
287