TaxTMI 
TaxTMI 
1964 (7) TMI 59
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.... in the Schedule herein (hereinafter referred to 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....
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....ossession i.e. at 12 noon on 6th May 1963, was actually served on him on 7th May 1963 after possession was taken. On 30th April 1963 a further notice was served upon the petitioner by the Special Land Acquisition Officer, the second respondent, to appear before him on that 15th of May 1963 and to lodge his claim for compensation. In the meanwhile, pursuant to the notice dated 19th April 1963 informing the petitioner that possession of the land would be taken on May 1963, the petitioner's land was taken possession of on 6th May 1963. It also admitted that on the same day to the fourth respondent the Maharshtra State Industrial Development Corporation. All this was pointed out in a letter dated 14th May 1963 written by the petitioner's attorneys complaining that the acquisition was illegal. The present petition was filed on 12th June 1963. (4) Now it is the petitioner's case that the Notification under Section 4, 6 and 9 of the Land Acquisition Act are illegal. The grounds, briefly stated are as follows :- That the notification purport to have been signed by and issued under the authority of the first respondent Mr. J. H. Patwardhan, Commissioner of Bombay Divisi....
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.... that the land is required for a public purpose are a mere colourable exercise of the power granted under those sections and secondly that the procedure followed for the acquisitions is vitiated. The correct procedure which ought to have been followed is that prescribed in Part VII of the said Act which deals with acquisitions for Companies or Chapter VI of the Maharashtra Industrial Development Act which deals with acquisition for that Corporation. (7) Next attach was levelled against what has been concisely dubbed the "urgency" clause in the three Notifications whereby the respondent No. 1 announced his intention to take the petitioner's lands because they were "waste or arable" lands and their acquisition was "urgently necessary" under the powers vested in him under Sub-section (4) of Section 17 of the Act. By virtue of that sub-section the first respondent dispensed with the provisions of Section 5-A of the Land Acquisition Act and declared that it shall not apply to the said land. It is the petitioner's case that thereby he was deprived of a very valuable right viz. the right take objections and try to persuade the authorities that there was no "public purpose....
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....on 3(f)(2) as amended were liable to be set aside on the ground of unconstitutionality. The Commissioner also pointed out that he had issued the Notification under Section 4 after he had satisfied himself that the said lands were acquired for the purpose of "developing and utilising the same as an industrial area" and he asserted " - I say that as the said lands were waste or arable lands and as their acquisition was urgently necessary I directed that the provisions of Section 5-A of the Land Acquisition Act would not apply to the said acquisition". He added that he was satisfied that the said lands were needed for the aforesaid public purpose before he issued the declaration under Section 6 and that he had similarly satisfied himself so to the requirements of Section 9(1) when he issued the Notification under that section. (10) In order to meet the point taken by the petitioner that the acquisition was for a Company viz. the Maharashtra State Industrial Development Corporation, the Commissioner stated in paragraph 10 of his return, "I say that the said land is to be acquired from the funds of the Maharashtra Industrial Development Corporation which is a Government of Maha....
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....e said lands are waste or arable lands within the meaning of Section 17 of the Land Acquisition Act. I am not aware of and do not admit the allegations that the petitioner's land was fit for immediate use for non-agricultural industrial or building purposes or that the land had been surveyed or that plans had been prepared for construction thereon before the issue of the impugned Notifications". He also asserted in answer to the point raised by the petitioner that he had satisfied himself after fully considering all the facts that the said lands were urgently required for development as an industrial area On the question of delegation of authority to the Commissioner, he stated that he himself acted under the legal and that he himself by Section 3(4) of the Bombay Commissioners Notification No. 1957 and the Government Notification No.IAQ - 2558 / V, dated 5th September 1958. The second affidavit with the Commissioner filed merely negatived all the pleas as to the unconstitutionality of the notifications as well as Section 3(f)(2) of the Land Acquisition Act as locally amended. (13) Matters stood at this, when on the 24th June 1964 an affidavit came to be filed by an Under....
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.... by Mr. Patwar in direct conflict with that taken by Mr. Patwardhan in this first affidavit. We shall deal with the question raised upon the documents. (14) Before we proceed, therefore, to discuss the several points raised, it is necessary to say a word about the local amendments that have been effected in the Land Acquisition Act. They provisions of the Land Acquisition Act have been several times amended by local legislation. We are concerned in this petition with two such amendments. The first is the amendment made by Act XXXV of 1953 in the definition of "public purpose" contained in sub-section (f) of Section 3 of the Land Acquisition Act. The definition as it stands after amendment is as follows. (f) of Section 3 of the Land Acquisition Act. The definition as it stands after amendment is as follows: "(f) the expression "public purpose" includes (1) the provision of village sites in districts in which the (Appropriate) Government shall have declared by notification in the official Gazette that it is customary for the Government to make such provisions (and it housing scheme as defined in the Land Acquisition (Bombay Amendment) Act, 1918: and (2) the acquisition....
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....also at this stage refer to the Maharashtra Industrial Development Corporation and the law under which it was established. (18) The Maharashtra Industrial Development Act, 1961 (Act III of 1962) was brought into force on the 1st of March 1962. It applies to the whole of the State of Maharashtra but Sub-section (3) of Section 1 thereof provides that Chapter VI shall take effect in such area, from such date as the State Government may, from time to time, by notification in the Official Gazette, appoint in that behalf. Accordingly, the State Government has from time to time actually applied Chapter VI to several areas under its jurisdiction, but it is conceded on both sides that Chapter VI has not been brought into force so far as the area in which the lands in dispute are situated. Therefore, for the purposes of this petition Chapter VI does not apply at all. The preamble of the Act recites that it is expedient to make special provision for securing the orderly establishment in industrial areas and industrial estates of industries in the State of Maharashtra, and to assist generally in the organisation thereof, and for that purpose to establish an Industrial Development Corporatio....
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....f Section 13 is somewhat important, because of the stand taken that the expenditure for the acquisition in the case was really an expenditure of the Corporation. Sub-section (4) says: "All expenditure which the Board of Industrial Development may have incurred before the date of the coming into force of this Act in connection with any of the purposes of this Act shall deemed to be a loan advanced to the Corporation under Section 21 on that date, and all assets acquired by such expenditure shall vest in the Corporation". It is also not in dispute that the erstwhile Board of Industrial Development which was a Board set up by Government itself was replaced by the Corporation on 1st August 1962 by a Notification No. IDC - 1062 - IND - 1 dated 1st August 1962 in the Official Gazette. Section 14 and 15 indicate the functions of the Corporation and its powers, Section 14 mentions the functions as follows:- "14. The functions of the Corporation shall be (I) generally to promote and assist in the rapid and orderly establishment growth and development of industries in the State Maharashtra, and (ii) in particular, and without prejudicial to the generality of cla....
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....re is a special provision for acquisition of lands for this Corporation provided the Chapter is made applicable to the area in question. (20) In the affidavit made on behalf of the Commissioner a reference is to be found to Section 40 of the Act which gives power to the State Government upon such conditions as may be agreed upon between it and the Corporation to place at the disposal of the Corporation any lands vested in the State Government "for the furtherance of the objects of this Act" and that after such land has been developed by, or under the control and supervision of the Corporation, it shall be dealt with by the Corporation in accordance with the regulations made and directions given by the State Government. The affidavit averred that the petitioners land would be dealt with under Section 40, but obviously in view of the fact that Chapter VI has not be brought into force in the area in which this land is situated, that reference is irrelevant. The miscellaneous and supplemental provisions contained in Chapter supplemental provisions contained in Chapter VII amply indicate that the State Government has a very rigid control over the Corporation and it if so decides can ....
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....s and could be taken possession of without observance of the provisions of Section 5-A. If they cannot be so taken what is the effect on the notification under Section 4. (7) Whether the opinion of the authority under Section 17 would be merely a subjective opinion which the Court cannot scrutinise or whether it should be objectively proved that the requirements of Section 17(1) have been fulfilled. (22) We may first of all dispose of the objections to the notification that the Commissioner could not promulgate them as he had no valid power. We have already indicated that the notifications under Section 4, 6 and 9 were all signed by Mr. J.H. Patwardha, the Commissioner of Bombay Division who is the first respondent. The first of these two notifications also contains the necessary declaration under Sub-section (4) of Section 17 of the Act, dispensing with the provisions of Section 5-A. In the Land Acquisition Act as it originally stood the power under each of the Section 4, 6, 9 and 17 was only entrusted to the Local Government. After the Constitution by the amendment made by the Adaptation of Laws Order, 1959 instead of the word "local" the word "appropriate" was substi....
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.... provision for amending the enactment". It may be noticed at the outset that the Land Acquisition Act was not one of the Acts mentioned in the Schedule and the amendment of that Act could therefore be made only under Sub-section (4) Section 3 of the Commissioner of Divisions Act which says that "the State Government may confer and impose on the Commissioner powers and duties under any other enactment for the time being in force... (23) Purporting to act under these powers the State Government issued a notification on the 5th September 1958, notification No. G.N. R.D. LAQ - 2558/V dated 5th September 1958 inserting the words "or the Commissioner" in the said section of the Land Acquisition Act in the then State of Bombay excluding the transferred territories under the Reorganisation of States Act. By virtue of Sub-section (4) of Section 3 the Schedule to the Commissioners of Divisions Act accordingly stood amended and that in its turn incorporated those amendments in the Land Acquisition Act. (24) Now it has been urged on behalf of the petitioner that this was a very devious method of amending the Land Acquisition Act. It is not disputed that the State Legislature could with t....
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....he modifications which it was empowered to make in them. The variations were as follows: (1) Where the executive authority was permitted, at it discretion, to apply without modification (save incidental changes such as name and place), the whole of any Central Act already in existence in any part of India under the Legislative sway of the Centre to the new area: This was upheld by a majority of six to one. (2) Where the executive authority was allowed to select and apply a Provincial Act in similar circumstances: This was also upheld, but this time by a majority of five to two. (3) Where the executive authority was permitted to select future Central laws and apply them in a similar way: This was upheld by give to two. (4) Where the authorisation was to select future Provincial laws and apply them as above: This was also upheld by five to two. (5) Where the authorisation was to repeal laws already in force in the area and either substitute nothing in the area and either substitute nothing in their places or substitute other laws, Central or Provincial, with or without modification: This was hel....
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....orm of the Patna Administration and the new areas. That Section was with regard to assessment of taxes and the petitioner in the case who was a resident of the new area contended that such a delegation was a delegation of an essential function of the Legislature and, therefore, the provisions of the Act which authorised such a delegation were void. It was held that the action of the Governor in subjecting a resident of the new area to municipal taxation without observing the formalities imposed by Section 4, 5 and 6 of the Bihar and Orissa Municipal Act, 1922 cut across one of its essential feature touching a matter of policy and was bad to that extent, but so far as Section 3 (1) (f) of the Act which authorised the delegation of powers to the Government is concerned, it was a valid delegation. Dealing with that point the Supreme Court ruled in Rajnarain's Case [1955] 1 SCR 290 : "Now the only difference between that case )the Delhi Laws Act case [1951] 2 SCR 747 : AIR 1951 SC 332 and this is that whereas in the former case the whole of an enactment, or a part of it could be extended, here, any Section can be picked out .................... It follows that when a Secti....
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....enant-Governor to determine whether the said laws or any part of them shall be applied in a certain district, the delegation of the legislative authority of the Governor-General in Council to the Lieutenant -Governor of Bengal was in excess of the Council. The High Court held that the 9th Section of the Act of 1869 which purported to empower the Lieutenant-Governor to extend the Act to the Khasi and Jaintia districts was in excess of the Legislative powers of the Governor-General in Council Repelling this view, the judicial Committee of the Privy Council observed at p. 193: "But their Lordships are of opinion that the doctrine of the majority of the Court is erroneous, and that it rests upon a mistaken view of the powers of the Indian Legislature, and indeed of the nature and principles of legislation. The Indian Legislature has empowers expressly limited by the Act of the Imperial Parliament which created it, and it can, of court, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent for delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as lar....
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....r that or any other district, but to apply by public notification to that district any law, or part of a law, which either already was, of from time to time might be, in force, by proper legislative authority. "in the other territories subject to his Government". The Legislature determined that, so far, a certain change should take place : but that it was expedient to leave the time and the manner, of carrying it into effect to the discretion of the Lieutenant-Governor; and also, that the laws which were or might be in force in the other territories subject to the same Government were such as it might be fit and proper to apply to this district also; but that, as it was not certain that all those laws, and every part of them, could with equal convenience be so applied, it was expedient, on that point also, to entrust a discretion to the Lieutenant-Governor ...................... Their Lordships think that it is a fallacy to speak of the powers thus conferred upon the Lieutenant-Governor (Large as they undoubtedly are) as if, when they were exercised, the efficacy of the acts done under them would be due to any other legislative authority then that of the Governor-General i....
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....n, no parting with the essential legislative functions in the instant case. (31) It was next argued that the amplitude of the language used in enacting this piece of legislation is so wide that the State Government can by a conceivable notification make amendments which may affect essential legislative functions. It was urged, for instance, that the State Government could by notification amend the legislation taking away the power from the Courts. Wherever power of this kind is conferred, undoubtedly it is liable to be exceeded by those entrusted with it or for that matter even to be abused. But the argument does not amount to saying, therefore, that the power conferred in bad but that in the implementation of that power the authority is liable to exceed or overstep its delegated functions. That is a different question. It seems to us that it is not seriously argued here with in adding the words "or the Commissioner" in the several sections of the Land Acquisition Act the State Government has exceeded the powers conferred upon it but that the delegate may abuse those powers. The mere capability of its abuse or misuse cannot after the nature of the power. In the instant case, we ....
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.... Acquisition Act by the Bombay Commissioners of Divisions Act were valid amendments so far at least as this State is concerned We have already held that there was no excess of delegation of legislative authority by Section 3 of the Bombay Commissioners of Divisions Act. Similar instances of enactments held valid, though not identical with the present case are to be found into the State of Bombay v. Meman Santial Alreja AIR 1952 Bom 16, Edward Mills Co. Ltd. v. State of Ajmer (1954) IILLJ 686 SC, Mohammad Hussain Gulam Mohammed v. State of Bombay [1962] 2 SCR 659, and Patna Improvement Trust v. Lakshmi Devi AIR 1963 SC 1077. (33) Next we turn to the challenge to the provisions the Land Acquisition Act and particularly to Section 6 thereof upon constitutional grounds. The provisions of Section 6, it has been said, are ultra vires of Article 19(1) (f) and (g), of Article 31 and of Article 14. So far as Articles 19(1) (f) and (g) are concerned, we may at once point out that the challenge to the Act on the ground of infringement of Article 19 has been answered by the highest Court in Somawanti v. State of Punjab [1963] 2 SCR 774. At p. 160 in the same passage which we quote below the....
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....e Land Acquisition Act can be held to infringe Article 19 of the Constitution. (35) So far as Article 31 is concerned, we have already referred to the decision in Somawanti's case, [1963] 2 SCR 774 . In the passage no doubt Mr. Justice Mudholkar made it clear that the Supreme Court in that case were not concerned with a post-Constitution law, but a pre-Constitution law. Replying on these observations a distinction is sought to be drawn between that decision and the present case. It has been urged that so far as the definition of "public purpose" in Section 3(f)(2) of the Land Acquisition Act is concerned, it was added by the local amendment made by ACT XXXV of 1953 and, therefore, would be a post-Constitution law and not a pre-Constitution law as the rest of the Act would be. The conditions necessary to be fulfilled by Article 31 of the Constitution are that no property can be acquired compulsorily except for a public purpose and under authority of law. The law has been enacted and in our opinion is valid. The question then is whether in Sub-section (2) of Section 3(f) of the Land Acquisition Act (as amended), the purposes mentioned can be held to be public purposes within t....
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....at was curiously enough the very day on which the notification under Section 4, and which is impugned in the present petition, came to be promulgated. (38) Now taking his stand upon these facts Mr. Bhatt has urged on behalf of the petitioner that the petitioner was himself a person engaged in industry, had himself bought the land in dispute for the manufacture of explosives which is an industry and three was no point in the Government starting acquisition proceedings for the same land for an identical purpose stated in the notification under Section 4 as "for development and utilization of lands as an industrial area". Mr. Bhatt points to the several provisions of the Maharashtra Industrial Development Act, 1961 and the Maharashtra Industrial Development Corporation for which he says that the acquisition in Section 3(f)(2) where the words "and subsequent disposal thereof in whole or in part by lease, assignment, or sale, with the object of securing further development" occur. He says that the whole object, therefore, of the present acquisition is really to take the lands of the petitioner who is himself engaged in industry and dispose them of to another person for profit though ....
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.... discretion the normal presumption of law is that the authority invested with a discretionary power will act fairly and honestly and not abuse it. If it does however abuse it in a given case, that is an indication of human frailty rather than of the power being discriminatory. The distinction has been drawn in a number of cases, but the most authoritative of these Statements is to be found I n the decision of the Supreme Court in Pannalal Binjraj v. Union of India [1957] 1 SCR 233 . In that case power was given by Section 5(7-a) of the Indian Income Tax Act to the Commissioner to transfer the case of any assessee from one officer to another officer. It was urged that the assessee had a right under Section 64 (1) and (2) of the Act to have his tax assessed at the place where he carried on his business or resided and that, therefore, the very wide power given to the Commissioner amounted to an arbitrary power which tended to discriminate between one assess and another. The Supreme Court put the point before them thus (page 252 of the Report of SCR) at p. 406 of AIR). "The position, therefore, is that the determination of the question whether a particular Income Tax Officer s....
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....s high an officer as in Pannalal Binraj's case [1957] 1 SCR 233 , the Income Tax Commissioner was) would act with any particular animus of show discrimination between the petitioner and other citizens. (42) In another case, where the provisions of the Industrial Disputes Act, 1947 were challenged as ultra vires of article 14, their Lordships reiterated same view. The Industrial Disputes Act, 1947 gives authority to the State Government in different circumstances and conditions to take different actions to resolve industrial disputes. It has been given one of several alternative powers e. g. of arbitration, of reference, of conciliation. It was urged that these were powers which could be exercised at the whim of the Government. They could exercise them in a given case and not exercise in another case or use one power in once case and another in a similar case and, therefore, those powers tended to work a possible discrimination against certain persons. The argument was negatived in Niemla Textile Finishing Mills. Ltd. v. The 2nd Punjab Industrial Tribunal 1957 SCR 335 : ( (S) AIR 1957 SC 329 , as follows:- "We are unable to accept these contentions. Having regard to ....
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....ns to the taking of land under that section. We shall show when we come to discuss the point raised upon the provisions of Section 17(4) that those safeguards are stringent and partly in any case have not been fulfilled. That itself would show that arbitrary powers have not been vested in the authorities not do they lead to discrimination. (43) In the next place, upon the facts, the land which is being acquired from the petitioner is not an isolated piece of land but part of a very much larger area which the Government have declared an area suitable as an industrial area for development. The whole area is being acquired for a public purpose and the petitioner's land is a small part of it. This is not only clear from the affidavit of the Commissioner, dated 15th November 1963 a portion from which we have already quoted, but it is further made clear in the affidavit of Mr. P.C. Nayak (Paragraph 6) the Chief Executive Officer of the Maharashtra Industrial Development Corporation, dated 15th July 1964. The Chief Executive Officer has three indicated that a large block of lands known as the "Waggle Estate" comprising about 310 acres which originally belonged to Government before ....
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....attempt to define precisely the extent of the phrase "public purposes" in the lease; it is enough to say that, in my opinion, the phrase, whatever else it may mean, must include a purpose that is, 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". That being so, all that remains is to determine whether the purpose here is a purpose in which the general interest of the community is concerned. Prima facie the Government are good judges of that. They are not absolute Judges. They cannot say: "Sic vol. sic jubeo", but at least a Court would not easily hold them to be wrong, the whole of the learned Judges who are thoroughly conversant with the conditions of India life, say that they are satisfied that the scheme is one which will redound to public benefit by helping the Government to maintain the efficiency of its servants". Thus, this decision which, is the basis of all subsequent decisions, lays down two important criteria, firstly that it is not necessary in order that there should be a public purpose that the land which is taken must always be made available to the public at ....
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....tant case and developing industrial area was to ensure orderly and planned development of industries in and around Greater Bombay and elsewhere in the State. It is explained that such development is necessary, because there has been a great growth industry and concentration thereof in and around Greater Bombay. Therefore, it has become necessary to relieve the congestion and the consequent "bad condition of housing, educational and medical facilities etc. The affidavit further points out that the object of Government is that these areas which are being acquired would be properly laid out and planned with some deliberation so that their development as an industrial area would be a proper development and space would be avoided for the future". All this has not be controverted on behalf of the petitioner, and it seems to us that if that be the object, as we have no doubt it is, then the lands sought to be acquired are clearly being acquired for a public purpose. We have no hesitation, therefore, in holding that the purpose mentioned in the notifications is a public purpose as shown therein. (49) Turning next to the amended definition of "public purpose" in clause (2) of Section 3(f....
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....lays it down as a condition to the acquisition of a citizen's property that there should be a public purpose. In that view, we must hold that the amended definition 31 as well as Section 6 of the Land Acquisition Act. (51) We next turn to the argument advanced on the basis of the proviso to Section 6. Section 6 sub-section (1) runs as follows:- "Subject to the provisions of Part VII of this Act when the Appropriate Government is satisfied, after considering the report, if any, made under Section 5-A, Sub-section (2), that any particular land is needed for a public purpose, or for a Company a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders: "Provided that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a Company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority". So far as sub-section (1) is concerned, the acquisition could be for one of two purposes viz. (1) that any particular land is needed for a public purpose or (b) for a company. These are ....
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.... two alternative conditions for the making of the declaration under sub-section (1) of Section 6; firstly that the compensation to be awarded for such property is to be paid by a company of alternatively wholly or partly out of public revenues or some fund controlled or managed by a local authority. Of these two conditions, the first cannot upon the terms of the notifications and the pleadings on behalf of the State at all apply here, for it is not the case of the State that the acquisition in the instant case was for a Company or that the compensation to be awarded for such property was to be paid by a Company. On the other hand, the stand has been expressly taken at least in the arguments, that the compensation was to come wholly or partly out of public revenues. Of course, we may say at this stage that the learned Advocate General urged that in the case the entire funds for the acquisition were to come out of public revenue, but it is not necessary for him to go as far as that for even if they were to come partly out of public funds, the proviso would be fulfilled. It is the case of neither party that any amount was to come out of funds controlled or managed by a local authority....
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....davit he bluntly contradicted the statement of the Commissioner, Bombay Division and alleged that he had made certain statement which were incorrect. The necessary passage from that affidavit is as follows:- "Para 2:- I am making this affidavit in order to correct a mis-statement of fact occurring in the said affidavit sworn by Shri Patwardhan. Para. 3 :- In paragraph 10 of the said affidavit dated 4th October, 1963 (the date is that of its being sworn, not the date on which it was filed in Court), it has been stated "the said land is to be acquired from the funds of the Maharashtra Industrial Development Corporation". I say that the said lands are being acquired by the State Government for the development of the lands as an industrial area and the compensation payable for the said lands was intended to be paid and is to be paid from public revenues out of the consolidated fund of the State of Maharashtra and the necessary provision therefore has been made in the Annual Budget Estimates of the Industries and Labour Department of the State Government. The sanctioned amount will be paid by the Government to the Special Land Acquisition Officer concerned for payment ....
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....he State and the Maharashtra Industrial Development Corporation. The petitioner was allowed to inspect the documents by exchange of notices between the attorneys of the two parties. The said particulars have been set out in his affidavit of 14th July 1964 to show how upon the documents and the reply to the particulars the acquisition was indeed one from the funds of the Maharashtra Industrial Development Corporation and not from the shall come to these documents a little later. But we must here refer to the further affidavits. After the arguments had proceeded for several days and the petitioner had attached the affidavit of Mr. Nargund as useless, a further affidavit by Mr. Patwardhan came to be filed on 14th July 1964. In that affidavit, the Commissioner stated in paragraph 2: "In Paragraph 10 of my affidavit dated the 4th October 1962, I have stated "the said land is to be acquired from the funds of the Maharashtra Industrial Development Corporation". I say that I made that statement on the basis of the information derived by me from the records of my office which records alone were perused by me and were available to me at the time when I made the said affidavit. I did....
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....s of the State, because there was not on my record at the time and there is not even now a copy of the Government's Order dated 27th February, 1963, which was shown to me before I made this affidavit". "I say that it is now apparent from the order of the State Government, dated 27th February 1963, and the various provisions in the Budget Estimates of the budget of the State of Maharashtra that the true position is that the compensation for the acquisition of the said lands is to be paid from the consolidated fund of the state by the State Government and not from the funds of the Corporation". Supplemental to these several affidavits was another affidavit filed by one R. Seshadri Assistant Accounts Officer, from the office of the Accountant-General Maharashtra State who presented a number of documents with the affidavit which he sought to prove by that affidavit. We shall refer to the documents filed a little later. (57) It may be noticed that till this stage, the reply to the petition was made only by one or more officers of Government. The Government itself filed no return. The Maharashtra Industrial Development Corporation which was cited as the 4th respondent ....
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....he sum of Rs.10,00,000 received by the Corporation from the Government on or about 30th March, 1963 is earmarked by the Government especially for the purpose of constructing a Railway Siding at Pimpri whereas the other two amounts of Rs.5,00,000 each have been loaned to the Corporation for current expenses of the Corporation. I say that a further sum of Rs.64,44,132 has been received by the Corporation thereafter for the execution of certain water supply and other schemes in industrial areas. I say that not a single paisa of these amounts received by the Corporation has been paid by it to the Special Land Acquisition Officer, Ulhas Valley Project, Thana or to any other officer or agent of the Government for the purpose of paying compensation for lands acquired by the impugned Notification or by any other Notification in other areas". In Paragraph 13 the Secretary stated : "I submit that the amounts paid by the Government for acquisition of lands are not loans by Government to the Corporation and cannot be so because the lands are not acquired by or for the Corporation. In developing the lands as an industrial area, the Corporation is carrying out the Five Year Plan obje....
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....dded:- "In these Accounts as adopted, by the Corporation the Corporation has taken the view that since it is functioning mainly as an agent of Government working for an on behalf of the Government as far as the development of industrial areas and estates are concerned no question of payment of any interest to Government can arise in respect of funds expended by Government for lands that may be entrusted by the Government to the Corporation for the purpose of development or on the cash advances that may be made by the Government to the Corporation ........... The Corporation felt that these provisions of the Act made the Corporation in substance a limb of the Government. The Corporation has adopted the said accounts on the basis that all amounts expended for the development of industrial areas and estates (including amounts expended by the State Government for the acquisition of lands for industrial development which are entrusted to the Corporation) and all income received in such development as expenditure incurred on behalf of and income received on behalf of State Government." These allegations in the several affidavits filled on behalf of the officers of Government ....
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....question here "of some funds controlled or managed by the local authority". Now if a notification is issued by a public officer declaring that there exists a public purpose, it seems to us that implicit in that declaration must be read a determination or satisfaction as required by the terms of the proviso that the compensation to be awarded for the property to be acquired is to be paid wholly or partly out of public revenues. Unless such a decision is first reached by the State Government or the Commissioner making the declaration under Section 6, they cannot issue that declaration having regard to the proviso. But here the Commissioner has issued such a declaration. In the notification under Section 6 he has categorically stated that the lands are needed for the public purpose specified in column 4 of the said schedule. That means in its turn that he had regard to Section 6, and must have come to the conclusion that the funds for the acquisition of the land are to be paid wholly or partly out of public revenues, and yet it is some what surprising to find that it is precisely upon that point that the Commissioner has canvassed before us that he made a mistake. If as be says he was....
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....pment, but under the fourth item is shown "Expenditure on Board of Industrial Development for development of Industrial area" and then the expenditure is divided into two categories (1) "Establishment" under which no expenditure is shown in 1962-63 and (2) "Works" under which also no details of the expenditure are shown against the detailed item but only a total is shown as Rs.45,08,919. Under this head are two items shown Rs.2,42,263 and Rs.42,66,756 thus making the total figure of expenditure for 1962-63 as Rs.45,08,919. It may first of all be mentioned that the expenditure even as shown is the expenditure not on the Maharashtra Industrial Development Corporation but on the Board of Industrial Development for development of Industrial Area., that is to say the old Board the Government agency which was on the 5th August 1962 replaced by the Maharashtra Industrial Development Corporation. Now it is necessary to consider certain explanations offered relative to these figures. (62) The extracts of the Budget Estimates were filled because the petitioner asked for particulars by the letters exchanged between the attorneys of the two parties dated respectively 27th June 1964 (No. YMD....
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....elationship between Government and the Corporation' as regards the transaction 'have not been finally determined' so far and there is no express or implied agreement of loan or other wise between the Government and the Corporation" (Italicized (here into ' ' ) is ours). In another paragraph the attorneys on behalf of the respondents stated "No loans have been advanced by the Government to the Corporation for the acquisition of land in the village Panch, Pakhadi near Thana, (the village with which we are concerned) or for acquisition of land for industrial development in the Ulhas Valley Project". This is virtually the stand which has been subsequently taken in all the affidavits filed before us, whether by the Commissioner himself or by the Secretary to the Maharashtra Industrial Development Corporation. (63) In the arguments which were advanced on the basis of this pleading the learned Advocate-General placed much reliance on two documents: Firstly the Memorandum No. IDC-1063/16146-IND-1 dated 27th February 1963 issued in the name of the Government of Maharashtra and signed by Mr. Nargund who at the time was the Assistant Secretary in the Industrial and L....
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....ns as to which head in the Budget the amount is to be debited, and there also the expression used is "Expenditure by the State Government for M. I. D. C." But what is, in our opinion, crucial is the recital in the third paragraph of this Memorandum which presumably communicates the decision of the Government. The third paragraph says, "The expenditure for the aforesaid purpose shall be recovered from the M. I. D. C.". (66) It seems to us that the moment Government resolved that this expenditure of Rs. 20 lakhs for payment of land compensation in respect of land acquired for the Maharashtra Industrial Development Corporation shall be recovered from the Maharashtra Industrial Development Corporation, the expenditure ceased to be an expenditure by the State and could only be understood as an expenditure upon a pre-existing arrangement with the Maharashtra Industrial Development Corporation that it would be repaid. That in substance would make it a loan whatever gloss may be put upon the transaction. We cannot understand the State Government spending moneys directly for acquisition stating that subsequently the expenditure will be recovered from the Maharashtra Industrial Developmen....
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..... Firstly, it clearly shows beyond any doubt that all the subsequent proceedings taken for acquisition of the land were for the Maharashtra Industrial Development Corporation and it is not disputed that the Maharashtra Industrial Development Corporation is a Company within the meaning of the Land Acquisition Act. Secondly, it shows that there must have been an arrangement between the Maharashtra Industrial Development Corporation and the State Government that "the cost of acquisition will be provided by the Corporation in due course". It is not alleged that this letter of 7th November 1962 was not acted upon. On the other hand, the Commissioner has in the third affidavit which he has filed crying "pecavi". sworn to it that he acted only upon that letter'. In paragraph 3 of his affidavit dated 14th July 1964 he stated. "At that time when I made the said affidavit )the first affidavit which has now been withdrawn), I believed that the compensation for the land required for acquisition which are the subject matter of the above petition was to be paid for out of the funds of the Corporation. I believed so because of a statement in the Corporation's letter dated 7th Nov....
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....is shown a receipt by the Maharashtra Industrial Development Corporation of Rs. 20 lakhs in March 1963 and that receipt is vouched for by the corresponding entry in the Journal T. E. 10 against which is shown an amount of Rs. 20 lakhs. It has been explained to us that "TE" stands for "Transfer Entry". Therefore, in the very month in which the amount was paid by the State Government to the Special Land Acquisition Officer, the Maharashtra Industrial Development Corporation credited the amount in its books by a transfer entry showing that the amount had been transferred to them. Similarly the journal account of the Maharashtra Industrial Development Corporation has been produced (page 114) and the expenditure incurred by the Special Land Acquisition Officer has been credited into the account of the Government and on the debit side, we find the following entry 'Loans received from the State Government by way of expenditure incurred by this S. L. A. O. in payment of the land compensation'. (italicized (here into ' ') is ours). In column 8 is referred Ledger Folio No. 5 which is the same page number mentioned in the ledger in the earlier account. Thus the account books o....
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....Government, but upon an arrangement or agreement with the Maharashtra Industrial Development Corporation that it would be a loan to them and repayable by them. Undoubtedly, in the exigencies of governmental business and the urgency of pushing through development plans Government may not have decided the detailed terms on which the loan was to be granted and it seems that it was assumed that the government would impose those terms upon the Corporation at some time in the future. One thing is certain upon these documents that the amount must have been paid to the Corporation as a loan and when it was paid to the Special Land Acquisition Officer also, it was paid for and on behalf of the Maharashtra Industrial Development Corporation by the Government. That is what the Commissioner has said in his first affidavit. It was, therefore, in law and in fact the money of the Corporation that was utilised by the Special Land Acquisition Officer for the payment of the compensation. (71) With regard to the entries in the Budget Estimates filed along with the affidavit of Mr. Nargund, one other circumstance must be here emphasised. Under Section 21 there is specific provision for the grant of....
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....f Rs. 20 lakhs drawn by the Special Land Acquisition Officer is also shown in the same Head of accounts as an amount which is deemed to be a loan to the Corporation. The two amounts were, treated on the same footing in the Budget entry. That is the crucial indication which the Budget entry gives. It was the intention even of the Legislature that this amount of Rs. 20 lakhs should be granted as a loan. (72) In the light of all this evidence we cannot accept the statement in the particulars supplied by the attorneys for the respondents that "although for the purposes of Government accounts and audit, the amounts so sanctioned and drawn may have been described as "a loan" to the Maharashtra Industrial Development Corporation, this was only for the purpose of financial accounting and, therefore, only a national debit". That statement relating to Government accounting and, therefore, only a national debit". That statement relating to Government accounts has not been sworn to on an affidavit by any officer connected with Government nor by the Commissioner who is the respondent No. 1 before us. The State Government is the third respondent but till to day they have not filed a single af....
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....on to whom it was given as a loan by the State Government. (75) The learned Advocate General next argued that even assuming that the amount was given by the State Government to the Corporation as a loan to being with and then the Corporation paid it to the Special Land Acquisition Officer, as we have found, still it must be held that the compensation which was awarded for that the compensation which was awarded for such property was paid wholly or partly out of public revenues within the meaning of the proviso to Section 6. The argument, as we understand it, runs somewhat as follows: That it is the ultimate hand that pays which has to be looked at and it is immaterial in what manner the money is paid for the acquisition so long as the ultimate burden falls upon the public revenue. this contention is based upon certain observations of the Supreme Court in the case which we have already referred to of Jhandu Lal v. State of Punjab [1961] 2 SCR 459. Chief Justice Sinha in stating the decision of the High Court in that case indicated at p. 466 (of SCR) : (at p. 346 of AIR). "It has been pointed out by the learned Single Judge that it was clear from the Government Housing Scheme that....
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.... revenues. (76) On the other hand, we may point out that the view taken in a recent decision of the Supreme Court directly negatives the contention raised. In Valjibhai's case, [1964] 3 SCR 686 precisely the same question as it before us had arisen before the Supreme Court. A plot of land was sought to be acquired, because it was required by the State Transport Corporation for constructing offices and other buildings by that Corporation. The notification there no doubt stated that it was to be acquired for the purposes of and at the expense of the State Transport Corporation and upon the facts it was found that the State Transport Corporation was to pay for it as we have done here but then the argument similar to the one here advanced of "the ultimate burden" was advanced and it was thus answered [1964] 3 SCR 686. "Since, however, the compensation to be awarded for the acquisition is to be paid only by the Corporation and no portion of it was paid by the Government, court it be said that the terms of the proviso to sub-section (1) of Section 6 have been satisfied? It is contended by the learned Attorney General on behalf of the respondent that the funds of the Corpo....
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.... not enter into the picture. That is also what the particulars supplied by the respondents' attorneys stated. An explanation was also vouchsafed in order to counter in advance the letter of the Secretary to the Maharashtra, Industrial Development Corporation and the entries in the accounts to which we have referred. The explanation was that the entry of Rs. 20 lakhs in the account books shown as a loan and paid to the Special Land Acquisition Officer was only for the purposes of accounting and national. We have already rejected that stand. Then for the first time in the third affidavit which the Commissioner filed a third stand was taken. The Commissioner casually mentioned to paragraph 5. "The Corporation is an agent of the Government for carrying out industrial development in accordance with the provisions of the said Act and the directions of the Government issued from time to time". Till the time that Mr. Palwardhan filed this affidavit on 14th June 1964 after arguments had proceeded in this Court for a number of days, no question of the Corporation being an agent of the Government was ever adumbrated in any of the affidavits, nor is it to be found in any of the documents t....
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....40 indicates that the Government has to enter into an agreement with the Corporation before placing at its disposal lands vested in the State Government. The section clearly shows that the Corporation will be negotiating and agreeing to terms with the Government a arm's length. Such a Corporation can by no means be said to be an agent of the Government. The mere fact that under Section 3(1) the Corporation has to assist in the rapid and orderly establishment and organisation of industries in industrial areas and industrial estates in the State of Maharashtra, does not show that the Corporation is an agent of the Government, nor the fact that the State Government can give directions as to policy under Section 18 or that the Corporation has to observe the directions of Government regarding the starting of a reserve and other funds under Section 24 is indicative of agency as such. At any rate, the plea with never taken in time and we cannot allow it to be taken as it has been at a late stage of the proceedings. (80) The last stand that has also been taken at a somewhat late stage in these proceedings is that everything is uncertain and nothing has yet been decided. The first oc....
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....t any particular land is needed for a public purpose" the condition laid down in the proviso that the compensation to be awarded must be paid "wholly or partly out of public revenues" must be fulfilled. The first condition mentioned in the proviso "the compensation to be awarded .............. is to be paid by a company" cannot obviously apply to such a case. Similarly where there is a declaration under the parent clause "that any particular land is needed .............. for a company" the condition in the proviso that "the compensation to be awarded for such property is to be paid by a Company" alone has to be fulfilled. In such a case the clause in the proviso "wholly or partly out of public revenues or some fund controlled or managed by a local authority, for that is not the case of any party. Thus since the declaration in the notification under Section 6 is of a "public purpose" it is clear that the Commissioner must satisfy himself only that the compensation was to be paid wholly or partly from out of public revenues. Now, if the arrangement between the Corporation and the State was in an inchoate state and nothing had been determined and yet money for payment of the compensat....
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....it is clear that there was really no application of mind to the subject at all. The exercise of the power under Section 6 was obviously colourable. We may add that upon the finding which we have given that the amount of Rs. 20 lakhs appears to have been first advanced to the Corporation as a loan and then paid to the Special Land Acquisition Officer, the declaration that the land is needed or likely to be needed for a public purpose in the notification under Section 6 would be patently illegal for it would not fulfill the requirement of the proviso to Section 6. It would also indicate a complete non-application of the mind. We shall show a little further when we come to discuss the question raised under Section 17(4) also that there does not appear to have been any application of mind in the promulgation of these notifications. (83) The proviso to Section 6 has been analysed and pronounced upon in a number of decisions of the highest Court. We have already referred to some of them. Jhandu Lal's case [1961] 2 SCR 459 ; Somavanti's case [1963] 2 SCR 774 and Valjibhai's case, [1964] 3 SCR 686 . We may also refer to the recent decision in February of this year in Civil A....
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....n must come out of public revenues, either wholly or in part which has been proved. For these reasons, we think that the impugned notifications both under Section 4 and under Section 6 are bad and must be quashed. (84) Since we have held the notification under Section 6 bad it can hardly be contended that Section 6(3) would come into operation or that such a declaration would be conclusive evidence that the land is needed for a public purpose as stated in the notification. The conclusiveness can only be imparted to a notification which is valid in law. Apart from this we have also held that in declaring that the land was required for a public purpose the Commissioner did not apply his mind to the question at all. If as the Commissioner has stated the proper material was not before him and he was obviously misguided thereby then that error must necessarily be reflected in the making up of his mind as to the existence as the affidavits of other officers and the statement of particulars wish to make out, the Commissioner' s statement that the petitioner's land was to be acquired from the funds of the Maharashtra Industrial Development Corporation was incorrect, then the Com....
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.... before us that the Maharashtra Industrial Development Corporation is a company within the meaning of Section 3(3) of the Land Acquisition Act read with Section 6 itself, that the acquisition of land for a company must be made in accordance with the special provisions made for acquisition of land for companies in Part VII of the Land Acquisition Act. Section 6 opens with the words "Subject to the provisions of Part VII of this Act:. Therefore, the procedure provided after the declaration under Section 6 is made, must be that prescribed by Part VII. It is conceded on all hands that that was not done in the instant case and only the general procedure prescribed for acquisitions for a public purpose was followed. or this reason also the acquisition must be held to be bad in the instant case. (87) In Valjibhai's case, [1964] 3 SCR 686 (sup. cit.) there was also involved an acquisition for a company, viz. the State Transport Corporation of the State. There was of course a contention raised in that case that the State Transport Corporation was a local authority but the Supreme Court negatived it and held that the State Transport Corporation was a company. In the present case, ther....
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....ombay Division is of the opinion that the lands including the petitioner's land are waste or arable lands and that their acquisition is urgently necessary: the Collector shall on the expiration of fifteen days from the publication of the notice under sub-section (1) of Section 9 of the Act, take possession of all the waste or arable lands specified". The petitioner has stated in paragraph 8(d) that "the urgency clause has been wrongly applied to the petitioner's lands. The petitioner's land is neither waste nor arable land. It is land fit for non-agricultural industrial use and building purposes immediately. The lands have already been surveyed and plans have been prepared for construction thereon long before Notification under Section 4 was issued. The said land is within industrial Area. The said land is not desolate or abandoned land as it is fit ordinarily for use for building purposes. It is also within the Thana Borough Municipal Limits ............... The land which is a building site within the Municipal Limits cannot be regarded as arable land :. The petitioner also stated in paragraph 3 of the petition that the land was levelled land and was ....
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....he correctness of the other statements contained in the said paragraph". There are all the pleadings on this point. (90) Now, it has been contended on behalf of the petitioner that these lands of the petitioner were not lands falling within the description of "waste or arable lands" contained in Section 17(1), but that they were lands which were under cultivation or that they were lands for building sites or industrial purposes. So far as the allegation which has been made in paragraph 8(d) of the petition that the lands is a building site within the Thana Borough Municipal Limits is concerned, it appears that there has been no specific denial of that fact in the return filed by the Commissioner. Even the allegation in paragraph 8 (d) of the Petition that the land is fit for non-agricultural and building purposes immediately is not specifically denied. All that the Commissioner says amounts to this "I am not aware of and do not admit these allegations". The denial also does not meet the substance of the allegation in the petition and the substance is that the petitioner's land was fit for non-agricultural, industrial or building purposes and included within the area of th....
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.... point out one other thing upon which we think that the notification in this respect suffers from an initial defect. It will be noticed that the learned Commissioner has in forming his opinion merely repeated ipsissima verba the language of Section 17(1) and said that 'the said lands are waste or arable lands". Now a particular piece of land cannot both be waste and arable land. It is either waste land or arable land and since the section permits lands of either category being taken upon the decision as to urgency it seems to us that the authority must indicate which class of land the authority thinks it is going to take under the 'urgency' provisions. To say that the Commissioner is of the opinion that the said lands are waste or arable lands is, in our opinion, not indicative of any decision whatever. It is, on the other hand, an indication that the Commissioner has not applied his mind to the question. The mechanical reproduction of the words of the section that the said lands are waste or arable itself shows, that the Commissioner never applied his mind to the question. We do not say that it necessarily vitiates the notification altogether but that he left the quest....
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.... opinion was formed. In the first place we may point out that the sub-section itself does not use any expressions such as "in the opinion of the authority" or "to the satisfaction of the authority", so that by its terms the section gives no indication. But Sub-section (1) does say "In case of urgency, whenever the appropriate Government or the Commissioner so directs, any waste or arable land needed for public purposes or for a Company". The Sub-section thus deals with five concepts as follows: (1) the existence of urgency, (2) a direction from the appropriate Government or the Commissioner (3) waste or arable land, (4) need for a public purpose and (5) need for a Company. All these concepts are treated equally by the section and there is no indication that anyone is discretionary or subjective. It seems to us on a plain reading of the section that they are all conditions prescribed for the exercise of the power of jurisdiction of the Collector to take the Citizen's property under those provisions. Upon the non-fulfillment or non-existence of any one of those conditions the exercise of the power must necessarily be interdicted. The conditions going to the root of the jurisdicti....
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....d by the Commissioner. It seems that he was completely unaware of this fact until and the fact was noticed by counsel on behalf of the respondents. Apart from this the Commissioner's return obviously seems to equate agricultural lands with arable lands leaving out the question of waste land, which may apply to the two gunthas of land which is also in doubt. The principal point which arises, therefore, upon the provisions of Section 17(1) is whether agricultural land can be said to be arable land within the meaning of Sub-section (1) of Section 17. (96) Upon this question, it has been pointed out that there are two decision of this Court, one reported in Jairam Balaji Anikar v. State of Maharashtra Special Civil Appln. No. 25 of 1962 D/- 26-9-1962 (Bom) and the other in Sadashiv Lahanu v. State of Maharashtra, Special Civil Appln. No. 93 of 1962 D/- 9-11-1962 (Bom). In the first of these cases, the Division in Navnitlal's case AIR 1961 Bom 89 and with reference to the question whether agricultural land can be arable land, they observed as follows:- "The Commissioner has issued this Notification stating in the notification that in his opinion the land is arable la....
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....he Division Benches had no occasion to consider the effect of that amendment and if the new amendment thus added is taken into account, the decision would be different. It was also pointed out that some of the dictionaries give a wider meaning to the word "arable". Thus substantially three reasons have been advanced why the decisions in those two Special Civil Applications should not govern the present case. The first is that Subsection (1) of Section 17 has not been correctly constructed for the reason that Sub-section (3) of Section 17 was not noticed in any of those decisions; secondly, that in the Special Civil Appln. No. 93 of 1962 (Bom) the meaning of the word "arable" as given in the Oxford Dictionary was followed, but that there are other Dictionaries which give an extension of the meaning as including land which is cultivated; thirdly, that the definition of "arable land" in Section 3(aa) of the Land Acquisition Act makes a crucial difference. We would deal with each one of these submissions separately. (98) Section 17 runs as follows:- "Special powers in cases of urgency: (1) In cases of urgency, whenever the (Appropriate) Government or the Commission....
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....n of the (Appropriate) Government, or the Commissioner, the provisions of Sub-section (1) or Sub-section (2) are applicable, the (Appropriate) Government may direct that the provisions of Section 5-A shall not apply, and, if it does so direct, a declaration may be made under Section 6 in respect of the land at any time after the publication of the notification under Section 4, Sub-section (1)". Sub-section (1) of section 17 deals with the question of taking a possession of any waste or arable land needed for public purposes or for a company and we have already indicated the conditions for the exercise of the power to take those lands. Sub-section (2) refers to any sudden change in the channel of any navigable river and/or other unforeseen emergency and is a power reserved to the authorities only where possession of any land becomes necessary for a railway administration. Sub-section (2), however, uses the words "any land" in contra-distinction with Sub-section (1) where the words are "any waste or arable land" Sub-section (2) is thus not confined merely to waste or arable land as Sub-section (1) is. We are not concerned with the other requirements of Sub-section (2). It is upon ....
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.... day". The word "either" in the expression "either of the preceding sub-sections" thus means "each of the two preceding Sub-sections". So used it cannot possible imply "both the sub-sections". What is more, the words are preceded by the words "In every case" which again emphasises that the sub-section deals with each individual case separately arising under each of the two sub-sections. We do not think that in the context in which it is used the word "either" implies "both" the preceding sub-sections, but what it means is "In every case under either Sub-section (1) of Sub-section (2)". or in other words "each of the two sub-sections". Moreover, we shall presently show that nothing turns upon the meaning of the word "either" and that the key words of the sub-section are the words, "if any" in the brackets and if one the carefully considers why those words were at all put in, in the section the construction sought to be put upon the word "either" by the learned Advocate General must fail. (100) An analysis of the possible cases which may arise under Sub-sections (1) and (2) of Section 17, will make the matter further clear, In Sub-section (1) the words used are "waste or arable la....
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....d added the words into brackets "(if any)". He thereby intended to convey "You must in every case pay compensation for standing crops or trees. If in any one of cases arising under Sub-sections (1) and (2) there are or can be no crops then pay compensation only for the trees. If on the other hand in any of the cases arising under Sub-section (1) and (2) there are no standing crops and no trees then compensation need not be paid". That, in our opinion, is the only sense we can make out of the provisions of Sub-section (3). The draftsman had to put these separate ideas into one compact sentence. He realized that under Sub-sections (1) and (2) there were bound to arise a variety of cases There would be trees only and no crops: or crops only and no trees: or neither trees nor crops: He wanted to include every variety into one sentence and therefore he said "standing crops or trees (if any)." (102) Were we to hold that the words "standing crops and trees" would apply to both Sub-sections (1) and (2) in their entirety, then in the first place, we would be rendering the words "(if any)" meaningless and of no effect and in the second place, we would be so construing the words as to give....
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....stood. Webster in his Dictionary shows a somewhat extended meaning and it is that meaning upon which strong reliance was placed on behalf of the respondents. Webster also mentions the same meaning as in the Oxford Dictionary to begin with "capable of being ploughed; fit for tillage and crop production (with reference to land)", but then he gives the extended meaning as follows: "Brit: engaged in or involving the production of cultivated crops (farming); Brit, of crops: requiring cultivation; esp. seeded and grown annually rather that, from the regrowth of an established sod; 2. Brit, of live-stock; fed on cultivated crops (as roots) (the arable ewe going back on to the rough grazing (S. J. Watson)". As a noun the meaning given is "land that is tilled or tillable". Thus even Webster makes a distinction between the adjectival use of the word "arable" and the noun "arable". It seems that the adjective has now begun to be used in Britain as a noun and so used, it is used indiscriminately for both "tilled and tillable" lands. The meaning, however, it is clear is of comparatively recent growth and it is not of universal use. In Britain it is used in a peculiar connotation, but its basic ....
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....o 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" (108) Here, again the learned judge uses the word "arable" as ploughable land, In the same case Mr. Justice Fitz Gibbon at page 126 has used the words: " .............. because it was not in grass for twenty years before the lease, and therefore by its omission from the suit and injunction, may be taken as arable land cultivable by the Defendant at his discretion, but subject always to the husbandry covenants which secure all the lands against real 'waste" " This decision was given in 1890 and nowhere was it suggested that "arable" meant land which is already cultivated or on which crops were grown. On the other hand, we have shown that Vice-Chancellor Chatterton has Definitely said that the word "arable" does not imply cultivated land. We can see, therefore, no reason why the decision in the two cases should not be followed. There appears to be no doubt as to the meaning of the word "arable", not is there any indication in Sub-section (3) or any other provision of Section 17 to in....
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....evenue Code, 5th Edition at page 683. We do not think, therefore, that the extension of the meaning of the words "arable land" given in the definition now incorporated in Section (3) of the Land Acquisition Act by the local amendment assists in the determination of or alters, the true meaning of the expression "arable land" as used in S. 17(1), except that by artificial extension it now includes Bagayat land. (110) Reference was then made to a passage in the decision we have already referred to in Navnitlal's case. AIR 1961 Bom 89 Mr. Justice Desai in discussing the affidavit put in but the Commissioner in that case observed as follows: "From the affidavit in reply filed by the Commissioner, it does appear that the only ground on which the Commissioner has regarded the land as waste and arable is that it was not put to any present use and had no structure standing on it. An arable land is a land which is fit for tillage 'and the expression is usually used to mean lands which are ploughed for raising ordinary annual crops such as rice, jowar etc. ' " (italicized (here into ' ') is ours). The learned Advocate General relied upon the words single quoted....
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....ded in the Town Planning Scheme, they are in fact put to use for agricultural purposes". Of course, the point was never argued before the lands and were being put to agricultural purposes and the attention of the Division Bench was not invited to the point which has been so seriously agitated before us. We cannot regard that decision as a decision contrary to the view which has already been taken by the view which has already been taken by this Court and with which we are in agreement. (113) In connection with the point, which we have just decided, another ancillary question was raised by the learned Advocate General. He urged that even assuming that we take the view that the lands of the petitioner were not arable lands and could not be taken under Section 17(1), all the notifications issued in this case ought not to be held bad, but only those notifications which were issued from the point where the authorities went wrong. The effect of holding that section 17(1) did not apply to the petitioner's lands would be that Section 5-A would not be excluded and therefore the petitioner would be entitled to urge and be heard upon any objections to the acquisition which he may choos....