Ishwarlal Girdharlal Joshi Vs. State of
Gujarat & ANR  INSC 261 (16 November 1967)
16/11/1967 HIDAYATULLAH, M.
BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.
CITATION: 1968 AIR 870 1968 SCR (2) 267
R 1970 SC1102 (14) RF 1977 SC 183 (35,36) R
1980 SC 91 (17)
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 SecretaryFormation of opinion
regarding urgency and nature of landWhether could be delegated to
Secretary-Standing Orders, if necessary-Arable land, meaning
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 undersecretaries 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 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
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
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
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 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
Emperor v.Shlbnath Banerji, L.R. 72 I.A. 241,
(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,
(v) The High Court had rightly held that
sub-as. (1) and (4) and 17 were not unconstitutional. [286 F-G]
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
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 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
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 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 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
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
(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 such 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
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 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
"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 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 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 abouts.
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 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
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
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 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 satis279 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
"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 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 subdelegation
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
"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
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 statement 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 order 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
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
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
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.
Support was then found for the view in s.
17(3) of the Act, the mention of compensation for standing crops
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 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
(5)  25 Ir.Rep.110. (6) 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
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 some time." 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
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
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 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.