Abhyankar, J.:— The petitioner Sitaram is an owner of field survey No. 6/1 of mouza Kapustalni, having an area of 7 acres and 33 gunthas. He is aggrieved by the notifications issued by the Commissioner, Nagpur Division, first under s. 4 and later under s. 6 of the Land Acquisition Act, acquiring the said field for the purpose of extension of gaothan of village Kapustalni. In this petition he challenges that notification as not bona fide and as otherwise invalid on several other grounds.

2. The petitioner has filed a sketch showing the gaothan and surrounding survey numbers of village Kapustalni, to be found at page 80 of the paper book. It appears that the village is affected by floods in the rains and there were heavy rains in 1959 which resulted in some of the residents suffering damage on account of the floods. The Commissioner, Nagpur Division, issued a notification on July 21, 1960, under s. 4 of the Land Acquisition Act, proposing to acquire survey No. 263 of that village for extension of gaothan site. The area of survey No. 263 is 2.63 acres. That notification is to be found in the Maharashtra Gazette, dated July 21, 1960, at pages 285 and 286 in the Nagpur Supplement. The purpose given for the proposed acquisition was extension of new gaothan for flood-affected persons. The petitioner has stated that action proposed to be taken under this provision was kept in abeyance. It is, however, stated before us on behalf of the Commissioner that this proposal was subsequently abandoned and a notification to that effect was published in the Maharashtra Government Gazette, Nagpur Supplement, on January 5, 1961, cancelling the earlier notification of July 21, 1960. Nothing seems to have taken place till December 15, 1961. On that date the Commissioner, Nagpur Division, again issued a notification under s. 4 of the Land Acquisition Act proposing to acquire land for extension of gaothan. This notification was published in the Maharashtra Gazette dated December 21, 1961 to be found at pages 21 and 22 of the paper book. By this notification two survey numbers, 112-13 acres and 19 gunthas and 6/1-6 acres and 23 gunthas, the latter belonging to the petitioner, were proposed to be acquired for extension of gaothan for flood-affected persons. At the same time the Commissioner dispensed with the provisions of s. 5-A of the Act in exercise of his powers under s. 17(4) of the Act. A notice in form C, required to be issued under the second part of s. 4(1) of the Land Acquisition Act, was published on the notice board of the office of the Sub-Divisional Officer on December 18, 1961. It was also proclaimed by beat of drum in the village on December 20, 1961, that the two fields were proposed to be acquired. As one of the fields proposed to be acquired belonged to the petitioner, the petitioner sent a representation to the Secretary, Revenue Department, on January 2, 1962. A similar representation was also submitted by the petitioner to the Commissioner, Nagpur Division, Nagpur, four days later. The Secretary, Revenue Department, intimated to the petitioner on January 5, 1962, that his representation was being considered. However, on January 18, 1962, the Commissioner, Nagpur Division, issued a final notification under s. 6 of the Land Acquisition Act and it was published in the Gazette of even date. That notification is to be found at page 78 of the paper book. The petitioner immediately filed the present petition in this Court challenging the notification under s. 6, acquiring his survey No. 6/1 for extension of the gaothan site.

3. Two contentions need to he considered in this petition. The first contention is that application of the urgency clause and thereby depriving the petitioner of his right to raise objections to the proposed acquisition under s. 5-A of the Land Acquisition Act was not a bona fide exercise of the power in the instant case. It is also urged that the Deputy Commissioner did not exercise his powers under s. 226(1) and (2) of the M.P Land Revenue Code and in the absence of any such decision by the Deputy Commissioner, the proposed acquisition of his field for extension of the gaothan site or the abadi is illegal and invalid.

4. It is not necessary in this case to give a finding whether the resort to the urgency clause by the Commissioner and depriving the petitioner of his right to make objections under s. 5-A is or is not bona fide in view of the decision we propose to give on the second contention. But we may observe that it has become almost a rule for the acquiring authority in such cases to apply the urgency clause and to dispense with the provisions of s. 5-A which enable the owner or occupier of the land proposed to be acquired to raise objections before the acquiring authority. In the instant case it is pointed out that even in the first proposal, under which survey No. 263 was proposed to be acquired and notification under s. 4 of the Act was issued on July 21, 1960, the Commissioner has similarly applied the urgency clause and directed that the provisions of s. 5-A shall not apply. However, that proposal was subsequently abandoned. The return does not disclose the circumstances in which that proposal had to be abandoned. If it was considered necessary urgently to take possession of the land proposed to be acquired in exercise of the powers under s. 17 of the Act and deprive the occupant or persons interested from raising objections under s. 5-A, it is difficult to see why that land was suddenly found to be unsuitable for acquisition at a later period. Similarly, in the instant case also the purpose for which the land is proposed to be acquired is to settle flood-affected persons. Floods which caused damage had taken place in 1959 and again in 1961, but the action for acquisition of land was not taken till the month of January this year. It is difficult to see how there was an urgency of taking possession in January, 1962 when obviously the danger from floods had ceased to be an urgent threat or even any threat at all. We are not, therefore, satisfied from our experience about the use of the urgency clause in similar notifications that the acquiring authority applied its mind in deciding whether or not the urgency clause should be made use of and thus deprive the owners and persons interested in land, of a valuable opportunity to raise objections to the proposed acquisition. In fact, sometimes if valid objections are raised, the acquiring authority itself is saved from further trouble and it can correct its mistake if pointed out in time. The acquiring authority deprives itself of this opportunity as the facts of this case disclosed by depriving the occupants of their right of raising objections to the proposed acquisitions.

5. In our opinion, the second contention raised on behalf of the petitioner is well founded and must be accepted. It has been ruled time and again in this Court and these decisions are published and ought to be known to the powers concerned by now that it is imperative whenever land is being acquired for the purposes of abadi or for extension of gaothan that the provisions of s. 226 of the M.P Land Revenue Code must be complied with. That is a special law which obtains in this region and it has been decided in several decisions of this Court that in the absence of compliance with the provisions of s. 226(1) and (2) of the M.P Land Revenue Code, any notification proposing to acquire land of an occupant for extension of gaothan will be liable to be challenged success-fully. We need only make a reference to the decision of this Court in Ramrao Rodba Wanjari v. State of Maharashtra . 1960 Special Civil Application No. 165 of 1960, decided by Kotval and Badkas JJ., on December 15, 1960 Unrep... This decision has been briefly noted in Note No. 56 of the Notes Section of the Nagpur Law Journal, 1961, May and June issue. In the instant case the petitioner has made a specific grievance that the provisions of s. 226 have not been complied with. In reply to this allegation the respondents have made the following statement in para. 10 of the return:—

“Paragraph 16 of the petition. It is denied that the State Government without examining whether (there was) any unoccupied land could be reserved for extension of gaothan and without complying with the provisions of section 226 of the Madhya Pradesh Land Revenue Code proceeded to acquire the land of the petitioner. It is further submitted that an enquiry contemplated by section 226 of the Madhya Pradesh Land Revenue Code was in fact made by the Revenue authorities and the Revenue Inspector Khallar Circle made the said enquiry and by his report dated 15-9-1961 submitted to the Tahsildar, Daryapur, reported that there is no government waste land available for extension of gaothan. He reported that there are 26 plots out of government land available, but they were not suitable for the purpose of building houses as those plots are just near the flowing nala and hence could not be used for the purpose. In his report dated 15-9-1961 the Revenue Inspector has given the result of his detailed enquiry and has submitted his full report. It is further submitted that the enquiry contemplated by section 226 of the Madhya Pradesh Land Revenue Code was made and the acquisition proceedings are therefore not without jurisdiction.”

6. Now, it is apparent from the averments in para. 10 of the return that it is nowhere stated that the Deputy Commissioner, who is the only authority empowered under s. 226 of the Code, has formed an opinion either that there is insufficiency of occupied land and it is necessary to acquire land for abadi, or that there is no other unoccupied land which can be reserved for extension of abadi. There is no reference in the return as to what is the extent of the abadi land what is the need for further extension, how much more unoccupied land is available in the village and whether any unoccupied land in the village is not available for the purpose of abadi. The petitioner has contended that there is enough other land which is available for occupation as abadi. Whether this contention is correct or not, unless the Deputy Commissioner comes to the conclusion that the land reserved for abadi is insufficient and that, there is no other unoccupied land for the purpose of abadi, no proceedings can be initiated for acquisition of land for abadi purposes. In the instant case, what is stated in para. 10 is that some Revenue Inspector made inquiry and submitted his report on September 15, 1961 to the Tahsildar, Daryapur, intimating that there is no Government waste land available for extension of abadi. He was also reported to have mentioned that there were 26 plots out of Government land available but that they were not suitable for the purpose of building as those plots were just near the flowing nala and could not be used. We do not know whether this report of the Revenue Inspector reached any superior officer and there is no material to find out whether the Deputy Commissioner applied his mind to this report or to any question relating to the necessity of acquisition of land for extension of abadi in this village at all. It is the duty of the Deputy Commissioner in exercise of the powers under s. 266 of the M.P Land Revenue Code to provide sufficient land, for abadi in a village. If the land reserved for abadi is insufficient, he could reserve some more land in a growing town or village from other unoccupied land of the village. But if other unoccupied land is not available, then the Deputy Commissioner himself must initiate move for acquisition of land for extension of abadi. It is, therefore, necessary for the Deputy Commissioner to apply his mind and to come to a decision that the acquisition of other land belonging to the occupants, is necessary under the compulsory power of acquisition under the Land Acquisition Act and this power can be exercised only and only when he had formed that opinion.

7. In the absence of any material on record or any statement on behalf of the respondents that the Deputy Commissioner did come to such an opinion in the instant case, we cannot sustain the order of the Commissioner and the notification issued by him under s. 6 of the Land Acquisition Act. On this short ground, therefore, the notification dated January 18, 1962, as well as the notification dated December 15, 1961, published in the Maharashtra Gazette dated December 21, 1961, are quashed so far as Survey No. 6/1 is concerned. This order will govern the proposal for acquisition of field survey No. 6/1 alone as the owner of that field has come up to this Court. It will not affect the acquisition in respect of survey No. 112 of that village.

8. The petition is allowed with costs.

9. Petition allowed.