Citation Codes

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Case Number

C. Writ 247 of 1978.

Attorney(S)

For the Petitioners:— Mr. J.M Lal, Advocate.
— Mr. Charanjit Talwar, Advocate.

Judges

Mr. Justice V.S. Deshpande
Mr. Justice M.L. Jain

Acts

section 17 (1) of the Land Acquisition Act (herein called the Act),
section 3 (13) of the Delhi Land Reforms Act, 1954
section 81 (2) of the Delhi Land Reforms Act
SECTION 10 INDUSTRIAL DISPUTES ACT
SECTION 106 EVIDENCE ACT
sections 4, 6 and 17 (1)

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Smart Summary

Structured Summary of the Opinion (V.S. Deshpande, J.)

Factual and Procedural Background

This writ petition challenged the validity of a notification issued under section 17(1) of the Land Acquisition Act in respect of certain lands, in particular field No. 401, which belonged to petitioner No. 1. On 16 December 1977, the Administrator of Delhi issued notifications under sections 4, 6 and 17(1) of the Act for acquisition of lands including field No. 401. The petitioners initially sought quashing of notifications under sections 6 and 6 as well, but the long oral argument addressed only the validity of the section 17(1) notification (immediate possession). The petitioners argued that section 17(1) did not apply because the land was neither arable nor waste and that immediate possession was ordered without hearing objections under section 5A. The court heard argument, examined the petition, the reply to the show cause notice and the rejoinder, considered annexures and documentary material, and dismissed the writ petition in limine after hearing both sides.

Legal Issues Presented

Whether the notification under section 17(1) of the Land Acquisition Act was validly applied to field No. 401 — specifically, whether the land fell within the meaning of "arable" or "waste" under section 17(1).
Whether the Government was required to hear objections under section 5A before invoking section 17(1), or whether urgency justified dispensing with section 5A and taking possession immediately.
Whether there existed sufficient urgency (and the appropriate scope of judicial review of the Government's opinion as to urgency) to justify invocation of section 17(1) in December 1977.

Arguments of the Parties

Petitioners' Arguments (as advanced by Shri J.M. Lal)

The land (field No. 401) was neither arable nor waste and therefore section 17(1) did not apply.
The Deputy Commissioner had certified contrary to the petitioners' claim at the behest of the Delhi Administration, implying an impermissible direction; the petition suggested that the certificate was obtained improperly.
The petitioners contended that the land had been used for residential (non-agricultural) purposes for a long time and had not been cultivated for many years.
The petitioners argued that objections under section 5A could have been heard between May and December 1977 and therefore section 17(1) should not have been invoked.

Respondents' Arguments / Case (as set out in the record)

The respondents denied the petitioners' allegation of long-term residential use and asserted that the land was waste or arable.
Documentary material and notings indicated that the land had been cultivated in earlier years (e.g., cultivation records for 1967-68, Kharif 1973, Rabi 1974, Kharif 1974) and that buildings present at one time (pucca house, tubewell) did not convert the land into non-agricultural land under the Delhi Land Reforms Act definitions.
The respondents relied on administrative notings and an Assistant Engineer's reason (dated 26 May 1977) that additional raised carriageway work on the Delhi–Gurgaon Road was urgent because the existing road segment was submerged during the rainy season, necessitating prompt acquisition and execution of work.
The respondents maintained that the Government had considered whether compliance with section 5A could be dispensed with only after issuing the section 4 notification in December 1977 and that the possibility of rains in winter months justified invoking section 17(1) at that time.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ishwarlal Girdharlal Joshi v. State of Gujarat and another, AIR 1968 SC 870	Definition of "arable land" — land which is capable of being ploughed or fit for tillage; it is not necessary that the land be actually cultivated, only that it is capable of cultivation.	The court cited this authority to support the proposition that arable land includes land capable of cultivation even if not currently cultivated, applying that understanding to the facts showing past cultivation of the lands in question.
Chattarton V.C., (1990) 24 Ir R. 110 (as cited)	Authority cited in the Ishwarlal decision regarding the meaning of "arable".	Referred to via Ishwarlal to support the dictionary-based meaning of arable land; relied upon indirectly to reinforce the definition.
Raja Anand Brahma Shah v. The State of Uttar Pradesh and others, AIR 1967 SC 1081	Held that forest land was neither arable nor waste; in the context of S.17(1), "arable" means lands mainly used for ploughing and raising crops; forest land excluded from arable.	The court used this decision to explain that arable land is to be understood as land capable of cultivation (and/or mainly used for cultivation) and applied it to note that the present lands had been cultivated at one time.
Narayan Govind Gavate v. State of Maharashtra and others, AIR 1977 SC 183	Discussed in relation to whether objections under section 5A must be heard before invoking section 17(1) and regarding burden of proof on urgency (as related to section 106 Evidence Act).	The petitioner relied on the decision; the court acknowledged that the initial burden to show urgency is on the Government (per the precedent) but held that the Government discharged that burden once the possibility of winter rains was considered.
Major S.K. Gupta…Petitioner v. The Union Of India & Others…S, AIR 1977 Delhi 209	Principle that urgency (for invoking section 17(1)) is a matter of the Government's opinion — the court may examine existence but not sufficiency of material forming that opinion.	The court cited this Full Bench decision to support the conclusion that judicial review is limited to existence of material for the Government's opinion and that the sufficiency of the material is for the Government to decide.
Shambu Nath Goyal v. Bank Of Baroda, AIR 1978 SC 1088	Summarizes the latest law as to the scope of judicial review regarding formation of opinion in analogous contexts.	The court invoked this case as authority for the correct and current scope of judicial review when considering the Government's opinion in invoking section 17(1).

Court's Reasoning and Analysis

The court proceeded through a fact-sensitive and law-driven analysis, reasoned as follows:

Factual dispute on "arable" or "waste": The court observed that whether land is arable or waste is a question of fact. It examined the pleadings, the reply to the show cause notice and the rejoinder, and reviewed annexures tendered by the petitioners (including evidence of a nursery, a tubewell, a pucca house existing in 1975, and cultivation records for multiple years). The court held that the documentary material before it showed (a) the lands had been agricultural, (b) the presence of buildings and a tubewell did not necessarily convert agricultural land into non-agricultural land given the statutory definitions under the Delhi Land Reforms Act (section 3(13) and 3(12)), and (c) pucca houses had been demolished during the emergency so that none existed in December 1977.
Meaning of "arable": The court relied on established authorities and dictionary meaning (as cited in Ishwarlal and Raja Anand Brahma Shah) to state that arable land is land capable of being ploughed or fit for tillage and that it need not be actually cultivated at the relevant moment. On the evidence that the lands had been cultivated in prior years, the court concluded that the lands could fall within "arable" as understood by precedent.
Whether objections under section 5A had to be heard first: The court considered the chronology. Notifications under sections 4, 6 and 17(1) were issued on 16 December 1977; the Assistant Engineer's reason for acquisition dated 26 May 1977 indicated urgency (risk of submergence of the road during rains). The court observed that the question whether compliance with section 5A could be dispensed with arises only after a section 4 notification is issued; until section 4 was issued in December, the issue of hearing objections under section 5A could not be entertained. The court noted that Government notings from early December recommended invoking section 17(1) because work had to be done within one month to avoid submergence problems.
Urgency and scope of judicial review: The court accepted the principle, drawn from a Full Bench decision, that urgency is a matter of the Government's opinion and that courts are limited to examining the existence (but not the sufficiency) of the material on which that opinion was formed. The court analogized the formation of opinion under section 17(1) to formation of opinion under section 10 of the Industrial Disputes Act, and cited Shambu Nath Goyal as setting out the contemporary scope of judicial review in such situations. The court also noted that although the initial burden to show urgency rests with the Government (per Narayan Govind Gavate), having regard to the material about possible winter rains the Government had discharged that burden; thereafter it was for the petitioners to show that the urgency did not exist, which they did not do.
Overall assessment and result on prima facie case: Weighing the documentary evidence, statutory definitions, precedent authorities on the meaning of "arable", the administrative record indicating potential submergence and the timing of the section 4 notification, the court concluded that petitioners had failed to establish a prima facie case for admission of the writ petition.

Holding and Implications

Holding: The writ petition was dismissed in limine.

Direct implications for the parties:

The petitioners' challenge to the invocation of section 17(1) with respect to field No. 401 failed; the court found no prima facie basis to admit the writ petition.
The Government's decision to invoke section 17(1) in December 1977 (to take immediate possession) was sustained on the limited basis of the record before the court — notably documentary evidence of past cultivation, administrative notings, and the Government's opinion as to urgency linked to road submergence risk.

The opinion does not purport to announce any new legal principle; the court applied existing authorities and limited judicial review to the existence (not sufficiency) of material supporting the Government's opinion. No broader precedent was established by this decision beyond its application to the facts presented.

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Bihari Lal & Others Petitioners v. Union Of India, Etc. S

V.S Deshpande, J.:— The admission of this writ petition depends on the applications of section 17 (1) of the Land Acquisition Act (herein called the Act), to the facts pleaded in the petition, the reply to the show cause sotice and the rejoinder. On 16th December, 1977 notifications under sections 4, 6 and 17 (1) of the Act were issued by the Administrator of Delhi in respect of certain lands including field No. 401 belonging to petitioner No. 1. Argument of Shri J.M Lal, learned counsel for the petitioners, was confined to field No. 401. The validity of the notification under section 17 (1) alone was canvassed in the long oral argument, though initially the prayer in the writ petition included the quashing of the notifications under sections 6 and 6 of the Act also. The reasons advanced for the invalidity of the order passed by the Administrator under section 17 (1) requiring immediate possession to be taken of the land without hearing objections to the section 4 notification under section 5A of the Act advanced by the learned counsel are dealt with below:

2. (1) The main contention is that the land is neither arable nor waste within the meaning of section 17 (1). This is a question of fact. In the petition it was said that section 17 (1) was not applicable to the land, because it was neither waste nor arable and the same has been certified to that effect by the Deputy Commissioner at the behest of the Delhi Administration. The request of the Delhi Administration to the Deputy Commissioner was made because he was the authority to issue for the certificate. It does not mean that the Delhi Administration was dictating to the Deputy Commissioner or that the Deputy Commissioner was told not to apply his mind to the request before granting the certificate or that he should grant the certificate whether the land is arable or waste or not.

3. It was these said in the petition that he petitioners have been using the land for residential purposes for quite a long time and that they did not cultivate the same for the last many years. This allegation has been denied in the reply to the show cause notice and it is alleged that the land is waste or arable and that the petitioners have not been using the land for residential purposes as there are no buildings for residential purpose built on the said land.

4. In the rejoinder the petitioners have said that the lands are being used for purposes other than agricultural. Four annexures are filed to support the allegations of the petitioners. In the first annexure Khasra No. 401 is shown to be a nursery on which a tube-well and a pucca house existed in the year 1975. In the rejoinder the petitioner have stated that during the emergency the Delhi Administration illegally demolished the pucca buildings on the land. Thereafter the petitioners have put up semi-pucca buildings on their lands.

5. Annexure II is a notice under section 81 (2) of the Delhi Land Reforms Act complaining that in Khasra No. 400/1, area 1.00, was being used, for non-agricultural purposes. This means that action was threatened for the ejectment of the present using agricultural land for non-agricultural purposes. This notice calls upon the owner to appear in the court on 31-12-1975 and may be relating to the time when the pucca building existed on the land.

6. But the mere construction of a building on every agricultural land does not convert it into non-agricultural land. In section 3 (13) of the Delhi Land Reforms Act, 1954 land is defined to include land occupied for purposes connected with agriculture and includes buildings appurtenant thereto. In fact, under section 3 (12) a dwelling house erected on the holding by the tenure-holder is regarded as an improvement. Similarly, a tubewell or well is also regarded as an improvement. Shri Lal has not, therefore, succeeded in showing that this land was not agricultural land merely because a house and a tube-well at one time existed on it.

7. On the contrary, in annexure IV, it is shown that these lands were cultivated in 1967-68 and that Kharif was sown in 1973, Rabi in 1974 and Kharif in 1974. The documentary evidence produced by the petitioners themselves thus shows that (a) the lands have been agricultural, (b) the construction of a farm house and a tube-well on them did not convert them into non-agricultural lands and (c) that even the pucca houses were demolished during the emergency so that in December, 1977 no pucca house existed on the lands.

(2) The next objection of Shri Lal was that the respondents have not taken up a definite stand that the land was either arable or waste. On the other hand, they are using both the words to qualify the land so that it may be either arable or waste. If the land is such that it could not be either of the two and in either event section 17 (1) is applicable, the respondents cannot be blamed if they wish to avail themselves of both, the provisions. According to the Oxford Dictionary “arable land” is “land which is capable of being ploughed or fit for tillage”. It is not necessary that the land should be actually cultivated. It is sufficient if it is capable of being cultivated, (see Ishwarlal Girdharlal Joshi v. State of Gujarat and another, AIR 1968 SC 870 (1) citing Chattarton V.C in (1990) 24 Ir R. 110 in paragraphs 22 and 23. The court concluded at the end of paragraph 23 that arable land means not only land capable of cultivation but also land which is actually cultivated).

8. In Raja Anand Brahma Shah v. The State of Uttar Pradesh and others, AIR 1967 SC 1081 (2), the question was whether forest land was arable land. It was pointed that forest land was neither arable nor waste. It was held to be not arable in paragraph 5 of the judgment because “in the context of S. 17 (1) of the Act the expression must be construed to mean ‘land which are mainly used for ploughing and for raising crops’.” This observation was made to exclude forest land from being regarded as arable because they are not mainly used for ploughing and for raising crops. Immediately proceeding the observations, the definition in the Oxford Dictionary is cited to show that arable land is that which is capable of being ploughed. It follows, therefore, that land which is capable of being cultivated is arable land whether it is actually cultivated or not. The lands in the present case were undoubtedly cultivated at one time. Whether the cultivation has now cased or not is not known.

(3) It was then contended that before applying section 17 (1) the Government must consider whether objections under section 5A cannot be heard quickly and it is only if this cannot be done that section 17 (1) should be invoked. The decision in Narayan Govind Gavate v. State of Maharashtra and others, AIR 1977 SC 183 (3) was relied upon.

9. The notifications under sections 4, 6 and 17 (1) were issued on 16th December, 1977. The reason for acquisition is given on 26th May, 1977 by the Assistant Engineer, P.W.D, as follows:

“...... One additional raised carriageway in the last 1 Km. stratch of Delhi-Gurgaon Road is to be provided on East side of the existing D.G Road as the existing one gets submerged during the raisy season and interrupts the continuous flow of traffic..... It is therefore requested that necessary action for issue of notification may kindly be taken at the earliest possible so that the execution of work may be taken up on top priority basis as desired by Government of India.”

In the notings dated 3-12-1977 and 9-12-1977 produced by the respondents also it is stated that section 17 (1) should be invoked because the work has to be done within one month as the existing road gets submerged during the rainy season. Shri Lal argued that objections under section 5A could have been heard during the time from May to December, 1977. But he fails to notice that the notification under section 4 itself could not be issued till December, 1977 and the question of hearing objections till then could not arise. No amount of delay on the part of the Government prior to the issue of the notification under section 4 is relevant. It is only when section 4 notification is issued that it has to be considered whether compliance with section 5A should be dispensed with and action under section 17 (1) should be taken after issuing notification under section 6. This was considered by the Government. It is well known that Delhi gets rains not only in the rainy season but also in the winter months. It cannot be said, therefore, that the need of dispensing with compliance of section 5A was not present in December, 1977. It cannot be said that Government must comply with section 5A even though rains in winter could cause inconvenience to the traffic on this road.

(4) It was then said that there was no urgency which required action to be taken under section 17 (1). A Full Bench of this court in Major S.K Gupta…Petitioner v. The Union Of India & Others…S, AIR 1977 Delhi 209 (4) has pointed out that the urgency has to be in the opinion of the Government. It would follow, therefore, that it is not a matter on which an independent decision of this court can be invited. It is well settled that it is only the existence and not the sufficiency of the material before the Government which can be examined by the court. The material existed because of the possibility of rains in winter 1977-78. Whether such material was sufficient for invoking section 17 (1) was for the Government to decide and not for this court. The formation of the opinion by the Government under section 10 of the Industrial Disputes Act offers a close analogy to the formation of opinion under section 17 read with section 17 (4) of the Act. The latest law as to the scope of judicial review in such a case is summed up by the Supreme Court in Shambu Nath Goyal v. Bank Of Baroda, AIR 1978 SC 1088 (5).

10. The initial burden of proof to show urgency was on the Government under section 106 of the Evidence Act as pointed out by the Supreme Court in Narayan Govind Gavate's case (supra), but after the possibility of winter rains was taken into account that burden was discharged. It was then for the petitioner to show that the urgency did not exist. The petitioner has made no attempt to do so.

11. We are of the view, therefore, that the petitioners have not made out any prima facie case for the admission of this writ petition by us. They have not shown either that the land was not arable or waste nor have they shown that there was no urgency for taking possession of the same. The writ petition is, therefore, dismissed in limine, after hearing both the sides.

Petition dismissed

Bihari Lal & Others Petitioners v. Union Of India, Etc. S

Structured Summary of the Opinion (V.S. Deshpande, J.)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Petitioners' Arguments (as advanced by Shri J.M. Lal)

Respondents' Arguments / Case (as set out in the record)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Bihari Lal & Others Petitioners v. Union Of India, Etc. S

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