Abdul Jabbar vs State of West Bengal

D. Basu, J.—This petition under Article 226 of the Constitution relates to what is known as the Farakka Barrage Project and the Petitioners have obtained a Rule nisi against the notification u/s 4 (Ann. A to the Petition) and declaration u/s 6 (Ann. B) of the Land Acquisition Act 1894 (hereafter referred to as ''the Act'').

The material contents of the notification u/s 4, dated March 23, 1965 are:

...And whereas it appears to the Governor that land is likely to be needed for a public purpose, namely, for the Farakka Barrage Project...it is hereby notified that a piece of land comprising cadastral survey plots as described below and measuring more or less, 137.315 acres, is likely to be needed for the aforesaid public purpose at public expense....

The lands in question are included in two Schedules: Schedule A includes ''waste or arable lands'' and Schedule B includes ''other than waste or arable lands'' and both Schedules specify some plots in full and some plots ''in part'', without specifying the quantum or description of the portion of such plots which is sought to be acquired. Then follows a direction u/s 17(4) of the Act in respect of the lands in Schedule A, as follows:

In exercise of the powers conferred by Sub-section (4) of Section 17 of the Land acquisition Act, 1894, read with the said notification, the Governor is pleased to direct that the provisions of Section 5A of the said Act shall not apply to the waste or arable lands described in Schedule A above to which, in the opinion of the Governor, the provisions of Sub-section (1) of Section 17 are applicable.

The declaration u/s 6 was made just on the next day, i.e. March 24, 1965 (Ann. B), covering the plots included only in Schedule A to the notification u/s 4, having an aggregate area of 25.005 acres only.

As regards the plots included in Schedule B of the Section 4 notification, to which the power conferred by Section 17(4) was not applied, it appears from para. 25 of the counter-affidavit, dated August 3, 1965, that there has been a hearing of objections u/s 5A and no notification u/s 6 has yet been issued. As regards these plots, the Petitioners direct their challenge to the notification u/s 4 alone.

Instead of giving a summary of the respective pleadings of the parties, we may at once take up the grounds urged on behalf of the Petitioners to challenge the validity of the notification and the declaration and refer to the material pleadings under each of those grounds:

I. The first ground upon which the Petitioners should succeed in part is, of course, not formulated in so many words in the list of grounds appended to the petition. It is, however, stated clearly, in paras. 15 and 16 of the petition that no particulars of the area or boundaries have been given in the notification and the declaration in respect of those C.S. plots which are sought to be acquired in part; and the averments in these paragraphs have been met in para. 18A of the counter-affidavit of August 3, 1965 contending that the Petitioners could get the particulars by inspecting the plan in the office of the Collector. Vagueness is also urged in ground IV of the petition. The question involved is one of the pure law, namely, whether in the absence of description or area of the parts of each of these plots sought to be acquired, the notification or the declaration shall be ultra vires; and the question having been fully debated, I think I am justified in giving relief to the Petitioners on this ground so far as it goes.

(a) In my opinion, the plea of the Petitioners is not available with respect to the notification u/s 4(1), inasmuch as it has been held by the Supreme Court in Babu Barkya Thakur Vs. The State of Bombay and Others, , State of Madhya Pradesh and Others Vs. Vishnu Prasad Sharma and Others, , that the notification u/s 4 is merely exploratory or preliminary in nature and the exact area to be acquired need not be particularised at that stage. But it is otherwise with the declaration under 6Section 6, which is issued after the Government has applied its mind to the exact area and location of the lands which are needed for the purpose and are, therefore, to be acquired. The lands must, therefore, be particularised in the declaration u/s 6.

In this view, the notification u/s 4 cannot be challenged by the Petitioners on the instant ground. As regards those lands which lie outside the declaration in Ann. B, the Petitioners may have their grievance on the present score only if the declaration u/s 6 which may hereafter be issued in respect of the residue still contains unparticualarised parts of C.S. plots.

(b) As regards a declaration u/s 6, I have given my reasons in several previous decisions, including the one reported in Pramatha v. State of West Bengal (1966) 70 C.W.N. 503, why non-particularisation of the lands in the declaration invalidates it and those reasons may be taken as a part of the instant decision. Nevertheless, I shall summarise them, in brief:

(i) Though Sub-section (2) of Section 6 provides for an inspection of the plan of the land to be acquired ''where made'', it does not exonerate the authority to specify the ''approximate area'' of the land to be acquired. This is a requirement separate from the requirement to give the description and in the absence of the area, the declaration becomes ultra vires Section 6(2), as regards those plots whose area is not given.

In the instant case, no area is given individually either as regards the plots to be acquired in full or as regards the plots whose parts are sought to be acquired. Now, so far as the first category is concerned, the defect may be excused, because the plot numbers given are of the cadastral survey and their areas are manifest in the record-of-rights which are public documents. But in the case of the plots of which parts are intended to be acquired, there being no description given of the portions so intended, it is not possible to ascertain the quantum of the portion of each of these plots sought to be acquired from the area recorded in the C.S. records. There is thus, a patent non-compliance with Section 6(2), in regard to C.S. plots 237, 300, 305 and 337/2038, which are mentioned in the second category in the declaration u/s 6.

(ii) It has been held that apart from the specific requirement to give the ''area'', want of sufficient particulars and description of the lands to be acquired invalidates a declaration u/s 6 Ram Sewak Vs. State of U.P. and Others, (26), because, it would lead to the conclusion that Government has not applied its mind Smt. Somavanti and Others Vs. The State of Punjab and Others, to its duty of ''satisfying'' itself as to the ''particular land'' [Section 6(1)] which is needed, before issuing the declaration u/s 6 Barkya Thakur''s case Supra; State of M.P. v. Vishnu Prasad Supra per Wanchoo and Mudholkar JJ. As has been observed by Merhotra J. in Wali Mohammad and Others Vs. Gyan Prakash Naga Babaji and Others, , such particulars must be given in the notification u/s 6 without which the specific lands sought to be acquired are not identifiable. In the case of a portion of a plot this can be done only by giving boundaries of the portion required, or some other description of like nature. When the land cannot be indentified, the acquisition proceedings would be void Wali Mohammad and Others Vs. Gyan Prakash Naga Babaji and Others, ; Iftikhar Ahmed Vs. State of Madhya Pradesh and Others, .

To say that the person affected may himself refer to the plan to ascertain the particulars does not meet the above reasons, inasmuch as the preparation of a plan is not obligatory before the making of the declaration u/s 6 and this is clear from the words "where a plan shall have been made of the land" in Section 6(2) and "if no plan has been made thereof" in Section 8. It is only at the stage of award of compensation under Sections 8-9 that the making of a plan is compulsory.

(iii) There is a constitutional ground as well for arriving at the conclusion that the description or area of the portion sought to be acquired must be given in the declaration u/s 6. It is to be noted that Sub-section (3) of Section 6 says that after the declaration is made, it shall be "conclusive evidence that the land is needed for a public purpose" and it is thereafter that the Collector takes "his order for the acquisition of the land" u/s 7. From the legal standpoint, this is the final act, so far as the Government is concerned, to deprive the owner of his property, for the subsequent sections are intended merely to implement this order u/s 7.

Now, Article 31(1) of the Constitution says that:

No person shall be deprived of his property save by the authority of law.

It has also been laid down by the Supreme Court Kavalappara Kottarathil Kochuni and Others Vs. The State of Madras and Others, ; Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, that the law referred to in Article 31(1) must, further, be consonant with the requirements of Article 19(1)(f), read with Clause (5) of that Article. In the result, in order to deprive a person of his property, there must not only be a law enacted by a competent Legislature, but such law must, further, pass the substantive and procedural test of reasonableness, as it is understood under Article 19. In construing a law under Article 31(1), we cannot, accordingly, impute an unreasonableness to the Legislature.

Let us now see what happens if the Government, in its declaration, does not specify the area and other particulars of the plots, where parts thereof are sought to be acquired. The declaration be comes conclusive against the deprived owner u/s 6(3); and the order made u/s 7, which would simply reproduce such description as is given in the declaration already, would give a blank cheque to the administrative authorities thereafter to oust the owner from the possession of any portion and from any quantity of partial plots specified in the declaration u/s 6, according to their pleasure. This would be a deprivation not according to law but according to executive fiat; apart from that, any such procedure would make such law itself unconstitutional as imposing an unreasonable restriction.

(iv) The above conclusion is strengthened by the fact that even in the counter-affidavit filed in this case, the opposite parties have not specified the particular portions of these plots which are sought to be acquired.

It has been urged that the Government has done its duty by stating in the declaration u/s 6(1) that a plan of the land may be inspected in the office of the Collector. The question is whether the words "where such plan may be inspected" at the end of Section 6(2) exonerates the Government to ''particularise'' the land as required by the words ''any particular land'' in Section 6(1), as interpreted by the Supreme Court and throws upon the deprived owner the obligation to seek information from the plan as to which portion of a plot specified in the declaration is sought to be acquired. It is difficult to accede to the contention made on behalf of the Respondents in view of the general principles for interpreting these provisions of the Land Acquisition Act, as have been laid down in the decision of the Supreme Court in State of M.P. v. Vishnu Prasad Supra--

Two things are plain when we come to consider the construction of Sections 4, 5A and 6. The first is that the Act provides for acquisition of land of persons without their consent, though compensation is paid for such acquisition; the fact however remains that land is acquired without the consent of the owner thereof and that is a circumstance which must be borne in mind when we come to consider the question raised before us. In such a case the provisions of the statute must be strictly construed as it deprives a person of his land without his consent. Secondly, in interpreting these provisions the Court must keep in view on the one hand the public interest which compels such acquisition and on the other the interest of the person who is being deprived of his land without his consent.

In view of the foregoing observations, the proper interpretation of the concluding words of Section 6(2), namely, "where a plan has been made of the land...inspected" would be that it gives the deprived person an opportunity of supplementing the information already furnished by the declaration, by a reference to the plan; it cannot be held to oblige the deprived person to resort to the plan where Government has failed in its duty to particularise the land in the declaration u/s 6(1). In this view, I am in agreement with the observations of the Madhaya Pradesh High Court in Iftikhar v. State of M.P. Supra.

The duty of the Government to particularise the specific portion of the plots included in Schedule A of the notification u/s 4 and the declaration u/s 6 is heightened by the fact that as regards these plots the Government seeks to dispense with the inquiry u/s 5A read with Sub-section (4) of Section 17, as will be explained more fully hereafter. The Supreme Court has held in the cases of Nandeshwar Prasad and Another Vs. The State of Uttar Pradesh and Others, and Sarju Prasad Saha Vs. The State of U.P. and Others, , that Sub-section (4) of Section 17, read with Sub-section (1) of that section, can be applied only where a land is shown objectively to be either waste or arable. In the latter case, the Court observed:

If only a part of the land is waste or arable and the rest is not, a notification u/s 17(4) dispensing with compliance with the requirements of Section 5(A) would be invalid.

Where a plot is simply mentioned as required in part and at the same time, Government seeks to dispense with the inquiry u/s 5A, it is all the more incumbent upon the Government to specify in the notification which particular portion of that plot is considered to be waste or arable, so as to attract the provisions of Sub-sections (1) and (4) of Section 17.

In view of all the foregoing reasons, I am of opinion that the declaration at Ann. B shall be struck down in part, in so far as the following C.S. plots are concerned

237; 300; 305; 337/2038.

II. It is contended on behalf of the Petitioner that the notification u/s 4 (Ann. A) is bad inasmuch as it has included in one notification lands to which Section 17(4) of the Act has been applied as well as other lands to which Section 17(4) is not sought to be applied.

This contention cannot, however, stand in view of the observations of the Supreme Court in the case of State of M.P. v. Vishnu Prasad Supra, that though the law did not contemplate that ordinarily there could be more than one declaration u/s 6 on the basis of a single notification u/s 4, there might be an exception in the case of a composite notification u/s 4, which included two classes of lands, as regards one only of which Section 17(1) was sought to be applied. Though the observations of the Court indicate that such a composite notification u/s 4 was not to be encouraged and also that the better course in such a case would be to-issue two notifications, dealing with the two classes of lands separately, the Court did not hold that a composite notification such as the one before us was invalid.

III. The next ground taken is, however, more serious, namely, that the Government did not apply its mind to the conditions precedent to the exercise of the power u/s 17(1), upon which Sub-section (4) of that section is dependent.

From a reading of Section 17(1), it becomes evident that there are two conditions precedent for the exercise of the power conferred by this sub-section:

(i) That it is a case of urgency, which, apparently, is a subjective condition for the satisfaction of the State Government.

(ii) That the land in question is waste or arable, which is an objective condition, as held by the Supreme Court, so that a direction under Sub-section (1) or (4) will be invalid if the plot in question is not waste or arable, either in whole Nandeswar Prasad v. U.P. Govt. (Supra) or in part Sarju Prasad v. State of U.P. (Supra).

According to the Petitioners, both these conditions have been violated in the instant case.

A. As to the satisfaction as to urgency, the word ''urgency'' is not mentioned in the notification u/s 4 (Ann. A) at all. In para. 2 it is stated "whereas it appears to the Governor that land is likely to be needed for a public purpose...." This statement has nothing to do with Section 17(1). It is related to Section 4(1) and is made with respect to the lands in both Schedules A and B of the notification.

The recital with respect to Sub-sections (1) and (4) of Section 17 are to be found in the penultimate paragraph of the notification, which may be reproduced at once:

In exercise of the powers conferred by Sub-section (4) of Section 17 of the Land Acquisition Act, 1894 (1 of 1894), read with the said notification, the Governor is pleased to direct that the provisions of Section 5A of the said Act shall not apply to the waste or arable lands described in Schedule ''A'' above to which in the opinion of the Governor the provisions of Sub-section (1) of Section 17 of the Act are applicable.

It has been argued by Mr. Mullick, the learned Advocate for the Government, that an express recital of ''urgency'' was not necessary and the reference to the provisions of Sub-section (1) of Section 17 was enough to show that the Governor had applied her mind to the question of urgency. A number of reported decisions where Section 17(1) had been resorted to were presented before me. Looking at the notifications reproduced in these cases, I find that the word ''urgency'', ''case of urgency'' or the like have been mentioned in the notification in the following cases:

Lachhmi Narain and Others Vs. The State of Uttar Pradesh and Others, ; Murari Lal v. State of Punjab AIR 1964 P&h. 477; Major S. Arjan Singh and Another Vs. The State of Punjab and Others, [using the word ''emergency'']; Iftikhar v. State of M.P. Supra; Ram Sewak v. State of U.P. Supra; Natesa v. State of Madras AIR 1954 Punj Mad. 481; Mrs. R.D. Chand and Another Vs. The State of Andhra Pradesh and Others, ; Sheikh Ghulam Maula Vs. State of U.P. and Another, ; Navnitlal Ranchhodlal Vs. State of Bombay and Another, ; Sadruddin Suleman Jhaveri Vs. J.H. Patwardhan and Others, ; K. Seshagiri Maller and Others Vs. Special Tehsildar for Land Acquisition, Kozhikode and Another, ; Periathambi Mudaliar Vs. Special Tahsildar (L.A.) Planning Scheme, Coimbatore and Another, , Murari Lal Gupta Vs. The State of Punjab and Another, ; Thirumalaiah v. State of Mysore AIR 1963 Mys. 255; Gopal Singh and Another Vs. State of Rajasthan and Another, ; Kashappa v. Chief Secy. AIR 1963 Mys. 318 (320); Khem Karan and Others Vs. State of Uttar Pradesh and Others, ; Mt. Dhaneshwary and Others Vs. Land Acquisition Officer and Others, ; Udit Ram Barai Vs. State of Bihar and Others, .

As against these, the learned Advocate for the Government has failed to cite a single reported decision where the notification under Sub-section (1) of Section 17 was made without a recital of urgency. To say that the lands are waste or arable lands "to which...the provisions of Sub-section (1) of Section 17 of the Act are applicable" is mere tautology, without showing that the Government has applied its mind to the question of urgency. This is all the more important where the notification is a composite notification u/s 4 and Section 17 and includes other lands which are not urgently required. It cannot be contended that the mere fact that the lands were required for a Barrage should establish the fact of urgency, because the impugned notification comprises many plots to which Section 17 was not sought to be applied. In this situation, it must be shown that the Government had applied its mind and come to the conclusion that the A Schedule lands, in particular, were urgently required and that the Government could not afford to hold an inquiry u/s 5A without detriment to the public interest vide Thirumalaiah v. State of Mysore Supra. The recital in the impugned notification, it may very well be contended, shows that Section 17(4) was applied simply because the lands in question were separately classified as arable or waste lands, in Schedule A. The language of the direction in Ann. A is in terms of Sub-section (4) of Section 17 but not in terms of Sub-section (1) upon which Sub-section (4) is dependent.

It is true that a subjective condition is not subject to judicial review, so that if the Government describes a case as one of urgency, it is not open to the Court to say, on evidence aliunde, that the case is not urgent. But that is a different question. What we are to determine is whether it is incumbent upon the Government to state in the notification that it is a case of urgency or at least to show that it was satisfied as to the urgency, by other materials, as a condition for its exercise of the power to take immediate possession under Sub-section (1) or the power to dispense with the inquiry under Sub-section (4) of Section 17.

That in order to validate a notification under Sub-section (1) of Section 17, it must be shown that the Government was satisfied as to the urgency is established by the following observation of the Madras High Court in Natesa v. State of Madras Supra, nothing contrary to which has been produced before me:

What all is required u/s 17(4) of the Land Acquisition Act is that the Government must be satisfied that there is such urgency as is contemplated by Section 17(1). If they are so satisfied, they are entitled to pass an order u/s 17(4), suspending the application of Section 5A.

The observations in the cases of Ghulam v. State of U.P. Supra, Navnitlal v. State of Bombay Supra, Thirumaliah v. State of Mysore Supra and Kashappa v. Chief Secy. Supra, are more explicit.

The above statement of law finds support from the observation of Mudholkar J. in Somawanti v. State of Punjab Supra that Section 17(4) is applied by the Government "where there is an emergency".

In the recent Barium Chemicals case (1966) 1 S.C.A. 747 (754, 793) the Supreme Court has elaborately discussed the question of exercise of a statutory power which is subjective and come to the conclusion that even though the power is subjective, the existence of the conditions precedent to the exercise of the power must be established objectively. In this state of affairs, the need for a recital of the satisfaction of the authority before exercise of the power seems to be patent. Of course, if there is such a recital, it would be for the person who challenges that recital to prove by independent evidence that the recital was inaccurate AIR 1945 156 (Privy Council) , which may be a difficult task for him see, in this connection Kashappa v. Chief Secy. (Supra). But this very proposition suggests that the onus is shifted to the Petitioner only where a recital prima facie shows a compliance with the statutory condition. It cannot be overlooked, in this context, that, as the Supreme Court has held in Nandeswar Prasad''s case Supra, the right to file objection conferred by Section 5A upon the owner sought to be deprived of his property is a substantive right. The results arising from the application of Sub-sections (1) and (4) of Section 17 are drastic, namely, that the deprived owner is deprived of his possession immediately and without any opportunity of objecting against the proposed order. It is, therefore, reasonable to demand that the terms of Sub-section (1) must be strictly complied with before this drastic power is exercised and it must be shown on the face of the order that the Government has applied its mind specifically to the question that the lands to which Sub-section (4), read with Sub-section (1) was sought to be applied, were so urgently required that no right to object could be afforded.

Assuming that even in the absence of a recital, it is open to the Government to show by independent evidence as suggested in The Swadeshi Cotton Mills Co. Limited Vs. The State of U.P. and Others, , that it was satisfied as to the urgency with respect to the Schedule A lands, where that is challenged by the Petitioner, that evidence is nil in the case before me. In para. 16 of the petition, it is definitely stated that there was no satisfaction of the State Government as to the urgency before exercising its power u/s 17(4) and the averment in the counter-affidavit in para. 19, in answer, is one of bare denial

I deny each and every allegation made in paragraph 16 of the Petition.

Such a bare denial, it is obvious, is worthless in a matter like this and no further materials have been produced before me on this point to show that the Government was satisfied that there were reasons why the Government could not afford to hold an inquiry u/s 5A in respect of the particular plots included in Schedule A, though it could wait and hold an inquiry with respect to the other plots required for the same project.

As a result of the above finding that the Government applied Section 17(4) without applying its mind as to the existence of the urgency, the declaration u/s 6must fail in toto and that part of the notification u/s 4(1) [Ann. A] which gives the direction u/s 17(4) must also fail, so that the Petitioner would be entitled to have an opportunity u/s 5A as regards the Schedule A lands as well.

B. As to the second condition precedent for the application of Section 17(1), as to the land being waste or arable, I am not unmindful of the fact that in some High Court cases e.g., Navnitlal v. State of Bombay (Supra), it has been held that this condition, like that of urgency, is also subjective and is not subject to judicial review, unless it is shown that the Government formed no opinion on the question at all or was influenced by extraneous considerations.

I am of opinion, however, that the High Court decisions to this effect are no longer good law since the two Supreme Court decisions already cited. In Nandeswar''s case Supra, it was observed:

...under the Land Acquisition Act an order u/s 17(1) or Section 17(4) can only be passed with respect to waste or arable land and it cannot be passed with respect to land which is not waste or arable and on which buildings stand.

It is clear that the nature of a land is not a subjective matter like that of urgency and that a land which is not arable cannot be arable because somebody thinks it to be so. Whatever doubts in this behalf might still subsist have been taken away by the observations in the later case of Sarju Prasad Supra. In the concluding portion of this decision, the Court has observed that

if only a part of the land is waste or arable and the rest is not, a notification u/s 17(4) dispensing with compliance with the requirements of Section 5A would be invalid

as to the whole of that land. Even in the Bombay High Court, a later Division Bench Sadruddin v. Patwardhan (Supra) has, explaining the observations in the earlier case of Navnitlal Supra, come to hold that the conditions of Sub-section (1) must be objectively proved. That it is open to the Petitioner to show that the land in question is not, in fact, waste or arable, has been acknowledged in other High Courts as well Smt. Lakshmi Devi and Others Vs. The State of Bihar and Others, .

To hold that while the condition of urgency is subjective, the condition as to the nature of the land is objective would do no violence to the language of Sub-section (1), because the words "whenever the State Government so directs" are to be read with the preceding words "in case of urgency", while the words "take possession of any waste or arable land" may be construed as independent of the words "whenever the State Government so directs", because, as I have already stated, whether a land is waste or arable does not depend on anybody''s opinion but is a material fact which exists objectively.

The averments in the petition on the instant point are to be found in para. 13, which says that of the several C.S. plots mentioned in Schedule A of the notification, the following plots are not "waste or arable", so that no exemption from the obligation u/s 5A could be directed:

286, 818; 678; 678/2103, 705; 308; 693/211; 289.

(a) As regards 286, the Petitioners'' case is that it is a brickfield and therefore cannot be termed ''arable or waste''. This case is accepted in paras. 13 and 15 of the counter-affidavit and it is stated that

the said plot has since been classified in the plots of land other than ''waste or arable''.

It has been rightly contended on behalf of the Petitioners that in view of this stand taken by the Respondents, the declaration as well as the notification should have been amended, which has not been done. In view of the averments in para. 13 of the counter-affidavit, it is needless to enter into the question whether a brickfield is a ''waste land'', or the point of time when the brickfield was created, because it is stated in the counter-affidavit that at the time of the notification, it was paddygrowing land (as the word ''Aus'' suggests). If so, it cannot be termed ''arable'' as well. Though there is some difference of opinion as to whether land which is actually under cultivation can be described as ''arable'', which literally means ''fit for cultivation'', I am in agreement with the view taken by the Bombay High Court in Ganesh Narayan and Others Vs. Commissioner, Nagpur Division, Nagpurand Others, , that land which is actually cultivated cannot be held to be ''arable''. The contrary view taken by some other High Courts, such as Patna Lakshmi v. State of Bihar Supra, Dhaneswary v. L.A. Officer Supra, are based on amendments made by the appropriate State Legislature in the text of the Land Acquisition Act, with which we are not concerned.

In the result, plot 286 must be excluded from the declaration u/s 6 and the notification u/s 4(1) is to be correspondingly amended by including it as ''not arable or waste''.

(b) According to the petition, 808 and 308 are also agricultural plots, growing Aus paddy. According to the counter-affidavit, these plots are recorded in the R.S. record as ''sikasti'' (alluvial) and ''danga'' (high land not under cultivation). If this be correct, both will come under the category of ''waste or arable'' lands. In the absence of better materials, there is no reason why the description in the record-of-rights should not be accepted.

The contention of the Petitioners regarding 808 and 308 cannot succeed.

(c) According to the petition, 678 is a homestead with structures.

According to the counter-affidavit it is recorded in the C.S. re cord as ''sikasti'' and in the application for addition of Petitioners; dated July 1, 1965 (p. 15), the actual condition of this plot is stated to be ''horticulture'' and as belonging to one Rahim Bux.

Here also, the contention cannot succeed, in the absence of better materials as to the existence of the structures and the point of time when and by whom they were constructed.

(d) Plots 678/2103 and 705 are described as ''riverine'' in the petition. If so, according to the Petitioners themselves, they are ''arable'' lands.

(e) In the petition, plots 693/211 and 299 are stated to be ''horticultural'' lands, i.e., on which mango and lichi trees stand. These, according to the counter-affidavit, are recorded as ''danga'' lands.

The existence of fruit-bearing trees on these lands, however, is not and cannot be denied inasmuch as the Petitioners appended photographs along with the petition.

This raises a question of law, namely, whether a land on which fruit-bearing trees are grown can be classed as ''waste'' or ''arable'' and judicial opinion on this point is not clear.

The Bombay High Court has held that a land on which fruit-bearing trees stand cannot be said to be ''arable'', unless of course, it is so classified, by legislation Sadruddin v. Patwardhan Supra.

The Allahabad High Court, on the other hand, has opined Baldeo Singh and Others Vs. State of Uttar Pradesh and Others, , that the word ''waste'' does not mean ''barren'' and may very well include trees, as would be evident from the provision in Sub-section (3) of Section 17, for payment of compensation for trees. On this view, the Court rejected the contention that an ''orchard'' was not a waste land. A similar view was taken in Bihar, where there has been a legislative amendment to this effect vide Lakshmi Devi v. State of Bihar (Supra).

Where there is no such legislative provision, as in West Bengal, the dictionary meaning of the word ''waste'' should be our guide, which is ''unproductive'', ''of no worth'', lying unused''. Hence, a land which is used by growing fruit-bearing trees cannot be said to be waste. This view is supported by the Bombay High Court decision in Navnitlal v. State of Bombay Supra, where only the expression ''waste land'' appears to have been fully explained:

The expression ''waste land in our opinion would apply to lands which are desolate, deserted, uninhabited and uncultivated as a result of natural bareness or rendered unfit for cultivation by reason of natural ravages etc. The expression ''waste land'' as contrasted with ''arable land'' would mean land which is unfit for cultivation by being marshy, stony, full of pits, ditches etc....

As explained by a later Division Bench of the Bombay High Court Sadruddin v. Patwardhan (Supra), the provision in Sub-section (3) in Section 17 as to payment for compensation for trees would not militate against the above view inasmuch as there may be ''trees of spontaneous growth'' standing on either, waste or arable land. But where fruit-bearing trees are planted and tended by way of horticulture, it cannot be comprehended as ''waste'', because there is an application of labour analogous to that involved in ''agriculture''. As explained by this Court in Hedayet v. Kamalanand 17 C.L.J. 411, horticulture means the cultivation of a garden or the science of cultivating or managing a garden, including flowers, fruits and vegetables.

I am, therefore, of opinion that plots 693/211 and 289 should be excluded from the declaration and Schedule A of the notification as they are neither ''arable'' nor ''waste''.

Even though the Petitioners have not succeeded in excluding all the 8 plots as not being arable or waste, there is a larger ground on which the direction u/s 16(4) relating to Schedule A of the notification shall fail in toto, because, assuming that the condition of the lands being arable or waste within the meaning of Section 17(1) is subjective, there is intrinsic evidence in the notification (Ann. A) to show that the Government did not apply its mind as to the plots included in Schedule A, individually, as to their being either waste or arable. The nature of each of these plots or even the description as given in the record-of-rights is not mentioned in the notification. They are simply classified as ''waste or arable lands'' under Schedule A, as distinguished from plots ''other than waste or arable'', which are grouped under Schedule B. As has been observed by the Division Bench in Sadruddin v. Patwardhan Supra, to say that some lands are ''waste or arable'' itself shows that the statutory authority did not apply its mind to the statutory condition precedent, because "a particular piece of land cannot both be waste or arable lands". Where, therefore, some of the plots are waste and others are arable, the need arises of describing each of the plots individually. There is, of course, a statement in para. "27 of the counter-affidavit (para. 27) that

the notification was issued on the basis of the settlement records as also of the filed verification reports made by competent officers of the Land and Land Revenue Department of the State.

This statement in the affidavit, as the verification says, "has been partly true to my knowledge and partly true to my information derived from the records" and those records or reports have not been produced. This is a practice deprecated by me in earlier cases as well. If the Respondent seeks to rely on any material evidence, it is only fit and proper that relevant extracts of these documents should be annexed to the counter-affidavit, so that the other party may have notice of that evidence and the Court may get an opportunity of examining it. To say, that the records will be produced at the hearing and then not to produce or tender them formally at the hearing or to take them back means nothing and cannot be encouraged, as it militates against all rules of evidence.

Before concluding this judgment, I have to dispose of a plea in bar which has been raised in the counter-affidavit: It is stated in para. 13 (read with para. 15) of the counter-affidavit filed on August 30, 1965, that in their application for injunction, the Petitioners had suppressed the fact that the Respondents had, on May 19, 1965, taken possession of all the plots included in the Declaration, excepting plot 286, 287 and a part of 288. It is evident that this fact could not possibly be stated in the petition itself, which was filed on May 10, 1965. It is true that in the application for injunction dated July 1, 1965, the Petitioners stated that they were in actual possession. If this fact were not true, that would have been good ground for refusing interim injunction, but the Rule could not be discharged on the ground of suppression of material facts as there had been no suppression in the petition itself. The most striking fact regarding injunction, on the other hand, is that the order of July 19, says:

The application for injunction restraining the Respondents from taking possession of the plots under acquisition is not opposed and is allowed.

After this, all that has been said on the preliminary ground is idle talk and I cannot help observing that the indifference in not opposing the application for interim injunction as recorded in the preceding order only shows how the case of the Government has been conducted in a matter of vital national stake, namely, the Farakka Barrage Project.

In this connection, I have to say a few words as to the delay in disposing this case. This case was first heard in part in December, 1965, but the parties took out the case for an amicable settlement, which did not materialise. It was again heard in August, 1966, but the parties again sought to settle the matter, if possible and it is because of the failure of that attempt that I had to put up the case to consider judgment. The Court is, of course, concerned with decision and not a settlement out of Court. But because this project is of vital national concern and because I found that the lawyers appearing on behalf of the Government sometimes felt helpless as the public officials at the top who could take responsibility in the matter were not in Court, on the last occasion, I informally requested the learned Advocates appearing on behalf of the Respondents to advise some official to be present in Court so that slight differences, if any, might be ironed out immediately, or alternative suggestions offered, instead of leaving that to prolonged negotiation, I regret, however, that that expectation of mine was not fulfilled even though the importance of the matter and the detriment to the national interest caused by litigation and the resulting delay was patent.

The Rule is made absolute in part, with costs, hearing fee being assessed at five gold mohurs. Let the declaration u/s 6 [Ann. B to the, petition] and the penultimate paragraph of the notification u/s 4 (Ann. A), dispensing with the provisions of Section 5A as regards the lands in Schedule A, be cancelled. Respondent shall be at liberty to proceed afresh regarding these lands, after making necessary amendments of the notification u/s 4 and in accordance with the law.