JUDGMENT M.C. Desai, C.J. - The following two questions have been referred by our brother; Jagdish Sahai and G.C. Mathur to a Full Bench: 1. Whether in view of the declaration that the Governor was of the opinion that the provisions of Section 17(1) were applicable to the land, it is open to the Court to go into the question whether the land is 'arable land' or not? 2. Whether land, which was lying in an industrial area but was used for cultivation and has been purchased for setting up of a factory and has now beer, enclosed by a high boundary wall and included in the factory compound but on which at present crops are being sown temporarily during the transitory period, is comprehended by the expression 'arable or waste land' as used in Section 17(1) of the Land Acquisition Act? They arise in a special appeal pending before our learned brothers. The Appellant carries on the business of manufacture of glass and glassware in Naini within the limits of the Municipal Corporation of Allahabad; its factory has been in existence for a long time. It has been constructed on land measuring about 28 bighas but 10 or 12 years ago it decided to extend its manufacturing capacity and purchased 24 bighas adjacent land about 8 years ago. It included this area of 24 bighas in the factory compound by constructing a boundary wall enclosing the entire area of 52 bighas. Some working sheds have been erected on this area of 24 bighas. A portion of the area was previously under cultivation and continues to be cultivated and crops are being raised. The U.P. Financial Corporation has sanctioned a loan of Rs. 1,60,000/- to the Appellant on security of he entire land and buildings owned by (sic). In January 1961, the Govt. of India granted it a license for the manufacture of Kitchenware, Laboratory, Scientific 'lass-ware and neutral glass tubes etc. New furnaces, working sheds and other buildings, residential quarters for the staff and godowns are intended to be constructed on the newly acquired land and the Appellant's case is that when they ire constructed no land will be left vacant. 2. On 30-8-1961, the U.P. Govt. New furnaces, working sheds and other buildings, residential quarters for the staff and godowns are intended to be constructed on the newly acquired land and the Appellant's case is that when they ire constructed no land will be left vacant. 2. On 30-8-1961, the U.P. Govt. published a notification u/s 4(1) of the and Acquisition Act to the effect that and measuring 43 bighas and odd in village Chaka, measuring biswa in Chak Ataullah and measuring nearly 13 biswas in Chak Raghunath was needed or a public purpose namely for construction of foodgrain storage godown and ancillary buildings by the Govt. of India. The notification also contained he direction, that the provisions of Section 5A of the Act shall not apply, made by the Governor u/s 17(4) because he was of pinion that the provisions of Section 17(1) are applicable to the land. On the same date another notification was issued by the State Govt. containing a declaration referred to in Section 6 to the effect that le Governor was satisfied that the land mentioned in the schedule attached to the notification was needed for a public purpose and a direction by him u/s to the Collector of Allahabad to take order for the acquisition of the said land and another direction u/s 17(1) to the collector that as the case was one of regency he should take possession of the (sic) on the expiry of fifteen days from le publication of the notice mentioned Section 9(1), even though no award u/s 1 has been made. The land mentioned the schedule is the same land mentioned in the notification issued u/s 4 and the purpose for acquisition also is the same. Both these notifications were published in the Gazette on the same date. The Collector of Allahabad issued a notice u/s 9(1) some time in April 1962 and after the expiry of fifteen days from its publication directed the Tahsildar to take possession of the land. So the Appellant filed a petition on 25-5-1962 for certiorari to quash the proceedings for acquisition of the Appellant land in pursuance of the notifications, mandamus requiring the Collector, the Govt. of U.P. etc. to forbear from interfering with the Appellant's possession and property rights in the land enclosed within the boundary wall and injunction staying proceedings for dispossession of the Appellant from the land. 3. of U.P. etc. to forbear from interfering with the Appellant's possession and property rights in the land enclosed within the boundary wall and injunction staying proceedings for dispossession of the Appellant from the land. 3. The grounds given in support of the petition are, among others, that the land in respect of which the direction u/s 17(1) and the declaration u/s 17(4) is issued is not waste or arable land. The petition was contested by the opposite parties and one of the defences taken by them was that the opinion of the Governor that the provisions of Section 17(1) were applicable to the land was binding upon the court and that it was not competent to enter into the question whether the land was waste or arable. 4. The Govt.'s power u/s 17(1), is subject to three conditions or restrictions, one is that it is a case of urgency, second is that the direction is to take possession after the expiry of 15 days from the publication of a notice u/s 9(1) and the third is that it can be given only in respect of waste or arable land. It is not open to the Govt. to give the direction contrary to any of these conditions or restrictions; for instance it cannot direct the Collector to take possession of the land that is not waste or arable. It is to be noted that the power is conditional upon the land being waste or arable, i.e. upon the nature of the land and not upon its forming an opinion, or its being satisfied, that it is waste or arable. It depends upon the actual or real nature of the land and not upon what it thinks it to be. It follows that its opinion or decision as to its nature may justify, for the time being, the direction given by it but is not conclusive. It has not the power to change the nature of the land; if it is not waste or arable it cannot convert it into waste or arable. What is the nature of the land is an objective and not subjective question; therefore, the Govt.'s opinion or decision that it is waste or arable is subject to scrutiny by a court. It has not the power to change the nature of the land; if it is not waste or arable it cannot convert it into waste or arable. What is the nature of the land is an objective and not subjective question; therefore, the Govt.'s opinion or decision that it is waste or arable is subject to scrutiny by a court. It is not a decision made by it in the course of, or after assuming, jurisdiction and therefore, it cannot be contended that a court having no appellate authority over it cannot interfere with its decision. It is a decision to be made for the purpose of assuming the jurisdiction of issuing a direction and therefore that the land is waste or arable is a finding in respect of a jurisdictional fact. A finding in respect of a jurisdictional fact, it is well settled, does not bind a court for the simple reason that an authority cannot confer jurisdiction upon itself simply by giving a wrong finding. The land must be waste or arable in order that the Govt. has the jurisdiction to issue a direction; if it is not waste or arable it cannot, by wrongly calling it waste or arable, clutch the jurisdiction. 5. In Ram Sewak Vs. State of U.P. and Others, AIR 1963 All 24 Jagdish Sahai, J. observed at page 26, while repelling the contention that Sub-section (1) is hit by Article 14 of the Constitution, that the determination of the question of urgency "has not been left to the subjective determination of the State Govt. but has got to be objectively decided by the Govt. considering all the circumstances"., In Raja Anand Brahma Shah v. State of U.P. (1963) 1 ILR All. 219 at p. 252 Mukerji and Jagdish Sahai, JJ. said that whether there is urgency or not is a justiciable matter. The learned Judges tried to distinguish between "in cases of urgency" and "whenever it appears urgent to the Govt." or "in cases of urgency in the opinion of Govt." and observed that the former words ask for an objective test. With great respect I find it difficult to agree. The learned Judges tried to distinguish between "in cases of urgency" and "whenever it appears urgent to the Govt." or "in cases of urgency in the opinion of Govt." and observed that the former words ask for an objective test. With great respect I find it difficult to agree. It is for the Government to carry out the public purpose and it must be left free to judge what urgency there is in doing a certain act for carrying it out; a court, which is not concerned with carrying it out, cannot substitute its own judgment about the urgency for doing the act. Whether a matter is urgent or not involves a personal discretion or judgment and depends upon administrative policy. So I am inclined to the view that the decision that it is a case of urgency is a subjective decision, it being solely for the Govt. to judge whether the matter is urgent or not. But the same reasoning does not apply to the Govt.'s finding that certain land is waste or arable; there are no considerations involved in the decision which are within the special knowledge and for the special, consideration, of the Govt. and cannot be within the knowledge, or for the consideration, of a court. The question whether certain land is waste or arable does not depend upon personal discretion or judgment. 6. u/s 6 when a State Govt. is satisfied that any particular land is needed for a public purpose it can make a declaration to that effect. What is a public purpose depends upon its nature and raises a question of law. It is no given to the State Govt. to treat a nonpublic purpose as a public purpose; the purpose for which it needs the land must be a public purpose in the eye of law. It has not got the jurisdiction to confe upon any purpose the status of a public purpose and cannot create a public purpose merely by calling it so. In State of Bombay v. R.S. Nanji AIR (sic) SC 294, the Supreme Court speaking through Imam, J. said at page 29 that it is for a court to determine whether a purpose is a public purpose or not and that though a State Govt. decides provisionally that a certain purpose is a public purpose its decision is not conclusive. In R.L. Arora Vs. decides provisionally that a certain purpose is a public purpose its decision is not conclusive. In R.L. Arora Vs. State of U.P., AIR 1962 SC 764 Wanchoo, J delivering the majority judgment of the Supreme Court observed at page 77 that it is the court which has to interpret what the words of the statute mean; is the words "public purpose" or "wast or arabble land" used in the Land Acquisition Act are to be interpreted b the Court. That it is for the court to interpret the words means that the inter pretation placed on them by the authority concerned is only provisional and not binding on the Court. Grover, in Jaishi Ram Goel and Others Vs. State of Punjab and Others, AIR 1962 P&H 177 said that a Stat Govt.'s determination that a purpose is a public purpose is justiciable. Whether a certain land is needed for a particular purpose is a matter exclusively for the Govt.; its statement that it is needed be that purpose is conclusive and cannot be questioned in a court. Except in a question of malafides it is no possible to rebut the Govt.'s statement that it needs it for the particular purpose. In its very nature whether a thing is needed by a person or not is for subjective determinated by the person. An opinion, satisfaction or decision, that certain land is needed for a public purpose consists of two opinions etc. (1) that it is needed for a particular purpose and (2) that that purpose is a public purpose. The former opinion, satisfaction or decision is subjective and the other, objective. Since the opinion etc. that certain land is needed for a public purpose is a mixture of two opinions etc. it retains the characteristic of both and is partly subjective and partly objective. So far as the question of the land being needed for a particular purpose is concerned the matter is not justiciable and a court cannot decide whether it is really needed for that purpose or not. If the Govt. says that it needs it for that purpose that is the end of the matter; a court cannot say that it should either refrain from achieving the object or should achieve it otherwise than by acquiring the land. If the Govt. says that it needs it for that purpose that is the end of the matter; a court cannot say that it should either refrain from achieving the object or should achieve it otherwise than by acquiring the land. So far as the question whether the particular purpose is a public purpose or not is concerned the court can go into the question and decide, as a matter of law, that it is not. Whether the purpose comes within the meaning of "public purpose" mentioned in the statute is a matter for a court to decide. Since, only a court can, decide whether a law has been observed or followed or not only a court can decide that a certain land needed for a particular purpose is needed for a public purpose. This is what was meant by Imam, J. when he observed in the case of Nanji (supra) at page 297: Prima facie the Govt. is the best judge as to whether 'public purpose' is served by issuing a requisition order, but it is not the sole judge. The courts have jurisdiction and it is their duty to determine the matter....whether a requisition order is or is not for a 'public purpose'. The Govt. is the sole judge about the existence of the need but a court has jurisdiction to decide whether the particular purpose is of public purpose or not. In Smt. Somavanti and Others Vs. The State of Punjab and Others, AIR 1963 SC 151 the Supreme Court had to interpret the phrase "the said declaration shall be conclusive evidence that the land is needed for a public purpose" in Section 6(3). Similar words do not occur in Sub-section (1) or Sub-section (4) of Section 17 and we are not concerned with the question of the effect of conclusiveness. Neither the direction referred to in Sub-section (1) nor the direction referred to in Sub-section (4) has been given the effect of conclusiveness and therefore, what was Lald down by the Supreme Court about the effect of a declaration made u/s 6(1) is inapplicable to a declaration made u/s 17 Sub-section (1) or Sub-section (4). Neither the direction referred to in Sub-section (1) nor the direction referred to in Sub-section (4) has been given the effect of conclusiveness and therefore, what was Lald down by the Supreme Court about the effect of a declaration made u/s 6(1) is inapplicable to a declaration made u/s 17 Sub-section (1) or Sub-section (4). If a court is debarred from going into the question whether a purpose is a public purpose or not it is by virtue of the conclusiveness of the declaration made u/s 6 and not because the matter is not justiciable at all or in its very nature the opinion, satisfaction or decision of the Govt. about the purpose being a public purpose is not justiciable. If there is no dispute about the particular purpose being a public purpose, the opinion etc. of the Govt. is final because in effect it contains only a subjective decision about the need. When there is no controversy about the purpose being a public purpose there is no question of any decision on that question and the only question that remains is of the need. As the Govt.'s opinion about the need is final its whole opinion is final and this is what was Lald down by the Judicial Committee of the Privy Council in Wijeyasekera v. Festing 1919 AC 646. There the land was required for a road and it was not contended that requiring for a road was not requiring for a public purpose. What was contended was that it was not required at all for a road e.g. for that particular purpose and Judicial Committee rejected the contention holding that the Govt.'s opinion that it was required for a public purpose could not be challenged in a court. So precedents laying down that a Govt.'s opinion that certain land is required for a certain public purpose is a subjective decision or is final or is conclusive have to be read in the back-ground of the fact that there was no dispute about the purpose being a public purpose. What holds good in respect of the question whether a certain purpose is a public purpose or not holds good also in respect of the question whether a certain land is waste or arable land or not. What holds good in respect of the question whether a certain purpose is a public purpose or not holds good also in respect of the question whether a certain land is waste or arable land or not. Similarly, what holds good in respect of the question whether a certain land is needed for a particular purpose or not holds good also in respect of the question whether there is an urgency or not. 7. Sub-section (4) of Section 17 requires the Govt.'s opinion that Sub-section (1) is applicable to the land; if it forms the opinion it is authorised to direct that the provisions of Section 5A shall not apply. For the validity of such a direction all that is required is the formation of the opinion. Forming the opinion is a subjective matter; it is for the Govt. to form it and nobody else can form it for it or on its behalf. If it forms it, whether rightly or wrongly, soundly or unsoundly, justifiably or unjustifiably, it has formed it and becomes empowered to issue the direction. A recital in the direction that it formed the opinion is evidence of the fact that it formed it but like any other piece of evidence is liable to be rebutted. There is no provision giving a conclusive effect to the recital or the direction. It is open to an aggrieved person to allege that the State Govt. issued the direction without forming the required opinion; heavy onus will lie upon him to prove the allegation in the face of the recital and he will ordinarily be unable to prove it. His inability to prove it in most cases, however, does ' not disprove his right to prove it. His right can be taken away only by provisions similar to those contained in Section 6(4). 8. If one were dealing with proving that a certain event has happened one would have no difficulty in saying that proving that the event could not possibly happen is proof of the fact that it did not happen. But here we are concerned with a question whether the Govt. did a certain act (e.g. that of forming a certain opinion) and proving that it could not do it under the law is not proving that it did not do it in fact because it could do an act even though forbidden to do it. But here we are concerned with a question whether the Govt. did a certain act (e.g. that of forming a certain opinion) and proving that it could not do it under the law is not proving that it did not do it in fact because it could do an act even though forbidden to do it. If a certain land is not waste or arable the Govt. should not form an opinion that Sub-section (1) is applicable to it but it does not follow that in a particular case it did not form the opinion; it might have wrongly thought that the land is waste or arable and could have actually formed the opinion even though under the law it could not be formed. What is required Under Sub-section (4) is the actual formation of the opinion; if it has been formed the Govt. becomes empowered to issue the direction even though under the law it could not form it. If the land is not waste or arable it cannot give the direction referred to in Sub-section (1) but if it forms the opinion that Sub-section (1) is applicable, though erroneously, it can give the direction referred to in Sub-section (4). There is a vital distinction between the conditions precedent to the issue of a direction Under Sub-section (1) and the issue of a direction Under Sub-section (4) and objective determination is a condition to the former whereas a subjective determination is a condition to the latter. It is on account of this distinction that while a direction Under Sub-section (1) can be quashed merely on the ground that the land is not waste or arable a direction Under Sub-section (4) cannot be. 9. u/s 3 of the U.P. Industrial Disputes Act "if, in the opinion of the State Govt. it is necessary...so to do...it may...make provision...for referring any industrial dispute for conciliation or adjudication." In Swadeshi Cotton Mills Co. Ltd. v. State Industrial Tribunal, U.P. AIR 1911 SC 1381, the Supreme Court held that "if...such an opinion was formed and an order was passed thereafter, the subsequent order would be a valid exercise of the power conferred by the section." In the case of R.L. Arora (supra) the Supreme Court had to consider the provision in Section 41 of the Land Acquisition Act that "if the...Govt. is satisfied...that the proposed acquisition is needed for the construction of a work and that such work is likely to prove useful to the public, it shall etc." There was a mixture of subjective and objective matters in this provision as in Sub-section (4) of Section 17. The Supreme Court held that the Govt. cannot by giving a wrong meaning to "public purpose" say that it is satisfied as required by Section 41 and cannot prevent an inquiry by a court into the alleged satisfaction. Wanchoo, J. said at page 771: It is for the court to say what the words in Sections 40 and 41 mean though it is for the Govt. to decide whether the work is useful to the public and whether the terms contain provisions for the manner in which the public shall be entitled to use the work. It is only in this latter part that the Govt.'s satisfaction comes in and if the Govt. is satisfied, that satisfaction may not be open to challenge; but the satisfaction of the Govt. must be based on the meaning given to the relevant words in Sections 40 and 41 by the court. The Govt. cannot both give meaning to the words and also say that they are satisfied on the meaning given by them. The meaning has to be given by the court and it is only thereafter that the Govt.'s satisfaction may not be open to challenge if they have carried out the meaning given to the relevant words by the court. The argument therefore that it is the Govt.'s satisfaction which is required both by Section 40 and Section 41 is of no help to the Respondents, for it is for the court to say what these words mean and then see whether the Govt. are satisfied according to the meaning given to these words by the court. So a Govt.'s forming an opinion that Sub-section (1) of Section 17 is applicable does not bind a court if it finds that the land is not waste or arable. We are bound by this decision of the Supreme Court and I must hold that despite the Govt.'s opinion that Sub-section (1) is applicable it is open to the court to decide whether the land is waste or arable and to hold if it decides that it is not waste or arable, that the Govt. We are bound by this decision of the Supreme Court and I must hold that despite the Govt.'s opinion that Sub-section (1) is applicable it is open to the court to decide whether the land is waste or arable and to hold if it decides that it is not waste or arable, that the Govt. has not formed the opinion as required by law. Question No. 1 is answered accordingly. 10. Before I come to the meaning of "waste or arable" I should point out that whether land is waste or arable or not is a question that arises only when the Govt. has to decide whether the Collector should be directed Under Sub-section (1) of Section 17 to take possession even though no award has been made; it does not arise when the question is whether the land should be acquired u/s 4 or not. If the land is not waste or arable it can be acquired just as easily as waste or arable land but the Collector cannot be directed Under Sub-section (1) to take possession of it before an award is made. Land is divided into two classes one of "waste or arable land" and the other of "other land" for the purpose of deciding whether a Collector should be directed to take possession even though no award has been made. It seems that the Legislature thought that there is no harm in directing him to take possession of waste or arable land even before an award is made. In the case of waste land the owner does not suffer at all by his premature dispossession (e.g. dispossession before an award is made) because there is nothing of him standing on it. He does not suffer from his premature dispossession even from arable land because all that he looses is crops, trees, etc., if any standing on it and he would receive the full value for them. The position is different in respect of buildings, factories, etc. standing on it; he suffers more on account of his premature dispossession from them. Moreover, if the Govt. enters into possession and dismantles the buildings etc. it may be difficult for their value to be assessed subsequently when an award is to be made. Thus the classification between waste or arable land and other land seems to be based on the hardship or harm caused by premature dispossession. Moreover, if the Govt. enters into possession and dismantles the buildings etc. it may be difficult for their value to be assessed subsequently when an award is to be made. Thus the classification between waste or arable land and other land seems to be based on the hardship or harm caused by premature dispossession. These facts have to be taken into consideration when interpreting the words "waste or arable". 11. "Arable" according to the dictionaries means "being, capable of, ploughed, fit for tillage". The capacity for being ploughed has to be seen from a practical or businessman's point of view and not from the point of view of sheer possibility. A plough can be worked on any land; so in one sense all land can be said to be capable of being ploughed. But one does not plough all land because it is not profitable to plough some land. For instance it is not profitable to plough usar land or land in a desert or land covered with water or land used for a public highway or land used for pasturage or land used for forest or land used for constructions. Such land cannot be said to be arable. The phrase same in for interpretation before Palnitkar and Ansari, JJ. in Ranga Reddi v. State of Hyderabad AIR 1953 Hyd. 26; the learned Judges said that arable land "is land which can be profitably ploughed". It is described "as opposed to pastural or woodland" and its antonyms are "barren, craggy, precipitous, rocky or waste land". The word is derived from the Latin word aratrum meaning "plough". Gur Dayal and Others Vs. State of Uttar Pradesh and Others, AIR 1960 All 564 , land within an abadi was held to be not waste or arable. Similarly, homstead land was held in Prasanna Kumar Das and Others Vs. State of Orissa, AIR 1956 Ori 114 , not to be waste or arable land. S.T. Desai and V.S. Desai, JJ. said in Navnitlal Ranchhodlal Vs. State of Bombay and Another, AIR 1961 Bom 89 : Arable land is a land which is fit for tillage and....is usually used to mean lands which are ploughed for raising ordinary annual crops....The land which is a building site within the Municipal limits and situated in the developed part of the City cannot...be regarded as an arable land. State of Bombay and Another, AIR 1961 Bom 89 : Arable land is a land which is fit for tillage and....is usually used to mean lands which are ploughed for raising ordinary annual crops....The land which is a building site within the Municipal limits and situated in the developed part of the City cannot...be regarded as an arable land. The expression 'waste land'...would apply to lands which are desolate, deserted, uninhabited and uncultivated as a result of natural barrenness or rendered unfit for cultivation by reason of natural ravages, etc. 12. The land in dispute, according to question No. 2 itself, was and is still, used for cultivation and crops are being raised in it. Not only is it capable of being ploughed but: it is actually being ploughed and therefore, is arable land. What is meant by the question is whether though it would otherwise be arable land it is not so because of the facts that (1) it lies in an industrial area, (2) it was purchased for setting up a factory, (3) it is joined with factory land and surrounded along with it by a high boundary wall and that (4) crops are being raised only temporarily so long as constructions are not made on it. I have little doubt that none of these facts makes it incapable of being ploughed and takes it out of the category of "arable land." It is immaterial with what object it was acquired by the Appellant; its object or the intended use are matters for the future and the answer to the question whether it is arable or not depends upon the present. It may cease to be arable in future but because it will cease to be arable in future it cannot be said that it is not arable just now. Unless it is arable just now there cannot arise any question of its ceasing to be arable in future. An "industrial area" is a vague pharse not used in any statute; there is no law that land situated in an industrial area cannot be arable. Galling a locality an "industrial area" does not ipso facto make all land in the locality incapable of being ploughed. Mere giving it a name does not affect its nature or the use to which it can be put. Galling a locality an "industrial area" does not ipso facto make all land in the locality incapable of being ploughed. Mere giving it a name does not affect its nature or the use to which it can be put. It is irrelevant that it is being cultivated for the time being only and that it will cease to be cultivated after a year or two; it is enough that on the date on which the directions were given Under Sub-Sections (1) and (4) it was and was capable of, being profitably ploughed. Any arable land can be surrounded by a high boundry wall; a boundry wall is used only to protect the land against trespass by men and animals. The construction of a wall does not affect the nature of the land or the use to which it can be put. In spite of the construction of a high boundry wall the land in dispute is being ploughed and sown with crops. 13. We were referred to Raj Dulari v. Fazlul Rahman 1003 AWR 393 in which Mithan Lal, J. held that land of a compound is land appurtenant to a building within the meaning of Section 9 of the ZA and LR Act. The question whether certain land is waste or arable land within the meaning of Sub-section (1) of Section 17 is quite different from the question whether certain land is appurtenant to a building. If there is a wall enclosing a house and surrounding land it may be held that the land is appurtenant to the house but it does not follow that it is not waste or arable land. In a case u/s 17(1), one has nothing to do with the question whether certain land is appurtenant to a building or not. 14. A reference was made to the provisions of Section 49 of the Land Acquisition Act but quite irrelevantly. Not only is there no evidence that the Applicant desires that the whole of its manufactory be acquired but also the Govt. is not acquiring a part of the manufactory and this Bench has been constituted to answer two specific questions neither of which deals with acquisition of a part of a manufactory. Section 17(4) does not bar an offer by the Applicant u/s 49, if it is entitled to make one. 15. is not acquiring a part of the manufactory and this Bench has been constituted to answer two specific questions neither of which deals with acquisition of a part of a manufactory. Section 17(4) does not bar an offer by the Applicant u/s 49, if it is entitled to make one. 15. In the result my answer to question No. 2 is in the affirmative. The case may be Laid before the Bench concerned with these answers. B. Dayal, J. 16. I agree. S.G. Manchanda, J. 17. I agree.