JUDGMENT 1. 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 under section 4 (Ann, A to the petition) and declaration under section 6 (Ann. B) of the Land Acquisition Act, 1894 (hereinafter referred to as 'the Act') 2. THE material contents of the notification under section 4, dated 23.3.65 are: - "And whereas it appears to the Governor that land is likely to be needed for a public purpose, namely, for the Farakka Barrange 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 pubic 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 under section 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." 3. THE declaration under section 6 was made just on the next day, i.e., the 24th March, 1965 (Ann. B), covering the plots included only in schedule A to the notification under section 4, having an aggregate area of 25. 005 acres only. 4. 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 3.8.65, that there has been a hearing of objections under section 5a, and no notification under section 6 has yet been issued As regards these plots, the petitioners direct their challenge to the notification under section 4 alone. 25 of the counter-affidavit, dated 3.8.65, that there has been a hearing of objections under section 5a, and no notification under section 6 has yet been issued As regards these plots, the petitioners direct their challenge to the notification under section 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 paragraphs 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 paragraph 18a of the cunter-affidavit of 3.8.65, 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 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 of the declaration shall be ultra vires, and the question having been fully debated, I think I 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 under section 4 (1), inasmuch as it has been held by the Supreme Court (1) Barkya Thakur v. State of Bombay, (1961) 1 SCR 128 ; (2) State of M. P. v. Vishnu Prasad, (1966) SC [ca 1018/63], that the notification under section 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 section 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. But it is otherwise with the declaration under section 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 under section 6. In this view, the notification under section 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 under section 6 which may hereafter be issued in respect of the residue still contains unparticularised parts of C. S. plots. (b) As regards a declaration under section 6, I have given my reasons in several previous decisions, including the one reported in (3) 70 CWN 503 (Pramatha v. State of West Bengal) 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 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 portions of each of these plots sought to be acquired from the area recorded in the C. S. records. 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 portions 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 under section 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 under section 6 [ (4) Ram Sewak v. State of U. P. AIR 1963 A1j 24 (26)], because, it would lead to the conclusion that Government has not applied its mind [ (5) Somawanti v. State of Punjab, AIR 1963 SC 151 (162)] to its duty of 'satisfying' itself as to the 'particular land' [section 6 (1)] which is needed, before issuing the declaration under section 6 [barkya, Thakur's case, ibid; (2) State of M. P. v. Vishnu Prasad, (1966) SC (AC 1018/63) per Wanchoo and Mudholkar, JJ]. As has been observed by Merhotra, J. in (6) T. D. Corporation v. State of Assam. AIR 1961 Assam 133 (144), such particulars must be given in the notification under section 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 lands cannot be identified, the acquisition proceedings would be void [ (7) Wali Md v. Gyan Prakash, AIR 1954 Pat, 399; (8) Iftikhar v. State of M. P., AIR 1961 M. P. 140 (143)] 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 under section 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 under section 6. It is to be noted that subsection (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' under section 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 under section 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 [ (9) Kochuni v. State of Madras, AIR 1960 SC 1080 (1092); (10) Kunnathat v. State of Kerala, AIR 1961 SC 552 ] 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 it 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 becomes conclusive against the deprived owner under section 6 (3); and the order made under section 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 under section 6, according to their pleasure. This would be a deprivation not according to law but according to executive flat; 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. 5. IT has been urged that the Government has done its duty by stating in the declaration under section 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 plain 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, [ air 1966 SC 1593 (1598)]: - "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. 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 under section 6 (1). 6. THE duty of the Government to particularise the specific portion of the plots included in Schedule A of the notification under section 4 and the declaration under section 6 is heightened by the fact that as regards these plots the Government seeks to dispense with the inquiry under section 5 (a) read with sub-section (4) of section 17, as will be explained more fully hereafter. The Supreme Court has held in the cases of (11) Nandeswar v. U. P. Government, AIR 1964 SC 1217 , and (12) Sarju Prasad v. State of V. P., AIR 1965 SC 1763 (1767) that sub-section (4) of section 17, read with subsection (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 under section 17 (4) dispensing with compliance with the requirements of section 5a would be invalid. 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 under section 17 (4) dispensing with compliance with the requirements of section 5a 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 under section 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. 7. IT is contended on behalf of the petitioners that the notification under section 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. 8. THIS contention cannot, however, stand in view of the observations of the Supreme Court in the case of (2) State of M. P. v. Vishnu Prasad, AIR 1966 SC 1593 (1602), that though the law did not contemplate that ordinarily there could be more than one declaration under section 6 on the basis of a single notification under section 4, there might be an exception in the case of a composite notification under section 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 under section 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 one before us was invalid. 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 under section 17 (1), upon which sub-section (4) of that section is dependent. 11. 9. FROM a reading of section 17 (i), 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. Government, ibid, or in part Sarju Prasad v. State of V. P., ibid. 10. 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 under section 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 sec. 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, (I 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. " 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 subsection (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; (13) Lachmi Narain v. S. of U. P. AIR 1957 All 816 (817); (14) Murari Lal v. State of Punjab, AIR 1964 Punj. 477; (15) Arjan Singh v. State of punjab, AIR 1959 Punj 538 (543) [using the word 'emergency'] (8) Iftikhar v. State of M. P., AIR 1961 M. P. 140 (141); (4) Ram Sewak v. St. of U. P,, AIR 1963 All 24 (25); (16)Natessa v. St. of Mad., AIR 1954 Mad, 481; (17) R. D. Chand v. State, AIR 1963 A. R 383 (384); (5) Somawanti v. St. of Punjab, AIR 1963 SC 151 (156); (18) Ghulam v. State of U. P. AIR 1964 All 353 (354); (19) Navnital v, State of Bombay, AIR 1961 Bom. 89 (90); (20) Sadruddin v. Patwardhan, A 1965 Bom. 224 (256); (21) Seshagiri v. Special Tehsildar, AIR 1965 Ker, 92; (22) Abdul Mazid v, Yacoub. AIR 1965 Mad, 328 (329); (23) Murari Lal, v. State, AIR 1966 Punj, 59 (60/62); (24) Thirumalaih v. State of Mysore, AIR 1963 Mys. 255; (25) Nathudan v. State of Rajasthan, AIR 1964 Raj, 270 (274); (26) Kashappa v Chief Secretary, AIR 1963 Mys, 311 (320); (27) Khem Karan v. State of U. P., A. 1966 All 255 (256); (28) Dhaneshwary v. L. A. Officer), A. 1966 Pat. 136 (137); (29) Udit Ram v. State of bihar, AIR 1966 Pat, 258. As against these, the learned advocate for the Government has railed to cite a single reported decision where the notification under sub-section (1) of section 17 was made without a rectal 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. 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 under section 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 Schedule A lands in particular were urgently required and that the Government could not afford to hold an inquiry under section 5a without detriment to the public interest [vide (24) Thirumalaih v. State of Mysore. AIR 1963 Mys. 255 (256)]. 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 per 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 aliun-de, 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 (16) Natesa v. State of Madras, AIR 1954 Mad. 481 , nothing contrary to which has been produced before me: "what all is required under section 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 under section 17 (4), suspending the application of section 5a. " The observations in the cases of (18) Ghulam v. State of U. P., AIR 1964 all 353 (355); (19) Navnitlal v. St. of Bombay, AIR 1961 form. 80 (90); (24) Thirumaliah v. State of Mysore, AIR (1963) Mysore 255 and (26) Kashappa v. Chief Secretary, AIR 1963 Mys. 318 (322) are more explicit. The above statement of law finds support from the observation of mudholkar, J. in (5) Somawanti v. State of Punjab, AIR 1963 SC 151 (171) that section 17 (4) is applied by the Government ''where there is an emergency. " in the recent (30) Barium chamicals case, (1966) 1 SCA 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 affair, 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 recital, it would be for the person who challenges that recital, to prove by independent evidence that the recital was inaccurate (31) Emperor v, Sibnath, (1944) FCR 1 (42); AIR 1945 PC 156, - which may be difficult task for him (see, in this connection, (26) Kashappa v. Chief Secretary, AIR 1963 Mys. 318 (320-1). 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. 318 (320-1). 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 (11)Nandeswar Prasad's case, AIR 1964 SC 1217 (1222), 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 subsections (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 radial, it is open to the government to snow by independent evidence (as suggested in (32) Swadeshi Cotton Mills v. S. I. Tribunal, AIR 1961 SC 1381 ), that it was satisfied as to the urgency with respect to the Sch. A lands, where that is challenged by the petitioner-that evidence is nil in the case before me. In paragraph 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 under sec. 17 (4) and the averment in the counter-affidavit in paragraph 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 under section 5a in respect of the particular plots Included in Schedule A, though it could wait and bold 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 under section 6 must fail in to and that part of the notification under section 4 (1) (Ann. A) which gives the direction under section 17 (4) must also fail, so that the petitioners would be entitled to have an opportunity under section 5a as regards the Schedule A lands as well. 11. 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. (19) Navnitlal v. State of Bombay, AIR 1961 Bom. 89 (93)], 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 (11) Nandeswar's case (p. 1221 of AIR ibid), it was observed : "under the Land Acquisition Act an order under section 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 some body thinks it to be so, Whatever doubts in this behalf might still subsist have been taken away by the observations in the later (12) case of Sarju Prasad, ibid. In the concluding portion of this decision, the Court has observed that "of only a part of the and is waste or arable and the rest is not, a notification under section 17 (4), dispensing with compliance with the requirements of section 5a would be invalid" as to the whole of that land. In the concluding portion of this decision, the Court has observed that "of only a part of the and is waste or arable and the rest is not, a notification under section 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 [(20) Sadruddln v. Parwardhan, AIR 1965 Bombay 224 258)] has, explaining the observations in the earlier (19) case of Navnitlal [ air 1961 Bom. 89 (93)], came 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 [ (13) Lakshmi v. State of Bihar. AIR 1965 Pat. 400 ]. 12. 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 if sub-section (1), because the words "whenever the State Government so directs" are to be read with the preceding words in cases 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 paragraph 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 under section 5a could be directed:-286; 818; 678; 678/2103; 705; 308: 633/211; 289, 13. (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 paragraphs 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. (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 paragraphs 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 mighty 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 paragraph 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 as the time of the notification, it was paddy-growing 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 (20)Sadruddin v. Bombay Corporation, AIR 1965 Bom. 224 and (33) Ganesh Narayan v. Commissioner, AIR 1965 Bom, 92 (106), that land which is actually cultivated cannot be held to be 'arable'. The contrary view taken by some other High Courts, such as patna [ (13) Lakskmi v. Stats of Bihar, AIR 1965 Pat. 400 ; (28) Dhaneswary v, L. A. Officer, AIR 1966 Pat. 136 ] 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 under section 6 and the notification under section 4 (1) is to be correspondingly amended by including it as 'not arable or waste'. 14. (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 win 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. 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 win 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 petitioner 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. record as 'sikasti', and the application for addition of petitioners, dated 1. 7. 65 (p. 15), the actual condition of this plot is stated to be 'horticulture,' end 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. 15. (D) Plots 678/2103 and 705 are described as 'riverian' in the petition. If so, according to the petitioners themselves, they are 'arable' lands. 16. (E) In the petition, plots 693/211 and 289 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 Bom. 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 (20) Sadruddin v. Patwardhan, AIR 1965 Bom, 224 (258; 262). The Allahabad High Court, on the other hand, as opined (34) Baldeo v. State of U. P., AIR 1965 All 433 (434), 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. On this view, the Court rejected the contention that an 'orchard' was not a waste land. A similar view has taken in Bihar, where there has been a legislative amendment to this effect [vide (13) Lakshmi Dem v. Stats of Bihar, AIR 1965 Pat. 400 (402)]. 17. 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 (19)Navnitlal v. State of Bombay, AIR 1961 Bom. 89 (91), 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," 18. AS explained by a later Division Bench of the Bombay High Court (20) Sadruddin v. Patwardhan, AIR 1965 Born. 224 (260-1), 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 (35)Hedayet v, Kamalanand, 17 CLJ 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'. 19. 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'. 19. 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 under section 17 (4) relating to Schedule A of the notification shall fail in to, 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 (20) Sadruddin v, Patwardhan, AIR 1965 Bom. 224 (257), 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 paragraph 27 of the counter-affidavit 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. 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 to 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. 20. 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 paragraph 31 (read with paragraph 15)of the counter-affidavit filed on 30.8.65 that in their application for injunction, the petitioners had suppressed the fact that the respondents had, on 19.5.65, taken possession of all the plots included in the declaration, excepting plots 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 the 10th May, 1965. It is true that in the application for injunction dated the 1st July, 1965, the petitioners stated that they were in actual possession. If this fact were not true, that would have been a 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 the 19 July 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. 21. 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. 21. 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, 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 such 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. 22. THE Rule is made absolute in part, with costs, hearing fee being assessed at five gold mohurs. Let the declaration under section 6 (Ann. B) to the petition and the penultimate paragraph of the notification under section 4 (Ann. A), dispensing with the provisions of section 5a as regards the lands in Schedule A be cancelled. Respondents shall be at liberty to proceed afresh regarding these lands, after making necessary amendments of the notification under section 4, and in accordance with the law.