Saleha Bibi v. State of Uttar Pradesh — 1968 DIGILAW 373 (ALL)

JUDGMENT K. B. Asthana, J. - This is a petition under Article 226 of the Constitution. The petitioners who are the owners of certain land question the validity of the acquisition of their land under the provisions of Land Acquisition Act, 1894. The admitted position is that the land of the petitioners sought to be acquired has a valuable grove of mango trees standing on it and the petitioners never used it for cultivation. The usual notification under Section 4 of the Land Acquisition. Act was published. The objections were invited under Section 5-A of the Act. Then a notification under Section 6 of the Act read with Section 17 (1) of the Act was published and the Collector was directed to take order for the acquisition of the land. He was further directed to take possession of the land on the expiration of fifteen days from the date of publication of the notice under Section 9 of the Act though no award under Section 11 had been made. In the notification under Section 4 it was announced that the land was being acquired for a public purpose for erection of the factory buildings and quarters for the workmen of the Fertilizer Corporation of India. In the notification under Section 6 the declaration was made in the following form : "The Governor of Uttar Pradesh after considering the report made under sub-sec. (2) of Section 5-A of the said Act, is pleased to declare under Section 6 of the said Act, that he is satisfied that the land mentioned in the Schedule is needed for a public purpose, namely, for the setting of a Fertilizer Factory by the Fertilizer Corporation of India, Ltd., which Company is taking steps for engaging itself in an industry which is for a public purpose, for the production of fertilizers and for construction of dwelling houses for workmen of the said factory and for the provision of other amenities connected therewith ............" 2. The Collector then issued notices to the petitioners under Section 9 of the Act and intimated them that possession shall be taken of the land on the expiration of fifteen days from the date of said notice. The Collector then issued notices to the petitioners under Section 9 of the Act and intimated them that possession shall be taken of the land on the expiration of fifteen days from the date of said notice. The petitioners thereupon approached this Court by a petition praying for the writ of certiorari, order of direction quashing the notifications under Sections 4 and 6 and for a writ in the nature of mandamus restraining the State of Uttar Pradesh, the Collector of Gorakhpur, the Land Acquisition Officer and the Fertilizer Corporation of India, Limited, from taking possession of the petitioners' land. 3. The main allegations made in the petition were that the land of the petitioners was neither waste nor arable, it was a grove land being covered by flourishing fruit bearing trees mostly of mango; that the Fertilizer Corporation of India, Limited being a Company as defined under the Land Acquisition Act, the acquisition could only be made on following the procedure under Chapter VII of the Land Acquisition Act; that no amount for payment of compensation for the acquisition was being met by the Government; that no agreement between the Fertilizer Corporation and the State of Uttar Pradesh, as required by the Land Acquisition Act, has been made nor any such agreement has been published in the gazette; that the acquisition was being made for construction of residential quarters for the officers of the Fertilizer Corporation of India and the whole purpose for which the acquisition was intended was not a public purpose; that the Collector had no power to take possession of the land acquired before the making of the award under Section 11 of the Act and that the acquisition being for the purposes of the Union of India, the appropriate Government for acquiring the land within the meaning of the Land Acquisition Act would be Union of India and not the State of Uttar Pradesh. 4. In a counter affidavit supplemented by another affidavit all the allegations of fact made in the petition have been controverted, but it has been admitted that the land in dispute is covered by mango trees. It has been averred that half the cost for acquisition will be met from the public funds of the State of Uttar Pradesh. It was denied that the acquisition was being made for a Company. 5. It has been averred that half the cost for acquisition will be met from the public funds of the State of Uttar Pradesh. It was denied that the acquisition was being made for a Company. 5. In support of this petition the learned counsel for the petitioners raised four grounds : (1) That the appropriate Government having not issued the notifications under Sections 4 and 6 of the Land Acquisition Act, the notifications were invalid. (2) That the land avowedly being acquired for a limited Company and merely because a small part of the compensation was forthcoming from the funds of the State Government, the acquisition will still be for a Company and the provisions of Part VII of the Act having not been complied with, the acquisition was bad. (3) That the land in question was not waste or arable land therefore the provisions of Section 17 of the Act were not applicable, the Collector had no power to take possession thereof before the award under Section 11 of the Act was made. (4) That certain plots have been mentioned in the notice under Section 9 of the Act which were not originally included in the notifications under Sections 4 and 6 of the Act. 6. Taking the fourth ground first, I find that there is no factual foundation laid in the petition in the sense that no specification has been made and it is not possible to find from the petition itself as to which plots that were not originally included in the notifications under Sections 4 and 6 have been mentioned in the notice under Section 9 of the Act. There appears to be some confusion and contradictions in the averments made in the petition itself in this regard. This ground, therefore, is rejected. 7. As regards the first ground, suffice it to observe that under a notification issued by the President of India the powers for acquisition of any land for the purposes of the Union of India have been duly delegated to the State of Uttar Pradesh. It follows, assuming that the acquisition in question was for purposes of the Union of India, that the notifications issued by the Government of State of Uttar Pradesh would be valid and proper. No infirmity attaches to the notifications under Sections 4 and 6 of the Act on this ground. 8. It follows, assuming that the acquisition in question was for purposes of the Union of India, that the notifications issued by the Government of State of Uttar Pradesh would be valid and proper. No infirmity attaches to the notifications under Sections 4 and 6 of the Act on this ground. 8. The second ground of attack based on non-compliance of the provisions of Part VII of the Act depends upon the finding whether the acquisition in question was for a Company and not for a public purpose. The declaration under Section 6 of the Act, the material part of which I have quoted above, is that the acquisition is for a public purpose and that purpose is elaborated in that notification, i.e. for raising buildings for the factory, for construction of dwelling houses for the workmen of the factory and for other necessary amenities. The learned counsel for the petitioners contended that there being nothing in the notification under Sections 4 and 6 of the Act to show that the whole or a part of the compensation was to be paid from Government funds the acquisition in law cannot be said to be for a public purpose. There is no substance in this contention. It is now the settled law that it is not necessary to mention in the notification that the compensation in whole or in part was to be met by the public funds. That fact can be proved by affidavits or other evidence. The averment in the counter affidavit filed on behalf of the State that 50 per cent of the costs for acquisition would be met by the State of Uttar Pradesh from the public funds has not been controverted.i It is established that half of the cost for acquisition would be met by the State of Uttar Pradesh from public funds. In the supplementary counter affidavit there is a further averment that the State of Uttar Pradesh would meet the cost upto 60 per cent. 9. I do not consider it necessary to burden this judgment by noticing the various cases cited at the Bar by the learned counsel for the parties. To my mind, the law is now well settled by the various decisions of the Supreme Court. 10. 9. I do not consider it necessary to burden this judgment by noticing the various cases cited at the Bar by the learned counsel for the parties. To my mind, the law is now well settled by the various decisions of the Supreme Court. 10. Once it is found that the cost of acquisition, wholly or in part, has to be met from public funds, then the acquisition would be for a public purpose. It is also settled law that though an acquisition may be for the benefit of a Company and for the purpose of the Company yet that purpose may fulfil also the requisites of 'a public purpose' and further, if the appropriate Government contributed from public funds towards the cost of acquisition the acquisition would still be for a public purpose. That is exactly the case here. It cannot be doubted that fertlizers are the need of the country. The Fertilizer Corporation of India Limited has been incorporated under an Act of Parliament for production of fertilizers. There is no reason to doubt that the production of fertilizers and fertilising agents would serve a purpose of extreme benefit to the people in general. Acquisition of land for erection of the Works and housing of the workmen would then meet the requirements as understood by the expression "public purpose" of which, of course, no specific or definite definition can be given. It was urged in this connection by the learned counsel for the petitioners that avowedly the acquisition being for the purpose of the Company, by declaring that the acquisition was for a public purpose the State Government in the colour of exercise of its power with a view to avoid compliance with Part VII of the Act merely for the sake of appearances declared that the acquisition was for a public purpose. The learned counsel went to the extent of saying that the impugned notifications amounted to a fraud. A reference was made to the case of State of West Bengal v. P.N. Talukdar, A.I.R. 1965 SC 646 and my attention was drawn to para. 11 of the reported decision at page 652. I fail to appreciate how the learned counsel for the petitioners can derive any assistance from that decision of the Supreme Court. A reference was made to the case of State of West Bengal v. P.N. Talukdar, A.I.R. 1965 SC 646 and my attention was drawn to para. 11 of the reported decision at page 652. I fail to appreciate how the learned counsel for the petitioners can derive any assistance from that decision of the Supreme Court. On the facts of that case it was found that it was the Ramakrishna Mission which was wholly to meet the cost of acquisition and no part of the cost was forthcoming from the public funds of the Government of West Bengal. It was in that context that the learned Judges of the Supreme Court repelled the argument that the acquisition was really for a public purpose and not for a Company. The Supreme Court seems to emphasise in that case that the real test whether the acquisition is for a public purpose or for a Company depends on if the whole or a part of the compensation is to be met from the public funds of the Government. As I read the decision of the Supreme Court in that case I cannot but observe that instead of helping the petitioners it goes against them. No question of any colourable exercise of power or fraud arises in the instant case when it is found that more than half the cost of acquisition has to be met from the public funds of the Government of Uttar Pradesh. This ground of attack also fails. 11. The third ground which relates to the validity of the application of Section 17 of the Act to the acquisition of land of the petitioners appears to have some force. It is admitted by the respondents that the land in question is covered by a mango grove. The question then arises whether it could be said to be waste or arable land within the meaning of Section 17 ? Obviously it is not a piece of waste land. It is being put to good use and fruit hearing trees like that of mango stand on it. Then, can it be said to be arable ? The question then arises whether it could be said to be waste or arable land within the meaning of Section 17 ? Obviously it is not a piece of waste land. It is being put to good use and fruit hearing trees like that of mango stand on it. Then, can it be said to be arable ? Learned counsel for the petitioners relied upon a decision of the Supreme Court in the case of Raja Anand Brahma Shah v. State of Uttar Pradesh, A.I.R. 1967 SC 1081 in support of his argument that the land in question could not be said to be arable as a large number of mango trees and other fruit bearing trees stand on it and a grove was planted. thereon. In the case of Raja Anand Brahma Shah the Supreme Court had occasion to consider the question whether a forest land covered by a large number of trees could be treated as a waste land or arable land within the meaning of Section 17 (1) and (4) of the Act. The learned Judges answered the question in the negative. They held that such a land would neither be waste land nor arable land. The learned Judges adopted the criteria that an arable land will be a land which was mainly used for ploughing and for raising crops or which is capable of being ploughed or fit for cultivation. A forest land full of trees was considered as falling out of the said criteria. On a parity of reasoning I think the piece of land which is covered, by fruit bearing trees like mango trees cannot be used for ploughing and for raising crops. Therefore, it would not be a land capable of being ploughed or fit for cultivation. The learned Standing Counsel referred to the later decision of the Supreme Court in the case of Ishwarlal Girdharlal Joshi v. State of Guj rat, A.I.R. 1968 SC 870 and on the strength of the decision in that case tried to argue that a land covered by trees like any grove land found commonly in agricultural villages would be arable land as it would always be capable of being cultivated for raising crops. I do not find that in Ishwarlas's case any such proposition has been laid down. I do not find that in Ishwarlas's case any such proposition has been laid down. In that case one of the questions being considered was whether a piece of land which, at the time of issue of notification under Section 4 of the Act, was actually under cultivation having crops standing thereon, could be said to be arable land ? The answer was that it would be an arable land. I do not find that in Ishwarlats case the Supreme Court even noticed its previous decision in Raja Anand Brahma Shah's case. The learned Standing Counsel submitted that a grove can always be converted into ordinary agricultural land for raising crops after uprooting the trees. That is indeed so. So can be converted a land covered by forest after felling the trees. In fact, it is a common phenomenon to reclaim forests and then allot the cleared land to the tenants for cultivation. The Supreme Court in Raja Anand Brahma Shah's case would not have taken out a land covered by trees in such number as to amount to a forest, from the purview of arable land if the test was one which the learned Standing Counsel asked me to accept. It is not that after the grove is destroyed, the open land could be cultivated and, therefore it will be an arable land. The real question is whether a land on which a grove is planted having trees in such large number that the raising of crops by cultivation is unthinkable, would answer the definition of "an arable piece of land." I have no hesitation in holding on the admitted facts of this case that the land of the petitioners is neither waste land nor arable land within the meaning of Section 17 of the Act. In my judgment insofar as the land of the petitioners is concerned the provisions of Section 17 of the Act were misapplied and the notification dated April 24, 1953, published in the gazette dated April 27, 1963, (a copy of which is annexure 'E' on record) applying the provisions of Section 17 (1) of the Act to the land of-the petitioners has to be struck down. 12. For the reasons given above this petition partly succeeds. Paragraph No. 2 of the notification under Section 6 insofar as the land of the petitioners is concerned is quashed. 12. For the reasons given above this petition partly succeeds. Paragraph No. 2 of the notification under Section 6 insofar as the land of the petitioners is concerned is quashed. A writ of mandamus is issued against the respondents restraining them from taking possession of the land of the petitioners unless and until an award is made under Section 11 of the Land Acquisition Act. The plaintiffs are entitled to half the costs of this petition.