ISHWARLAL GIRDHARLAL JOSHI ETC. versus STATE OF GUJARAT & ANR.

JSHWARLAL GIRDHARLAL JOSHI ETC.

STATE OF GlJ.JARAT & ANR.

Nol'e/11/Jt'r 16, 1967

fl\1. JllllAYATULLAII, V:BHARGAVA AND C. A. VAIDIALINGAM, JJ.J

Constitution of India, 1950, Art. 166 and Rules of Business, rr. 7, 10, 13 and IS-Notifications under Land Acquisition Act (! of 1894)-H'/H'!her cu:tld be signed by an Under Secretary-Fnnnation of opinion regarding urgency and nalllre of /and-Wheth<r could be delegated to Secretary-Standing Orders, if necessary-Arable land, meaning "f,

By notification under s. 4 of the Land Acquisition Act issued on March 10, 1965 the respondent State Government notified that certain lands were needed for public purpose, namely, the construction of the State capital, that the Qoverrunent was satisfied that they were 'arable lands' and further directed under s. 17(4) of the Act, that as the acquisi-tion of the lands was urgently .11ecessary, the provisions of s. SA would not appjy. Thereafter, notification was issued under s. 6 containing direction under s. 17(1) of the Act enabling the Collector to take posses-D sion of all the ~rable lands on the expiry of 15 days from the publication of the notice under s. 9(1) of the Act. Both Notifications were signed by an Under Secretary of the respondent-Government.

The .petitioners challenged the notifications ·in writ petitions under Art. 226. In the original affidavits, the petitioners merely asserted that the Government had not mad.e up its mirid regarding the acquired lands as to urgency and that the lands were not arable. The parti.,. filed number of affidavits at various stages of the hearing, the Government in order tO establish tjlat everything \Vas regularly done, while the peti~ tioners alleged infractions. In one of the affidavits on behali of the Gov-ernment it was stated that the Minister-in-charge gave oral instructions to the -Secretary that he or his under-secretaries may take action under s. 17 ( 1) and ( 4) of the Act according to law, that the Secretary was satisfied regarding urgency and gave inst£11ctions to the Under Secretary to take the necessary action. The High Court after considering the affi-davits, dismissed the petitions.

In appeal to this Court it was contended that: (i) only Secretary could sign the notifications and that the Under Secretary who signed the notification under s. 6 was not duly authorised to do so; (ii) that there was no formation of opinion by the Government as regards urgency or that the lands were arable; (iii) that this function could not be delegated to the Secretary and even if it could be delegated, general oral instruc-tion given by the ?vfinister was not according to the proceJ\lre prescribed by the Rules of Business; (iv) that since the lands in question were under cultivation, they were not waste or arable lands; and (v) that sub-SS. ( t) and (4) of.s. 17 of the Act were violative of Arts. 14 and 19(\)(f) of the Constitution:

1JELD : Disrni~sing the petitions.

(I) 'fhc V.lord ·secretary' is not· dc·fincd in the Land· Acquisition Act or the General Clauses Act so as to exclude Additional, Joint, Deputy. Under or Assistant Secretaries. On the <.ither har1d. r.lJ rif the Rules of Business fro.n1ed under Art. 166 of the Conslituti<Jn specifically places

Secretary, Joint Secretary, Deputy Sc~rctary, Un.der Secretary and Assistant Secretary on equality for authenticaoon of orders and wt~ents . of Government. The Under Secretary was, thereforo, competent to Sign the notifications. [273F; 274E]

Even if he did not possess the power as Secretary he viould have been competent as an officer 'duly authorised', within the meaning of s. 6 of the Act, by virtue of r. 13 of the Rules of Business. [274F]

· (il) Under Art. 166 of the Constitution the validity of the notification could not be called in question on the ground that it was not an order made by the Governor, because, as required by the Article _the executive action of the Government was expressed to be taken in the name of the Governor and the order was authenticated in the manner required by r. 13 of the Rules of Business. In addition, there is also the presumption of regularity of official acts. Therefore, the bare assertion that Government had not formed an opinion could not raise an issue. The Government was not called upon to answer the affidavit of the petitioners and the Government need not have undertaken the burden of showing the rei:u-larity of their action. [275 B-G; 278 D, F]

(iii) Rules 7, 10, 13 and 15 of the Rules of Business specifically allow conferral of powers cm Secretaries and the determination of the Secretary becomes the determination of the Government. There is nothing in the Rules or ins.tructions which prescribes that the authority must be in writing or by Standing Orders. Under Paragraph 3 of the instructions issued by tho Governor under r. 15 of the Rules of Business. Standing Orclers are necessary for the disposal of cases in the department. and case is defined as 'the papers under consideration and all previous papers and notes put in connection tbereW:itb to enable the question raised to be disposed or. Paragraph 4, on the other hand refers to "matters or classes of matters". Therefore, paragraph 3 only refers to the disposal of cases and not to matters arising in case, regarding which under paragraph 4, the Minister may arrange with the Secretary whether they are to be brought to his personal notice or not. The matters in the present case were the application of s. 17(1) and (4), to the acquisition of waste and arable lands and the Minister could leave this matter to his Secretary as he did. For this purpose, Standing Orders were not neces-sary and oral instructions would be sufficient. The Secretaries concerned were gh·en the jurisdiction to take action on behalf of Government and they satisfied themselves about the need for acquisition under s. 6, the urgency of the matter and the existence of waste and arable lands for the application of sub-ss. (I) and (4) of s. 17. Therefore, on review of the affidavits, the provisions of the Act ancl the Business Rules and Instructions, the directions under sub-ss. ( 1) and ( 4) of s. 17 were not invalid. [280 D-G; 281 C-D; 282 E-G]

Shayamaghana Ray v. State, A.I.R. 1952 Orissa 200, referred to.

Emperor v. Shibnath Banerji, L.R. 72 I.A. 241, distinguished.

(iv) Arable land under the Act is not only land capable of cultiva-tion but also land actually under cultivation. The words 'compensation for the standing crops and trees (if any) on such land' ins. 17(3), show that the land may have crops or 11;, fallow and the crops can only be on orahle land. hecause, if crops could grow or were actually i::rown the l:ind would hardh· he waste land. [286 A-B, E]

Baldeo Singh & Ors. v. State of U.P. A.LR. 1965 AIL 433, Smt. Lakshmi Devi & Ors. v. State of Bi/tar & Ors. A.LR. 1965 Pat. 400

and Guntur Rama/akshmamma v. Govt. of Andhra Pradesh, A.I.R. 1967 A.P. 280, approved ..

Sadruddin Suleman v. 1. H. Patwardhan, A.I.R. 1965 Bom. 224.

over-ruled.

(v) The High Court had rightly held that sub-ss. (1) and (4) and 17 wer~ not unconstitutional. [286 F-G]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. '!183, 915 to 967 and 1042 to 1044 of 1967.

Appeals from the judgment and order dated December 2, 5, 12 and 13, 1966 of the Gujarat High Court in Special Civil Appli-cations Nos 1003, 1177, 1178, 1183, 1186, 1195, 1197 to 1202, 1205 to 1210, 1220 to 1222, 1244, 1275, 1374, 1377, 1380, 1387, 1389 of 1965, 68 to 70, 72 to 74, 76, 77, 80, 83, 84, 166, 183, 393, 399, 547, 554, 790 of 1966, 1187, 1188, 1233 of 1965, 75, 154, 202, 402, 403 of 1966, and 1179, 1184 and 1185 of 1965.

B. Sen, S. K. Dholakia and Vineet Kumar, for the appellant

(in C. A. No. 883/1967).

S. K. Dholakia and Vineet Kumar, for the appellants (in C. As. Nos. 915 to 967 and 1042 to 1044 of 1967).

S. V. Gupte, A. K. Kazi, 0. P. Malhotra and S. P. Nayar, for

the respondents (in C. As. Nos. 883 and 915 to 967 of 1967).

A. K. Kazi, 0. P. Malhotra and S. P. Nayar, for the respon-

dents (in C. As. Nos. 1042 to 1044 of 1967).

The Judgment of the Court was delivered by

llidayatullah, J.--On March 10, 1965, the Government of Gujarat notified under s. 4 of the Land Acquisition Act that cer-tain lands were needed for public purpose, namely, the construc-p tion of the cupital of the State at Gandhinagar and that Govern-ment was satisfied that they were 'arable lands'. Government further directed under s. 17 ( 4) of the Act that as the acquisition of the said lands was urgently necessary the provisions of s. SA of the Act shall not apply in respect of the lands. list of the lands was appended to the notification. This notification was followed by another on July 31, 1965 under s. 6 of the Land Acquisition Act and it contained direction under s. 17 ( 1) of the Act, enabling the Collector, on the expiration of 15 days from the publication of the notice under s. 9 (1) of the Act, to take posses-sion of all arable lands specified in the earlier notification. Both notifications were signed by L. P. Raval, Under Secretary to Government and were shown to be by order and in the name of the Governor ·of Gujarat.

Numerous petitions were filed in the High Court of Gujarat under Art. 226 of the Constitution by the owners of the lands LJSup. C. I./68-3

affected by the notifications to challenge the validity of the acqui-sition. One such petition was numbered Petition No. I 003 of 1965 and it was typical of all the others. The facts in all the petitions were the same, save the details of the lands, and as the contentions were also the same, the High Court pronounced common judgment applicable to all, on December 2/5, I 966 and dismissed them. The High Court, however, granted " certificate under Art. 13 3 ( J) ( c) of the Constitution and the present appeals have been brought. Civil Appeal No. 883 of 1967 arises from the Special Civil Application No. 1003/65 and the other appeal' ar.: in the other petitioru;. This judgment will accordingly dispose of all the appeals. Before we consider the arguments we may see the relevant provisions of the Land Acquisition Act. The scheme of the Act, which entered into force alnlost seventy-five years ago, is by now familiar to lawyers and courts and it is not necessary to refer in detail to it. , The High Coun has painstakingly analysed the provi-sions already. We $all refer in passim to what is material to the discussion. Acquisition of land under the. Act originarily begins with t1 preliminary inquiry. Government notifies first under s. 4 that 'land in any loc~lity is needed or is likely to be needed' for public purpose. Public notices are also given. This enables the officers of Government to enter upon lands to survey them and also enables persons interested to object to tho acquisi-tion generally and also particularly in accordance with the provi-sions of s. 5A of the Act. After the objections have been consid-ered and Government has satisfied itself on the report or report• of the Collector that particular land is needed, second notification is issued under s. 6 that particular land is needed for the public purpose. This declaration is conclusive evidence that the land is so needed and Government then proceeds to acquire the land. The procedure is detailed in the sections that follow. Under s. 9(1) the Co!lector causes public notices to be given that Government intends to take possession of the lands and that claim to compensation for all interests in lands shall be made to him. Then commence proceedings for the fixation of compen-sation with the details of which procedure we arc not presently concerned. When these proceedings are completed the Collector makes his award about the true area, the compensation to be allowed and the apportionment of that compensation among per-sons known or believed to be interested. When the Collxtor ha• made his award (which is made conclusive for certain purposes) s. 16 enables him to take pos=sion of the lands and the land~ vest absolutely in Government free from all encumbrances. This is provided in s. I 7. Under this procedure Government in cases award. There is shorter procedure for ca~ of urgency and it is provided in s. 17. Under this procedure Government in cases·

of urgency, is enabled inter alia to omit the application of s. SA and to notify the lands under s. 6 at any time after the publication of the notification under s. 4( 1). Under sub-s. (1) of s. 17, Government cail direct the Collector, though no award has been made, to take possession of any waste or arable lands needed for the public purpose, on the expiration of fifteen days from the publication of the notice under s. 9. Under sub-s. _ ( 4) of th~ same section Governinent may direct that in the case of any land to which in its opinion the provisions of the first sub-section are applicable, the provisions of s. SA ohall not apply and if it so directs declaration may be made under s. 6 in respect of that land at any time after the notification under s. 4(1) has been pub-lished. It will therefore, be noticed that the shorter procedure .c has been followed here. Before we refer to the grounds on which the action of Government is challenged we may read ss. 4 (1) 6(1) omitting the proviso, ands. 17. Although we are principally concerned with the first and fourth sub-section of the last section w~ shall be required to refer to the remaining sub-sections, and we shall read the section as whole :

"4 ( 1 ) Whenever it appears to appropriate Government that land. in any locality is needed or is likely to be needed for any public purpose, notification to that effect shall be published in the Official Gazette, and the Collector shall cause public notiee of the substance of such notification to be given at convenient places in the said locality.

6(1) Subject to the provisions of Part VII of this Act, when the appropriate Government is satisfied, after considering the report, if any, made under section SA, sub-section (2), that any particular land is needed for public purpose, or for Company, declaration shall be made to that effect under the signature of Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under section 4, sub-section ( 1), irrespective of whether one report .or different reports has or have been made (whenever requir eel) under section SA, sub-section (2).

17 ( 1) In cases of urgency, :.vhenever the appropriate Govel'l'ment so directs, the Collector, though no such award has been made, may, on the expira-tion of fifteen days from the publication of the notice mentioned in section 9, sub-section (1),

take possession of any waste or arable land c~ed for public purposes or for Company. Such land shall thereupon vest absolutely in the Government, free from all encumbrances.

(2) Whenever, owing to any sudden change in the channel of Jny navigable river or other unfore-8 seen emergency, it becomes necessary for any Railway Administration to acquire the immediate possession of any land for the maintenance of their traffic or for the purpose of making thereon river-side or ghat station, or of providing con-venient connection with or access to any such station, the Colloctor may, immediately after the publication of the notice mentioned in sub-sec-tion ( 1 ) and with the previous sanction of the appropriate Government, enter upon and take possession of such land, which shall thereupon vest absolutely in the Government free from all encumbrances :

Provide(! that the Collector shall not take possession of any building or part of building under this sub-section with0ut giving to the occu-pier thereof at least forty-eight hours' notice of his intention so to do or such lon~er notice as may be reasonably sufficient to enable such occu-pier to remove his movable property from such building without unnecessary inconvenience.

(3) In every case under either of the preceding sub-sections the Collector shall at the time of taking possession offer to the persons interested com-pensation for the standing crops and trees (if any) on su~h land and for any other damage sustained by them caused by such sudden dis-possession and not excepted in section 24; and, in case such offer is not accepted, the value of such crops ana trees and the amount of such other damage shall be allowed for in awarding compensation for the land under the provisions herein contained.

( 4) In the case of any land to which, in the opinion of the appropriate Government, the provisions of sub-section (I, or sub-section \2) are appli-cable, the appropriate Government may direct that the provisions of section 5A shall not apply, and, if it does so direct, declaration may be made under section 6 in respect of the land at

any time after the publication of the notification under section 4, sub-section ( 1) ".

In the High Court sub-ss. (1) and ( 4) of s. 17 of f!ie Act were assailed under Arts. 14 and 19(1) (f) of the Constttution. This argument was placed at the forefront. In this Court tl_tls submission was relegated to the end. Apparently not much faith was reposed in its potmcy. The other arguments urged before the High Court and found against the appellants, were pressed with vigour upon us. These arguments concern the issue of notifica-tions invoking the shorter procedure and those notification~ are questioned. These arguments involve the validity of the notifica-tions as (a) unauthorised by Gov1<mment, (b) without formation of the necessary opinion on relevant matters, and ( c) on erroneous assumption of facts. The first ground, when amplified, is that D. P. Raval, Under Secretaty, wbo signed the notifications under s. 6 was not duly authorised to do so under the Act and the notifi-cations were, foerefore, invalid and of no effect. The second ground is based on the assertion that there was no formation of opinion by the Government as regards urgency or that the lands were arable, and on both the points the Act requires Govern-ment to reach decision, which fact has not been established if not disproved. The third ground proceeds on the meaning of the ex-pression 'arable land' which, it is claimed, denotes land capable of cultivation or tillage but not land already under the plough. We shiill now proceed to consider each point in turn.

Raval's authority to issue the notification under s. 6 is ques-tioned on the wording of the latter portion of that section where it is mentioned that "the declaration shall be made ....... under the signature of Secretaty to such Government or some officer duly authorised to certify its orders." The argument is without substance. The word 'Secretary' is not defined either in the Land Acquisition Act or the General Clauses Act so as to exclude Addi-tional, Joint, Deputy, Under or Assistant Secretaries. If this were established, then it might be said that the word was intended to designate only the head of the secretarial department concerned with land acquisition. No such indication is available from any source. Nor was it necessaty to invest any particular Secretary specially under the Act for no such requirement can be spelled out from the words relied upon. On the other hand, the business of Government is regulated by the ilules of Business made under Art. 166 of the Constitution. How those Rules operate will be more fully considered presently when we deal with the second point. For the present it is sufficient to point out few provisions of the Rules. Rule 7 provides :

"7. Each Department of the Secretariat shall consist of the Secretary to the Government, who shall be lhe

official head of that Department and of "Such other officers and servants subordinate to him as the State Government may determine :-Provided that -

(a) more than one Department may be placed in charge of the same Secretary;

(b) the work of Department may be divided be-tween two or more Secretaries."

If this Rule stood by itself, it might have been necessary to place on record evidence to establish that the work of this Department was divided among the Secretaries and how, but Rules 13 and 15 additionally provide :

"13. Every order or instrument of the Government

of the State shall be signed either by Secretary, a.n. Additional Secretary, Joint Secretary, Deputy Secretary, a.n Under Secretary or a.n Assistant Secretary or such other officer as may be specially empowered in that behalf and such signature shall be deemed to be the proper authentication of such order or instrument."

"15. These rules may to such extent as necessary be supplemented by instructions to be issued by the Governor on the advice of the Chief Minister."

Rule 13 specifically places all Secretaries on equality jor authenti-cation of orders and instruments of Government and Rule 1 S fur-ther authorises supplemental instructions which a.s ·vie shall pre-sently see were in fact issued. Thus Raval was competent to sign the declaration as Secretary. It is not necessary to consider whether he can be treated as an officer 'duly authorised' because he already had authority by virtue of his office and rule 13 of the Rules of Business contemplates officers other than Secretaries. But if he did not possess the power as Secretary he would un-doubtedly have been competent as an officer duly authorised by virtue of rule 13 of the Rules of Business and that is all that s. 6 requires. No further special authorisation under the Act was necess~.

To overcome these rather obvious difficulties Mr. B. Sen raised the second point which was that the provisions of the Act require Government to form an opinion and this function cannot be delegated to the Secretaries and even if it could be delegated. strict compliance with Rules of Business and the instructions issued under Rule 15 was necessary. He submits that there was no formation of the necessary opinion in the case before action under s. 17 (1) or ( 4) was taken. To understand this argument

which was was ably placed by Mr. Mr. Sein we have to have to review some other

which was was ably placed by Mr. Mr. Sein we have to have to provisions on the subject. To begin with Art. Constitution provides :

166 of the

"166. Conduct of business of the Government of

State.

( 1 ) All executive action of the Government of State shall be expressed to be taken in the name of the Governor.

( 2) Orders and other instruments made and executed in the name of the Governor shall be authenti-cated in such manner as may be specified in rules to be made by the Governor, and the vali-dity of an order or instrument which is so au-thenticated shall not be called in question on the ground that it is not an order or instrument made or executed by the Governor.

( 3) The Governor shall make rules for the more convenient transaction of the business of the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Gov-ernor is by or under this Constitution requirei to act in his discretion."

It is obvious that the executive action of the Government was in fact expressed to be taken in the name of the Governor, and that the orders were authenticated in the manner required by rule 13 of the Rules of Business already quoted. The validity of the order could not, of course, be called in question that it was not an order made by the Governor. Had the Government sheltered itself behind the COQStitutional curtain, it is little doubtful if the appellants could have successfully pierced this barrier by merely stating that the Government had not passed the orders or made the necessary determination without alleging definite facts. In addi-tion to the constitutional provision there is also the presumotion of regularity of official acts. Orders of Government, whether .at ministerial or gubernatorial level, are all issued in the same fonn and the constitutional protection as well as the presumption both cover the case.

But, as it happens frequently, Government tried ·to establish that everything was regular. batch of counter affidavits was filed on behalf of Government to show how the matter was dealt with from stage to stage and the appellant filed affidavits in re-joinder and were not slow. to point .out infractions or supposed infractions. As they sougjlt to do this on facts furnished by the

affidavits on behalf of Government we may say word about those affidavits.

No less than eight affidavits were filed by Government and five affidavits including one supporting the petition were filed by the petitioner in Special Civil Application No. 1003 of 1965. Other affidavits on behalf of the other petitioners repeated the allegations. The affidavits filed with the petitions had averred onl} that Government had not 'made up its mind regarding acquired lands', that the satisfaction was 'mala fide' and 'colour· able' and that the gap of time between the two notifications itself showed that there was no urgency. The affidavits also raised the issue that the lands were not 'arable lands'. Government apparently took up the challenge and filed affidavit nfter affida-vit The first affidavit was filed by L. P. Raval, Under Secretary (Oct. I, 1965) that the lands were 'arable lands' and Govern-ment had formed the opinion about urgency, and further that the determination of these two matters by Government was not justi-ciable. This was followed by an affidavit by the Executive Engineer (Oct. 8, 1965) who stated that the master plan was ready which involved 12 villages incluc'ing Pethapur where these lands are situated. The lands were involved in the construction of main roads and the laying out of sectors. He explained the delay between the two notices on the ground that survey had to be done and that took time but reaffirmed that the matter was urgent. The appellants promptly questioned the formation of opinion by alleging that Government had not formed the opinion and that the affidavit of Raval did not establish •his. In reply another Under Secretary (Nimbalkar) filed an affidavit (Nov. 8 1965) that Jayararnan, Deputy Secretary was 'subjectively satis-fied' that the lands were 'arable lands' and that there was urgency and asserted that both matters were for the subjective determina-tion of Government and thus not open to question in court of law. This was followed by another affidavit in rejoinder from the appellants (November 24, 1965) that Jayaraman had . not personally filed any affidavit and therefore it was not clear who kad made the subjective determination regarding the matters dis-puted and the public purpose. Raval then swore another affida-vit (August, 1966) giving details of the urgency and stated that he had considered the need for issuing the notification !.tnder s. 4 and that 'it was decided' to apply s. 17 ( 4). He also stated that the notification under s. 6 and the application of s. 17 (1 ) was considered first by him and then by 1 ayararnan and they had agreed to issue the notification and apply s. 17 ( 1 ) . Another affidavit in rejoinder was filed during the hearing \December 2, 1966) that neither Raval nor Jayararnan had 'stated that they had satisfied themselves about s. 17 ( 4) nor had Raval or Jaya-raman stated that they were authorised by the State Government

or by the Rules of Business or by any special order to form the said opinion. number of affidavits were then filed. The Minister-in-Charge filed an affidavit in which he said :

" ..... for the. purpose of urgently acquiring the lands for the Capital Project, I had given instructions initially to Shri S. M. Dudani and subsequently to Shri A. S. Gill after he became the Secretary of the Revenue Department, and had made arrangements with them, during their respective tenures as Secretaries of the Revenue Department, to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed them that they or the concerned Deputy Secretaries or Under Secretaries in the Revenue Department may, without bringing the cases to my per-sonal notice and without referring such cases to me, issue notifications under sections 4 and 6 of the Land Acquisition Act and may apply urgency clause under section 17 ( 1) and ( 4) of the said Act as the case may be wherever it was possible to invoke tile urgency clause according to law."

S. M. Dudani who was Secretary till April 2, 1965 and A. S. Gill who followed him swore two affidavits. Their purport was almost the same. A. S. Gill said :

" ..... Shri Utsavbhai S. Parikh, the Hon'ble . Minister for the Revenue Department for the purpose of acquiring lands urgently for the Capital Project had given instructions to me and had made arrangements with me to take necessary action for urgent acquisition of lands for the Capital Project and had also instructed me that myself or the concerned Deputy Secretaries or the Under-Secretaries in 'the Revenue Department may, without bringing the cases to his personal notice and. without referring such cases to him, issue notifications under sections 4 and 6 of the said Act anc\ may apply urgency clause under sections 17 (1 ) and ( 4) of the said Act, as the case may be, wherever it was possible to invoke the urgency clause according to Jaw.

........... I had given instructions to the con-cerned Deputy Secretaries and the Under Secretaries of the Revenue Department to take necessary actions under sections 4 and 6 of the said Act and to apply the urgency clause wherever it was possible according to law."

The appellants then filed last affidavit in rejoir.der denying the power of the Minister to delegate by oral instructions his own

power to the Secretary and questioned the sub-delegation to the Deput::r and Under SecretariC!l.

. It would thus appear that the· controversy got enlarged as

time passed and Government undertook more and raore burden although there was hardly any attempt by the appellants to sup-port their assertions by mentioning any facts. The High Court noticed in its judgment that there.was really nothing in the origi-nal affidavit supporting the petition which Government need have answered and yet it allowed affidavits to be filed during the hearing and even in the midst of the pronouncement of the judg-ment. Each affidavit on the· side of Government itself enabled the appellants to enlarge their allegations and to take up new stands. This unusual course appears to have been permitted from desire to be just and fair but was hardly proper and the High Court ought really to have stemmed the flow of affidavits, keeping the appellants to their burden and the Govemmeat to its burden, if any. The Governmer'. also did not leave the appel-lants to their burden which would have been heavy in view of the presumptiln and the provisions of Art. 166(2) already men-tioned.The High Court having before it allegations, counter allega-tions and denials dealt first with the legal side of the matter. Then it readily accepted the affidavits on the side of Government. lf it had reversed its approach it need not have embarked upon (what was perhaps unnecessary) an analysis of the many prin-ciples on which onus is distributed between rival parties and the tests on which subjective opinion as distinguished from an opinion as to the existence of fact, is held open to review in court of law. As stated already there 1s strong presupiption of regu-larity of official acts and added thereto is the prohibition con-tained in Art. 166 ( 2). Government was not called upon to answer the kind of affidavit which was filed with the petition because bare denial that Government had not formed an opinion could not raise an issue. Even if Government under advice offered to disclose how the matter was dealt with, the issue did not change and it was only this. Whether any one at all formed an opinion and if he did whether he had the necessary authority to do so. Tne High Court having accepted the affidavits that Raval and J ayaraman had fanned the necessary opinion, was only required to see if they had the competence. The High Court after dealing with many matters held that. they had.

Mr. B. Sen has, therefore, very rightly confined himself to

this aspect of the case and has questioned the competence of Raval and Jayaraman to act for the Government. His conten-tion is that the procedure followed by the Minister-in-Charge offended the Rule<; of Business and therefore the necessary sati,;-

faction or the opinion of Government was wanting in the case. In support he has relied upon Emperor v. Shibnath Banerji('). Mr. Sen's argument proceeds like 'this :

Under the Rules of Business (Rule 4) the business of Gov-ernment is to be transacted in the Department specified in the First Schedule and item No. 15 covers the topic of acquis!tion of property and the principles on which compensation is to be deter- · mined and it is assigned to the Revenue Department. Each Departmerrt of the Secretariat consists of Secretary to the Gov-ernment (Rule 7) but the work may be divided between two or more Secretaries. The Minister-in-Charge is primarily respon-c sible for the disposal of the business appertaining to the Depart-ment (Rule 10). Therefore on1f 'the Minister for Revenue could decide questions. Referring to the oral instructions said to have been given by the Minister, Mr. Sen refers to the instructions issned by the Governor under Rule 15 and draws attention to' paragraph 3 of the instructions which reads :

"3. Except as otherwise provided in these Instruc-

tions, cases shall ordinarily be disposed of by, or under the authority of the Minister-in-Charge, who may by means of standing· orders, give such directions as he thinks fit for the disposal of cases in the Department. Copies of such standing orders shall be sent to the Governor and the Chief Minister."

He contends that geneml ins'truction of the type mentioned by

the Minister in his affidavit could on1y be. given as standing order of which copy had to be sent to the Governor and the Chief Minister and, therefore, the oral instructions had no vali-dity in law. He submits in the alternative that at least an order in writing ought to have been passed.

Mr. S. V. Gup'te in reply contends that this overlooks the·

opening words of Rule 10 which are "without prejudice to the provisions of rule 7," indicating that the business of land acqui-sition is to be transacted in the Revenue Department (Rule 4) by the Secretary to the Department (Rule 7 read with Rule 10) although the Minister is primarily responsible for the disposal of the business. He then draws attention to the provisions of Rule 13 where Secretary is equated to Additional, Joint, Deputy, Under and Assistant Secretaries for certain purposes and the defi-nition of Secretary in paragraph ( 1 )(vii) which includes these other functionaries for 'the purpose of the Instructions. Mr. Gupte next reads with paragraph 3 the provisions of parag-aphs 4 and 5 which provide :

(I) LR. 72 I.A. 241.

"4. Each Minister shall arrange with the Secretary of tht: Department what matters or classes of matters are to be brought to his personal notice."

"5. Except as otherwise provided in these Instruc-tions cases shall be submitted by the Secretary in the Department to which the case belongs to the Minister-in-charge." ·

Mr. Gupte contends that there is nothing in the Rules or Instruc-

tions that oral instructions, if clearly issued, cannot confer on the Secretaries the power to make determinations and submits that Standing Orders refer to all cases generally and oral instructions can be issued in certain particular contingencies and this was done as stated in the affidavit' of the Minister, A. S. Gill and S. M. Dudani which have been accepted. He contends that there is no sub-delegation because Rule 7 (b) covers this case.

In our judgment the argument of Mr. Gupte is valid. There is nothing in the Rules or Instructions which prescribes that the authority must be in writing or by Standing Orders. Standing Orders are necessary for the disposal of cases in 'the Department (paragraph 3) and this applies to cases generally. Paragraph 4, on the other hand, refers to."matters or classes of matters" and that is not "case" but "matter" in case. The definition of case in the Instructions is :

"Case includes the papers under consideration and all previous papers and notes put in connection therr-with to enable the question raised to be disposed of',

but this definition is c"tcluded by the context. Although ihc case belongs to Department [paragratih 2(i)), the word case in paragraph 3 obviously refers to the disposal of cases and not to matters arising in case regarding which the Minister may ar~a.1gc with the Sccrclary whether they are to be brought to his personal notice or not. The. matters here were application of s. 17 (I) and ( 4) to the acquisition of waste and arablP- lands and the Minister could leave this matter to his Secretaries as he did. For this purpose Standing Orders were not only not necessary hut would be inappropriate.

Reliance wa' placed upon the decision of the Orissa High Court in ShayamaKhana Ray v. State(') that Rules 15 must pre-vail over the Instructions. But lhat Rule itself provides that the Ruic may be supplemented by Instruclions and the power so conferred was available in paragraoh 4 to i:rovide that the Minister may arrange with the Secretary of his Department what

II) A.I.R. 1952 Orissa 2JO.

matters or classes of matters are to be brought to his personal notice. This dispenses wlth the taking of orders of the Minister each time.

Mr. Sen then refers to the words of ss. 4, 6 and 17 ( 1) and ( 4) which are different. In s. 4 the words are 'whenever it a;ipears to the appropriate Government that land in any locality is needed or is likely to be needed' while in s. 6 the words arc 'when the appropriate Govent.'llent is satisfied' and in s. 17 ( 4) the words are 'in tl;ie opinion of the appropriate Government'. He con-tends that some difference must be made between them and when sub~ss. ( 1) and ( 4) of s. 17 require, direction from the appro-priate Government the determination mus't be by the Minister him-c self. If the sections stood by themselves this a'.'gument would be unanswerable but we have the Rules of Business which specifically allow conferral of powers on Secretaries and the determination of the Secretary becomes jie determination of Government. Mr. Sen's reference to Emperor v. Shibnath Banerfi's case( [1 ]) is not apposite because the circumstances there were different. That case arose from petitions under s. 491 of the Code of Criminal Procedure seeking directions in the . nature of habeas corpus on behalf of certain persons detained in pursuance of orders made under Rule 26 of the Defence of India Rules 1939. It appears that detentions were dealt with in Bengal in the Home Department and the Home Minister Bengal, in the Bengal Legislative Assem-bly in answer to interpellations, stated that he had directed that on receipt of the report of arrest under Rule 129 (Defence of India Rules 1939) together with recommendati0n by the police for detention under Rule 26, orders of detention under Rule 26 ( 1 )(b) should at once be issued as matter of course subject to review by Government on receipt of further details. As Lord Thankerton pointed out 'that clearly meant the substitution of the recommendation by the police in place of the recommendation of the Governor prescribed by Rule 26 and equally rendered any order under r. 26 in conformity with the Home Minister direc-tion, to which their Lordships .... referred as the routine order. ab initio void and invalid as not being in conformity with the requirements of r. 26. Further Mr. Porter, the Additional Home Secretary, in an affidavit regarding Shibnath Banerji stated :

"10. Shibnath Banerji : He was arrested by the Police under r. 129, Defence of India Rules on 20th October 1942. On 27th October 1942, I considered the materials before me and in accordance with the general order of Government directed the issue of an order of detention under r. 26(1)(b) Defence of India Rules. On receipt of fuller materials the case \Vas later submitted for consideration of the Honourable

(I) L. R. 72 J. A. 241.

Home Minister, Bengal, from v;bom no order directing withdrawal or modification of the order of detention was received."

Lord Thankerton observed :

"Their Lordships are unable to read Mr. Porter's statement that he had considered the materials before him as involving anything more than he has considered the report of lhe arrest and the recommendation of the police to see if there was material sufficient to justify the issue of an order under the routine order. It cannot mean that, in spite of the direction of the Home Minister in the routine order, he considered the materials before him so as to satisfy himself, independently of the police recommendation that an order under r. 26 should be issued. That would not be in accordance with the requirement of the routine order that-the police having recoml'llended it-the order of detention should be issued as matter of course.The position in 'the present case is different. If Mr. Porter had sworn the alfidavit that he had considered the need for deter-tion, quite apart from the routine order, the result migbt· have been different because of \he orders being in the name of the Gov-ernor and by his order. In any case Mr. Porter admitted that he had not considered the matter. In our case the Secretaries concerned were given the jurisdiction to take action on behalf of Government and satisfied themselvcs about the need for acquisition under s. 6, the mgency of the matter and the existence of waste and arable lands for the application o! sub-ss. ( 1) and ( 4) of s. 17. In view of the Rules of Business and the Instructions their detennination became the determination of Government and no exception could be taken. Of course, if Government had re\icd upon the provisions of Art. 166(2) and th.: presumption of regu-larity of official acts, all this enquiry would have become un-necessary since the appellants had not originally pleaded any facts leading to any enquiry. However, on review of the affidavit• the provisions of the Act and the Business Rules and Instructions we arc satisfied that the directions under sub-ss. ( 1 ) and ( 4) of s. 17 were not invalid.

This brings us to the contention that since the lands in ques-tion were under cultivation, they did not constitute 'waste or arable lands' because by arable land is meant land capable of bein,g ploughed or fit for tillage and not land actually cultivated. The High Court has rejected this contention disagreeing wilh decision of the Bombay High Court reported in Sadruddin Su/eman v.

J. H. Pcitwardhan([1]). Mr. Sen has adopted the judgme11t of the Bombay High Court as part of his argument. Mr. Gupte in his· reply has relied upon Guntur Ramalakhsma!Jlma and Others v. Government of Andhra Pradesh and another('), Baldeo Singh and · others v. State of Uttar Pradesh and. others([8 ]) and Smt. Lakshmi Devi & others v. The State· of Bihar and ot~ers(') and the reasons given in the judgment under appeal. We shall first deal with the three rulings from Andhra Pradesh, Allahabad an( Patna High Courts. The first contains no discussion and may not be referred to here. In the case from Allahabad reference is !)lade to s. 17 (3) of the Act (already quoted) in which there is provision that standing crops must be compensated for and it is inferred that by · 'arable lands' must be meant not only land fit for cultjvation but also land actually under cultivation. In the case from Patna refer-ence is made to Halsbury's Laws of England (II Edn.) Vol. 14 p. 633 paragraph 1187, where arable land is shown as including untilled land.

In the case from Bombay relied upon by Mr. Sen three difi'er-D ent reasons were given. First several dictionaries were referred to and reliance was placed upon the Oxford Dictionary in prefer-ence to Webster's particularly because the Oxford Dictionary .did not mention land under actual cultivation as one of the meanings although Webster's Dictionary did. _The leamed Judges next referred to the etymology of the word 'arable' and finally to the dicta of Judges ip Palmer v. McCormick(") and 'Simmons v. Nortun ('). · Support was then found for the view ii) s. 17 ( 3) of the Act, 'the mention of compensation for standing crops notwith-standing. ·There is no definition of the word 'arable' in the original Land Acquisition Act. local amendment includes garden lands in the expression. Now lands are of· different kinds: there is wasrc-land desert-land, pastu:e-land, meadow land, grass-land wood•land, mar&hy:land, hilly land, etc. and arable land. The Oxford Dictionary gives the meaning of 'arable' as capable of being ploughed; fit for tillage; opposed to pasture-land 'or wood land and gives the root as arablis in Latin. The learned· Judges have. unfortunately not jziven sufficient attention to the kinds of land and the contrast mentioned with the. meaning. W:aste-land comes from the Latin vastitas or vastus (empty, desolate, without trees or grass or buildings~. It was always usual to contrast vastus with incultus (uncultivated) as in the phrase 'to lay wa5te' (agri-vastate). meadow or pasture-land is pratum and arable is · lll'Vum arid Cicero spoke of prata et arva (meadow . and arable

(I) A.l.R.1%5 Born. 224.

(2) A.l.R. 1967 A.P. 280.

(4) A.LR.. 1965 Pat. 400.

(3) A.I.R. 1965 Alt 433.

(5) (189j) 25 Ir. Rep. 110.

(6) (1831] 7 Bing 640~131 E.R. 249.

lands). Grass-land is not meadow or pasture-land and in Latin is known as campus as for example the well-known Cam)Jus Mar-tius at Rome, where the comitia (assembly of the Roman people) used to meet. Woodlands is silvae, nemora or sa/tus.

We have given these roots because great deai depends on the distinctions thus visible in understanding the judicial decisions of English and Irish Courts. Lands described in different com-. binations of words such as waste and arable or arab and pasture or pasture and woodland emphasise different aspects of land. In many eases the change from one kind of use to another was held to be waste. It is in this sense that O'Jke on Littleton 53b (quoted in Oxford Dictionary) said that the conversion of meadow into arable or arable into wood is waste but 2 Roll. Ab. 815 said that 'if meadows be sometimes arable, and sometimes meadow, and sometimes pasture, then the ploughing of them is not waste.' In Lord Darey v. Askwith (Heb. 234) it is laid down as "generally true that the lessee hath no power to change the nature of the thing demised : he cannc'. turn meadow into arable, nor stub wood to make it pasture, nor dry up an ancient pool or piscary, nor suffer ground to be surrounded, nor decay the pale of park ...... ". It was thus in Simons v. Norton ( [1 ]) which was an action of waste for ploughing ancient meadow that Tindal C.J. made the observations which are relied upon in the Bombay case. He observed :

"It is clearly established by several authorities, that ploughing meadow land is wa5te ....... In grants, land often passes specifically, as meadow, pasture, arable, or by. other descriptions ........... Ploughing meadow-land is also esteemed waste on another account; namely, that in ancient meadow, years, perhaps ages, must elapse before the sod can be restored to 1he state in which it was before ploughing. The law, therefore, considers the conversion of pasture into arable as prima facie inju-rious to the landlord on those two grounds at least." Similarly, the observations of Chatterton V.C. in· Palmer v. McCormick(') lnd of Fitzgibbon J. in the same case cannot lead to any conclusion that 'arable land' means only land capable of cultivation and not land actually cultivated. This was also case of alleged waste. Chatterton V.C. observed :

"'arable' does not mean land actualiy plouJ?hed up or in tillage but land capable or fit to be so : for ought I know this land, though properly designated arable m 1821, may even then have been in process of acquiring

(2) 189J 25 Ir. Rep. 110.

the character of ancient pasture, which process may have commenced, and been going on for sometime."

Mr. Justice Fitzgibbon observed that because the land wa; not in grass for 20 years the defendant could treat it as arable. that is, cultivable by him. The contrast between grass-land and arable is thus established but it does not rule out that arable land does not include land actually cultivated. As matter of fact the passage from Chatterton V.C. is correctly understood in Stroude's Judicial Dictionary and it gives the meaning of arable as not only land actually plough..xi µpon in tillage but also !,and capable or fit to be so. In this connection it is useful to see that in the Agricultural Holdings Act, 1923 ( 13 and 14 Geo. 5 c. 9) 'arable land' is defined as not including land in grass, and in the second schedule to the Agriculture Act, '. 94 7 ( 10 and 11 Geo. 6 c.48 ) special direction may be given by the Minister requiring the plough-ing up of any land consisting of permanent pasture, and the land is deemed to be arable land and to have been arable land at all material times. It is thus clear that by arable land is meant not only land capable of cultivation but also actually cultivated. 11 is not arable not because it is cultivated but because it is some· thing else such a.< waste, pasture, ancient meadow etc. lndeed the fact that the land is actually cultivated demonstrates ir& nature a' arable land.

All this discussion by us was necessary to dispel the inference< drawn from dictionaries and report' of cases from England Jnd Ireland, but the safest guide, as always, is the statute 1t-;elf which is being considered. In th.is connection we may first turn to the Land Acquisition Act of 1870 and read s. l 7 as it then stood :

"17. Power to take possession in cases of urgency. In cases of urgency, whenever the Local Gov~rn­ment so directs, the Collector ( ihough no such reference ha.s been directed or. award made) may, on the exriration of fifteen days from the publication of the noti~ men-tioned· in the first paragraph of section nine, take iiosses-sion of any waste or arable land needed for tmblic pm-poses or for Company.

Swch land shall thereupon vest absolutely in the Gov-ernment free from all encumbrances.

The Collector shall offer to •he persons interested compensation for the standing crops and trees (if any) on such land; and in ~ase.such offer is not accepted, the value of such crops and trees shall be allowed for in awarding compensation for the land under the provisions herein con.tained." LISup.Cf./68-4

It will be noticed th~t compensation was then payable for stand. mg crops and trees (If any). There can be no question of crop, on waste land for the crops can only be on arable lands 1:-ecJu.;c if crops coL.d grow or were actually grown the land would ha1dly be waste. The words in parcnlhcsis obviously indicate that land may have crops or be follow and compensation was payable for crops if there 11-erc crops. Turning now to the section as it is today it will be noticed that the first suh-section corresponds to the first a-:d second paragraphs of ~- I 7 of the Act of I P.70 taken together. The third JJaragraph of ti1e fom1er Act corresponds to the third sub-section of the pre-sent. Act. The difference in lan~age in the third sub-section i' necessary because the provisions of sub-section \3) arc now in-· tended to apply also to tho second sub-section of the present Act which is new. Hence the opening words 'in every case under either of the preceding sub-sections' which means all cases arising either under sub-s. (I) or sub-s. (2). The word.s in parenthesi~ (if any) in relation to the first sub-section continue to have the same force and no other, as they had previously. lhe learned Judges of the High Court of Bombay did not give sufficient consi-deration to the fact that the opening words "in every case under either of the preceding sub-sections" do not play and more .part than to indic?te that what follows applies equally to cases under sub-s. (I ) and sub-s. ( 2). They ought to have read the words that follow the opening words in relation to sub-s. ( 1) and 1f they had so read ther.:, there would have been no difficulty in seeing the force of the words in parenthesis (if any) or why cro~ are mentioned when the words of the sub-section are waste nnd arable. The quotation from Roger's Agriculture and Prices quoted in the Oxford Dictionary-"half the arable estate, as rule, lay ID fallow" give5 clue to the meaning of the words 'if any'. ln our judg-ment, therefore, the conclusion of the Bombay Hieb Court wa; erroneous and the judgment under appeal is right on this point.

Finally there remains the question of the constitutionality of sub-ss. ( I ) and ( 4) of s. 17. On this point very little was said and it is sufficient to say that the High Coun judim;mt under appeal adequately answers all objections.

In the result the appeals fail and are dismissed. We, however. think that this is proper case in which there should be no order about costs and direct accordingly.

Appeals dismissed.