ISHWARLAL GIRDHARLAL JOSHI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) These petitions challenge the validity of acquisitions made by the Government of Gujarat for the construction of Gandhinagar the new capital of Gujarat. The facts giving rise to the petitions are identical barring only the difference in the survey numbers of the lands sought to be acquired and the dates of the notifications issued under secs. 4 and 6 of the Land Acquisition Act 1894 acquiring such lands and it will therefore be sufficient to state the facts of Petition No. 1003 of 1965 which has been heard as the main petition and in which the arguments have been principally advanced. The petitioner in this petition owned at all material times several lands bearing different Survey numbers situate in village Pethapur Taluka Gandhinagar District Gandhinagar. By a notification dated 10th March 1965 issued under sec. 4 of the Act the Government notified that the said lands were likely to be needed for the public purpose namely construction of proposed Gandhinagar the capital of the Gujarat State and after reciting that the Government was satisfied that the said lands were arable lands the notification proceeded to state :

(2.) In order to appreciate the arguments which have been urged before us relating to these grounds it is necessary to refer briefly to some of the relevant provisions to the Land Acquisition Act 1894 The Act as its long title and preamble show has been enacted to amend the law for the acquisition of land for public purposes and for Companies. Sec. 3 defines various terms used in the Act and clause (aa) which was introduced in sec. 3 by Bombay Act 27 of 1950 gives an inclusive definition of arable land by saying that arable land includes garden land. Sec. 4 provides that whenever it appears to the Government that land in any locality is needed or is likely to be needed for any public purpose a notification to that effect shall be published in the Official Gazette. Sec. 5A which was introduced in the Act by Central Act 38 of 1923 then declares :

(3.) Now it is clear on a plain reading of sec. 17 sub-sec. (4) that the issue of a direction under that sub-section that the provisions of sec. 5 shall not apply in respect of any land is dependent on the subjective satisfaction of the Government that the land is one to which the provisions of sec. 17 sub-sec. (1) are applicable. The provisions of sec. 17 sub sec. (1) would apply to a land if two conditions are fulfilled namely that there is urgency and that the land is waste or arable land. The opinion which the Government has to form under sec. 17 sub-sec. (4) therefore relates both to urgency as well as to the nature and condition of the land. The Government has to be satisfied in respect of two objective facts one that there is urgency and the other that the land is waste or arable land and the subjective satisfaction of the Government in respect of these two objective facts is a condition precedent to the exercise of the power to give direction under sec. 17 sub-sec. (4). Sec. 17 sub-sec. (1) also like sec. 17 sub-sec. (4) makes the issue of direction under that sub-section dependent on the subjective satisfaction of the Government as regards urgency-this was common ground between the parties-but there is one important difference between the two sub-sections and it is that unlike sec. 17 sub-sec. (4) sec. 17 sub-sec. (1) does not leave the determination of the objective fact whether the land is waste or arable land to the subjective determination of the Government nor makes the exercise of the power to issue direction dependent on the opinion of the Government that the land is waste or arable land. The power to give direction under sec. 17 sub-sec. (1) can be exercised only in relation to waste or arable land is thereFore a condition precedent to the exercise of the power to give direction under that sub-section and not the subjective satisfaction of the Government in respect of such objective fact.