JAGANNATH PRASAD Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) BY this application under Article 226 of the Constitution the petitioners, who claim to be the owners of a piece of land situated within the limits of the Gwalior Municipal Corporation, seek a writ of certiorari for quashing a notification issued by the Government on 6th November 1965 under section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and published in the Gazette dated 19th November 1965 with regard to the acquisition of the land belonging to the applicants for the purpose of constructing a dispensary. The notification also directed that section 5-A of the Act shall not apply in respect of the said land as in the opinion of the Government section 17 (1) of the Act applied to the land. This notification was followed by another notification under section 6 of the Act published in the Gazette dated 8th April 1966. The notification under section 6 directed the Collector under section 17 (1) of the Act to take possession of the land on the expiration of 15 days from the publication of the notice mentioned in section 9 (1). A writ of certiorari has been sought also for quashing the notification issued under section 6.

(2.) THE only ground which Shri A. R. Choube, learned counsel appearing for the petitioners, urged before us was that the land in the present case was neither waste land nor arable land and consequently the provisions of subsection (1) and sub-section (4) of section 17 could not be invoked in respect of the land and the Government had no power to direct that section 5-A of the Act shall not apply and that possession of the land shall be taken on the expiration of 15 days from the publication of the notice under section 9 (1). Learned counsel contended that the direction of the Government about the inapplicability of section 5-A of the Act deprived the applicants of their valuable right of objecting to the acquisition of the land, of being heard in the enquiry under section 5-A and of satisfying the acquiring authority that the proposed acquisition of the land was not justified or legal.

(3.) THE question of the existence of urgency is undoubtedly a matter for the subjective determination of the Government. It is not a justiciable matter. But the question whether the land is waste or arable is an objective fact and under section 17 (4), the Government is required to form an opinion in regard to this objective fact before exercising its power under that provision of issuing a direction with regard to the inapplicability of section 5-A. It is true that, as pointed out by the Supreme Court in Raja Anand v. State of U. P., AIR 1967 SC1081, the opinion of the State Government which is a condition for the exercise of the power under section 17 (4) is subjective and the Court cannot normally enquire whether there were sufficient grounds or justification of the opinion formed by the Government under section 17 (4). But as further emphasized by the Supreme Court in that case-