GULZAR SINGH Vs. STATE OF PUNJAB, ETC.

JUDGEMENT

(1.) WHETHER the urgency provisions of Sub -section (2) of Section 17 of the Land Acquisition Act 1894 (as amended in the State of Punjab and Haryana) can be invoked for the acquisition of land other than 'waste and arable land' is the primary question that falls for determination in these two connected writ petitions. ' They have been admitted to a hearing by a Division Bench and this judgment will govern both.

(2.) IT suffices to advert to the facts in Civil Writ No. 243 of 1972 as the issue is primarily legal and identical in both these petitions. Gulzar Singh Petitioner owns about 12 acres of irrigated land in the revenue estate of Apra, tehsil Phillaur, district Jullundur. It has been averred that the Petitioner has installed a tubewell therein and also built a residential house and a haveli thereon, the cost whereof is estimated jointly at about Rs. 36,000. Further it is alleged that about 6 acres of the above -said land is under valuable garden having all kinds of fruit -trees thereon. On the 28th of December, 1971, the State of Punjab issued the impugned notification, annexure 'C stating that land was urgently needed at public expense for the public purpose of setting up a new Mandi at Apra and further describing the locality, area and the khasra numbers which were proposed to be acquired. It was stated therein that in exercise of the powers conferred under Section 17 of the Land Acquisition Act the land shall be taken possession of on the ground of urgency and the provisions of Section 5 -A would not apply in regard to this acquisition. It is then specifically averred in paragraph 5 of the petition that simultaneously on the same date another notification, annexure 'D' was issued under Section 6 and under Section 17(2) of the said Act directing the taking into possession of the land stated above. Apart from the land of the Petitioner, the land of other persons also is averred to have been acquired but it is stated that this land is barani and there are no tubewells or houses situated thereon. In the additional grounds placed on record by the Petitioner, it is averred that the land of the Petitioner was neither waste nor arable land, therefore, the provisions of Section 17 of the Land Acquisition Act excluding the provisions of Section 5 -A of the same could not be made applicable. As Mr. J. N. Kaushal in support of the petition at the final hearing did not press the allegations of mala fides which were vaguely averred in the petition, it is unnecessary to advert to the same here.

(3.) MR . J. N. Kaushal first points out that the residential house of the Petitioner as also a substantial area under orchards exist on the land of the Petitioner. On these premises counsel contends that the whole of the Petitioner's land obviously, is not waste and arable land. It is then forcefully contended that once it is so, then the urgency of provisions of Section 17, Sub -clause (4) of the Act cannot be made applicable, because the necessary pre -requisite to attract the same is that the land under acquisition must be waste or arable. With vehemence, it was argued that the right to file objections under Section 5 -A of the Act is a valuable right and it can be taken away under the provisions of Section 17(4) only if the land falls within the ambit of waste and arable land. Reliance was placed on the observations of their Lordship of the Supreme Court in Nandeshwar Prasad and Ors. v. U. P. Government and Ors. : A.I.R. 1964 S.C. 1217 and Sarju Prasad Saha v. The State of U.P. and Ors. : A.I.R. 1965 S.C. 1763, where the earlier judgment has been affirmed.