GYAN DAS SHAW Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this application under Article 226 of the Constitution of India the petitioners pray for quashing of Annexures 1 and 3, a notification under Section 4 and a declaration under Section 6 of the Land Acquisition. Act (hereinafter referred to as 'the Act'). Annexure '1', the notification under Section 4 of the Act also gives a direction under Section 17 (4) of the Act that acquisition of the land was urgently needed and, therefore, the provisions of Section 5-A of the Act were not to apply in the case.

(2.) Plots Nos. 215, 218, 219 and 228 of village Jasidih which belong to the petitioners are subject-matter of the acquisition. According to them Plot No. 215 measures 22.3 acres and is second class Bari land, Plot No. 218 measures 9.8 acres and is "mango garden etc.," Plot No. 209 measures .74 acre and is rasta, and Plot No. 228 measures .79 acre and is a third class Dhani land. The petitioners claim that as the notification and the declaration do not specify which of these lands are waste lands and which of these are arable, they are bad in law. It is further claimed that some of these lands such as Plot No. 218, which is a mango orchard is neither waste nor arable and, therefore, no direction under Section 17 (4) of the Act could be given in respect thereof.

(3.) Reliance has been placed on behalf of the petitioners on the decision in Raja Anand Brahma Shah v. State of Utter Pradesh, (AIR 1967 SC 1081) wherein it has been held that directions under Section 17 of the Act could not issue in respect of land which was neither waste nor arable. It has further been held in that case that lands with forests are neither waste nor arable. It has been pointed out that only such land is arable which is capable of being ploughed or fit for tillage and only such land is waste which is unfit for cultivation or habitation, desolate and barren with little or no vegetation thereon. This decision was in respect of a case from Uttar Pradesh. It has rightly been pointed out by learned Counsel for the State that in view of the amendment of Section 17 of the Act by the Land Acquisition (Bihar Amendment) Act, 1960 (Bihar Act 2 of 1961), lands having forest, orchard or trees are either waste or arable and directions under Section 17 of the Act could issue in respect thereof- By Section 9 of the said Act Section 17 was amended and the following explanation was added after subsection (1) of Section 17 of the Act:-- "Explanation -- This sub-section shall apply to any waste or arable land notwithstanding the existence thereon of forest, orchard or trees." It cannot, therefore, be held so far Bihar is concerned, that simply because mango orchard is standing on Plot No. 218 of the petitioners, which is subject-matter of acquisition, that land is neither waste nor arable and a direction under Section 17 of the Act could not issue in respect thereof.