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PETITIONER: ISHWARLAL GIRDHARLAL JOSHI ETC.

       Vs.

RESPONDENT: STATE OF GUJARAT & ANR.

DATE OF JUDGMENT: 16/11/1967

BENCH: HIDAYATULLAH, M. BENCH: HIDAYATULLAH, M. BHARGAVA, VISHISHTHA VAIDYIALINGAM, C.A.

CITATION:  1968 AIR  870            1968 SCR  (2) 267  CITATOR INFO :  R          1970 SC1102  (14)  RF         1977 SC 183  (35,36)  R          1980 SC  91  (17)

ACT: Constitution  of India, 1950, Art.166 and Rules of  Business, rr.7, 10, 13 and 15-Notifications under Land Acquisition  Act (1  of  1894) Whether could be signed by an Under  Secretary- Formation  of opinion regarding urgency and nature  of  land- Whether  could  be  delegated  to Secretary-Standing  Orders, if necessary-Arable land, meaning

HEADNOTE: By  a  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 a public purpose, namely,  the  construction  of the State  capital,  that  the Government  was satisfied that they were ’arable lands’  and further  directed,  under s. 17(4) of the Act, that  as  the acquisition  of  the  lands  was  urgently  necessary,   the provisions  of  s.  5A  would  not  apply.   Thereafter,   a notification  was issued under s. 6 containing  a  direction under  s.  17(1) of the Act enabling the Collector  to  take possession of all the arable 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  made up  its mind regarding the acquired lands as to  urgency  and that  the lands were not arable.  The parties filed a  number of   affidavits  at  various  stages  of  the  bearing,   the Government   in  order  to  establish  that  everything   was regularly     done,    while    the    petitioners    alleged infractions.   In  one  of the affidavits on  behalf  of  the Government  it was stated that file 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 instructions to the Under Secretary to  take

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the  necessary action.  The High Court after considering  the affidavits, dismissed the petitions.      In appeal to this Court it was  contended that: (i) only a  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, a  general  oral instruction given by the  Minister  was  not according  to  the  procedure  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. (1) and (4) of s. 17 of the Act were  violative of Arts. 14 and 19(1)(f) of the Constitution.      HELD: Dismissing the petitions.      (1)  The  word  ’Secretary’ is not defined  in  the  Land Acquisition  Act or the General Clauses Act so as to  exclude Additional,  Joint, Deputy, Under or  Assistant  Secretaries. On the other hand r.13 of the Rules of Business framed  under Art. 166 of the Constitution specifically places a 268 Secretary, Joint Secretary, Deputy Secretary, Under Secretary and  Assistant  Secretary on equality for  authentication  of orders  and instruments  of Government.  The Under  Secretary was, therefore, competent to sign the notifications.   [273F; 274E]     Even  if he did not possess the power as a  Secretary  he would  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]     (ii)  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 regularity of their action.[275 E--G; 278 D, F]     (iii)  Rules 7, 10, 13 and 15 of the  Rules of   Business specifically allow conferral of powers on Secretaries and the determination   of  the Secretary becomes the   determination of   the   Government.   There  is nothing in  the  Rules  or instructions  which prescribes that the authority must be  in writing  or  by Standing Orders.  Under Paragraph  3  of  the instructions issued by the Governor under r. 15 of the  Rules of  Business, Standing Orders are necessary for the  disposal of  cases  in the department, and a case is defined  as  ’the papers under consideration and all previous papers and  notes put in connection  therewith to  enable  the  question raised to be disposed of’.  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  a 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 Arabic lands and the Minister  could leave  this  matter  to  his Secretary  as  he  did.For  this purpose,   Standing  Orders  were  not  necessary  and   oral

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instructions  would be sufficient.The  Secretaries  concerned were  given  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.  (1) and (4) of s. 17.Therefore, on a review  of  the affidavits, the provisions of the Act and 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.Shlbnath Banerji, L.R. 72 I.A. 241, distinguished.     (iv)  Arable land under the Act is not only land  capable of cultivation but also land actually under cultivation.  The words ’compensation for the standing crops and trees (if any) on such land’ in s. 17(3), show that the land may have  crops or  he  fallow  and the crops can only  be  on  arable  land. because. if crops could grow or were actually grown the  land Would hardly he waste land [286 A--B, E]      Baldeo  Singh & Ors.  v.  State  of  U.P.  A.I.R.   1965 All Smt. Lakshmi Devi  Ors. v. State of Bihar’ & Ors.  A.I.R. 1965 Pat, 400 269 and Guntur Ramalakshmamma v. Govt. of Andhra Pradesh,  A.I.R. 1967 A.P. 280, approved. Sadruddin  Suleman  v.J.H.Patwardhan,  A.I.R.1965  Born.224. over-ruled. (v) The High Court had rightly held that sub-as. (1) and  (4) and 17 were not unconstitutional. [286 F-G]

JUDGMENT: CIVIL APPELLATE JURISDICTION:  Civil Appeals Nos. 883, 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 Applications 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, O.P. Malhotra and S.P. Nayar, for  the respondents (in C. As. Nos. 883 and 915 to 967 of 1967). A.K. Kazi, O.P. Malhotra and S.P. Nayar, for the  respondents (in C. As. Nos. 1042 to 1044 of 1967). The Judgment of the Court was delivered by      Hidayatullah,  J.--On March 10, 1965, the Government  of Gujarat notified under s. 4 of the Land Acquisition Act  that certain  lands were needed for a public purpose, namely,  the construction  of the capital of the State at Gandhinagar  and that Government 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. 5A of the Act shall not apply in respect  of the   lands.A  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  a direction under s. 17 (1) of the  Act,  enabling the  Collector,  on  the  expiration  of  15  days  from  the

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publication of the notice under s. 9 (1) of the Act, to  take possession  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 Sup, C. I,/68-3 270 affected  by the notifications to challenge the  validity  of the acquisition. One such petition was numbered Petition  No. 1003   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  a common judgment applicable to  all, on  December 2/5, 1966 and dismissed them.  The  High  Court, however,  granted a certificate under Art. 133(1)(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 appeals  are  in  the other  petitions.  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 almost 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  Court  has painstakingly  analysed  the provisions  already.   We  shall refer  in  passing  to what is material  to  the  discussion, Acquisition of land under the  Act  originarily begins with a preliminary inquiry.  Government  notifies  first under s.  4 that  ’land  in  any locality is needed or is  likely  to  be needed’ for a 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  the  acquisition  generally  and  also  particularly   in accordance  with the provisions of s. 5A of the  Act.   After the  objections  have  been  considered  and  Government  has satisfied  itself on the report or reports of  the  Collector that  a particular  land  is needed,  a  second  notification is issued under s. 6 that a 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 Collector 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  compensation with  the  details  of  which procedure  we  are  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 persons  known  or believed  to be interested.  When the Collector has made  his award  (which is made conclusive for certain purposes) s.  16 enables  him  to take possession of the lands and  the  lands vest  absolutely  in Government free from  all  encumbrances. The is provided in s. 17. Under this procedure Government  in cases  award.   There  is a shorter procedure  for  cases  of urgency  and  it is provided in s. 17. Under  this  procedure Government in cases 271 of urgency, is enabled inter alia to omit the application  of s.  5A and to notify the lands under s. 6 at any  time  after

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the  publication  of the notification under s.  4(1).   Under sub-s.  (1)  of s. 17, Government can 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  the  same  section Government  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. 5A shall not apply and  if it so directs a declaration may be made under s. 6 in respect of  that land at any time after the notification under  s.  4 (1)  has been published.  It will therefore, be noticed  that the shorter procedure 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, and  s.17.  Although we are principally  concerned  with  the first and fourth sub-section of the last section we shall  be required to refer to the remaining sub-sections, and we shall read the section as a 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, a notification to that effect shall be               published  in  the Official  Gazette,  and  the               Collector  shall  cause public  notice  of  the               substance  of such notification to be given  at               convenient places in the said locality.                  6(1)  Subject to the provisions of Part  V/I               of this Act, when the appropriate Government is               satisfied,  after  considering the  report,  if               any,  made under section 5A,  sub-section  (2),               that any particular land is needed for a public               purpose, or for a Company, a declaration  shall               be made to that effect under the signature of a               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  required)   under               section 5A, sub-section (2).                 17(1)  In  cases  of  urgency,  whenever  the               appropriate   Government   so   directs,    the               Collector, though no such award has been  made,               may, on the expiration of fifteen days from the               publication of the notice mentioned in  section               9, sub-section (1), 272               take  possession of any waste Or   arable  land               needed  for public purposes or for  a  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 any navigable river  or  other               unforeseen 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 a river-side or that station,               or  of providing convenient connection with  or               access to any such station, the Collector  may,               immediately after the publication of the notice               mentioned  in  sub-section  (1)  and  with  the

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             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:                    Provided that the Collector shall not take               possession  of  any  building  or  part  of   a               building under this sub-section without  giving               to  the occupier thereof at  least  forty-eight               hours’ notice of his intention so to do or such               longer  notice as may be reasonably  sufficient               to  enable such occupier 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   compensation   for   the               standing crops and trees (if any) on such  land               and  for  any other damage  sustained  by  them               caused  by  such sudden dispossession  and  not                             excepted in section 24; and, in case s uch offer               is  not accepted, the value of such  crops  and               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 (1)  or  sub-section               (2) are applicable, the appropriate  Government               may  direct that the provisions of  section  5A               shall  not apply, and, if it does so direct,  a               declaration  may  be made under  section  6  in               respect of the land at 273               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  the Act  were  assailed  under  Arts.  14  and  19(1)(f)  of  the Constitution.This  argument  was placed at  the  forefront.In this  Court  this  submission  was  relegated  to  the   end. Apparently  not  much faith was reposed in its  potency.  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 notifications  invoking  the shorter  procedure  and those notifications  are  questioned. These arguments involve the validity of the notifications  as (a) unauthorised by Government, (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 Secretary, who signed  the  notifications under s. 6 was not duly authorised to do so under the Act and the notifications were, therefore, 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  Government to reach a decision, which fact has  not been established if not disproved.  The third ground proceeds on  the meaning of the expression ’arable land’ which, it  is claimed,  denotes land capable of cultivation or village  but not  land already under the plough. We shall now  proceed  to consider each point in turn.     Raval’s authority to issue the notification under s. 6 is

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questioned  on  the  wording of the latter  portion  of  that section where it is mentioned that "the declaration shah  be made  under the signature of a Secretary 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  Additional,  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 necessary 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  Rules  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  a  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 the 274               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 a Department may be divided               between 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  a Secretary, an Additional   Secretary,   a               joint Secretary,  a Deputy Secretary, an  Under               Secretary  or  an 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 for  authentication of orders and instruments  of  Government and  Rule  15 further  authorises  supplemental  instructions which  as  we shall presently see were  in  fact  issued.Thus Raval was competent to sign the declaration as a 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 a Secretary he  would  undoubtedly 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 necessary.     To overcome these rather obvious difficulties Mr. B.  Sen raised the second point which was that the provisions of  the

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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 275 provision  on  the  subject.To  begin  with  Art.166  of  the Constitution provides.                  "166. Conduct of business of the  Government               of a State.                   (1) All executive action of the  Government               of  a 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               authenticated   in  such  manner   as  may   be               specified in rules to be made by the  Governor,               and  the  validity of an  order  or  instrument               which is so authenticated  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  Governor  is  by  or  under   this               Constitution    required   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  constitutional curtain,  it is a little doubtful 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  addition to the constitutional provision there is also the presumption of  regularity  of  official  acts.   Orders  of  Government, whether at ministerial or gubernatorial level, are all issued in the same form 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.  A 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 rejoinder and were not slow to point out infractions  or supposed infractions. As they sought  to  do this on facts furnished by the 276 affidavits  on behalf of  Government we may say a 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 averted only that Government had  not ’made   up   its  mind  regarding acquired lands’,  that  the

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satisfaction  was ’mala fide’ and ’colourable’ 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 flied affidavit  after  affidavit. The first affidavit was filed by L. P. Raval, Under Secretary (Oct.  l,  1965)  that  the  lands  were  arable  lands’  and Government had formed the opinion about urgency, and  further that the determination of these two matters by Government was not justiciable.  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 including  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 this.  In reply  another  Under Secretary (Nimbalkar) filed an affidavit (Nov. 8 1965)  that Jayaraman,  Deputy  Secretary was  ’subjectively  satisfied’ that  the  lands  were ’arable lands’  and  that  there  was urgency  and  asserted  that  both  matters  were  for   the subjective determination of Government and thus not open  to question  in a 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 had made the  subjective determination regarding the matters disputed and the  public purpose.  Raval ’then swore another affidaVit (August, 1966) giving  details  of  the  urgency and  stated  that  he  had considered the need for issuing the notification under 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 Jayaraman and they  had  agreed to issue the notification  and  apply   s. 17(1).  Another affidavit ill rejoinder was filed during the hearing (December 2, 1966) that neither Raval nor  Jayaraman had  stated  that they had satisfied  themselves  about-  s. 17(4)  nor  had  Raval or Jayaraman stated  that  they  were authorised by the State Government 277 or  by the Rules of Business or by any special order to  form the  said  opinion.  A number of affidavits were  then  fled. 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. Dudam   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  personal               notice and without referring such cases to  me,               issue  notifications  under sections  4  and  6               o/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 the urgency clause according

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             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   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 and 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 law.               I  had  given  instruction  to  the  concerned               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 a last  affidavit  in  rejoinder denying  the  power  of the Minister  to  delegate  by  oral instructions his own 278 power to the Secretary and questioned the sub-delegation  to the Deputy and Under Secretaries.     It  would thus appear that the controversy got  enlarged as time passed and Government undertook more and more burden although  there was hardly any attempt by the appellants  to support  their assertions by mentioning any facts. The  High Court noticed in its judgment that there was really  nothing in  the  original 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 judgment.  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 a 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 Government to its burden, if any.  The Government also did not leave the appellants to their  burden  which would have been heavy in  view  of  the presumption  and  the  provisions of  Art.  166(2)   already mentioned.     The  High  Court having before it  allegations,  counter allegations  and denials dealt first with the legal side  of the  matter. Then it readily accepted the affidavits on  the side of Government. If it had reversed its approach it  need not  have  embarked upon (what was perhaps  unnecessary)  an analysis of the many principles 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  a  fact, is held open to review in a court of  law.   As stated  already there is a strong presumption of  regularity of  official  acts  and added  thereto  is  the  prohibition contained  in Art. 166(2).  Government was not called   upon to  answer  the kind of affidavit which was filed  with  the

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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.The  High Court  having  accepted  the   affidavits  that  Raval   and Jayaraman  had  formed  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  contention  is  that the  procedure  followed   by  the Minister-in-Charge  offended  the  Rules  of  Business   and therefore the necessary satis- 279 faction  or  the opinion of Government was  wanting  in  the case.  In  support he has relied upon  Emperor  v.  Shibnath Banerji(1). Mr. Sen’s argument proceeds like this:     Under  the  Rules of Business (Rule 4) the  business  of Government  is to be transacted in the Department  specified in  the First Schedule and item No. 15 covers the  topic  of acquisition   of  property  and  the  principles  on   which compensation is to be determined and it is assigned  to  the Revenue  Department.   Each Department  of  the  Secretariat consists  of a Secretary to the Government (Rule 7) but  the work  may be divided between two or more  Secretaries.   The Minister-in-Charge is primarily responsible for the disposal of  the business appertaining to the Department  (Rule  10). Therefore  only  ’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 issued by the Governor under Rule 15 and  draws attention to paragraph 3 of the instructions which reads:                   "3. Except as otherwise provided in  these               Instructions,   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  standin g  orders               shall  be sent to the Governor and  the  Chief               Minister." He contends that a general instruction of the type mentioned by  the Minister in his affidavit could only be given  as  a standing  order  of  which  a copy had to  be  sent  to  the Governor  and  the Chief Minister and, therefore,  the  oral instructions  had  no validity in law.  He  submits  in  the alternative that at least an order in writing ought to  have been passed.     Mr.  S.V. Gupta 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  acquisition  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 a Secretary  is equated to Additional,  Joint,  Deputy, Under and  Assistant Secretaries  for  certain  purposes and  the  definition  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

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paragraphs 4 and 5 which provide: (1) L.R. 72 I.A. 241. 280                      "4.  Each Minister shall  arrange  with               the  Secretary of the Department what  matters               or classes of matters are to be brought to his               personal notice."                      "5.Except  as  otherwise  provided   in               these  Instructions cases shall  be  submitted               by  the Secretary in the Department  to  which               the case belongs to the Minister-in-charge." Mr.  Gupta  contends that there is nothing in the  Rules  or Instructions  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 affidavits 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  a "case" but a "matter" in a case.  The  definition  of case in the Instructions is:                      "Case   includes   the   papers   under               consideration  and  all  previous  papers  and               notes  put in connection therewith  to  enable               the question raised to be disposed of", but this definition is excluded by the context.Although  the case belongs to a Department [paragraph 2(i)],the word  case in paragraph 3 obviously refers to the disposal of cases and not  to  matters  arising  in a  case  regarding  which  the Minister may arrange with the Secretary whether they are  to be  brought to his personal notice or not. The matters  here were  application of s. 17(1) and (4) to the acquisition  of waste  and  arable lands and the Minister could  leave  this matter  to  his  Secretaries as he did.   For  this  purpose Standing  Orders  were not only not necessary but  would  be inappropriate.     Reliance  was  placed upon the decision of  the   Orissa High Court in Shayamaghana Ray v. State(1) that Rules 15 must prevail  over  the  instructions.   But  ’that  Rule   itself provides  that the Rule may be supplemented  by  instructions and the  power  so conferred was available in paragraph 4  to provide that the ’Minister may arrange with the Secretary  of his Department what ,(1) A.I.R. 1952 Orissa 230. 281 matters  or  classes of matters are to be  brought  to  Iris personal  notice.  This dispenses with 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 appears  to  the  appropriate Government  that  land  in  any locality  is needed or is likely to be needed’ while  in  s.6 the words are ’when the appropriate Government is  satisfied’ and  in  s.  17(4)  the words are  ’in  the  opinion  of  the appropriate  Government’.  He contends that  some  difference must  be made between them and when sub-ss. (1 ) and  (4)  of s.17 require, a direction from the appropriate Government the determination must be by the Minister himself.If the sections

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stood  by themselves this argument 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     the     determination      of Government.Mr.Sen’s reference to Emperor v.Shibnath Banerji’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 pensons  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 Assembly  in  answer  to interpellations, slated that he had directed that on  receipt of  the  report of arrest under Rule 129  (Defence  of  India Rules 1939) together with a recommendation by the police  for detention  under  Rule 26, orders of detention   under   Rule 26(1)  (b)  should at once be issued as a  matter  of  course subject  to  review  by  Government  on  receipt  of  further details.  As Lord Thankerton pointed out tthat 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 direction, 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               was  later submitted for consideration of  the               Honourable 282               Home  Minister,  Bengal, from  whom  no  order               directing  withdrawal or modification  of  the               order of detention was received."                 "Their  Lordships  are unable  to  read  Mr.               Porter’s  state- ment that he  had  considered               the materials before him as involving anything               more than he has considered the report of  the               arrest and the recommendation of the police to               see  if  there  was  material  sufficient   to               justify the issue of an rder 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   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   recommended               it--the order  of detention  should  be issued               as a matter of course.     The  position in the present case is different.  If  Mr. Porter  had sworn the affidavit that he had  considered  the need for detention, quite apart from the routine order,  the result might have been different because of the orders being in  the name of the Governor and by his order.  In any  case Mr.  Porter admitted that he had not considered the  matter.

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In  our  case  the  Secretaries  concerned  were  given  the jurisdiction  to  take action on behalf  of  Government  and 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. (1) and (4)  of s. 17. In view of the Rules of Business and the Instructions their  determination became the determination of  Government and  no exception could be taken.  Of course, if  Government had  relied  upon  the provisions of  Art.  166(2)  and  the presumption of regularity of official acts, all this enquiry would  have become unnecessary since the appellants had  not originally  pleaded  any  fact.s  leading  to  any  enquiry. However,  on a  review of the  affidavits the provisions  of the  Act  and  the Business Rules and  instructions  we  are 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 question  were  under cultivation, they did  not  constitute ’waste   or  arable lands’ because by arable land  is  meant land  capable  of being ploughed or fit for village  and  not land  actually Cultivated.  The High Court has rejected  this contention  disagreeing  with a decision of the  Bombay  High Court reported in Sadruddin  Sideman v. 283 J.H. Patwardhan(1).  Mr. Sen has adopted the judgment of the Bombay High. Court as part of his argument.  Mr. Gupte in his reply  has  ruled  upon Guntur Ramalakhsmana  and  Others  v. Government  of Andhra. Pradesh and another(2),  Baldeo  Singh and  others v. State of Uttar Pradesh and others(3) and  Smt. Lakshmi Devi & others v. The State of Bihar and others(4) and the  reasons  given in the judgment under  appeal.  We  shall first  deal  with  the three  rulings  from  Andhra  Pradesh, Allahabad  and  Patna  High Courts.  The  first  contains  no discussion and may not be referred to here.  In the case from Allahabad  reference  is  made  to s. 17 ( 3  )  of  the  Act (already quoted) in which there is a provision that  standing crops  must  be compensated for and it is  inferred  that  by ’arable   lands’  must  be  meant  not  only  land  fit   for cultivation but also land actually under cultivation. In  the case  from  Patna  reference 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 different  reasons  were given.  First  several  dictionaries were  referred  to and reliance was placed  upon  the  Oxford Dictionary  in preference 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  learned  Judges  next referred to  the etymology  of the word ’arable’ and finally to the  dicta  of Judges in Palmer v. McCormick(5)  and ’Simmons v.  Norton(6). Support  was then found for the view in s. 17(3) of the  Act, the    mention   of   compensation   for    standing    crops notwithstanding.       There  is no definition of the word ’arable’  in   the original  Land  Acquisition Act.A local  amendment  includes garden lands in the expression.  Now lands are of  different kinds:   there  is  waste-land  desert-land,   pasture-land, meadow   land,   grass-land  wood-land,  marshy-land,  hilly land, etc. and arable land.  The Oxford Dictionary gives the meaning  of ’arable’ as. capable of being ploughed; fit  for village; opposed to pasture-land or  wood  land and gives the root   as  arablis  in  Latin.   The  learned   Judges   have unfortunately not given sufficient attention to the kinds  of land and the contrast mentioned with the meaning.  Waste-land

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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  waste’ (agrivastate)..A meadow or  pasture-land  is pratum  and  arable  is arvum and Cicero spoke ’of  prata  et arva (meadow  and arable (1) A.I.R. 1965 Bom. 224. (2) A.I.R. 1967 A.P. 280. (3) A.I.R. 1965 All. 433. (4) A.I.R. 1965 Pat. 400. (5) [1890] 25 Ir.Rep.110. (6)[1831] 7 Bing 640=131 E.R. 249. 284 lands).   Grass-land  is not meadow or pasture-land  and  in Latin  is  known  as campus as for  example  the  well-known Campus  Marflus at Rome, where the comitia (assembly of  the Roman people ) used to meet. Woodlands is silvae, nemora  or saltus.     We have given these roots became a great deal depends on the distinctions thus visible in understanding the  judicial decisions  of English and Irish Courts.  Lands described  in different combinations of words such as waste and arable  or arable  and  pasture  or  pasture  and  woodland   emphasise different  aspects of land.  In many cases the  change  from one  kind of use to another was held to be waste.  It is  in this  sense  that Coke 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 cannot  turn  meadow  into arable,  nor stub a wood to make it pasture, nor dry  up  an ancient pool or piscary, nor suffer ground to be surrounded, nor  decay  the  pale of a 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               waste.......In    grants,land   often    passes               specifically,  as meadow, pasture, arable,  or               by  other descriptions.  Ploughing  meadowland               is  also  esteemed waste on  another  account;               namely, that in ancient meadow, years, perhaps               ages,  must  elapse  before  the  sod  can  be               restored  to the state in which it was  before               ploughing.  The law, therefore, considers  the               conversion  of  pasture into arable  as  prima               facie  injurious to the landlord on those  two               grounds at least."       Similarly,  the  observations  of  Chatterton  V.C.  in Palmer v. McCormick(2) and 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. Tiffs  was  also a case of’ alleged waste.   Chatterton  V.C. observed:                    "arable’  does  not  mean  land  actually               ploughed up or in tillage but land capable  or               fit  to  be so: for ought I  know  this  land,               though properly designated arable in 1821, may               even then have been in process of acquiring (1) 131 E.R. 249.   (2) 1890 25 Ir. Rep, 110. 285               the   character  of  ancient  pasture,   which               process have commenced, and been going on  for               sometime."

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   Mr.  Justice Fitzgibbon observed that because the   laud was 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 a matter of fact the passage  from Chatterton  V.C.  is correctly understood in  Stroude’s  not only  land actually ploughed upon in tillage but also I  and capable or fit to be so.  In tiffs connects 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, 1947 (10 and 11 Geo. 6 c. 48) special direction may be given by  the  Minister  requiring the ploughing 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   laud  capable  of  cultivation  but   also   actually cultivated.   It is not arable not because it is  cultivated demonstrates its nature as arable land.     All  this discussion by us was necessary to  dispel  the inferences drawn from dictionaries and repons of cases  from England  and Ireland, but ’the safest guide, as  always,  is the  statute  itself  which is being  considered.   In  this connection we may first turn to the Land Acquisition Act  of stood:    "17. Power to take possession in cases of urgency.     In cases of urgency, whenever the  Local  Government  so directs.  the Collector (though no such reference  has  been directed  or award made) may, on the expiration  of  fifteen days  from  the publication of the notice mentioned  in  the first  paragraph  of section nine, take  possession  of  any waste  or  arable land needed for public purposes or  for  a Company.     Such  land  shall  thereupon  vest  absolutely  in   the Government free from all encumbrances.     The  Collector  shall offer to the  persons   interested compensation  for the standing crops and trees (if  any)  on such  land;  and in case 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 contained." LISup.CI./68  4 286 It  will be noticed that compensation was then  payable  for standing crops and trees (if any).  There can be no question of  crops on waste land for the crops can only be on  arable lands became if crops could grow or were actually grown  the land   would  hardly  be  waste.The  words  in   parenthesis obviously indicate that land may have crops or be fallow and compensation was payable crops if there were crops.      Turning  now to the section as it is today it  will  be noticed that the first sub-section corresponds to the  first and  second  paragraphs of s. 17 of the Act  of  1870  taken together.  The third paragraph of the former Act corresponds to   the  third  sub-section  of  ’the  present.  Act.   The difference  in language in the third  sub-section  necessary because  the provisions of sub-section (3) are now  intended to  apply also to the 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. (1) or sub-s. (2).  The words in parenthes  is (if any) in relation to the first  sub-section continue  to have the same force and no other, as  they  had previously.  The learned Judges of the High Court of  Bombay

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did  not give sufficient consideration 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  indicate that  what follows applies equally to cases under  sub-s.(1) and  sub-s.  (2).  They ought to have read  the  words  that follow  the opening words in relation to sub-s. (1)  and  if they  had so read them, there would have been no  difficulty in seeing the force of the words in parenthesis (if any)  or why  crops are mentioned when the words of  the  sub-section are waste and arable.The quotation from Roger’s  Agriculture and Prices quoted in the Oxford Dictionary-"half the  arable estate,  as  a  rule, lay in fallow",gives  a  clue  to  the meaning of the words ’if any’.  In our judgment,  therefore, the  conclusion of the Bombay High Court was  erroneous  and the judgment under appeal is right on this point.     Finally    there   remains   the   question    of    the constitutionality of sub-ss. (1) and (4) of s. 17.  On  this point very little was said and it is sufficient to say  that the High Court judgment under appeal adequately answers  all objections.    In  the  result the appeals fail  and  are  dismissed.We, however,think  that  this is a proper case  in  which  there should be no order about costs and direct accordingly. V.P.S.                                    Appeals dismissed. 287