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 SK Dholakia and Vineet Kumar for the appellant in CA No 8831967
S K Dholakia and Vineet Kumar for the appellants in C As
Nos 915 to 967 and 1042 to 1044 of 1967
SV Gupte AK Kazi OP Malhotra and SP Nayar for the respondents in C As
Nos 883 and 915 to 967 of 1967
AK Kazi OP Malhotra and SP Nayar for the respondents in C As
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 section 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 section 174 of the Act that as the acquisition of the said lands was urgently necessary the provisions of section 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 section 6 of the  Land Acquisition Act and it contained a direction under section 17 1 of the Act enabling the Collector on the expiration of 15 days from the publication of the notice under section 9 1 of the Act to take possession of all arable lands specified in the earlier notification
Both notifications were signed by LP 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 article 226 of the Constitution by the owners of the lands Sup C I68 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 25 1966 and dismissed them
The High Court however granted a certificate under article 1331c of the Constitution and the present appeals have been brought
Civil Appeal No 883 of 1967 arises from the Special Civil Application No 100365 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 section 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 section 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 section 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 section 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 section 16 enables him to take possession of the lands and the lands vest absolutely in Government free from all encumbrances
The is provided in section 17
Under this procedure Government in cases award
There is a shorter procedure for cases of urgency and it is provided in section 17
Under this procedure Government in cases 271 of urgency is enabled inter alia to omit the application of section 5A and to notify the lands under section 6 at any time after the publication of the notification under section 41
Under sub section
1 of section 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 section 9
Under Sub s4 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 section 5A shall not apply and if it so directs a declaration may be made under section 6 in respect of that land at any time after the notification under section 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 sections 41 61 omitting the proviso and s17
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 41 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
61 Subject to the provisions of Part VI 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
171 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 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 sections
1  and 4 of section 17 of the Act were assailed under articles 14 and 191f 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 DP Raval Under Secretary who signed the notifications under section 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 section 6 is 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 article 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 13Every 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 15These 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 section 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 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 section 171 or 4 was taken
To understand this argument 275 provision on the subject
To begin with Art166 of the Constitution provides
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 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 section 4 and that it was decided  to apply section 174
He also stated that the notification under section 6 and the application of section 171  was considered first by him and then by Jayaraman and they had agreed to issue the notification and apply section 171
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 section 174 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 SM Dudam and subsequently to Shri AS 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 othe Land Acquisition Act and may apply urgency clause under section 171 and 4 of the said Act as the case may be wherever it was possible to invoke the urgency clause according to law SM Dudani who was Secretary till April 2 1965 and AS Gill who followed him swore two affidavits
Their purport was almost the same AS Gill said  Shri
Utsavbhai section 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 171 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 article 1662 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 article 1662
Government was not called upon to answer the kind of affidavit which was filed with the 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 vs Shibnath Banerji1
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 SV 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 paragraphs 4 and 5 which provide 1 LR 72 IA 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 5Except 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 AS Gill and SM Dudani which have been accepted
He contends that there is no sub delegation because Rule 7b 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 2ithe 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 section 171 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 vs State1 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 AIR 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
Sen then refers to the words of ss4 6 and 171 and 4 which are different
In s4 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 s6 the words are when the appropriate Government is satisfied  and in section 174 the words are in the opinion of the appropriate Government 
He contends that some difference must be made between them and when sub sections
1  and 4 of s17 require a direction from the appropriate Government the determination must be by the Minister himself
If the sections 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
Sen s reference to Emperor vs
Shibnath Banerji s case1 is not apposite because the circumstances there were different
That case arose from petitions under section 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 261 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 r261b 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 r26 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
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 section 6 the urgency of the matter and the existence of waste and arable lands for the application of sub sections
1 and 4 of section 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 article 1662 and the presumption of regularity of official acts all this enquiry would have become unnecessary since the appellants had not originally pleaded any facts 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 sections
1 and 4 of section 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 vs 283 JH Patwardhan1
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 vs Government of Andhra
Pradesh and another2 Baldeo Singh and others vs State of Uttar Pradesh and others3 and Smt
Lakshmi Devi  others vs The State of Bihar and others4 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 section 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 vs McCormick5 and Simmons vs Norton6
Support was then found for the view in section 173 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 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 AIR 1965 Bom
2 AIR 1967 AP 280
3 AIR 1965 All
4 AIR 1965 Pat
5 1890 25 Ir
Rep110
61831  ER 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
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 vs 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 vs Norton1 which was an action of waste for ploughing ancient meadow that Tindal CJ 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 grantsland 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 VC in Palmer vs McCormick2 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 VC 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 2 1890 25 Ir
Rep 110
285 the character of ancient pasture which process have commenced and been going on for sometime 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 VC 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 c9 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
CI68 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 section 17 of the Act of 1870 taken together
The third paragraph of the former Act corresponds to the third sub section of the present
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 section
1 or sub section
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 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 s1 and sub section
They ought to have read the words that follow the opening words in relation to sub section
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 fallowgives 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 sections
1 and 4 of section 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 howeverthink that this is a proper case in which there should be no order about costs and direct accordingly
VPS Appeals dismissed


Summary:
By a notification under section 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 section 174 of the Act that as the acquisition of the lands was urgently necessary the provisions of section 5A would not apply
Thereafter a notification was issued under section 6 containing a direction under section 171 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 section 91 of the Act
Both Notifications were signed by an Under Secretary of the respondent Government
The petitioners challenged the notifications in writ petitions under article 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 section 171 and 4 of the Act according to law that the Secretary was satisfied regarding urgency and gave instructions to the Under Secretary to take 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 section 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 sections
1 and 4 of section 17 of the Act were violative of articles 14 and 191f 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 r13 of the Rules of Business framed under article 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 section 6 of the Act by virtue of r 13 of the Rules of Business
274F ii Under article 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 action275 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 section 171 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 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 section 6 the urgency of the matter and the existence of waste and arable lands for the application of sub sections
1 and 4 of section 17Therefore on a review of the affidavits the provisions of the Act and the Business Rules and Instructions the directions under sub sections
1 and 4 of section 17 were not invalid
280 D G 281 C D 282 E G Shayamaghana Ray vs State AIR 1952 Orissa 200 referred to
Emperor vs
Shlbnath Banerji LR 72 IA 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 section 173 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
vs State of UP AIR 1965 All Smt
Lakshmi Devi Ors
vs State of Bihar   Ors
AIR 1965 Pat 400 269 and Guntur Ramalakshmamma vs Govt
of Andhra Pradesh AIR  approved
Sadruddin Suleman vs
JHPatwardhan AIR1965 Born224
over ruled
v The High Court had rightly held that sub as
1 and 4 and 17 were not unconstitutional
286 F G