In the High Court of Punjab and Haryana at Chandigarh ...... C.W.P. No.7914 of 2000 ..... Date of decision:7.5.2008 Gurtej Singh and others .....Petitioners v. State of Punjab and another .....Respondents .... Present: Mr. Devinder Kumar Kaushal, Advocate for the petitioners. Ms. Reeta Kohli, Additional Advocate General, Punjab for the respondents. ..... S.S. Saron, J. By a separate order passed today, the review application has been allowed and the order dated 5.3.2008 dismissing the writ petition as withdrawn has been recalled. With the consent of the counsel for the parties, the main writ petition is taken up for hearing. The petitioners, who are residents of Village Badal, Tehsil Malout, District Muktsar have filed the present petition seeking quashing of the notification dated 5.5.2000 (Annexure-P.2) and the notification dated 8.5.2000 (Annexure-P.3) issued under Sections 4 and 6 respectively of the Land Acquisition Act, 1894 (`Act' – for short). A further prayer is made for quashing the acquisition proceedings. It is submitted that in the year 1998 certain officials of the Irrigation Department visited the village of the petitioners and informed C.W.P. No.7914 of 2000 [2] them that they had mooted a proposal to construct an irrigation channel for the purpose of draining out water from the water logged lands. The said officials had prepared a site plan of a drain which would pass through the land of some of the petitioners and through the land of certain big and influential land owners. Some of the petitioners met the officials of the Irrigation Department and informed them that there was no water logging in the area. In fact, there never had been any water logging and, therefore, there was no reason for the construction of a channel to drain out water logged lands. The respondents, it is submitted, with a mala fide intention changed the alignment of the proposed irrigation channel to make it pass through the lands of the petitioners. Thereafter, the impugned notifications under Sections 4 and 6 of the Act were issued. The petitioners came to know of the notifications when they read an advertisement published in a Punjabi newspaper `Daily Jagbani' dated 16.5.2000. They immediately rushed to the office of Land Acquisition Collector-cum-S.D.M., Malout and protested against the issuance of notification. It was reiterated that there was no water logging in the area and, therefore, it did not make any sense to construct channel at a huge public expense. The petitioners also requested the Land Acquisition Collector-cum-S.D.M., Malout to permit them to file objections. However, the said request was declined by stating that the urgency provisions in terms of Section 17 of the Act had been invoked. On notice, reply has been filed by the State wherein the issuance of notifications under Sections 4 and 6 of the Act have been admitted. It is stated that the project to construct a drain, namely, C.W.P. No.7914 of 2000 [3] Wahabwala Drain is for the purpose to drain out the surface run off to check the rising water table. It was prepared as there was no drainage network in the area prior to this project. It is submitted that the proposal for construction of Wahabwala Drain is the actual requirement of the area and to cater to the excess rainfall/surface run off as the accumulated rain water enters into the ground and raises the sub surface ground water level. The project area under consideration is stated to be extensively irrigated through a well established canal network. In short the stand is that the construction of the Wahabwala Drain is for the purpose of removing the water logging in the area. Mr. Devinder Kumar Kaushal, Advocate, learned counsel appearing for the petitioners has vehemently contended that the invocation of the provisions of Section 17 of the Act has resulted in material prejudice to the rights of the land owners as their right to file objections under Section 5-A of the Act cannot be exercised. It is also contended that no reason has been indicated for invoking the urgency provisions of Section 17 of the Act and, therefore, the impugned notifications and proceedings of acquisition are vitiated. In support of his contention, learned counsel cites Sudhir Chaudhary v. Union of India, AIR 1995 Delhi 391. A reference has also been made to the explanation added by the State of Punjab to Section 17 of the Act which enjoins that the said sub-section i.e. Section 17(1) of the Act shall apply to any waste or arable land, notwithstanding the existence therein of scattered trees or temporary structures such as huts, pandals or sheds. The land of the petitioners is bearing orchard trees and, therefore, it is submitted that it is not waste or arable to which the urgency provisions of C.W.P. No.7914 of 2000 [4] the Act were liable to be invoked. Reliance is also placed on Sarju Prasad Saha v. The State of U.P. and others, AIR 1965 SC 1763 to contend that where part of land to be acquired is not waste or arable land, notification issued for its acquisition is invalid. In response, Ms. Reeta Kohli, learned Additional Advocate General, Punjab appearing for the State has contended that the land in question is heavily water logged and the constructions of the Wahabwala Drain is of utmost necessity. It is submitted that the residents of the area had been representing to remove the difficulties of water logging. It is also submitted that the construction of the drain is of 56 Kms. in length and out of which 22.5 Kms. had been constructed by the time the petitioners approached this Court. Thereafter, further construction has also been made and it is only the land of the petitioners which is at the source of the drain that remains to be constructed. It is submitted that the drain is to pass through 80 villages. The land required for the drain falls in the Districts of Muktsar and Ferozepur and is approximately measuring 526 acres. A reference has been made to the affidavit dated 20.2.2001 of Kulwant Singh, Executive Engineer, Drainage Construction Division, Faridkot at Malout wherein he has stated that till the said date 222 acres of land had been acquired after payment of compensation as per law. Total amount of Rs.450 Lacs has already been paid to the land owners. A reference has also been made to the affidavit dated 19.10.2007 of Shri S.K. Dhir, Executive Engineer, Drainage Construction Division, Faridkot at Gidderbaha. It is stated therein that total land for acquisition for the purpose was 526.50 acres out of which digging in 478.80 acres has almost been completed and only C.W.P. No.7914 of 2000 [5] 47.70 acres owned by the petitioners is yet to be dug. It is also submitted that the “Explanation” to Section 17 (1) of the Act is an enabling clause and in any case as per the dictionary meaning “arable land” would mean land which is fit for cultivation of crops. Therefore, the petitioners having grown orchard on the land would mean that the land is fit for cultivation. Moreover, the land of the petitioners, which has been acquired is primarily arable land and the orchard has only been grown on 7 Kanals 7 Marlas of land of the petitioners No.5 and 6 only. It is also submitted that out of the 22 petitioners, 10 have already been paid their compensation and the State is approaching the petitioner who have not received compensation to pay the amount to them also but it is the petitioners themselves who have been avoiding the receipt of compensation. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and perused the record. As has already been noticed, notification under Section 4 of the Act was issued on 5.5.2000 (Annexure-P.2) and the declaration in terms of Section 6 of the Act was issued on 8.5.2000 (Annexure-P.3). The notification under Section 4 of the Act envisages that it appears to the Governor of Punjab that some land is required for a public purpose in Tehsil Malout, District Muktsar for excavating Wahabwala Drain from RD 15286 to 46624 and 57834 to 1884000 which will fall in the Abulkhurana Drain at RD 126410. The notification, therefore, does indicate the need of the land and that it is required for public purpose for excavating the Wahabwala Drain. Learned counsel for the petitioners has, however, submitted that mere use of the term that the land is required for excavating the Wahabwala Drain would not C.W.P. No.7914 of 2000 [6] mean that the urgency provisions under Section 17 of the Act were liable to be invoked. Therefore, it is submitted that the purpose of urgency having not been specifically indicated would warrant the invalidation of the impugned action of the respondents. It may be noticed that the land has been acquired for the purpose of excavation of drain. Besides, it has been specifically mentioned in the two notifications that the land was required for public purpose. A reference has also been made to the urgency provisions i.e. Section 17 of the Act and it is recited therein that the rights under Section 5-A shall not be exercised because this land is waste/arable, therefore, the contention of the learned counsel for the petitioners that the excavation of Wahabwala Drain does not reflect that there was an urgency is not correct. The judgment in Sudhir Chaudhary v. Union of India (supra) referred to by the learned counsel for the petitioners relates to a case where the property bearing No.11 Lancers Road, Delhi was acquired by the petitioner therein by way of a gift from his mother. The said property was taken on lease by the Delhi Administration. Thereafter, the owner was informed that the property would be vacated as it was not required. However, instead of vacating the premises, acquisition proceedings were initiated. In the context of the said facts it was held that there was no urgency whatsoever for invoking the provisions of Section 17(1) of the Act. The notification did not indicate expressly any urgency whatsoever for acquiring the property. The said case is confined to its own facts where the property which was already in possession of the Government was being acquired and, therefore, in such circumstances it was held that no reasons have been indicated for the urgency. C.W.P. No.7914 of 2000 [7] In the present case, the purpose of acquisition has been duly indicated that it is for public purpose for excavating Wahabwala Drain. Besides, the petitioners themselves were aware of the proposal of acquisition as it is pleaded by them that in the year 1998 certain officials of the Irrigation Department visited the village of the petitioners and informed them that they had mooted a proposal to construct an irrigation channel for the purpose of draining out water logged land. The area which is sought to be acquired is admittedly water logged and in this regard the petitioners have the necessary knowledge as is pleaded by them. The spirit of the procedure provided for acquisition of land under the Act envisages that where urgency provisions are invoked the grounds of urgency must necessarily be indicated which would be mandatory in character. In the present case, as has already been noticed that it has been mentioned in the notification under Section 4 and the declaration under Section 6 of the Act that the Governor of Punjab is pleased to order that this case on account of urgency and in view of Section 17 the rights under Section 5-A shall not be exercised because the land is waste/arable. Even otherwise even if there is violation of procedural provisions which is of mandatory character it is to be ascertained whether the provision is conceived in the interest of the person whose land is acquired or in public interest. If it is found to be in the interest of the former then it has to be seen whether any prejudice has been caused to him. In the present case the acquisition is being made for public purpose i.e. for construction of Wahabwala Drain to prevent water logging. Besides, no prejudice has been caused to the petitioners as they were aware that the drain was being C.W.P. No.7914 of 2000 [8] excavated for preventing water logging. There can be a situation wherein the interest of the State or public interest may call for curtailing the rule of audi alteram partem. In such a situation, the Court has to balance public/State interest with the requirement of natural justice and reach an appropriate decision. Besides, individual interest must run subservient to the general good. In Jai Narain v. Union of India, AIR 1996 SC 697, it was held that expression used in the notification under Section 4 is not decisive. In the said case land was being acquired for construction of Sewage Treatment Plants (STPs) for planned development of Delhi under the directions of the Supreme Court. The notification under Section 4 used the expression “likely to be needed” which according to the objector suggested absence of urgency. It was held that the Court is to examine the records and attending circumstances to satisfy itself about the decision for invoking the urgency provisions. The word `likely' it was observed in the background of the Supreme court directions means `certainly and urgently'. Taking judicial notice of urgency to acquire land in dispute it was held that the urgency provisions had rightly been invoked. In First Land Acquisition Collector and others v. Nirodhi Prakash Gangoli and another, (2002) 4 SCC 160 it was held that existence of a case of emergency is a matter of subjective satisfaction of appropriate Government. The decision of the Government to dispense with an inquiry under Section 5-A by invoking the urgency provisions can be challenged only on the ground of non-application of mind and mala fide. The burden of the same lies on the person alleging mala fide to prove the same on the basis of specific materials. So long as the purpose of acquisition and the urgency to acquire the land continues to C.W.P. No.7914 of 2000 [9] exist exercise of power under Section 17 cannot be held to be mala fide. In Union of India v. Parveen Gupta, (1997) 9 SCC 78 it was held that decision on urgency is an administrative decision and is a matter of subjective satisfaction of the appropriate Government on the basis of the material available on the record. It was further observed that there was no need to pass any reasoned order to reach the conclusion that there is urgency so as to dispense with the inquiry under Section 5-A on exercise of power under Section 17(4). In the present case, there are mere allegations of mala fide. Whereas the burden of establishing mala fides is very heavy on the person who alleges it. Mere allegation is not enough. No material much less specific material has been placed on record to prove the allegations of mala fide. It is well known that allegations of mala fide are more easily made than made out. Therefore, the mere fact that the urgency provisions have been invoked and this is mentioned in the notification which is based on subjective satisfaction on urgency, it cannot be said as is contended by the learned counsel for the petitioners that no reasons have been indicated for invoking the urgency provisions. Therefore, no prejudice is shown to have been caused to the petitioners and it may be noticed that the excavation of the drain is for the avowed purpose of preventing water logging in the area, which in public interest of the area. Learned counsel for the petitioners has contended that there is no water logging in the area and he has referred to the report of the Patwari dated 8.6.2000 made on an application of the petitioners and other residents of the village and also that of the Naib Tehsildar to the effect that there is no C.W.P. No.7914 of 2000 [10] water logging in the area. A reference has also been made to para-11 of the written statement wherein it has inter alia been pleaded that apparently there are no visible signs of water logging on the surface at present. On the strength of the same it is contended that the very purpose of acquisition is devoid of any substance. It may, however, be noticed that it has been the stand of the respondents that though there are no visible signs of water logging on the surface but the ground water table has been rising alarmingly in the project area including that of Village Badal. This was so observed by the department and it was found that the water table has risen by more than 2.5 feet during a span of one year between October 1997 to October 1998. A reference has been made to the ground water level data Ex.R.2 wherein rising water level in Village Badal has been mentioned as 0.78. Ms. Reeta Kohli, learned Additional Advocate General for the State during the course of hearing has also submitted the report of the Central Ground Water Board, Ministry of Water Resources, Government of India regarding water logging scenario in Muktsar District, Punjab. In terms of the said report the scenario of water logging in Muktsar District, Punjab is stated to be alarming. This Court in exercise of supervisory writ jurisdiction under Articles 226/227 of the Constitution of India is not to sit in appeal over the decisions of the state Government. The decision of the State Government is for the purpose of acquiring the land for construction of a storm water drain to prevent water logging in the area. This Court cannot substitute its decision for that of the State Government. Therefore, the decision taken by the State Government to construct the drain is for an avowed purpose of preventing water logging. The other ground taken by the learned counsel for the petitioner C.W.P. No.7914 of 2000 [11] is that a part of the land which is sought to be acquired is neither waste land nor arable land as orchards have been grown. On the strength of the decision in Sarju Prasad Saha v. The State of U.P. and others (supra) it is contended that where part of land sought to be acquired is waste or arable and the rest is not, a notification as published was held to be invalid. In the present case, as has already been noticed, 7 Kanals 7 Marlas of land admittedly is orchard area which is owned by petitioners No.5 and 6. The other land is fit for cultivation. The definition of “arable” as mentioned in the written statement as per dictionary meaning is “fit for cultivation of crops”. In Mohan Singh v. State of Punjab, 1996 (1) RRR 401 (P&H) this Court with reference to Chambers English Dictionary held that the word `arable' means fit for ploughing or tillage. It was held that there was no bar in acquiring such land under Section 17(1)(i) or (ii) of the Act. In the case of Raja Anand Brahma Shah v. The State of U.P. and others, AIR 1967 SC 1081 it was held that arable land means land which is mainly used for ploughing and for raising crops. By `waste-land' is meant land which is unfit for cultivation or habitation, desolate and barren land with little or no vegetation thereon. Therefore, in the said case also it was held that arable land means land which is fit for ploughing and for raising crops. In case an orchard has been grown in the land then the same would also be such land which is fit for cultivation of crops which would mean that it is arable. Even otherwise the land which is under orchard is only 7 Kanals 7 Marlas. Therefore, the stand of the learned counsel for the petitioners that in view of the orchard on a part of the land it is not arable and, therefore, the notification is invalid, is devoid of any merit. The land C.W.P. No.7914 of 2000 [12] having been held to be fit for cultivation would be arable land and the provisions relating to urgency can be invoked. Besides, the purpose for the construction of drain as already noticed is to prevent water logging. Therefore, it is in pubic interest and in the larger interest it would be just and expedient that the acquisition proceedings are upheld. In view of the above facts and circumstances, the writ petition is dismissed. May 7, 2008. (S.S. Saron) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes